Daniels & Townsend - [2022] FedCFamC2F 553

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Daniels & Townsend [2022] FedCFamC2F 553

File number(s): MLC 6156 of 2021

Judgment of: JUDGE FORBES

Date of judgment: 6 May 2022

Catchwords: FAMILY LAW – PARENTING – relocation – current shared care arrangement – career and study opportunities for mother – child’s connection to Victoria – evaluation of competing proposals – impact of relocation on child – child’s best interests

Legislation: Family Law Act 1975 (Cth), s 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 121

Cases cited:
Adamson & Adamson [2014] FLC 93-622

AMS v AIF [1999] FLC 92-852

Bell & Nahos [2016] FamCAFC 244

KB & TC [2005] FLC ¶93-224

Franklyn and Franklyn [2019] FamCAFC 256

Mazorski & Albright [2007] FamCA 520

Morgan & Miles [2007] FamCA 1230

Palmer & Hammer (No.2) [2011] FamCAFC 196

Paskansky & Paskansky [1999] FLC ¶92-878

Sayer & Radcliffe & Anor [2012] 48 Fam LR 298

Tabac & Kelmer [2016] FCCA 1937

U v U [2002] HCA 36

Wilburn & Wilburn [2019] FCCA 2131

Division: Division 2 Family Law

Number of paragraphs: 292

Date of hearing: 13 – 15 December 2021

Place: Melbourne

Counsel for the Applicant: Ms Mansfield

Solicitor for the Applicant: Coote Family Lawyers

Counsel for the Respondent: Ms Teicher

Solicitor for the Respondent: Aitken Street Family Law

ORDERS

MLC 6156 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR DANIELS

Applicant

AND:
MS TOWNSEND

Respondent

ORDER MADE BY:

JUDGE FORBES

DATE OF ORDER:

6 MAY 2022

THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for the child, X, born in 2015 ("the child").
2.The child live with the Mother and Father until the end of the 2022 school year as follows:
(a) On a two-week rotating basis during school terms, with the Father:
(i)In week 1, from the conclusion of school on Thursday (or 4pm on a home- school day or a non-school day) until the commencement of school Monday (or 4pm on a home-school day or a non-school day);
(ii)Week 2, from the conclusion of school on Wednesday (or 4pm on a home- school day or a non-school day) until the commencement of school Friday (or 4pm on a home school day or non-school day).

(b) With the Mother at all other times during school terms not specified in Order 3(a).

3.From the next Monday following the conclusion of the 2022 school year, the child lives with the parties on an equal shared week-about care basis with changeovers occurring at the conclusion of school every Monday (or 3pm if a non-school day), with the same arrangements to continue during all school holiday periods.

Special Occasions
4.Notwithstanding any other orders, the child spends time with the parties on special occasions as agreed in writing and in default of agreement as follows:
(a)From the Christmas period:
(i)12pm on Christmas Eve until 2pm on Christmas Day in odd numbered years with the Applicant Father and in even numbered years with the Respondent Mother and;
(ii)From 2pm on Christmas Day until 12pm on Boxing Day with the Respondent Mother in odd numbered years and in even numbered years with the Applicant Father.

(b)With the parent they are not living with on the child's birthday from 1pm to 6pm.
(c)With the Applicant Father on Father's Day, from 9am until 5pm;
(d)With the Respondent Mother on Mother's Day, from 9am until 5pm;
(e)With the Applicant Father on his birthday:
(i)If it is a school day from the conclusion of school until 6pm; or
(ii)If it is a non-school day from 1pm to 6pm.

(f)With the Respondent Mother on her birthday:
(i)If it is a school day from the conclusion of school until 6pm; or
(ii)If it is a non-school day from 1pm to 6pm.

(g)For the Easter period:
(i)From 7pm the Thursday before Good Friday until 7pm on Saturday in even numbered years with the Applicant Father and in odd numbered years with the Respondent Mother; and
(ii)From 7pm on Saturday until 7pm on Easter Monday in even numbered years with the Respondent Mother and in odd numbered years with the Applicant Father

(h)For the New Year's period from 5pm on New Year's Eve until 5pm on New Year's Day in even numbered years with the Applicant Father and in odd numbered years with the Respondent Mother.

Changeover
5.For the purposes of facilitating changeover that does not coincide with the child's attendance at school, the Applicant Father shall collect the child from the Respondent Mother's residence at the commencement of his time with the child and the Respondent Mother shall collect the child from the Father's residence at the commencement of her time with the child.

Communication
6.The child be permitted to communicate with their parents via telephone, Facetime or Skype at such times as may be reasonably requested by the child and each party facilitate the call.
7.The parents shall be permitted to communicate with the child when the child is not in their care at least one time per week at times to be agreed between the parties in writing.
8.The parents communicate in relation to the child in writing via email or text message regarding the child's activities, health, welfare and education requirements where practicable, and the parents endeavour to provide a response to any communication within 12 hours.
9.The Mother and Father by themselves and agents be restrained by injunction from:
(a)Discussing with the child, and/or within her hearing the subject matter or issues in dispute in this proceeding; and
(b)Denigrating, rebuking or speaking negatively about the other parent to and/or within the hearing of the child.

Health & Education
10.The parents be entitled to obtain directly from any school attended by the child or any health or welfare professions or other professions attended by the child copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose the Applicant Father and Respondent Mother keep the other parent informed of the names and contact details of any relevant education, health or welfare professional.
11.The parents each be at liberty to attend all school, sporting and extracurricular activities of the child including but not limited to parent teacher interviews, sports days, assemblies and concerts.
12.The parents facilitate and ensure the child attends all extracurricular activities and social commitments arranged for the child, with the costs of such agreed extra-curricular activities to be shared equally between the parents.
13.In absence of agreement as to the extra-curricular activities to be attended by the child, each parent be permitted to enrol the child in no more than one extracurricular activity per term of their choice, provided that the entire costs of such activity be borne solely by the parent making that election and shall not be permitted to be relied upon the parent making such election as basis for any altercation in the level of period child support payable in respect of the child and the other parent facilitate the child's attendance at that extracurricular activity.
14.Each parent be at liberty to communicate directly with the child's school and any of their treating medical practitioner.
15.Each party be at liberty to provide a copy of these orders to the children's school or treating medical practitioner.

Travel
16.That:
(a)each party be permitted to travel with the child for holidays during their time with the child upon giving 14 days' written notice for interstate or 30 days' written notice for overseas travel.
(b)if either party wishes to travel with the child outside of their own time, they shall seek the consent of the other party at least 28 days prior to any interstate travel or 60 days prior to any overseas travel and makeup time shall be facilitated in the event that consent is provided for the travel.
(c)in the event of international travel:
(i)the travelling party shall provide to the other party at least 7 days prior to the intended travel, copies of all airfares/transport arrangements and an itinerary and contact details for the child whilst they are away including all accommodation details (such as the full address of the accommodation);
(ii)unless otherwise agreed the child's passports be held in the possession of the Applicant Father at all times and in the event the Respondent mother intends on travelling with the child:
a.The Applicant Father deliver the child's passport to the Respondent Mother at least seven days prior to the proposed travel; and
b.The Respondent Mother return the child's passport to the Applicant Father at the first changeover after returning from the travel.

(iii)The travelling party shall immediately notify the other in the event of any unforeseen change to these arrangements.

(d)all travel, unless otherwise agreed to by the parties, must occur during school holidays.

17.The parties shall do all such acts and things and sign all documents necessary to apply for/renew passports for the child at joint cost.

General
18.Each of the parties:
(a)Keep the other informed of his/her contact details, including residential address, landline and mobile telephone numbers and email addresses;
(b)Keep the other party informed of the names and addresses of any treating medical or any other allied health practitioners, including psychologists and counsellors, who treat the child and authorise such practitioners to provide the other with all information that they are lawfully able to provide to parties about the child;
(c)Inform the other party as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child and authorise any treating medical practitioner(s) to release information concerning the said condition, health issue or illness to the other party and respond to any email concerning the child from the other party by text/email within 24 hours and promptly in the case of emergency;

Injunction
19.That the Respondent Mother be restrained by injunction pursuant to Section 68B of the Family Law Act 1975, from relocating to Canberra, Australia with the child.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Daniels & Townsend has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION

The parties are the parents of X, born in 2015, now 7 years of age.
These proceedings require the Court to determine three principal issues, namely:
(1)Whether X should be permitted to relocate interstate to Canberra with the mother, in circumstances where the relocation is opposed by the father;
(2)If the relocation is not permitted by the Court, the ongoing care arrangements for X in Melbourne; and
(3)If the relocation is permitted by the Court and X lives with the mother in Canberra, the arrangements for X’s time with the father.
The Court is required to consider and weigh competing proposals about where X should live in order to determine what is in her best interests. The Court is required to consider the evidence and the parties’ competing proposals within a statutory framework which is aimed at guiding the Court to an outcome which it considers to be in the child’s best interests, for that is the primary consideration.
The mother’s desire to develop her career and live with her partner in Canberra is an important part of the assessment. The father’s wish to be in close practical proximity to X and to play a significant role in her life in a shared parenting arrangement is also an important part of the assessment. There are many other factors which I have addressed in these reasons.
For the reasons set out below, I have concluded that X’s best interests are more likely to be met if she remains in Melbourne.
BACKGROUND AND PROCEDURAL HISTORY
MR DANIELS, aged 43 and MS TOWNSEND, aged 37 began dating in 2003 and commenced living together in 2004. The parties did not marry but were in a de facto relationship for approximately 14 years.
The father is an educator at the Employer B and enjoys good health. The mother is employed as a professional at Employer C. She also enjoys good health.
X was born in 2015 and is the only child of their relationship. She was born in Melbourne and has lived in Melbourne her entire life. X attends D School in Suburb E. She is currently in grade 2.
The parents separated on a final basis on 13 June 2018. The mother moved out of the former matrimonial home in Suburb F to accommodation in Suburb G but X remained with the father. The mother maintained daily contact with the child and approximately 6 weeks later the mother moved back to the former matrimonial home where she remained with the father and X for the next 9 months.
In or around April 2019, the mother vacated the former matrimonial home and moved into rental accommodation in Suburb H with X. The parties implemented a shared care arrangement which typically resulted in X spending 5 to 6 nights per fortnight with the father.
In 2020, the father commenced his relationship with Ms J. Ms J is aged 37 and she is employed as a professional at Employer B.
In or about 2020, the mother commenced her relationship with Mr K. Mr K is aged 40 and is employed by Employer L as a professional.
Since separation, to the credit of both parties, the parents have been able to co-parent X amicably and effectively.
However, in October 2020 X allegedly wrote a letter to the father saying that he is mean and that she is afraid of him. Shortly thereafter the mother made reports to Child Protection Services and to the D School contending that the father has engaged in psychological and physical abuse while X has been in his care. The mother also sought advice from Orange Door.
In April 2021 Mr K relocated to Canberra from Melbourne to be nearer to family in New South Wales. The mother says that on 10 May 2021 she received a job offer from the Employer M, a position also located in Canberra.
On 16 May 2021, the mother advised the father that she wished to relocate with X from Victoria to Canberra. She cited career development as the primary reason for the move. The father informed the mother that he did not consent to X relocating. The mother alleges that a domestic violence incident occurred at this time.
On 19 May 2021, the mother signed a tenancy agreement to lease a rental property in Canberra for herself, X, and her partner, Mr K.
On 21 May 2021 the father’s solicitor wrote to the mother confirming that the father did not consent to X’s relocation to Canberra.[1]
[1] Annexure ‘-01’ to the father’s affidavit sworn 2 June 2021.
On 23 May 2021, the mother applied for an Intervention Order after the alleged incident of domestic violence a week earlier. The mother named herself and X as the protected persons. An interim Intervention Order was served on the father on 28 May 2021. That week, the mother withheld X from time with her father.
On 26 May 2021, the mother’s solicitors responded to the father’s letter reaffirming her desire to relocate to Canberra and on 30 May 2021, the mother accepted the offer of employment with the Employer M in Canberra. On that basis, the father presumed that the mother’s move was imminent and the father initiated these proceedings on 2 June 2021 seeking to restrain X’s move to Canberra.
In his Initiating Application, the father sought interim and final orders that the matter be abridged, that parties have equal shared parental responsibility for X and that the mother be restrained by injunction from relocating with X to Canberra or removing X from the State of Victoria.
On 4 June 2021 the mother reduced X’s time with the father from 6 nights to 5 nights per fortnight. The father’s solicitors wrote to the mother’s solicitors proposing interim care arrangements involving 6 overnights with the father per fortnight, but there was no agreement.
On 22 June 2021 the father consented to a Final Intervention Order on a without admissions basis for 12 months, with one condition, namely not to commit family violence.
That day the mother also informed the father of her intent to take X to Canberra for a few days. The father informed the mother that he did not consent to the proposed travel given the relocation issue on foot in the Court. Nevertheless, the mother took X to Canberra during which time she visited Mr K. Upon her return to Melbourne, the mother did not facilitate agreed time between the father and X, citing COVID testing as a reason.
The mother filed her Response on 22 July 2021 seeking on a final basis that the parties have equal shared parental responsibility for X and that the mother be permitted to relocate X to Canberra. The mother also sought for X to spend time with the father on one weekend per month in Canberra, for the entirety of the Canberra second and third term school holidays, for one half of the Canberra summer school holidays, on weekends in Melbourne for the father’s birthday and father’s day and for X to communicate with the father by Skype or FaceTime twice per week. Interim orders were also sought by the mother in her response, which prescribed a shared care arrangement with the father, whilst in Melbourne.
Each parent filed a Notice of Child Abuse, Family Violence or Risk of Family Violence in relation to the safety and well-being of X. The mother raised concerns that X had been subject to emotional and psychological abuse at the hands of the father, without particularisation. The mother also described the incident where she alleges that the father had verbally abused her in her home, after she informed him of her offer of employment in Canberra.
The matter was first heard before Registrar Maitland on 27 July 2021. By consent, orders were made which provided for a 6/8 arrangement with X to spend six nights per fortnight with the father. The parties also agreed to attend upon Ms N for the purposes of preparing a private Family Report. On this occasion, the matter was adjourned to a date to be advised and appropriate trial directions were made for the filing of material.
On 6 September 2021, the father filed an Amended Application for Final Orders in which he sought equal shared parental responsibility and that X live with each parent on an equal shared week-about basis. Further, the father again sought orders that the mother be restrained by injunction from relocating to Canberra with X or attempting to remove or causing or permitting the removal of X from the state of Victoria.
Also on 6 September 2021, the father’s partner Ms J filed an affidavit with this Court deposing to the prospective relocation to Canberra being disruptive and unsettling for X.
On 23 September 2021, Mr K filed an affidavit in these proceedings. He deposes, inter alia, that if the mother was permitted to relocate to Canberra with X, he would assist in X’s care and offer financial relief to the mother by way of splitting “rent, bills, and any shared expenses.”

On 27 September 2021, the mother filed an Amended Response to the father’s Initiating Application. In substance, the mother sought that the parties have equal shared parental responsibility for X, that X live with her and that she be permitted to relocate X’s primary place of residence to Canberra. The mother seeks orders that the father be permitted to spend time with X on one weekend per month, in Melbourne or Canberra, and on certain school holidays and special occasions.
On 30 September 2021, the maternal grandmother filed an affidavit in these proceedings in which she deposes to support the mother and X in their proposed relocation to Canberra.
On 12 November 2021, the Family Report prepared by Ms N was released. In this report (the content of which is discussed later in these reasons), Ms N recommended shared parental responsibility of X and commented on there being an “obvious diminution in X’s relationship with her father and others if the relocation is permitted”. Otherwise, Ms N observed X’s relationship with both parents to be strong and secure and made no decisive comments or recommendations as to X’s relocation.
THE PARENTS’ COMPETING PROPOSALS
Father
In his case outline filed on 9 December 2021, the father reiterates the orders sought in his Amended Initiating Application filed on 6 September 2021.
The father proposes that the current parenting arrangements, where X spends 6 nights per fortnight with him should continue until the end of term one in 2022. Then, from the commencement of term 2 2022, X should again live with her parents on an equal shared basis, holidays and celebrated days should be shared equally and change over should occur at school or at the home of the parent receiving X.
The father contends that the orders he seeks align with recommendations made by the family report writer, Ms N.
Mother
The mother concedes that the parties should have equal shared parental responsibility for X.
However, in contrast to the father’s proposal, Ms Townsend seeks an order that X live with her and that she be permitted to relocate X’s primary place of residence to Canberra. Further, the mother proposes that X spend time with and communicate with the father on one weekend per month in Melbourne or Canberra from the conclusion of school on Friday until 6.00pm on Sunday. The mother also proposes arrangements for Christmas, and X’s birthday which would see the parents spend time with the child at different times on an alternating basis. The mother proposes that X spend 10 days of the second and third term school holidays with the father and one half of the long summer school holidays with him in blocks of no greater than two weeks. The mother also agrees to communication between X and the father by skype or FaceTime twice per week at times to be agreed.
THE FAMILY REPORT
As mentioned earlier, an Order was made for the preparation of a private family report.
Ms H, a psychologist, was engaged as the single expert and she prepared a report dated 11 November 2021 which was annexed to an affidavit sworn on 7 December 2021.
In preparing her report, Ms N interviewed each of the parents separately and each of the parents together with their current partners. X was also observed with each of the parents and their partners. Interviews and observations were conducted on 14 and 26 October 2021. Prior to preparing a report, Ms N also had the benefit of reading the various affidavits, notices of risk and Court documents which were to be relied upon by the parties in these proceedings.
The family report records conflicting accounts as to the father’s level of parental involvement with X in the early part of her life. Ms N also notes the mother’s claims that the father engaged in coercive and controlling behaviour which resulted in the dissolution of the relationship in 2018. She records Ms Townsend explaining that her decision to separate was underpinned by feeling controlled by Mr Daniels and her feeling that he was highly manipulative, engaged in mind games and twisted the truth.
Ms N reports having been told by the mother that she decided that remaining with the father was not in X’s best interests. Ms Townsend felt that she was walking on eggshells, felt unable to express herself or have her needs met. Ms Townsend told the report writer that some aspects of this unhealthy relationship dynamic continued after separation.
Ms N explored Ms Townsend’s desire to relocate to Canberra. The mother said that after her relationship with Mr K developed she began to think about changes to her career and living arrangements. She had found an opportunity to study and work in a desirable role and in a location that she believes would support the development of her relationship with Mr K and an opportunity to create a new life with X. The mother felt that X’s social and emotional competencies as a child would benefit from relocation and that X would be able to attend a school which is near the rental property secured by Mr K.
When interviewed together, Ms Townsend and Mr K explained to the family report writer that they regarded Canberra as a place of opportunity and one where Mr K could also attend to family commitments, including being closer to his mother who lives in rural New South Wales and his brother who lives in a care facility. Both agreed with the family report writer that travel to facilitate X’s time with the father would be burdensome but they would endeavour to find ways to minimise that burden for the child.
In his interview, Mr Daniels denied the mother’s claims that he was uninvolved in parenting X during her infancy. He acknowledged that he did devote considerable time and effort to studies but felt that he had contributed significantly as a parent. The father conceded that their parenting styles contrasted but he said they were not necessarily conflicting. Mr Daniels stated that his relationship with the mother was not marked by a pattern of conflict until it deteriorated in its final stages.
The father explained that his primary objection to X’s proposed relocation to Canberra was that it would separate her from all that is offered to her in Melbourne, not just access to her father. Ms Daniels expressed a concern that X would be unsettled by the move, would wonder why she was away from family and friends, including his own and the mother’s extended families. He said that X had developed settled routines, had a relationship with his partner Ms J and was a happy, healthy child who is meeting all milestones in the current environment.
Mr Daniels expressed his concern that the mother’s focus was on her relationship with Mr K and that she had given insufficient forethought and planning to the Canberra move or its implications for X’s sense of stability.
Ms N reports positively that the parents have protective and emotionally attuned caregiver styles that have facilitated X’s needs as a child. She concludes that both Ms Townsend and Mr Daniels are competent parents and that their values and attitudes to parenting tasks, responsibilities and perspectives are sound and generally aligned. She considers both parents to be psychologically well, emotionally-attuned and invested in the parent and child relationship. Ms N observed that these similarities had enabled X to transition across homes in a shared caring arrangement with minimal adjustment.
Ms N explains that there are important developmental considerations for a child of X’s age that can be evaluated as both risk and protective factors in the context of the competing proposals before the Court. She notes on the one hand that X is mature and well-adjusted with strong communication skills and an ability to express herself skilfully. These strengths augur well for X’s ability to form new connections and to relate to and engage with others remotely. On the other hand, these strengths are to be measured against various risks to her development. Ms N opined that a move to Canberra would have important implications for X’s adjustment to changed living arrangements, home relationships and her schooling and social arrangements. In particular, Ms N noted that a relocation would involve X moving away from multiple significant caregivers namely the father, Ms J and the extended maternal and paternal family. Ms N says that these are relationships which are difficult to replicate.
The family report writer states that the ease of access to important relationships is changed and limited by distance. Spontaneous and everyday interactions are constrained and X is still of an age where she needs proximity to a caregiver to “feel” parented. Nonetheless, X’s capacity to adapt to significant change would depend on the strength of the internal resources and the availability of external support to scaffold around that change. Ms N opined that if relocation was permitted, X could potentially make the transition to other settings (such as a new school) with support, but her capacity to tolerate and adapt to multiple changes to her environment remains largely untested.
Ms N observed that until recently the parties had a solid history of navigating the co-parenting arrangements without the need for intervention or Court orders. While that co-parenting was likely to be strained as a result of any relocation, she believes over time the parties would be capable of resuming a solutions-focused, open and constructive relationship.
Ms N said that it was beyond her purview to make a definitive recommendation that may determine the outcome of the relocation proposal. But she does recommend that the parties should share parental responsibility whichever way the decision goes.
If the Court is minded not to permit relocation, Ms N recommends that the current parenting arrangements remain unchanged until the conclusion of term one 2022 and thereafter X should live with her parents on an equal shared basis. Holidays and celebration days should be shared equally and changeovers should occur at school or at the home of the receiving parent.
If the Court determines that relocation should be permitted, Ms N recommends that X should spend time with the father for one weekend a month and where possible that time should coincide with weekends joined by a non-school day. That time spent should be in the Canberra area with the dates and times to be agreed between the parents, subject to Mr Daniels giving 21 days’ notice of his intention to visit. Ms N also recommends that, in the event of relocation, X should spend time with her father for up to 10 consecutive days in two of the term holidays and up to four days in the remaining terms. Summer holidays should be shared or weighted slightly in favour of time between X and her father.
THE FINAL HEARING
The final hearing of this application was heard over 3 days from 13 to 15 December 2021. The hearing was conducted via Microsoft Teams. Ms Mansfield of Counsel appeared for the applicant father and Ms Teicher of Counsel represented the respondent mother.
MATERIAL RELIED UPON
The father filed a case outline on 9 December 2021. Counsel for the father informed the Court that her client relied on that Outline and the following documents:
(1)        Notice of Risk dated 2 June 2021;
(2)        Amended Initiating Application dated 6 September 2021;
(3)        Affidavit of the applicant father dated 6 September 2021;
(4)        Affidavit of Ms J dated 6 September 2021;
(5)        Applicant father’s affidavit in reply dated 8 October 2021;
(6)        Affidavit and report of Ms N dated 7 December 2021.
The mother filed an outline of case on 9 December 2021 and in addition to that she relied upon the following in support of her case:
(1)        Affidavit of the mother dated 22 July 2021;
(2)        Notice of Risk dated 23 July 2021;
(3)        Amended Response to Final Orders date 27 September 2021;
(4)        Affidavit of the mother dated 27 September 2021;
(5)        Affidavit of Mr K dated 27 September 2021;
(6)        Affidavit of Ms O dated 30 September 2021;
(7)        Affidavit and report of Ms N dated 7 December 2021.
THE EVIDENCE
At the commencement of the hearing, counsel informed the Court that neither party intended to cross-examine the single expert, Ms N. On that basis, Ms N’s affidavit and report were admitted into evidence by consent.
Similarly, counsel for the respondent indicated that there was to be no cross-examination of the father’s partner, Ms J. Her affidavit dated 6 September 2021 was also received into evidence without objection.
Agreement was also reached between counsel for an affidavit of the maternal grandmother, Ms O, dated 24 September 2021, to be received into evidence by consent. “Ms O” was not required for cross-examination and the substance of her affidavit is set out later in these reasons.
In the paragraphs which follow I have endeavoured to summarise the relevant evidence given by each of the witnesses, including the evidence in chief which was given by affidavit and the evidence which emerged from answers through cross-examination. It is of course not possible in the course of a judgment to rehearse all the evidence, so the summary below focuses on the areas of contest which I consider to be most relevant to the issues which fall to be determined.
Suffice to say, I have read and considered all the affidavits and other materials upon which the parties seek to rely. The material is extensive and in the case of the parents’ affidavits, contains considerable opinion, conjecture and submission. Mindful that the rules of evidence generally do not apply in parenting matters (s 69ZT), I have given the evidence the weight I consider appropriate, taking into account the seriousness of the allegations made, the relevance and materiality of the evidence to the issues in dispute and its probative value generally.
Where necessary, I have made findings of fact where accounts of key events are contested and made observations regarding the credit of the witnesses. However, due to the volume of material before the Court, I do not propose to address every piece of evidence and every submission made[2]. Where in these reasons I have not referred to a particular event or item of evidence, it should not be assumed that I have not considered that evidence.
[2] See Bell & Nahos [2016] FamCAFC 244 at [28]-[29] per Strickland J
MR DANIELS
Mr Daniels adopted his trial affidavit dated 6 September 2021 and his reply affidavit dated 8 October 2021 as his evidence in chief.
In his affidavit the father deposes that he and the mother were in a relationship for over a decade before they decided to have a child. He says that they lived and travelled and worked interstate, but returned to Melbourne to have a child, hoping that proximity to extended family and friends would provide them with important support and assistance. After X’s birth, the father contends that he played a very significant and involved role in her life and upbringing, including by arranging his work and study schedule to be home three days a week to care for X and support the mother. He also deposes to their financial circumstances which involved him using his income and scholarship funds to cover living expenses and rent, allowing the mother some relief from an early return to work after X’s birth. He also deposes to enlisting the mother to assist him with a work project he was leading.
Mr Daniels says that he continued to balance his work and care responsibilities after the mother returned to part-time work after two years of maternity leave. He refers to X’s transition to childcare and says he was involved in selecting a childcare centre. The father also deposes that he and the mother relied heavily upon the assistance of family and friends when X was an infant, in particular the maternal grandmother who often babysat X at her home in Suburb P.
Mr Daniels confirmed that the parties separated in June 2018 when the mother moved out of their rental property in Suburb F. This move was initiated by Ms Townsend but Mr Daniels said it coincided with a breakdown in trust between the parents following revelations regarding the mother’s infidelity. Mr Daniels stresses, however, that he was disappointed with the mother’s decision to leave but he supported it and does not believe the infidelity has impacted their co-parenting relationship or his view of Ms Townsend as a mother.
Initially, X continued to live with the father and saw the mother sporadically. He deposes that some weeks later the mother returned to the home in Suburb F for a period of about 10 months while she was looking for alternative arrangements before leasing rental accommodation in Suburb H in May 2019. Mr Daniels says that during that period of time he financially supported the mother and assisted with the care of X, including when the mother went interstate for three weeks with her new partner Mr K and when she performed with her band.
He confirmed that the parties have lived separately and apart since May 2019 and that since 2020 he has been living with his partner, Ms J.
Mr Daniels deposes to his involvement in co-parenting X since the separation and contends that he has played a significant role, both in practical terms and as a provider of financial support. He deposes to being responsible for most pickups and drop offs between the parents’ homes, undertaking significant household duties, attending events, supporting home schooling and so on. The father says that he and the mother have not operated to a formal parenting plan and he has tried to be flexible to meet X’s needs but on occasion he has been frustrated by the mother’s unpredictability and last minute changes. He says that even when a parenting plan was produced unilaterally by the mother, she frequently made changes and failed to stick to it, including undertaking interstate travel with X without his consent.
In relation to the mother travelling with X without consent, Mr Daniels deposes to two instances where this occurred, once in Term 4 2020 and again in April 2021. On both occasions the mother and X travelled interstate in the company of her new partner Mr K, and each occasion resulted in X missing several days of school and missing prearranged spend time with the father. Mr Daniels contends that Ms Townsend has been dishonest with him about her and X’s whereabouts and over the past year he has become concerned about Ms Townsend’s emotional well-being.
Mr Daniels also deposes in some detail to the events leading up to the commencement of these proceedings, which include the circumstances of him learning of the mother’s intention to relocate to Canberra with X. He describes how for 2 weeks in April 2021 X did not stay with him as she had been taken by Ms Townsend to Canberra without any prior discussion or agreement. A couple of weeks later he and the mother attended a mediation session with Q Centre regarding the co-parenting of their daughter. He then describes being invited over to Ms Townsend’s home for dinner on 16 May 2021, a week after the mediation, only to be told by her that she was intending to relocate to Canberra in a few weeks’ time with X. At that meeting, Ms Townsend told Mr Daniels for the first time that she was planning to take 12 months leave without pay from her employment at Employer C to study at the R University on a part-time basis, in addition to working full-time at the Employer M at Canberra as a professional. Mr Daniels says that during this conversation, Ms Townsend mislead him to believe that she was relocating for 12 months, after which she and X would return to Melbourne to continue her work in a newly created role at the Employer C. He knows now but did not know at the time that Ms Townsend actually intends to relocate to Canberra on an indefinite basis.
Mr Daniels also gives evidence about what occurred on that evening after he expressed his preference for X to remain in Melbourne. On his version of events, Ms Townsend became very tearful and emotional when he suggested that X could remain in his care during her period of study. Then he also endeavoured to discuss options with Ms Townsend which would involve her studying at either S University or the T University. Mr Daniels concedes that he told the mother that if she was to take X without telling him, it would be necessary to involve lawyers. He said that she became angry at the suggestion that lawyers would be involved and then began disparaging him about their past relationship. Mr Daniels said that he was the subject of a barrage of insults but accepts that he told Ms Townsend that relocating would be a selfish thing to do.

According to the father, this exchange with the mother on 16 May 2021 prompted him to engage solicitors to assert his opposition to the mother’s relocation to Canberra with X. He says that during the following week the mother kept X at home from school without telling him and then on 23 May 2021 the mother filed for an Intervention Order listing herself and X as protected persons. Mr Daniels says that the allegations of emotional and psychological abuse made in the mother’s application for the intervention order are untrue and he says, further, that during their 15 year relationship he has on occasion withstood but has never perpetrated any physical or emotional abuse.
Mr Daniels deposes that after the parties engaged solicitors, there was a distinct change in the mother’s behaviour in relation to discussions about X’s ongoing care arrangements. He says that he became concerned by the mother’s failure to communicate in relation to X’s care arrangements and interstate travel and was surprised to learn, on 23 June 2021, of the mother’s imminent travel to Canberra with the child. He said that despite his objection, the mother travelled to Canberra against his wishes in late June 2021.
As to the mother’s proposed relocation to Canberra, the father maintains that it is not in X’s best interests and he cites an extensive array of reasons why orders should be made for X to remain living in Melbourne. Among those reasons, the father points to the following:
(a)X was born and raised in Melbourne and has lived her whole life in Melbourne;
(b)she has lived in the one home in Suburb F for the past 4 years, where she has her own bedroom, pets and other familiar surroundings. She also has a strong bond with neighbours in Suburb F and also neighbours at the mother’s home in Suburb H;
(c)X has not spent any extended time in Canberra and does not have any social or familial connections in that city;
(d)regular overnight time with the father, in accordance with interim Court orders, would be impossible if X lived in Canberra;
(e)she is close with her immediate and extended family including her grandparents, three aunties, two uncles and 10 cousins who live in and nearby to Melbourne;
(f)X is well-settled at her primary school where she enjoys close friendships and engagement with the school community;
(g)the mother will struggle to provide support and care to X if the mother is working full-time and studying part-time. Furthermore, the father posits that the proposed employment offer in Canberra is casual and insecure and that the mother’s claim that her Melbourne employment is insecure has not been corroborated;
(h)the father is able to provide a stable and loving home environment in Melbourne. He and his partner Ms J enjoy stable employment and X has developed a strong bond as part of their family unit.
In addition to these matters, the father deposes extensively to the close and loving relationship he shares with X. Mr Daniels points out that he lives in rental accommodation, does not own any real estate and that his income was approximately $89,500 for the 2019/2020 financial year. He contends that his financial circumstances allow him to provide adequate financial support for X, but would not enable him to provide a similar level of support if he had to meet travel costs between Melbourne and Canberra on a regular basis in order to spend time with her. Mr Daniels says that the mother has not provided any details as to how she would fund travelling interstate to Melbourne and feels that she will be unable to do so which would further restrict his ability to spend time with his daughter. The father contends that any relocation to Canberra would have the practical effect of excluding him from major decisions which impact X and would significantly reduce his time with her.
The father also expresses concerns about the mother’s decision to move interstate with
Mr K. Mr Daniels contends that Mr K and the mother have not previously lived together and that Mr K has no experience caring for a young child. Mr Daniels also deposes that X has made several comments to him about incidents which had caused her to feel uncomfortable about Mr K.
Mr Daniels was cross-examined extensively by counsel for the respondent mother, but his evidence was rarely shaken. He presented overall as a witness who cares deeply about his daughter and who is committed to ensuring an outcome which he believes is in her best interests. He struck me as an honest witness who did his best to answer the questions put to him and he made appropriate concessions. For example, he described Ms Townsend as a great mother and it seemed to me that her interests and welfare remain important to him.
The father was cross-examined about the meeting he had with Ms Townsend on 16 May 2021 during which he learned of Ms Townsend’s plans to relocate to Canberra. He said that he was genuinely shocked when she mentioned Canberra as they had been in mediation only two days previously where nothing of the kind had been mentioned. He said that they spent much of the meeting discussing Ms Townsend’s proposed studies and whether there were alternatives in Melbourne. He said that he was completely shocked when Ms Townsend said that she would take X to Canberra in about five weeks.
Asked about his reaction to this news, it was put to Mr Daniels that he shouted and swore at Ms Townsend. He denied the allegation and said that he did not raise his voice nor did he call
Ms Townsend any names. He said that there was no shouting and while there have been times of frustration during their relationship he had never unloaded on her.
Mr Daniels was asked a series of questions regarding the mother’s allegations that he engaged in abusive and controlling behaviour during the course of the relationship. He denied the allegation that he did not like people looking at Ms Townsend or that he told her on several occasions that she should “wear a burka”. In relation to an incident in a cab following a hen’s party, Mr Daniels conceded that there had been a heated exchange with Ms Townsend, but he denied saying that she was a slut or a whore. Mr Daniels said both parties were affected by alcohol, although they were not intoxicated, and the heated exchange occurred after the parties had already separated and that it was a difficult time for them.
My impression of Mr Daniels in relation to this evidence was that his memory of events was not clear and I consider it more likely than not that he did lose his temper and that he used words which were denigrating of the mother. However, in the context of the evidence overall, I do not find that it was typical of his behaviour in the relationship.
The father was also extensively cross-examined about household finances and the parties’ respective contributions to household duties. Mr Daniels did not accept that Ms Townsend was the primary homemaker, save for the period she was on maternity leave. He said that he believed that he contributed equally to the relationship and did not consider himself any better than the mother as a homemaker. He said that they both contributed to the household finances and that in the period immediately after the child was born he assumed responsibility for rent and did a lot of the shopping and cleaning and household purchases. He said that after X turned two and the mother returned to part-time work, they had again shared financial and household responsibilities.
Mr Daniels was insistent that decisions during the course of the parties’ relationship were made jointly. The parties’ decision to travel and work in Northern Australia was a joint decision made for their mutual benefit. He gave me a very clear impression that, at least until X was born, there was mutual respect and support for each other’s career and each party endeavoured to accommodate the other in their plans.
Mr Daniels was asked a number of questions about his financial support of Ms Townsend and X post-separation. He said that after the mother moved out she asked for a lump sum payment and that he had given her about $30,000 from their joint account. He said that he also offered to pay for X’s early childhood education and kindergarten fees and has since that time paid approximately $14-$15,000 in educational expenses for X. However, he said that the parties had not been able to reach a financial settlement because he had been asking for a shared parenting arrangement which was not agreeable to the mother.
When cross-examined about parenting arrangements in the post separation period, Mr Daniels said that the parties had difficulty developing a routine and coming to an agreement. He was somewhat critical of Ms Townsend for not wanting anything locked in and for seeking a more fluid arrangement which could be adjusted as necessary. The clear undertone in his evidence is that Mr Daniels has felt frustrated by Ms Townsend’s less disciplined approach to parenting arrangements and although he did his best to accommodate Ms Townsend’s wishes he was concerned that X was not benefiting from a routine.
When it was put to him that Ms Townsend had in fact taken the initiative to develop a parenting plan, Mr Daniels expressed concern that he was not consulted about it. He said he tried to follow the plan in order to give X a routine but Ms Townsend still made multiple ad hoc changes to it. Mr Daniels stated repeatedly throughout his evidence that he wanted Ms Townsend to stick to a parenting plan to ensure that X had a stable routine.
It was put to Mr Daniels that he pressured Ms Townsend to work on his project during her maternity leave and that the money she received for that work was ploughed back into the family budget. He maintained that he considered this work was a genuine opportunity for Ms Townsend to advance her career, and I believe he saw it that way.
Presumably under the theme of alleged controlling and abusive behaviour, it was put to
Mr Daniels that he rejected Ms Townsend’s friends and was judgemental about them. It was also put to him that he required Ms Townsend to seek permission before she could have anyone to the house and that he also insisted on the maternal grandmother looking after X at her house rather than within the family home. It was also put to Mr Daniels that he objected to X’s proposed enrolment at D School.
Mr Daniels seemed to take this cross-examination in his stride and calmly denied or explained these allegations by offering a different perspective. It seemed to me that the mother’s impression of him as “controlling” was a function of their different lifestyles. Mr Daniels does come across as very structured in his thinking, firm in his views and insistent on clarity with the way things are planned and done. Ms Townsend, on the other hand, seems more likely to prefer a somewhat freer and less structured approach to the experiences and incidents of life. That is not to level criticism at the mother, but it does reveal a contrast in approaches (particularly after the birth of X) which might explain Mr Daniels’ annoyance at unexpected visitors and his frustrations at pinning Ms Townsend down to a fixed routine.
The father was also cross-examined about his objection to the mother’s relocation proposal. When it was put to him that the mother would pay for X’s school holiday travel and that he would only be responsible for half the cost of about nine interstate trips, he said that cost was not the major issue for him. Mr Daniels clarified that his current annual income is about $103,000 and he accepted that the cost of travel for X and an accompanying adult would cost about $2146 per year. He said the cost of airfares was not unaffordable, but it would require him to do a lot more travel than he was accustomed to and that the frequency of travel would be an issue for a 7-year-old. Mr Daniels said that X is not advanced in terms of air travel and he was concerned that it would be too much for her. In re-examination Mr Daniels also added that he would have to bear the costs of accommodation while he stayed in Canberra, not just airfares.
Mr Daniels said that if the Court does believe that relocation is in X’s best interests and makes orders permitting the move to Canberra, he would try to do his best to meet the orders. He said he would try to spend additional time in Canberra if that were possible, but his ability to do so would depend on other commitments such as work, care for his ageing father and the need to care for household pets. He also said it would be important for his partner Ms J to attend with him as she has a relationship with X. This he said would all add to the cost and complication of spending time with X.
Mr Daniels was also questioned as to his ability to relocate to Canberra. He said he did not believe that was viable because he has a tenured position at Employer B, a position which was very difficult to come by. He said that the R University does not teach his particular subjects so there was unlikely to be a suitable position available for him there. Furthermore, he reiterated that his partner Ms J has a position and career at Employer B and that he also has ongoing care commitments to his 93-year-old father who is receiving chemotherapy treatment for cancer.
As previously mentioned, my overall impression of Mr Daniels’ evidence is that he is child focused and genuinely concerned for X’s best interests. He is not oblivious to the mother’s interests and he is not unreasonably dismissive of her or her wishes, including that she be able to relocate to Canberra with X. I considered him to be a rational and truthful witness who has a firm but not unduly rigid view about what he believes is best for his daughter.
MS J
Ms J is the de facto partner of the applicant father, Mr Daniels. As stated earlier, Ms J’s affidavit dated 6 September 2021 was received into evidence by consent and she was not required for cross-examination.
In her affidavit, Ms J deposes that she is 37 years old and is employed on a full-time basis by the Employer B as a professional. She has been employed by the Employer B since 2014 and she enjoys flexible working arrangements.
Ms J met Mr Daniels in 2020, began staying at his home in April 2020 and a couple of months later moved in with him. She says they eased into this arrangement to enable Mr Daniels to discuss it with X and ensure that she was comfortable about it. She deposes to having developed a close and affectionate relationship with X since that time and that she has been actively engaged in X’s hobbies, social activities and educational development. Ms J gives examples of activities she has shared with X and Mr Daniels and she speaks highly of the father’s parenting skills and his commitment to X’s welfare.
The affidavit also speaks to Ms J’s observations about the co-parenting relationship between Mr Daniels and Ms Townsend, including her view that inconsistency on the part of
Ms Townsend has at times caused Mr Daniels and X stress. She expresses the opinion that a lack of certainty around parenting arrangements has had a detrimental impact upon X.
Finally, Ms J also observes that X enjoys a rich life in Melbourne surrounded by familiar people, places and activities. From her perspective, Ms J expresses the view that X is well-settled at school, has a broad network of friendships, is involved in sport, is loved by her extended family in Melbourne and is nervous about the prospect of long-distance travel.
MS TOWNSEND
The mother, Ms Townsend, adopted her affidavit stated 22 July 2021 and 27 September 2021 as her evidence in chief.
The mother deposes that she has been primarily responsible for all aspects of X’s day-to-day care since birth. She described those responsibilities as including feeding the child, preparing meals, changing nappies, bathing and attending to her when she woke at night. She also says that she arranged and took X to all medical appointments, healthcare check-ups and play dates with other children. She says that Mr Daniels has been busy working full-time and she strongly contests his claims regarding his involvement in X’s care. She contends that Mr Daniels was often at home, but he was working from his home office and was largely unavailable to assist with caring. Ms Townsend does concede, however, that since she has returned to work Mr Daniels has been more actively involved, usually in relation to X’s sporting events and pastimes.
Ms Townsend gave extensive evidence regarding her allegations that Mr Daniels engaged in emotional and psychological abuse and exercised coercive control, including financial control. She alleges that she perceived the father’s behaviour towards her throughout the relationship to be manipulative and controlling and she felt he dominated most conversations and made most decisions, large and small. She deposes to various pre-separation instances where
Mr Daniels allegedly verbally abused her by calling her names or saying other hurtful comments. She alleges that Mr Daniels would belittle her “on a daily basis”, would be critical of her physical appearance and clothing and would engage in gaslighting conduct, although that is not the description she used.
The mother also deposes that following X’s birth, Mr Daniels caused her social isolation and controlled who would be allowed to visit the home. She says that he requested that the paternal grandmother not come to the house to help care for X. She also says that he was dismissive and expressed dissatisfaction if she wanted to go somewhere to be with friends.
Ms Townsend says she felt as though she was forced to be at home with him all the time and that Mr Daniels actively limited her access to her social network for a number of years. She says that he was rude in the presence of her friends, would make her friends feel unwelcome if they came to the house and that this deprived her of access to help and the support of her family and friends.
In relation to the allegations of financial control, the mother says that she and the father were financially independent and paid equally for living expenses prior to X’s birth. However, following X’s birth and notwithstanding she was on maternity leave, she says Mr Daniels insisted that she continued to pay nearly half of the rent. She says that the parties had combined savings but he controlled how they were used.
In her affidavit of 27 September 2021 the mother describes her separation from the father on 13 June 2018 as being the consequence of a combination of factors. Relevantly, she says that from 2014 she experienced family violence from the father in the form of emotional, psychological and financial control described above.
Ms Townsend describes the circumstances of separating from Mr Daniels, including having sought professional assistance from a general practitioner and a referral to counselling before making the decision that remaining in a relationship with him would be detrimental to her mental health. She alleges that at the time of separation, Mr Daniels threatened her by telling her that she was mentally unstable, was a bad mother and that he would have X removed from her care. She says that her decision to end the relationship was as a result of the verbal and psychological abuse she had experienced and the toll it had taken on her self-confidence.
The mother also gives evidence about the steps she has taken post-separation to facilitate an ongoing meaningful relationship between X and her father. Mirroring Mr Daniels’ allegations against her, the mother says that he also often asked to change care arrangements with little notice and that she has accommodated his requests without complaint.
The mother deposes to several incidents “over the past few years” when she has become concerned about X’s safety and well-being whilst in the father’s care. She somewhat carefully explains in her affidavit that she has set these incidents out not for the purpose of criticising the father’s parenting but to demonstrate that despite her concerns she has continued to encourage and facilitate regular time between X and the father and supports their relationship. However, it is difficult to understand why these incidents are referred to if not to criticise the father’s parenting.

For example, she describes an incident on 29 October 2020 when X, then 5 years old, wrote a letter to Mr Daniels without any prior discussion or input from the mother. The letter, a copy of which was annexed to the mother’s affidavit, reads:
“For Mr Daniels, can you please stop being mean to me. Dad, Mr Daniels, you are a bit rough, dad, Mr Daniels, you are a bit too rough dad. Mr Daniels Can you please be gentler Mr Daniels, Dad”.
Ms Townsend says that this letter was written by X about one hour prior to her going to stay at the father’s house. The mother says that X asked her to give the letter to the father because she was too scared to do so herself. Ms Townsend says that when she gave the letter to the father, X sat in the front seat of the car in a foetal position. She says that the father responded to the letter by not taking it seriously, by not acknowledging how X felt and by accusing the mother of overreacting and creating the letter.
The mother also alleges that throughout November 2020 she was told by X that the father had been psychologically and physically abusive on several occasions. She says that during the Melbourne Cup weekend X was sick and was showing signs of emotional trauma caused by the father. Because of these concerns, Ms Townsend says she sought advice from Orange Door, X’s primary school, Child Protection Services, Victoria Legal Aid and Victorian Women’s Legal Services. She says she tried to discuss her concerns with the father, but he denied anything he was doing was affecting X at all.
In relation to the parenting plan she prepared with advice from a family lawyer, Ms Townsend says that the father was resistant to it and considered the proposed arrangements inconvenient if they required him to care for X during his work days. She also confirms that the parties attended mediation at Q Centre to discuss parenting arrangements, but she alleges that the father used these sessions to bully and intimidate her.
Ms Townsend describes the events leading to the current Court proceedings, including her meeting with the father on 16 May 2021 where she told him about her plans to relocate to Canberra. She says that she told Mr Daniels that she had received a job offer from the Employer M, which she had not yet accepted, and that she was keen to discuss it with him. In the context of that discussion she sought to reassure the father that if she and X relocated to Canberra she would do everything in her power to ensure X maintained her relationship with him and would spend time with him as often as possible.
In contrast to Mr Daniels’ version of events, but consistent with the matters that were put to him in cross-examination, Ms Townsend said that the father was instantly furious and began shouting and swearing at her. She alleges that Mr Daniels threatened to call the police and to have X removed from her care. She says that he also threatened to get lawyers involved and to instigate Court proceedings to make sure that X was removed from her. Furthermore, she alleges that Mr Daniels described her as a “shit mother”, a “shit parent” and accused her of taking drugs. She says that she considered this to be yet another example of his domineering behaviour and that he used his verbal skills to abuse her, undermine her confidence and self-esteem.
Ms Townsend also deposes to the circumstances which led her to make an application for an Intervention Order against Mr Daniels. She said that two days after the 16 May 2021 incident at her home where she told Mr Daniels about relocating to Canberra, she decided to attend the Suburb H Police Station. She said she was given an application to fill out detailing her complaint which involved her disclosing the emotional and psychological abuse she had experienced over many years living with Mr Daniels. She said she returned that paperwork to the police station on Sunday, 22 May 2021 and that making the application brought up a great deal of past trauma for her.
In each of her two affidavits, Ms Townsend gives extensive evidence regarding her proposed relocation to Canberra, including the various factors which support that relocation from a personal and career development perspective and contentions as to why the relocation should be regarded as being in X’s best interests.
In her affidavit of 22 July 2021 Ms Townsend says that her role at the Employer C was made temporary in 2020 as a result of a restructure. She says that management offered her a different role, as a professional, however this is not adequately connected to her specialist skills and provides limited career development or income growth opportunities. As a consequence of that, she claims to have applied for upward of 100 positions, most being in Melbourne, but did not secure any interviews. She also applied for 30 or so jobs in Canberra and secured four interviews. Ms Townsend describes having searched for employment for approximately 18 months before she received an offer in 2021 to work in a full-time 12 month contract position as a professional at the Employer M at Canberra. That position was to commence on 13 July 2021 with the possibility of it becoming an ongoing permanent role after the initial 12 month contract.
Ms Townsend describes the new role with the Employer M as providing her a significant advancement in her career and she says that her current employer, Employer C, has offered her a financial scholarship which would enable her to simultaneously study at the R University. She contends that this is not a course available in Melbourne and that she will have the capacity to undertake these studies whilst working full-time and caring for X. Ms Townsend also says that despite the commencement date of the Employer M role having passed, she has been informed that she will be able to commence work as a casual employee in the same role once she arrives in Canberra. Her evidence is that the Employer M will keep the position open for her as a casual employee until September 2022 and that it will be converted to a full-time position once she arrives in Canberra.
Ms Townsend also describes the formation of her relationship with Mr K in early 2020 and explained that they share a network of close mutual friends. She describes Mr K as having a very close relationship with X, treating her as if she was his own daughter. She confirmed that Mr K currently works as a professional for Employer L and that he lives in Canberra, having moved there on 3 April 2021.
Ms Townsend gave evidence about her proposed living arrangements in Canberra, including her intention to live in a three-bedroom rental property with Mr K. She gives evidence that she and Mr K plan to split rental and living costs equally and that this will approximately halve her overall rental outgoings, compared to the $475 she pays per week in Melbourne. Ms Townsend explains that she has located a suitable primary School in Canberra and that the school has confirmed a place will be available for X if she is given permission to relocate.
The mother also gives evidence that her extended family support roots are in Melbourne, including her brother Mr U who lives in Suburb V and the paternal grandmother Ms O who lives in Suburb P. Both the paternal grandmother and Mr U see X on a regular basis and Mr U and his wife, who have no children of their own, have been significant in X’s life. She deposes that the maternal grandfather and her sister and children live in country Victoria and that she has another brother who lives in New South Wales. As to her broader friendship group, she says that many of her close friends in Melbourne have moved away during COVID.
The mother also refers to her projection for extended family support should she be permitted to relocate to Canberra. The paternal grandmother, who is now retired, has indicated that she hopes to visit Canberra for extended periods and would stay at the mother’s home with Mr K and X. The mother also expects her brother Mr U would regularly visit. She deposes that Mr K’s mother lives approximately two hours’ drive from Canberra and that Mr K is the legal guardian for his brother who also lives approximately two hours from Canberra. She contends that she and Mr K already have a close network of friends in Canberra.
Ms Townsend contests Mr Daniels’ evidence that X is very close with the father’s immediate family in Melbourne or that they spend frequent time together. She says that during the time she and the father were together, they seldom spent time with his family and would only see his sister and brother once a year. Nonetheless, she accepts the need for X to have a meaningful relationship with her extended family and would be agreeable to facilitate arrangements which are reasonable and necessary to ensure that those relationships are maintained.
In her more recent affidavit, Ms Townsend reiterates that she has thought long and hard about her decision to relocate X to Canberra and believes it is in the child’s best interests given the emotional and financial security she will enjoy, compared to the situation in Melbourne. She says that she will facilitate X spending regular time with the father both in Canberra and Melbourne as frequently as possible and will also facilitate other contact via telephone and Skype. She deposes to her proposed spend time arrangements including that X spend one weekend per month with the father in Melbourne or Canberra and that the child spend school term holidays and half the long summer holidays with the father.
Ms Townsend has confirmed that she will not consider relocating to Canberra without X and that she will never leave her. Should X not be permitted to relocate to Canberra, the mother says that she will remain in Melbourne, albeit at great personal cost to her.
Ms Townsend was extensively cross-examined by counsel for the applicant father and spent over a day in the virtual witness box. I accept that it was a difficult and harrowing experience for her. I am left in no doubt after hearing her evidence that she loves and wants to protect her daughter and that she is committed to securing what she believes to be the most positive and secure outcome for them both. Overall, having observed the mother give evidence, I considered her to be a well-intentioned witness who endeavoured to convey her subjective perception of events with conviction, albeit on occasion by resorting to a degree of exaggeration in order to emphasise her views. Cross-examination, to my mind, exposed gaps between Ms Townsend’s subjective impression of events and the objective facts. At times I felt Ms Townsend was prepared to gild the lily somewhat to persuade the Court to her view that X was at risk if not in her care in Canberra.
Under cross-examination, Ms Townsend was given the opportunity to revisit her evidence about the father’s contribution to parenting. She reiterated that Mr Daniels had not always been child focused and that he tended to put his career and himself first. The mother was somewhat critical of observations made by the family report writer to the effect that both parents were protective and emotionally attuned caregivers and competent parents. She said that while she agrees “in a way” with Ms N’s conclusion, she did feel that there were times where Mr Daniels did not meet his daughter’s needs.
Cross-examination also subtly revealed what I considered to be Ms Townsend’s sub-conscious bias in favour of the mother/daughter relationship over that between X and her father. The mother acknowledged that both parents had a strong bond with X but she was keen to emphasise that the mother/daughter bond, while equal, was different. She sought to emphasise to the Court that she had always been the primary caregiver and the primary guardian and that the shared care arrangement currently in place was one that she had been pushed into by the father. She sought to impress upon the Court that while the father wanted more time, he used intimidation and threats to get that additional time.
Ms Townsend conceded that if she is permitted to move to Canberra with X, and a spend time arrangement of two days per month is implemented, X “will probably miss her father”. However, she said that could be ameliorated because she would allow X and her father to have telephone and FaceTime contact whenever they want. She said that she would never stop them from communicating and that if necessary she would agree to an order for daily contact. In fact, she said she thought it would be important for X to know that she was able to contact her father any time she wanted to in that they had, in any event, an arrangement of that sort.
Ms Townsend also stated that notwithstanding the current parenting arrangements, she believes that there have been times when X has not felt safe in her father’s presence. So much so, that the “… Idea of X going to Mr Daniel’s house for 7 nights I find terrifying”. She sought to emphasise this point by saying that after the parents trialled a 6/8 arrangement, X started fearing her father and getting anxiety.
Ms Townsend elaborated about the nature of the fear she held for her daughter. She said that X was scared to go to the father’s house, and X had made allegations such as “Mr Daniels put his foot on my chest and I couldn’t breathe” in the days before she wrote the father the letter accusing him of being rough with her. While these matters were cited by the mother as the reasons why she made contact with a number of domestic violence organisations such as Orange Door, Women’s Legal service, Child Protection and Berry Street, the substance of these allegations was never put to the father when he was cross-examined.
The mother was cross-examined about the letter she said had been written by X to be given to the father, the so-called “red letter” or “red card”[3]. Ms Townsend reaffirmed that X had written the letter on 29 October 2020 and had asked for it to be given to her dad that day. She said that this letter was written when X was showing signs of anxiety and at a time when Mr Daniels was denying that any of his actions might be responsible for her anxiety. Ms Townsend said that X had started showing signs of anxiety around September 2020.
[3] Exhibit A1, item 4 of the father’s tender bundle.
Ms Townsend said that X did not tell her that she was going to write it. The mother said that X wrote the letter and that she had no part in it. But then Ms Townsend conceded that X did ask her assistance to help spell some words. She said that X was trying to communicate with her father and that she was supporting her to do so.
I found this part of Ms Townsend’s testimony somewhat vague and unsatisfactory. Although
Ms Townsend emphatically stated that “I had nothing to do with this letter” and “This is all her [X] communicating this to her father”, I was left with the impression that Ms Townsend was quite aware of what X was doing and was perhaps more involved in the process than she was prepared to give away.
My concerns about Ms Townsend’s involvement were reinforced when I heard her evidence about how the letter was given to the father. Ms Townsend plainly knew what was in the letter and could have forewarned the father before handing it to him in the presence of X. The mother must have known that the content of the letter would have been confronting for Mr Daniels and she knew that X was too scared to give it to her father herself.
I have some difficulty accepting Ms Townsend’s evidence that she had nothing to do with the letter, other than by assisting X with some spelling. On the one hand, Ms Townsend gave the impression that X took it upon herself to write the letter because she was about to spend time with the father and wanted to communicate something to him. Ms Townsend says it was all X’s initiative. However, when it came to communicating that message, X was described as cowering in fear and hiding from the father. And then, notwithstanding the disturbing content of the letter and Ms Townsend’s serious concerns about it, Ms Townsend left X in her father’s care. I found it very difficult to reconcile the mother’s conduct.
Ms Townsend said that she believed she was doing something that her daughter wanted her to do, but I am not convinced that Ms Townsend’s conduct in giving Mr Daniels the letter, in the circumstances she did, was solely motivated by her daughter’s wishes. I cannot on the evidence find that X was put up to it by the mother, but I am satisfied that the mother saw some tactical advantage to her parenting claims in allowing the letter to be brought to the father’s attention. Counsel for the father put to Ms Townsend that she had engineered an “ambush” with the letter, a description which I consider to be apt in the circumstances.
The mother was also asked questions about why, after learning about the foot-in-the-chest allegation from X, she decided to approach the school for advice rather than raising the issue with Mr Daniels. Her explanation was that she was having difficulty communicating with Mr Daniels because he was engaged in a lot of denial and a lot of deflecting.
It seems that the order of key events became clearer for Ms Townsend after a short break in proceedings when the Microsoft Teams link was severed for about 10 minutes. After the resumption and part way through further cross-examination, it emerged that Ms Townsend had during the break checked some personal notes to ascertain exactly when she had documented X’s allegation that her father had put his foot on her chest. Ms Townsend corrected her earlier evidence and conceded that she had approached the school for advice on 4 November 2020, several days before learning about and documenting the foot on the chest allegation on
8 November 2020, and nearly 2 weeks after the red letter was written. From this evidence it appeared that Ms Townsend had been keeping notes of various incidents and disclosures that X had made to her, but there was no reference to these notes in her trial affidavit.
The mother also revealed when further cross-examined about the red letter that sometime after it was written she had a long conversation with the father about it, a conversation which was “hours long”. She did not disclose much detail about that conversation other than that she had audio recorded it, a fact which had not been revealed in either of the two affidavits she had filed in this proceeding. Nor was the content of this conversation put to the applicant father when he was cross-examined, despite the fact he had denied ever discussing the letter with
Ms Townsend.
When further cross-examined about the alleged conversation with the father, Ms Townsend said she had notes of it which were documented at her home. Those notes were called for but not produced. When the Court sought clarification about what she actually had in her possession, Ms Townsend said that she had an audio recording, but she didn’t want to use it.
Ms Townsend gave evidence that she had not recorded other phone calls, but she did record this one because she was scared for her daughter and very scared about what to do. She said that she did not feel that her needs were being recognised, she wasn’t getting any help from any external services and that nothing she was saying to the father was being listened to or respected by him.
The suggestion that Ms Townsend had not been forthcoming in her evidence provoked an angry and emotional response. She said that the father’s whole document (referring to his trial affidavit) was “deceitful”. She alleged that the father denies talking with her about many things and that she finds it difficult to counter his denials. She alleged that this conduct by the father was a constant and that she had been gaslit in the relationship.
The mother was cross-examined about her living arrangements with Mr K. She confirmed that he had started living with them during 2020, although he had his own place to stay around the corner in Suburb H. She said that he used his home as an office during the day when she was home-schooling X, but they started living as a couple from early 2020. Ms Townsend said that Mr K earns approximately $90,000 per year and that he has been extremely supportive during the parenting dispute, including by contributing $20,000 to her legal fees.

Counsel for Ms Townsend submits that this particular criterion is of great relevance in this matter, but adds that the Court’s assessment is not assisted by the Family Consultant who “has had a bit each way”. The mother submits that the gist of the family consultant’s opinion is that X is resilient and could manage relocation, but it will not be as good for her if she does relocate. It is submitted that that opinion is not of great assistance.
Of course the respondent mother must concede, as she does, that relocation will be a change in circumstances for X. However, Ms Townsend submits that in and of itself a change in circumstances does not rule out relocation if there are other factors which weigh in favour of it. To that end, the mother submits that X will maintain regular monthly time spent with the father, at least 10 days for the second and third term holidays and four days for the first term holiday, phone contact on an alternate day about basis and any other communication opportunities at X’s request. It is submitted that that level of contact will mitigate the effect of any change in circumstances for X. Counsel for Ms Townsend was at pains to emphasise that based on the family report X is a resilient, happy child who is well supported by two insightful parents who are connected to their child.
Counsel for the mother conceded that the change in circumstances for X would include a change in school and moving from her current friendship group to a new school cohort. Counsel submitted, however, that X has coped with change before, the family report writer identifies X as resilient and because X has only been at school for a short time, she will not be losing a well-established friendship group. Furthermore and in any event, it was submitted that X is old enough to use Skype and that she has a sufficiently developed skillset to maintain personal connections from some physical distance.
Counsel for the mother also submitted that the mother is in tune and in touch with X’s feelings and is well placed to help X cope with any change in circumstances.
Mr Daniels argues that there will be numerous and significant changes for X if she relocates to Canberra; changes which extend well beyond not seeing her father as frequently. There will be a change of physical environment, new streets, new buildings, new shops and a new house. There will include a new school, new friends, new extracurricular activities, new modes of travel and different before and after-school care. Mr K will be a permanent member of the household for the first time.
The father also submits relocation will deny X her connection with her grandmother, maternal and paternal cousins and her pet at the father’s home, all relationships which cannot be easily replicated.
In submitting that X should not be subjected to too many changes given her age and developmental stage, the father relies upon observations to that effect made by the family report writer Ms N. While Ms N opines that X is resilient and could potentially make the transition to another setting with support, she says that X’s “capacity to tolerate and adapt to multiple changes in her environment is largely untested”.
The father added that if relocation occurs he will not easily be able to check up on X at school or to take her to doctors’ appointments or to the dentist and that he will have to rely upon Ms Townsend for those things to occur.
The practical difficulty and expense of child spending time with and communicating with a parent
Section 60CC(3)(e) of the Act requires the Court to consider the practical difficulty and expense of the child spending time and communicating with her parents and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The mother submits that the evidence supports a finding that the father has the financial capacity to contribute to the expenses of any travel necessitated by a relocation order. The mother submits that the father’s assessable income is in the order of $100,000 per annum and that there was no evidence to suggest that he would not be able to meet the costs associated with spend time periods if X relocates to Canberra with the mother. The mother says that she would not expect the father to meet the entire cost of travel, but she says that the father ought to pay for each of the monthly visits for time spent and that she will assist to defray the costs of holiday travel. In terms of financial capacity, the mother reminded the Court that both Mr Daniels and his partner Ms J are employed by the Employer B and are both income earners in their household.
The capacity of each of the child’s parents; and any other person (any grandparents or others) to provide for needs of child, including emotional and intellectual needs
Section 60CC(3)(f) of the Act requires the Court to consider the capacity of each of the child’s parents to provide for the needs of the child including emotional and intellectual needs.
Ms Townsend submits that the Family Report neither weighs in favour of nor against the relocation proposal. The family report writer comments favourably about both the mother and father and their respective partners as all being child-focused and having X’s best interests at heart. Similarly, the maternal grandmother who was formerly an educator and would spend a lot of time with X, is child focused and well attuned to X’s emotional and intellectual needs.
Counsel for Mr Daniels on the other hand contends that there is a considerable “leap of faith” and speculation involved in assessing the viability of Ms Townsend’s relocation to Canberra. It is submitted that the offer of employment with the Employer M is insecure, the mother’s relationship with Mr K is still relatively new, her study intentions and scholarship support are ambiguous and there is uncertainty about the practical support the maternal grandmother will be able to offer. It was submitted that the Court is being invited to “crystal ball” these important matters.
One particular matter which the father urged the Court to consider in relation to parenting capacity was the “red card” or “red letter” incident. It will be recalled that Ms Townsend gave evidence that X, entirely at her own initiative, wrote a letter which was critical of the father and which she wanted to be given to him. It was on any view a confronting letter and when it was handed to the father by Ms Townsend, X was cowering from him. The mother did not discourage X from writing the letter, when she could have conveyed a message to the father directly. She did not turn her mind to the impact of the incident on X, notwithstanding X was hiding from view when the letter was handed over. Counsel for the father submitted, and I agree, that this incident was lacking in child insight and child focus and reflected poorly upon the mother’s parenting.
The father also refers to evidence where the mother allowed X to remain in pain with dental issues, which resulted in 2 extractions, because she wanted to be the one to take X to the dentist. This occurred, it was submitted, because Ms Townsend does not perceive Mr Daniels as capable of tending to such matters and because she wants X to perceive the father in that light.
Another matter raised by the father for consideration was the mother’s evidence, which only emerged at trial, that she had recorded a lengthy phone call with the father. Counsel for the father submitted that the mother had engaged in a level of deception in making the recording and that conduct does not auger well for the parties going forward.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and/or either of the child’s parents, and any other characteristics of the child
Section 60CC(3)(g) of the Act requires the Court to consider the maturity, sex and lifestyle and background of the child and the parents and any other characteristic of the child thought relevant.
A feature of this case is that each of the parents are well educated, thoughtful and articulate. I am left in no doubt they each love and adore X and each parent is committed to her welfare and her emotional, psychological and educational development. While the parents are clearly not at one on many matters and level criticism at each other regarding their relationship and aspects of their parenting, they do share a common focus which is to give X a rich and fulfilling future.
The mother submits that there is nothing negative about the lifestyle of either party which weighs in favour of or against the relocation proposal. She says that both parents are good people who love their child and I agree.
The attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents have been significantly and substantially involved in X’s life, spending almost equal time with X. The current dispute between the parties arises from the mother’s wish to relocate to Canberra with X. Had this specific issue not arisen, I am satisfied that the parents most likely would have mitigated their differences and continued to work co-operatively in X’s best interests.
Any family violence involving the child or a member of the child’s family
In final submissions, counsel for the mother drew the Court’s attention to the family violence order that Ms Townsend obtained in May 2021 following her disclosure to the father of her plan to relocate to Canberra. Counsel submits that the mother was not cross-examined about the allegations which led to the mother seeking the family violence order and that the Court should accept her submission that she was overborne by Mr Daniels. The mother also seeks to rely upon her evidence regarding the incident in the cab and urges the Court to find that the father’s evidence about that matter was evasive. Counsel for the mother submits that in relation to allegations of family violence, the Court should prefer the mother’s evidence over the father’s.
It was also submitted on behalf of the mother that the Court should find that the father perpetrated financial abuse as a form of family violence. The mother contends that she was forced to walk out of the home without her child and that she has received no property settlement. She submits that she should have been given some financial support by the father, particularly in circumstances where she had paid her way during the relationship, including covering her own maternity leave. Counsel submits that the respondent mother was financially exploited and abused.
Notwithstanding these submissions, counsel for the mother reiterated that there is no evidence that X has been directly impacted by family violence or observing family violence.
Ms Teicher submitted, however, that the family violence as between parents remains a relevant consideration in a relocation case because the Court is required to consider it in the statutory pathway. She added that the allegations of financial and emotional oppression factor into the child’s best interests in the sense that relocation for the mother will enable her to start over, which will improve her happiness and well-being and in turn be favourable to the interests of the child.
The applicant father contends that the mother has constructed the narrative that she has suffered for years at the hands of Mr Daniels and that she has been helpless and fearful to escape. He submits in substance that this narrative has been created in order to elevate the attractiveness of the various reasons advanced by Ms Townsend in support of her relocation proposal. Counsel for the father submits that when the evidence is closely examined, it will be seen that
Ms Townsend’s expression of dissatisfaction about Mr Daniels conduct in the relationship coincided more or less with the time Mr K and Ms Townsend started looking for jobs in Canberra around the 3^rd quarter of 2020.
It was also submitted on behalf of Mr Daniels that there is no corroboration for any of the allegations that the mother has made against him. There is no evidence which points to the father having a history of being angry or violent. It was conceded that there may have been a couple of situational conflict events, where there were heightened emotions in the relationship or where one or other party was affected by alcohol. But it is submitted that there is no evidence to support allegations of family violence, other than the mother’s say so.
The father’s counsel submitted that the weight of the evidence did not support the mother’s submission that she was fearful of Mr Daniels or scared about how he might react to requests for financial assistance or consent in relation to travel. It was submitted that the Court should not be drawn into the mother’s “victim” narrative. Ms Mansfield submitted that the mother was in fact quite tenacious, able to stand up for herself and that her alleged fear of the father has been exaggerated. Counsel pointed, for example, to Ms Townsend’s refusal to give
Mr Daniels additional time, to her decision to go on holidays and take her daughter out of school even though she knew Mr Daniels opposed the idea and the fact that the mother was prepared to effect changeovers alone and in her own home. It was submitted that when it came to the alleged fear she had for her husband, Ms Townsend was prone to exaggeration or gilding the lily.
It was submitted that none of the text messages between the parties which were tendered in evidence were offensive or coercive or controlling. There is evidence that Ms Townsend and
Mr Daniels speak to each other, including in Ms Townsend’s home and at changeover. It was also submitted that despite the allegation in her affidavit that Mr Daniels was “cold, controlling and belittling”, the paternal grandmother provided no evidence to support her contention, despite having had weekly interactions with Mr Daniels over a number of years.
It was also submitted, and I agree, that the mother has improperly alleged that the father threatened to use lawyers and legal proceedings as a tool of oppression against her. While the father is the applicant in this proceeding, he plainly initiated it because had he not done so the mother’s relocation to Canberra would have occurred. There is no real contest that before the father initiated these proceedings, Ms Townsend had put many of the building blocks in place to effect a speedy move to a new job and new house in Canberra and a new school for X. Moreover, there is evidence that solicitors acting on behalf of Ms Townsend also threatened legal proceedings if the father did not consent to the relocation. In my view Ms Townsend has mischaracterised this aspect of the father’s conduct to her own advantage.
Whether it would be preferable to make the order that would be least likely to lead to the institutions of further proceedings in relation to the child
Orders that are least likely to lead to the institution of further proceedings are of course to be preferred.
Any other fact or circumstance which the Court thinks is relevant
Counsel for the mother urges the Court to take into account the mother’s relationship with
Mr K, and the potential for she and Mr K and X to establish a loving and supportive family unit in a new place where she believes she will be happy. The mother says that other significant factors which weigh in favour of relocation include her employment with the Employer M and her improved career prospects, the availability of a relevant course of study at the R University and the likelihood that her personal happiness will be greatly improved. According to counsel, “if it’s a win for the mother…then it will be a win for the child”.
The mother urges the Court to accept that she will work diligently to facilitate and support X’s relationship with the father, as she has done since separation. The mother submits that she has facilitated contact with the father without requiring Court orders to that effect and that she has no intention of standing in the way of the father having a fulfilling relationship with his daughter. She submits that her preparedness to extend time with the father to six nights a fortnight, for a very young child, demonstrates her commitment to their relationship.
A theme of the mother’s submissions is that if she cannot relocate and is left to live in Melbourne, sharing care for X on a week about basis or similar, she will be unhappy and will feel constrained and confined. That unhappiness will be exacerbated by her perception of Mr Daniels as a narcissistic and controlling figure and that she will continue to have negative feelings toward him. The mother posits that if she has to remain in her current job with its poor career prospects and financial constraints, this will also impact the child.
Without intending to be overly simplistic or dismissive of the submission, the argument seems to be that if the mother is released to find happiness and a better life in Canberra on the promise that she will support an ongoing relationship between X and the father, it must follow that it will be a “win” for X.
While I understand the essence of the submission, I do not accept its premise. It seems to assume that the mother/daughter relationship is of greater importance and that the child’s best interests are more impacted by the mother’s state of happiness than the father’s. Bluntly, it seems to be a case of happy mother equals happy daughter equals child’s best interests. However, the submission ignores the very real prospect that a “win” for the mother will be a “loss” for the father and that his unhappiness may negatively impact on his daughter. A win for the mother might not be a win for X after all. I accept the mother’s reasons for wanting to move may be entirely well-founded and may have the positive outcomes she hopes for, but I do not accept the fact that the best interests of the child are thereby served. There is much more to the Court’s assessment than that.
While the mother contends that the Court should have confidence in her ability to ameliorate the change in circumstances which would result from a relocation, the fact remains that relocation will represent a very significant change for X. Most aspects of her settled existence (be it friends, family, routines, activities, housing, schooling, father’s spend time) will be touched and altered by relocation. No matter how great her resilience, that is not the test by which the Court will determine whether it is in her best interests.
The father urges the Court to be sceptical about the various reasons Ms Townsend has advanced in support of the relocation proposal. For example, counsel for the father contends that the “scholarship opportunity” about which the mother gave evidence in her affidavit of 24 September 2021, is illusory and was exposed as such during the trial. It is submitted that the scholarship cannot stand as a reason for relocation to Canberra because the scholarship offer is conditional on the mother remaining an employee of Employer C. Further, the father contends that the mother’s insistence that only the R University can offer a suitable course to develop her work interests is based entirely on her word and is not supported with any evidence. The father says the Court should accept his evidence that there are suitable six-month graduate certificate programs available at S University and the T University.
The father also submits that the respondent mother has not provided any evidence to satisfy the Court of her inability to develop her career and improve her income in Melbourne. She has worked at Employer C for 7 years and has stable employment. Notwithstanding a recent restructure at Employer C, one should infer from the scholarship offer that her employer is keen to retain her services by offering support to improve her skills.
Counsel for the father referred to the evidence of Mr K, now a central person in
Ms Townsend’s life, and speculated as to whether he is in fact the driving force of the proposal to relocate to Canberra. Mr K gave evidence that he had been looking to move to Canberra for a number of years and he explained that it was crucial for him to be closer to his mother and disabled brother. He also gave evidence that he had secured an important job with career prospects. In relation to all of this, counsel for the father posited what I think is an appropriate question, namely “Why should X miss out on the quality and quantity of time with her father that she currently enjoys and thrives upon to facilitate the advancement of her step-father’s career and to meet the needs of her step -father’s family commitments?”

The father also speculates about whether the Court can have faith that the mother will do as she says that she will do. Counsel for Mr Daniels pointed to numerous instances where
Ms Townsend has changed spend time arrangements, made excuses for X being unavailable, failed to be candid about her location or her travel intentions or been late in returning X to the father’s care. The father’s counsel submits that whatever the cause, there is an element of chaos in the mother’s life which does not bode well for the future.
PARENTAL RESPONSIBILITY
Section 61DA provides, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interest of the child for the child’s parents to have equal shared parental responsibility.
Both parties agree that there should be an order for equal shared parental responsibility for the child. I agree and will make an order to that effect.
Where the parents have equal shared parental responsibility for a child, sub-sections (1) to (5) inclusive of s.65DAA of the Act require the Court to consider the child spending equal time, or substantial and significant time, with each parent. This consideration weighs heavily in this case.
X’S FUTURE LIVING ARRANGEMENTS
An application by a parent to relocate requires the Court to balance two often competing interests. On the one hand, the Court must consider a parent’s right to move and live where they choose, to enable a parent to progress and pursue a new life and employment opportunities. On the other hand, the Court must also consider the impact any such move would have on the child’s relationship with both parents.
The Court is faced with a particularly difficult conundrum in a case, such as this, where a child has spent considerable periods of time in the care of each parent subsequent to separation. The Court’s decision will necessarily impact the time the child can spend with a parent with whom they do not live, and the nature of the relationship between the child and the other parent.
In this case the decision is a particularly difficult one and, as counsel for the father submitted, it presents the Court with a somewhat binary choice. None of the proposals put forward by the parties will result in an outcome which leaves everyone happy. For every winner there will be a loser and in the case of X whose interests are my primary consideration, there is no optimal solution which will leave both her parents happy.
If the Court permits relocation of the child to Canberra, the inevitable result is that X will see much less of her father than the six days a fortnight she currently enjoys. Either the father or X will shuffle between Melbourne and Canberra on a monthly (or perhaps fortnightly basis if the father’s Plan B is adopted) and this will cause emotional and financial strain.
Conversely, if the Court does not permit relocation of X to Canberra, Ms Townsend has made it known that she will remain in Melbourne with her daughter, probably at the cost of a desirable job and new life in Canberra and possibly at risk of her relationship with Mr K. The mother will be upset by that outcome and I accept that will have an indirect adverse impact on X.
But such is the nature of these matters and the inability of the parents to reach an agreement on parenting arrangements that the Court must resolve the impasse by crafting orders which are in the best interests of the child.
In determining this matter I have had regard to all the evidence and submissions and the statutory pathway I have described above. Having regard to those matters I have decided that relocation to Canberra is not in X’s best interests and I propose to adopt the father’s proposed final orders, save that the current 6/8 parenting arrangement should continue until the end of this current school year and that thereafter, X should live with her parents on an equal share basis.
In coming to this decision, the following matters have weighed most heavily.
By any measure X is a mature, well-adjusted and happy child. She is doing well at school, she has a broad array of interests, she is actively engaged with family, friends and hobbies. X has a balanced and mature perspective of the state of her parents’ relationship and she loves them both, equally. The father and mother are well-educated, healthy and dedicated parents. X spends considerable time with each of them, moves freely between their homes and is loved by the parents’ partners. The family report writer speaks positively about this environment and X’s place in it.
My impression is that X’s well-adjusted and positive outlook is a product of the environment I have described above, notwithstanding the underlying tensions between her parents. To their considerable credit, it appears that the parents have been successful in insulating X from their disagreements and alleged instances of family violence. This speaks to the fact that they are good parents and for the most part are child-focused.
I am persuaded that relocation will significantly disturb what to X is a reasonably well-settled and functional arrangement. I will not repeat the many changes which have been identified in the father’s submissions, but relocation for X will involve a new city, a new house, a new school, new friends, new activities and new care arrangements, to mention a few. As observed by the family report writer, X is of an age and state of development where her response to these changes cannot be clearly predicted. Her response to relocation is untested and it is not in her best interests that so much be left to chance.
Relocation will result in the father spending significantly less time with his daughter and that time will be diminished in quality. Spending time with X will impose significant financial and time stresses which are not a feature of the current parenting arrangements. As Ms N observed, there will be practical and logistical difficulties which can restrict access. It is inevitable that time and distance increase the prospect of arrangements having to be changed. Telephone, email and FaceTime communications can not adequately replace the spontaneous and unplanned interactions X and her father have under current arrangements.
X currently enjoys a meaningful relationship with each of the parents. I accept that a meaningful relationship can be maintained at a distance, but relocation of the child to live with one parent interstate will make that relationship fragile when it need not be. I have come to the conclusion that there is a significant likelihood that X will not be able to maintain a meaningful relationship with the father if relocation occurs. I reiterate the point I made earlier, that X’s best interests have been served by the shared parenting arrangements she currently enjoys, which are largely reflected in the father’s proposal.
Notwithstanding her relatively young age, I do place considerable weight on the views expressed by X. She loves both her parents and she wants to see each of them for about the same amount of time. She currently moves freely between the two households, her parents have for the most part been able to communicate and changeovers have been handled sensibly. The effect of relocation will be contrary to the child’s wishes.
On the evidence, I am not persuaded that relocation is necessary to protect X from physical or psychological harm or from being subjected to or exposed to family violence. I have carefully considered the mother’s allegations of controlling and coercive behaviour, and while I accept that she has subjective feelings of being overborne by Mr Daniels, I considered her evidence to be somewhat exaggerated and that she was prepared to gild the lily to present
Mr Daniels as a menacing character in order to secure her preferred outcome. Significantly, even the mother’s counsel conceded that X had not been subjected to any of this alleged family violence and that it was not an issue which weighed in favour of either party’s proposal.
There is nothing about either party’s parenting capacity which disqualifies them from continuing to play a significant role in X’s future. Both Ms Townsend and Mr Daniels are capable parents with different parenting styles. The family report of Ms N noted that
Ms Townsend’s narrative strongly suggested that the mother-daughter relationship was more important and that she believes what will benefit Ms Townsend’s life will also benefit X. As I have already discussed, that was also a theme which struck me about Ms Townsend’s evidence generally - but it is a theme which is based on a false premise.
I accept that there is disagreement about who has been the primary carer of the child at different points in X’s life, but it is not necessary for me to resolve that contest. The evidence as a whole, including the family report, comfortably satisfies me that both parents have and will continue to play important roles in X’s life. My determination of this matter should not be swayed by giving greater weight to a maternal relationship over a paternal relationship, or by assuming that a mother’s happiness is of more benefit to a child than a father’s.
I have given much consideration to the mother’s desire to live in Canberra to pursue a new career, further study and a shared life with Mr K. My overall sense of the evidence was that Mr K’s presence in Canberra and the mother’s desire to build a life with him are the principal drivers for her relocation proposal and that her employment and study opportunities and her desire to put distance between herself and Mr Daniels are secondary, albeit important to her. The evidence does not persuade me that the position at the Employer M will provide Ms Townsend with such a significantly enhanced income or improved career prospects to warrant dislodging X from her current environment. The mother’s evidence about the importance of the scholarship opportunity as part of her career plan in Canberra was exposed by cross-examination.
In terms of ongoing support for X, I am not persuaded that her best interests will be served by relocation to Canberra. The maternal grandmother who lives in Melbourne and has played a significant role in caring for her will not be as available if relocation is permitted. Even though she was not cross-examined on her affidavit, her evidence does not give me confidence that she will be able to remain as significant a part of X’s life.
The support available to X in Melbourne from her school, school friends, peers, relatives, pets and the like cannot be replicated quickly, or perhaps ever, if she moves to a new city.
CONCLUSION
In all the circumstances, I will make the orders substantially in the form of those proposed by the applicant father in Annexure A to his amended initiating application filed on 6 September 2021, save that the 6/8 time parenting arrangement pursuant to the interim orders made on 27 July 2021 should continue for the balance of the 2022 school year. Thereafter, X should live with the parents on an equal shared basis.

I certify that the preceding two hundred and ninety-two (292) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.
Associate:
Dated: 6 May 2022

File number(s):	MLC 6156 of 2021
Judgment of:	JUDGE FORBES
Date of judgment:	6 May 2022
Catchwords:	FAMILY LAW – PARENTING – relocation – current shared care arrangement – career and study opportunities for mother – child’s connection to Victoria – evaluation of competing proposals – impact of relocation on child – child’s best interests
Legislation:	Family Law Act 1975 (Cth), s 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 121
Cases cited:	Adamson & Adamson [2014] FLC 93-622 AMS v AIF [1999] FLC 92-852 Bell & Nahos [2016] FamCAFC 244 KB & TC [2005] FLC ¶93-224 Franklyn and Franklyn [2019] FamCAFC 256 Mazorski & Albright [2007] FamCA 520 Morgan & Miles [2007] FamCA 1230 Palmer & Hammer (No.2) [2011] FamCAFC 196 Paskansky & Paskansky [1999] FLC ¶92-878 Sayer & Radcliffe & Anor [2012] 48 Fam LR 298 Tabac & Kelmer [2016] FCCA 1937 U v U [2002] HCA 36 Wilburn & Wilburn [2019] FCCA 2131
Division:	Division 2 Family Law
Number of paragraphs:	292
Date of hearing:	13 – 15 December 2021
Place:	Melbourne
Counsel for the Applicant:	Ms Mansfield
Solicitor for the Applicant:	Coote Family Lawyers
Counsel for the Respondent:	Ms Teicher
Solicitor for the Respondent:	Aitken Street Family Law

MLC 6156 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR DANIELS Applicant
AND:	MS TOWNSEND Respondent

ORDER MADE BY:	JUDGE FORBES
DATE OF ORDER:	6 MAY 2022