Estes & Estes - [2024] FedCFamC2F 189

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Estes & Estes [2024] FedCFamC2F 189

File number(s): MLC 2140 of 2022

Judgment of: JUDGE A. HUMPHREYS

Date of judgment: 16 February 2024

Catchwords: FAMILY LAW – PARENTING – relocation – mother seeks children (now aged 11 and 8 years) live with her in Region B and for the children to spend time with the father on alternate weekends (from Friday to Sunday), for one additional weekend each month, and for additional holiday time – application resisted by the father who seeks children continue to spend equal time with both parents – evaluation of competing proposals – mother’s application refused – order for children to continue spending equal time with both parents – no order made confining the area in which the parties may live with the children – all other parenting orders made by consent.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC 61DA, 65D, 65DAA, 65DAC

Cases cited:
A v A: Relocation Approach (2000) FLC 93–035; [2000] FamCA 715

Adamson & Adamson (2014) FLC 93–622; [2014] FamCAFC 232

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Asher & Wilkinson (2020) FLC 93–945; [2020] FamCAFC 44

Blinko & Blinko [2015] FamCAFC 146

Eddington and Eddington (No. 2) (2007) FLC 93–349; [2007] FamCA 1299

Franklyn & Franklyn [2019] FamCAFC 256

Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102

Malcolm & Monroe (2011) FLC 93–460; [2011] FamCAFC 16

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

McCall & Clark (2009) FLC 93–405; [2009] FamCAFC 92

Morgan & Miles (2007) FLC 93–343; [2007] FamCA 1230

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Rochford & Fitzhugh [2019] FamCAFC 218

Sampson and Hartnett (No.10) (2007) FLC 93–350; [2007] FamCA 1365

Sayer & Radcliffe and Anor (2012) 48 Fam LR 298; [2012] FamCAFC 209

Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22

Taylor & Barker (2007) FLC 93–345; [2007] FamCA 1246

U v U (2002) 211 CLR 238; [2002] HCA 36

Ulster & Viney (2016) FLC 93–722; [2016] FamCAFC 133

Wagstaff & Wagstaff (2022) 65 Fam LR 461; [2022] FedCFamC1A 119

Zanda & Zanda (2014) FLC 93–607; [2014] FamCAFC 173

Division: Division 2 Family Law

Number of paragraphs: 235

Date of last submission/s: 23 November 2023

Date of hearing: 20 & 21 November 2023

Place: Melbourne

Counsel for the Applicant Ms Agresta

Solicitor for the Applicant Keane Family Law

Counsel for the Respondent Ms Mansfield

Solicitor for the Respondent Conlan Cummings Lawyers
ORDERS

MLC 2140 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ESTES

Applicant

AND:
MR ESTES

Respondent

ORDER MADE BY:

JUDGE A. HUMPHREYS

DATE OF ORDER:

16 FEBRUARY 2024

THE COURT ORDERS THAT:
Procedural
1.All previous parenting orders be discharged.

Parental responsibility
2.The applicant (“mother”) and respondent (“father”) (together the "parties” or the “parents”) have equal shared parental responsibility for the children, X born in 2012 and Y born in 2015 (“the children”).

Care arrangements
3.The children live with each parent as agreed by the parents in writing and failing agreement:
(a)In alternate weeks, on a “week-about” basis, with changeover taking place at the commencement of school/9.00 am each Friday with such time to continue during school holidays except where specifically provided for otherwise in these orders; and
(b)With the parent they are not otherwise living with each week on Wednesday (or such other day as agreed by the parties in writing) from after school to 7.00 pm with such time suspended during school holidays.

4.The children spend time with the mother for Mother’s Day from after school Friday to before school Monday on the Mother’s Day weekend.
5.The children spend time with the father for Father’s Day from after school Friday to before school Monday on the Father’s Day weekend.
6.The children spend time with each parent on each child’s birthday as agreed in writing and failing agreement, the children spend time with the parent that they are not otherwise living with on that day:
(a)From after school to 7.00 pm if a school day;
(b)If not on a school day then from 4.00 pm on the birthday to 9.00 am the following morning.

7.The children spend time with the mother on the mother’s birthday and the father on the father’s birthday as agreed in writing and failing agreement:
(a)From after school to 7.00 pm if a school day;
(b)If not on a school day then from 4.00 pm on the birthday to 9.00 am the following morning.

8.The children spend time with each parent for Easter as agreed in writing and failing agreement:
(a)From 6.00 pm the day before Good Friday to 6.00 pm Easter Saturday with the father; and
(b)From 6.00 pm Easter Saturday to 6.00 pm Easter Monday with the mother.

9.The children spend time with each parent for Christmas as agreed in writing and failing agreement:
(a)From 10.00 am on 23 December to 10.00 am Christmas Day with the mother in odd-numbered years and the father in even-numbered years; and
(b)From 10.00 am Christmas Day to 10.00 am 27 December with the mother in even-numbered years and the father in odd-numbered years.

Children’s communication
10.The children and parents be at liberty to communicate with each other through electronic means at all reasonable times.

Changeover
11.Unless otherwise agreed by the parties in writing and where changeover does not take place at school, changeover occur by the parent who has care of the children returning the children to the other parent at the other parent’s residence at the conclusion of the children’s time with them.

Communication
12.The parties each:
(a)Keep the other advised at all times of their current residential address and mobile telephone numbers;
(b)Advise the other immediately in the event that either child suffers any serious illness or injury including details as to any medical practitioner, hospital or medical practice attended;
(c)Authorise any medical practitioner, hospital or medical practice upon or at which child may attend from time to time, to communicate with the other party in respect to the children’s medical condition and/or requirements;
(d)Authorise all schools at which either child may attend from time to time, to:
(i)Provide the other, at the expense of the other, copies of all school reports, school notices and newsletters, school photographs and examples of school work in relation to the child;
(ii)Communicate with the other, either by telephone, in writing or by personal attendance, in respect to the children’s progress at school, and inform each other of any emergency, remedial or correctional treatment required by either child as soon as is practicable; and
(iii)Permit the other to attend all school functions to which parents are normally invited, subject to any school policy.

Extra-curricular activities
13.Each party is authorised to attend all school and extra-curricular activities involving the children, including:
(a)Sporting fixtures;
(b)Extra-curricular activities that allow for parental attendance;
(c)School functions and events that allow for parent attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews and canteen duties.

14.The children’s school, extracurricular activity providers and any other educational facility upon whom the child attend is authorised to release to each parent all information usually provided to parents at the requesting parent’s cost.

Medical
15.Each medical, health or allied professional upon whom the children attend is authorised to release to each parent all information usually provided to parents at the requesting parent’s cost.

Injunction
16.Each party is restrained from making negative, derogatory or disparaging comments about the other parent or members of the other parent’s family or household in the presence or hearing of the children.

Travel
17.Each party may travel with the children during the time the children would usually be in the other parent’s care only with the written consent on the non-travelling parent and if such travel is agreed, the children spend makeup time with the non-travelling parent on such dates as nominated by the non-travelling parent provided that, unless otherwise agreed in writing, the makeup time is not to occur on special days.
18.Neither parent requires the other parent’s consent to travel interstate or internationally if such travel does not take place during time the children would usually be in the non-travelling parent’s care but is required by this order to notify the other parent of the contact details and location of where the children will be staying.
19.In the event a parent intends to travel internationally with the children, the travelling parent:
(a)Ensure that the children’s recommended travel vaccinations are up to date at the travelling parent’s cost;
(b)Provide the non-travelling parent with evidence of prepaid return airfares and full particulars of all accommodation the children will be staying in no later than 21 days prior to the intended travel;
(c)Obtain travel insurance that provides for unlimited medical coverage for the children and Covid-19 insurance cover and provide the non-travelling parent with a copy of the certificate of currency of insurance no later than 21 days prior to the intended travel;
(d)Is restrained from taking the children to a Country/location which is listed on the Smartraveller website as “Do not travel” and/or “reconsider your need to travel”;
(e)Indemnifies the non-travelling parent in relation to any and all costs associated with the travel and anything that occurs to the children during the travel; and
(f)Ensure that the children and the non-travelling parent are able to communicate with each other at all reasonable times.

20.In the event a parent intends to travel internationally with the children and the children’s passports need to be renewed then:
(a)The parent intending to travel with the children prepare the passport applications including obtaining the required passport photos at their cost and provide the completed application to the other parent for signing;
(b)The other parent sign the passport application forms within 14 days of receiving the application forms from the parent intending to travel; and
(c)The non-travelling parent reimburse the applying/travelling parent an amount equivalent to one half of the standard non-urgent passport application fee for each child within 21 days of receiving a copy of the receipt for the payment of the fees.

21.When the children are not travelling internationally their passports be retained by the mother and if the father is travelling internationally with the children:
(a)The mother provide the father with the children’s passports within 7 days of receiving the information from the father referred to in orders 19(b)-(c) of these orders;
(b)The father return the children’s passports to the mother within 7 days of returning home from the international travel; and
(c)And the mother provide a certified copy of the children’s passports to the father.

Obligations, consequences of contravention and assistance with orders
22.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE A. HUMPHREYS:
INTRODUCTION

These proceedings concern the children X and Y (“the children”). X is a girl recently turned 11. Y is an eight-year-old boy, soon to turn nine.
The parties are the children’s parents. I will refer to the applicant as the mother and the respondent as the father without intending any disrespect to either of them.
To their credit, the parties have until now been able to agree upon care arrangements for the children since their relationship broke down on a final basis in late 2020. Since that time, by agreement and then pursuant to interim orders made by consent, the children have spent equal time with both parents. Currently, the children live with each parent in alternate weeks and spend time with the other parent on Wednesday afternoons. They also spend time with each parent for half of school holidays and on special occasions.
The mother wishes to move with her partner and the children to live in the Region B area, in particular the environs of Town C or Town D, to enjoy a rural lifestyle. This region is approximately three hours by car from where they currently live with both parents and attend school, in the area of Suburb E.
To accommodate her proposed move with the children, the mother seeks orders providing for the children to spend alternate weekends with the father during school term periods, from the conclusion of school on Friday until 5.00 pm on Sunday, and for up to one additional weekend per month if the father spends the weekend at his holiday home at Town F in rural Victoria. She also proposes the children spend additional time with the father during school term holidays as well as time for special occasions.
The mother made it clear she will not relocate to Region B without the children. If her application is unsuccessful, the mother seeks an order permitting each parent to move with the children within 50 kilometres from Suburb E. She says this will enable her to live with her partner and the children in a home with more space, including for animals, and for the current equal shared care arrangement to be maintained.
The father opposes the mother’s application and seeks the children remain living in proximity to their current homes with both parents and their school and that they continue to spend equal time with each of the parties. He seeks an order restraining the mother from relocating the children’s principal place of residence further than 40 kilometres from Suburb E. If the mother succeeds with her application and the children do move to the Region B, the father seeks the children spend time with him on alternate weekends (as proposed by the mother), on all long weekends and for extended time each school term holidays.
The parties otherwise agree to all orders to be made in relation to the children on either scenario, including for equal shared parental responsibility, special occasions, changeover, access to information, the children travelling overseas and other matters.
The proceedings arise from what I accept is the mother’s genuine desire to pursue a rural lifestyle for herself and the children with her partner in regional Victoria and the father’s desire to remain living with the children in the area where he has always lived and worked, where he is settled and where his family lives. That this dispute has to be determined by the court is unfortunate given the parties have an excellent co-parenting relationship and have generally been able to make arrangements for the children by agreement between them. It is not in dispute that X and Y are delightful children and they are well loved and cared for by both parents.
THE ISSUES
In the above circumstances, the following issues require determination:
(a)Should X and Y live with the mother in the environs of Town C or Town D or continue to live with both parents in proximity to their current homes and school in the area of Suburb E?
(b)If X and Y live near Town C or Town D with the mother, what time should they spend with the father during school term periods (in addition to time on alternate weekends) and during school holidays?
(c)If X and Y do not live in the areas of Town D or Town C with the mother, should the parties be restrained from moving the children’s place of residence outside a particular radius from Suburb E?
BACKGROUND AND PROCEDURAL HISTORY
There is little factual dispute between the parties and the following brief background is taken from a joint chronology tendered by the parties’ lawyers on 13 November 2023, save where another source is indicated.
The parties began living together in 2005, in Suburb E. They married in 2006. X was born in 2012 and Y was born in 2015.
In 2019, the parties purchased a small holiday home in Town G, in Region H of New South Wales.
The parties separated temporarily in late 2019 when the father vacated the former family home in Suburb E. He returned to live in the former family home in early 2020.
In late 2020, the parties’ relationship broke down on a final basis and they began living separately under one roof in the former family home.
In late 2020, the mother commenced a relationship with her partner, Mr J.
In late 2020:
(a)The former family home in Suburb E was sold and the mother moved with the children to a rental property nearby in Suburb K. The father remained living in the former family home; and
(b)The children began spending equal time with their parents, with the mother from after school on Monday until before school on Wednesday; with the father from after school on Wednesday to before school on Friday; and with each parent on alternate weekends. This arrangement saw the children spend one period of five consecutive nights and one period of two consecutive nights with each parent each fortnight.
In early 2021, the sale of the former family home settled and the father moved into a home in Suburb E owned by his father, where he continues to reside along with the children when they are living with him.
In late 2021, Mr J moved to live with the mother.
The mother deposed that she first informed the father of her wish to move to the Town C/Town D area with Mr J in late 2021, prior to him moving in with her.
In late 2021, the father purchased a holiday home at Town F in Region L, Victoria.
At around the same time, the mother and Mr J moved with the children into a property they had purchased at Suburb M, a short distance from Suburb E.
In early 2022, a divorce order was made on the application of the mother, which took effect in mid-2022.
In May 2022, the parties attended family dispute resolution (“FDR”) and on 2 November 2022 final property orders were made by consent.
On 2 November 2022, the mother commenced these proceedings, seeking parenting orders, including that she be at liberty to relocate with the children to Region B.
The father filed court documents in response on 16 December 2022, seeking (in summary and amongst other orders) that the children spend equal time with both parents, the mother be restrained from relocating with the children to the Region B area and the children continue to attend their current school.

On 19 December 2022, interim parenting orders were made by consent providing for the children to continue to spend equal time with both parents, essentially reflecting the arrangement already in place by agreement. An order was made providing for the preparation of a family report by Ms N (“the family report writer”) and for an interim hearing on 27 April 2023.
On 13 April 2023, the parties and children attended upon the family report writer who prepared a family report dated 19 April 2023 (“the family report”). Her recommendations included:
(a)The parents continue to share parental responsibility for the children;
(b)If the mother and children do not relocate, the children spend equal time with each parent on a “week about” basis, spending one evening each week with the other parent for dinner;
(c)If the children relocate with the mother, they spend time with the father on alternate weekends with an option of a third weekend each month, for half of all school holidays and that they communicate with him by video twice each week;
(d)If the children do relocate, the relocation not occur until after the end of the 2023 year and the children continue to spend equal time with both parents in the meantime, as recommended at (b) above;
(e)If the mother relocates without the children, they live with the father and spend time with the mother as recommended in respect of the father at (c) above;
(f)The parties attend an accredited parenting after separation program; and
(g)The parties utilise an online app for their communication.
On 27 April 2023, further interim parenting orders were made by consent (“the April orders”), providing for the children to spend time with the parties on a “week-about” arrangement and to spent time each Wednesday with the other parent for dinner, as recommended in the family report. The April orders required the children to remain at their existing school pending determination of these proceedings and included (in summary) agreed provisions for the sharing of and access to information about the children, attendance at school and other events, travel with the children and communication between the parents. The parties were each required to attend a parenting after separation program and further FDR.
On 30 May 2023 the parties attended further FDR but no agreement was reached.
On 19 July 2023, a compliance and readiness hearing was conducted and the matter was listed for a final hearing of two days commencing on 20 November 2023. On 24 July 2023, further trial directions were made in chambers by the docketed trial judge. The final hearing was subsequently re-listed to me, maintaining the existing fixture and trial directions.
The children’s current circumstances
The children attend O School in Suburb E. In 2023, X completed grade 5 and Y completed grade 3.
Both children are in good health.
X attends extra-curricular activities each Thursday evening. Y also attends extra-curricular activities on Wednesday evenings. He has previously attended sports and has recently expressed an interest in playing another sport. The parties each take the children to their activities in alternate weeks. The children’s classes are held at a community hub a close walk from the children’s home with the father.
X was diagnosed with a learning difficulty in late 2023 after it was identified she was behind at school in some areas of learning. The father provided details of the assessment which is being undertaken by Dr P of Q Organisation. At the time of the father’s trial affidavit, Dr P’s preliminary assessment was that X has a learning disorder and he was in consultation with X’s classroom teacher before finalising his assessment. She receives additional learning support at school, including with reading.
The parties agree X has experienced some emotional difficulties. Since late 2023, she has been attending fortnightly appointments with a psychologist by agreement between them, upon referral from her GP pursuant to a mental health care plan.
The parties’ current homes are zoned for R School. They agree they do not wish the children to attend at this school. They are undecided on a secondary school for the children if the children do not move to live in Region B. The father is willing to consider a private school. The mother has not yet considered that as an option.
The parties’ current circumstances
The mother and Mr J
The mother is 40 years old. She is employed full time as a professional and works remotely from home.
The mother lives with Mr J and the children in the home they own in Suburb M, approximately six kilometres from the father’s home in Suburb E. At the time of the final hearing, the Suburb M property was on the market for sale. It consists of a home built on a small block of land which the mother describes has “practically no backyard… so the children don’t have much room to play outside and we definitely don’t have room for a dog.”
The mother gave evidence that car travel between her home and the father’s home (and between her home and the children’s school) takes between ten to 15 minutes in light traffic but is considerably longer when traffic is congested (including for school drop offs). She says the drive has at times taken her up to 50 minutes.
Mr J is 25 years old. He is currently employed as a tradesperson in a role based in Suburb S, working shift work and travelling up to an hour each way to locations all over Melbourne. He has also started his own business in Melbourne, which he deposed has been well received. Before moving to live with the mother, Mr J had grown up and lived in the Town D and Town T areas in Region B. He has numerous family members living in that area.
Each of the mother and Mr J gave evidence they hope to have children together. The mother experienced a miscarriage over the last year.
The mother and Mr J gave evidence they travel almost every weekend to stay in their holiday home in Town G (which the mother retained as part of the parties’ property settlement) or in Town C (where the mother’s father, her sister, Ms U, and Mr J’s sister live) or with Mr J’s parents at their property in Town T.
Mr J owns an investment property in Town D. It has been tenanted but at the time of the final hearing was expected to be vacant from late 2023.
The father
The father is 41 and a qualified tradesperson. He is employed full time and received a promotion approximately three years ago to a senior role. He usually works in Suburb V, nearby to Suburb E, from 8.30 am to 5.00 pm Monday to Friday. Having worked for his current employer for several years, he enjoys some flexibility in his working hours which enables him to care for the children when they are living with him. For example, he is able to deliver the children to school and arrive at work at 9.00 am and he is able to work from home after collecting the children from school at 3.00 pm and at other times as required.
The father lives in a home owned by (and rented from) his father, in Suburb E. The children have lived in this home with the father for three years and he deposed he intends to live there indefinitely. The father’s home is close to the children’s school and he walks them to school before starting work.
The father has not re-partnered and does not live with any other person save for the parties’ children.
The father deposed that he has been assisted with the children’s care by his parents, until his mother died in 2023, and from that point by his father. From mid-2023 to late 2023, his father was in Queensland looking after a property for a friend and during that time the father cared for the children without support. He gave evidence his father will again be available to assist him as a “backup” upon his return from Queensland.
The children also spend time with the father at his home at Town F (near City W).
THE FINAL HEARING
The final hearing was conducted in person over two days on 20 and 21 November 2023.
The documents relied upon by each party are as set out in their case outline documents. Also tendered were a joint chronology and a consolidated minute of final orders sought, identifying those orders which were agreed and those in dispute (“joint minute”).[1] An updated copy of the joint minute was provided as directed once the final hearing had concluded, on 23 November 2023 (“updated joint minute”)[2], incorporating further matters that had been agreed during the course of the final hearing. A series of maps were also tendered, identifying key locations the subject of the parties’ proposals and approximate travel times between those locations.[3]
[1] Exhibit A.
[2] I have marked the updated joint minute Exhibit C.
[3] Exhibit B.
Both parties were represented by counsel. I commend the parties and their legal representatives for the preparation of these joint documents and for the smooth and respectful conduct of the final hearing.
PROPOSALS
The mother’s proposal and position
In her Initiating Application (as amended) and the minute of orders annexed to her outline of case document, the mother sought to relocate to live with the children in Region B. In his trial affidavit, the father pointed out the size of Region B, which consists of three municipalities and encompasses towns as far away as Town Z, being a four-hour drive from Suburb E. In the joint minute tendered at the commencement of the final hearing, the mother narrowed her proposal to living with the children in “the [Region B] area but no further than 350km from [Suburb E] Centre”. Consistently with her position as clarified during the course of the final hearing, the mother’s proposal was further confined in the updated joint minute, to live with the children in “[Town C] or its environs or [Town D] or its environs”.
The mother deposed that during their relationship the parties regularly spent time in regional Victoria, including travelling in their motor vehicle from 2010, to their holiday home at Town G from 2019, and visiting with her family. She deposed she and the father “often discussed that we would move to the country one day to live a more relaxed stress-free lifestyle for both of us and the kids.” The father agreed only that the parties had spoken of “retiring” to regional Victoria but said they had not contemplated moving while the children were at school.
The mother deposed she prefers the lifestyle that living in a regional area offers and she has “never felt truly happy and settled living in inner Melbourne.”
Mr J would like to return to live in the Region B area. He finds it difficult to be away from his family. The mother has observed his “disappointment makes him sad and frustrated.” She deposed she “can see he isn’t as happy when in Melbourne as he is when [they] are in the country.” Mr J was asked how this plays out and he said he doesn’t cry but talks a lot about the farm, living up there, and the lifestyle he used to have. He said there is a regular discussion about moving to the country and acknowledged the children hear those discussions. He described those discussions as follows:
What we like to do and what we like to have in life… what our back up would be and what we would do if we don’t get to move. We’d still like to move from where we are and move out a little bit further where we can get as much regional life as we can... bigger block and more space for the kids.
The mother and Mr J gave evidence they plan to initially live in Mr J’s investment property in Town D, being a near new large home with a large backyard. They intend to sell Suburb M and apply the sale proceeds towards buying or building a new home, hopefully in Town C or somewhere on the outskirts of town with acreage. To the family report writer, the mother envisaged this would provide:
[…] lots more room for our children and future children to play, ride bikes, have animals and get outside and have less screen time. [Y] especially needs to be able to get outside and burn off his energy. We would be able to get a dog or two and hope to have a few cows and sheep as we would have the room for them living on an acreage.
The mother gave evidence her employer is supportive of her potential relocation and has talked about expanding into the Town D/Region B region, with the potential for work opportunities for her. In any event, she currently works remotely and can continue in her current role after relocating even without her employer expanding into regional Victoria. Her employer provided an undated letter consistent with that evidence and confirming support for her move to regional Victoria while working with their company.[4] The mother optimistically deposed that expansion of her employer’s business into Region B “could possibly lead to a promotion” but this was not mentioned in the letter from her employer and the mother acknowledged when cross-examined that a promotion was not guaranteed.
[4] Annexure ME-1 to the mother’s trial affidavit.
Mr J deposed to job opportunities available for him in Region B including with his former employer and the possibility of a transfer with his current employer. He also deposed to an “abundance of jobs in the regional area” which he suggested would see the growth in his business maximised and allow him to grow his business more quickly “and take this on as our primary income a lot sooner.” Evidence was not adduced in support of that claim.
In any event, the mother did not submit she was seeking to move for financial reasons other than being able to afford a larger property. When cross-examined, the mother gave evidence she and Mr J will not know if they will be better off financially upon moving to regional Victoria until they know what they are purchasing.
The mother deposed that if she lives in the Town C or Town D areas she will have “lots of support including [Mr J], my father, my sister, and [Mr J’s] large extended family whom I am very close with.”
The mother proposes the children attend AA School. She deposed to the features of this school she considered would suit the children. She had taken the children to view the school shortly prior to the final hearing.
The mother deposed her father has offered that they can either live at a property he owns in Town BB or with him in his home in Town C while they purchase or build their “new forever home”. Both properties in Town BB and Town C are in the zone for AA School.
If the children live with her in the environs of Town C or Town D, the mother proposes they spend time with the father during school term periods as follows:[5]
(a)Each alternate weekend from after school Friday until 5:00pm Sunday (extending to Monday if Monday is a non-school day);
(b)Up to one additional weekend per month in the event that the Father will be spending the weekend at his holiday [home] located at [Town F] and the Father provides the Mother with no less than 10 days written notice and:
(i)Such weekend does not fall on the Mother’s birthday, Mother’s Day or any other special day;
(ii)The Children do not have a prior commitment arranged with the Mother/extended maternal family before receiving the notice and which cannot be rescheduled;
(iii)In the event the Children have a friend’s birthday party to attend, the Father takes them to such party or event.
[5] Per paragraph 4 of the updated joint minute (Exhibit C), marked in blue text.
In relation to school holidays, the mother proposes the children spend time with each parent during school holidays as agreed by the parties in writing and failing agreement:[6]
(a)In all Term 1 and 3 school holiday periods with the Mother for the first half and the Father for the second half;
(b)With the Father for all of the Term 2 school holidays from the conclusion of school on the last day of Term 2 until 5pm on the last Friday of the school holiday period;
(c)In all Term 4/Summer school holiday periods as follows:
(i)From after school on the last day of school at the conclusion of Term 4 to 10am Christmas Day with the Mother in odd numbered years and the Father in even numbered years; and
(ii) From 10am Christmas Day to 7pm 1 January with the Mother in even numbered years and the Father in odd numbered years; and
(iii) For the balance of the Term 4/Summer school holiday period on a week-about basis so that the Father has the first week from 7pm on 1 January with the Father in even numbered years and the Mother in odd numbered years.
[6] Paragraph 5 of the updated joint minute (Exhibit C).
The mother’s alternate proposal and position
If the court finds it is not in the children’s best interests to live with her in the Town D or Town C areas, the mother and Mr J are considering moving somewhere further out of Melbourne but still close enough to maintain the children’s existing care and school arrangements. The mother suggested the areas of Suburb CC, Suburb DD or Town EE. To facilitate that, she seeks (in the alternative to her relocation proposal) an order that each parent be permitted to live with the children within 60 kilometres of Suburb E.
She submits this will help her and Mr J to obtain a more affordable house on a larger block of land and it will also provide more options for secondary schools for the children, if they move into another school zone.
The father’s proposal and position
The father opposes the mother’s application for the children to live in the areas of Town C or Town D. He seeks the children remain at their current school and continue to live with both parties, spending equal time with each of them.
He submits the children are settled in their current area and at their current school, with most of their extended family and friends close by. He contends the children’s relationship with him will be greatly diminished by their relocation and they will be prevented from spending time with their extended family and friends in Suburb E on a regular basis. He is concerned about disruption to the children’s education and to their emotional stability.
The father does not have any objection to the mother moving within 40 kilometres of Suburb E, which would encompass the Suburb CC and Town EE areas.
If the children live with the mother in the areas of Town C or Town D, the father seeks the children spend time with him each alternate weekend as proposed by the mother and for each long weekend, from 5.00 pm on the last day of school prior to the long weekend until 5.00 pm on the last day of the long weekend.
For the school holidays, if the children relocate the father seeks they spend extended time with him during each school term holiday period, from 5.00 pm on the last day of school term until 5.00 pm on Wednesday in the second week of the school holidays. He proposes the children spend alternate weeks with the parties during the long summer school holidays.
In relation to the children’s secondary school education, if the children remain living in their current area, the father has considered FF School (his father’s home is in the zone for that school) and is willing to consider private schools if the parties are unable to secure a place for the children at a state high school of their choice. However, he is of the view the matter of the children’s secondary schooling should be addressed by the parties after it is known where the children will be living. He is confident the parties will be able to reach an agreement at that point.
During the course of the final hearing, the father agreed he would support the children attending AA School if they live in the areas of Town C or Town D.
EVIDENCE
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
I have read all documents upon which the parties have relied and the tendered exhibits. I have also had the benefit of observing the appearance and demeanour of the parties and Mr J when being cross-examined. The other witnesses, including the family report writer were not required for cross-examination. It has not been possible to include every aspect of the evidence of the parties and the witnesses in these reasons. However, I have taken all the evidence into account.

As observed when recounting the background to these proceedings, there was little controversy between the parties in relation to past events. I accept each party has viewed events and the issues in dispute from their own perspective and this is reflected in their evidence. I will make some further general observations in relation to the evidence of the parties and each of the witnesses before returning to consider their evidence in the context of the required statutory considerations and my evaluation of the parties’ proposals.
The mother
Overall, I consider the mother’s evidence conveyed an optimistic portrayal of an idyllic rural lifestyle for the children to support her desired outcome of living in Region B.
This was evident in the romantic language used in her affidavit. For example, referring to the “perfect acreage” and to buying or building their “forever home.” Consistently with this, her affidavit was at times aspirational rather than factual. For example, the evidence I mentioned earlier in my reasons of her relocation “possibly” leading to a promotion. She mentioned “hopefully” being able to meet up with other families from AA School over the holidays so the children would “hopefully” have some new friends on the first day of school.
On at least one occasion, her evidence was not accurate. For example, she deposed:
I will sell my home in [Suburb M] and then we will use that money towards buying or building a new home, hopefully in [Town C] (where all our family live) or somewhere on the outskirts of town where we can find the perfect acreage.
It is untrue that all of the mother’s family, Mr J’s family and/or the children’s family live in Town C.
I also find the mother either failed to adequately acknowledge or downplayed matters that did not support her proposed relocation. The most significant example is the claim in her trial affidavit that “[the children’s] close relationship with their Father will not change if we are able to move away.”
I accept the mother’s bona fides in wishing to relocate to live in the areas of Town D or Town C with Mr J and the children, to pursue the lifestyle she aspires. However, I have considered her evidence and proposals carefully in light of the above observations.
The mother’s witness
Mr J
Mr J is the mother’s partner. He described himself as the children’s step-father and deposed to the close relationship they share, which was not in dispute.
Mr J’s evidence supported that of the mother.
His evidence confirmed my impression of a positive co-parenting relationship between the mother and father, extending to include Mr J. This was vividly illustrated by the following evidence:
All three of us are often at school events together with the children, including just recently [in late] 2023 when the three of us (me, [the mother] and [the father]) went to the school together to farewell [Y] as he left on his first school camp. Another example was earlier in the year when the three of us adults and both children were at the school for “Meet the Teacher”. While at school, [X], [Y], [the father] and I were playing [games] together.
Mr J’s reasons for wanting to return to live in regional Victoria include wanting to live near his family, being able to afford a bigger house on acreage, less traffic, and a regional lifestyle. I accept Mr J’s evidence of his reasons for wishing to live in Region B. They are understandable from his perspective.
Like the mother, Mr J portrayed a hopeful and idyllic view of rural life. For example:
…if we were able to move to regional Victoria, we would be able to afford a larger block of land and a larger house (to accommodate our hopefully growing family); We are hoping to purchase an acreage where we will have an abundance of room to have a few farm animals such as sheep, cows, chickens, dogs and maybe a horse as [the mother] has always wanted, I have grown up with and that kids keep asking for.
As with the mother’s evidence, I have taken into account the optimism and speculation in this and some of his other evidence. I otherwise note Mr J answered questions put to him in a direct and candid manner and he spoke respectfully in relation to the father.
The father
I found the father to be a responsive and candid witness. He carefully considered and answered the questions put to him when cross-examined, reflecting on his position and evidence and making appropriate concessions, some of which I will return to later in my reasons. He was not disparaging of the mother. I accept he is genuinely concerned about the impact on the children of a move to regional Victoria.
The father’s witnesses
Mr GG
Mr GG is the father’s father and the children’s paternal grandfather. I will refer to him here as the paternal grandfather rather than Mr GG, to avoid confusion with the father.
The paternal grandfather is 69 years old and deposed to being in reasonable health and physically able to do most things with the children. In 2019, he retired from a position he held for 30 years and took up a part time position with a business. He continues to work one day a week. He spent approximately four months house-sitting for a friend in Queensland, from mid-late 2023 but intends to remain living in his home at Suburb AG.
He deposed to having a good relationship with the mother and with her extended family, including her parents who live nearby.
The paternal grandfather gave evidence about the support he and his wife provided to the father following the parties’ separation, including looking after the children when required after school, taking them to their extra-curricular classes, and cooking meals for the children at the father’s home. He lives only five kilometres from the father’s home with the children and confirmed he is willing to continue assisting the father with their care as and when required. He deposed to sharing evening meals with the father and the children and going out with them to a restaurant about once a fortnight or once a month.
He also confirmed he is willing to continue renting his property in Suburb E to the father for as long as he wishes to.
The paternal grandfather was not cross-examined. I accept his evidence in relation to his relationship with the children and the support he provides to the father and children.
Ms HH
Ms HH is the father’s sister and the children’s paternal aunt. She lives in Suburb E, a 10-minute walk from the father’s home with the children. She is separated and shares the care of her daughter, JJ (aged 15), with JJ’s father. She and the father try to get together three or four times a week now they are both single.
Ms HH deposed to the close relationship shared by JJ and the children. She calls in regularly while walking her dog (weekly in warmer weather). The children have stayed for sleepovers with JJ. JJ also attends extra-curricular classes and Ms HH has taken X to watch JJ’s classes. The father takes the children to order take-away food from JJ when she is working at a local food store.
Ms HH deposed that she is available to help with the care of the children when required. For example, she and JJ picked up the children from school one day when the father was running late.
Ms HH was not cross-examined. I accept her evidence about the relationship the children share with her and JJ and of the support she is willing to provide to the father.
Mr KK
Mr KK is the general manager of the company the father works for. He confirmed the father’s evidence about his employment and the flexibility offered to him as a trusted employee, including to deliver the children to school before attending work and to leave work early in the afternoon to collect them from school and to work from home when required to accommodate the children.
Mr KK was not cross-examined. I accept the evidence of the father and Mr KK in respect of the father’s employment.
Family report
Ms LL (the family report writer) is a regulation 7 family consultant, holding degrees in psychology and social work. Her curriculum vitae is annexed to her report. Her qualifications and expertise were not challenged.
Neither party sought to cross-examine the family report writer. Her evidence is therefore unchallenged.
The family report writer prepared her family report on the basis of her view that “the issue of relocation needs to be decided before the issues of living and spend time arrangements.” As I will explain, this is not the approach the court is required to take. I was nevertheless assisted by her evidence, including particularly her interviews with the children and her expert opinions in respect of the impact of a relocation on them. I will refer to the family report writer’s evidence throughout my reasons when considering each of the parties’ proposals and the required statutory considerations.
THE LAW
As pointed out by the Full Court in Sayer & Radcliffe and Anor,[7] “[a]ll relocation decisions are difficult, not the least because of the serious ramifications involved for the parents and the children”. That being said, relocation cases are not to be treated as a special category of case and are to be determined like all parenting matters, by considering the best interests of children in the context of the legislative framework provided by Part VII of the Family Law Act 1975 (Cth) (“the Act”).[8]
[7] (2012) 48 Fam LR 298 at [53] (“Sayer & Radcliffe and Anor”).
[8] Morgan & Miles (2007) FLC 93–393 at [72]–[73] (“Morgan & Miles”); Sayer & Radcliffe and Anor at [47].
The mother seeks an order that she “be at liberty” to relocate with the children to the environs of either Town C or Town D. The joint minute (including as updated) is framed to seek orders “if relocation is permitted” and “if relocation is not permitted”. In Wagstaff & Wagstaff,[9] Aldridge and Jarrett JJ noted that such language was the subject of criticism by the High Court in AMS v AIF.[10] In particular Kirby J explained in AMS v AIF:[11]
…it would be preferable that such references to “permission” to relocate be avoided. The word has a tendency to distract attention from the jurisdiction actually being exercised. … To treat the determination of the residence of the child, and the connected issue of custody, as dependent upon the giving or withholding of “permission” to a parent to relocate his or her residence may divert attention from the child’s welfare, to the competing needs and demands of the parents in conflict.
[9] (2022) 65 Fam LR 461 at [12].
[10] AMS v AIF (1999) 199 CLR 160 at [188] per Kirby J at [217]–[218] per Hayne J (“AMS v AIF”).
[11] at [188].
A parent is entitled to live where they choose and there is no requirement for a parent to demonstrate a “compelling reason” to live where the parent proposes to live.[12] As the Full Court explained in Adamson & Adamson:[13]
These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
[12] U v U (2002) 211 CLR 238 at [82] (“U v U”) citing AMS v AIF.
[13] (2014) FLC 93–622 at [66]
Accordingly, there is no onus on either parent to demonstrate why the relocation should or should not occur. Instead, the inquiry is to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.[14]
[14] Malcolm & Monroe (2011) FLC 93–460 at [83] referring to AMS v AIF at [179] and U v U at [259]–[260].
As far as possible, the relocation is not to be dealt with as a separate or discrete issue, but rather as just one of the proposals for the children’s future living arrangements.[15] It is not simply a matter of comparing the mother’s proposal against the status quo and allowing or denying the relocation.[16] The court is required to identify and evaluate each of the proposals advanced by the parties.[17] This requires weighing the evidence and submissions as to how each proposal would hold advantages and disadvantages for the children’s best interests.[18]
[15] Taylor v Barker (2007) FLC 93–345 at [53] (“Taylor & Barker”) referring to U v U and Bolitho v Cohen (2005) FLC 93–224.
[16] Sayer & Radcliffe and Anor at [48].
[17] Morgan & Miles at [80]–[81]; cited with approval in Sayer & Radcliffe and Anor at [48].
[18] A v A: Relocation Approach (2000) FLC 93–035 confirmed in Taylor & Barker.
The mother’s concession that she will not relocate without the children if her application to is not granted is not determinative and her “fall-back” position should be considered only if her primary proposal is not accepted.[19]
[19] Asher & Wilkinson (2020) 61 Fam LR 523 at [100] referring to U v U.
Objects and principles
The objects and principles from which the provisions of Part VII are to be applied are set out in section 60B of the Act as follows and I have had regard to them:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Best interests of children
Section 65D provides the court with power to make such parenting order as it thinks proper, subject to some conditions. Section 60CA makes clear that in deciding whether to make a particular parenting order, the court must regard the best interests of a child as the paramount consideration.
Section 60CC requires that in determining what is in a child’s best interests, the court must consider particular matters which are identified as primary and additional considerations. The objects and principles of Part VII referenced above provide the context in which the considerations in section 60CC are to be examined, weighed and applied in each individual case. Each matter must be considered and assessed in the context of the parties’ proposals.
In making my decision, I have considered all of the relevant sections of the Act. I am not required to specifically address each provision in my reasons and just because I have not mentioned a specific provision does not mean I have not considered it.
PRIMARY CONSIDERATIONS
The primary considerations are set out in section 60CC(2) as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying and balancing those primary considerations, section 60CC(2A) requires greater weight to be given the second consideration, namely the need to protect the children from harm. However, a careful evaluation and balancing of all considerations is required.[20]
[20] Blinko & Blinko [2015] FamCAFC 146 at [30].
The benefit to the children of having a meaningful relationship with both parents
In Masson v Parsons,[21] the High Court noted that the focus of the objects of Part VII of the Act is on "ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child."
[21] (2019) 266 CLR 554 at [8].
In McCall & Clark,[22] the Full Court approved the interpretation of “meaningful relationship” set out by Brown J in Mazorski & Albright.[23] In that case, her Honour proceeded on the basis a meaningful relationship is one which is “important, significant and valuable to the child” and that this is a qualitative assessment not a strictly quantitative one.
[22] (2009) FLC 93–405.
[23] (2007) 37 Fam LR 518 at [26].
It is not in dispute the children currently enjoy and benefit from a meaningful relationship with both of their parents, being relationships that are close and loving, and I am satisfied that will continue to be the case on the proposals of both parties. In the context of the father’ submission that the children’s relocation will see their relationship with him diminish, it is important to recognise the Act aspires for children to benefit from a meaningful relationship with both parents, not an optimal relationship.[24]
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[24] Rochford & Fitzhugh [2019] FamCAFC 218 at [23]; Godfrey & Sanders (2007) 208 FLR 287 at [33]–[36]; Sigley & Evor (2011) 44 Fam LR 439 at [182].
The parties agree there are no issues affecting their family of family violence or abuse, including alcohol or substance abuse. They agree the children are not at risk of being subjected to, or exposed to, abuse, neglect or family violence in care of either parent.
ADDITIONAL CONSIDERATIONS
I now turn to the additional considerations set out in section 60CC(3) as relevant to determine what is in the best interests of the children in this matter, to the extent I have not already addressed them.
I will address section 60CC(3)(b) and (g) first, as I consider the nature of the children’s relationships with their parents and particular characteristics of the children helps to explain their views when considered pursuant to section 60CC(3)(a).
The nature of the children’s relationships with each of their parents and other significant persons in their lives
The mother deposed she was the primary carer to the parties’ children during their marriage. When cross-examined, the father conceded this was so, given the mother took parental leave and worked part-time until 2020 while he was working full time. However, it is not disputed that he was actively involved in the children’s care around his employment.
Nevertheless, the children have spent equal time with both parents since the parties’ relationship broke down in late 2020 and the parties acknowledged the children have meaningful, close and loving relationships with both parents. It is not in dispute the children also enjoy close relationships with Mr J and their extended family members on both sides of their family. This was confirmed by the family report writer, who observed the children appeared to enjoy warm and close relationships with the mother and the father, as well as a warm and accepting relationship with Mr J and warm and close sibling relationships.
The mother’s family includes:
(a)Her father (the maternal grandfather), who lives in Town C with his wife, the mother’s step-mother. He is 67. The mother deposes her father’s health has deteriorated and she wants to live closer to him to help look after him as he gets older and to spend quality time with him and her step-mother now they are retired. She did not provide evidence in respect of her father’s health. The father deposed the mother saw the father only three or four times a year, sometimes visiting on their way home from Town G but that he believes the mother has become closer to her father since the breakdown of their relationship;
(b)Her sister, Ms U, who lives and works in Town C;
(c)Her mother (the maternal grandmother) and step-father in Melbourne. The mother speaks regularly with her mother by phone and her mother occasionally looks after the children, for example if she has a function to attend;
(d)Another sister, Ms LL, who lives in Melbourne, with her husband and their three sons, including twin boys aged eight years and similar in age to Y. The father gave unchallenged evidence the cousins are very close. The mother gave evidence she does not see a lot of Ms LL. The father maintains some contact with Ms LL and her family and deposed she is not supportive of the children moving to regional Victoria as their children will see less of one another; and
(e)A stepsister and her family who live in South Australia. Their ability to see one another has been impacted by Covid-19 travel restrictions in recent years.

The mother gave little evidence in her trial affidavit about the children’s relationships with their maternal relatives. She did however give evidence about the children’s relationships with Mr J’s family, who live in the Region B area, including his parents, three sisters and their partners and children, an aunt and her partner and cousins.
The father’s family includes the paternal grandfather and the father’s sister, both of whom live near the father. I have referred to the evidence they each gave on affidavit about their relationships with the children, and the support they provide to the father and are willing to continue providing if required.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and their parents, and any other characteristics of the children the court thinks relevant
Neither party deposed as to any aspects of the lifestyle, culture or traditions of the parties and the children relevant to the determination of this dispute.
Each child’s personality and characteristics were described consistently by the parties, Mr J and the family report writer as outlined below.
X
To the family report writer, the parties described X as being quite reserved, well-behaved and never a problem at school. The mother described her as very caring. The father described her as a very kind, gentle soul, not wanting to upset anyone, being quiet and liking her own time.
The family report writer described that X lacked confidence in expressing some of her feelings and was less outgoing than Y.
The mother described X’s personal characteristics in her trial affidavit as follows:
[X] is sensitive and a people pleaser. She does not like to upset anyone and will say or do whatever she thinks will make that person happy. She particularly tends to worry about her Father’s happiness. [X] is quiet and will keep a lot to herself. She has a couple of close friends. She goes with the flow and would hate to think she has upset anybody. […]
[X] has struggled a little at school from an early age and with home learning during the Covid lockdowns that set her back. She is in a program at school to get extra help with her reading and writing. [X] has recently been diagnosed with a learning difficulty in [late] 2023. This was diagnosed through an educational psychologist after it was noted that she was now at least 12 months behind in school in quite a few areas of learning.
I have been worried about how [X] has been coping emotionally in light of the separation, my wish to relocate, the death of her paternal grandmother and her constant worry about her Father and him being alone. Before [the father’s] mother died, she had told [X] that if she moved she wouldn’t be able to see her friends and Father and family again. This created a lot of fear and stress for [X].
The mother expressed her opinion that X has been “struggling with dealing with [the father’s] emotions and his current situation (not having a partner or company).” In his trial affidavit, the father said he does not agree and is of the view X is more likely apprehensive about the relocation proposed by the mother but when cross-examined he thought it likely X is worried about both parties. Mr J deposed he has observed X is very caring and often worries about how those around her are feeling.
Whilst the parties disagree about what might be causing or contributing to X’s worries, they are both concerned about how she is coping emotionally and support her attending counselling. She recently commenced attending upon a psychologist in late 2023, by agreement of the parties. The mother was critical of the father for insisting X’s counselling be confidential. I accept his evidence given on affidavit and tested under cross-examination that where X had already been interviewed by the family report writer, he was concerned that she not be placed under unnecessary pressure by reportable counselling. I consider that was appropriate given the therapeutic nature of the agreed counselling.
The mother told the family report writer X does not make friends easily and she would therefore like the relocation to happen sooner rather than later to provide X with the opportunity to make friends prior to starting high school.
Y
The family report writer recorded that the parties described Y’s personality as follows:
[The mother] described [Y] as being full of personality, who can be quite out there; he is always smiling; can be quite positive; does not get embarrassed easily; plays with different kids daily at school; very close to his sister, she is his security blanket; he loves outdoors; he loves animals; always energy to burn; he prefers to be outside which [the mother] said was the opposite to how [X] is. [The father] described [Y] as more outgoing but can be reserved, can be shy; being a funny little character; both children like cuddles. [Y] loves [extra-curricular activities and sports] which he is not fully invested in yet. [Y] is strong willed (he said [X] is the opposite) […]
In her trial affidavit, the mother described Y’s personal characteristics as follows:
[Y] is confident and mostly outgoing. [Y] is more than happy to blurt out what he thinks. He is full of energy and always on the go. He loves to be outdoors. [Y] does not really have many close friends and has struggled with his emotions. He has often mentioned to me that he had no-one to play with at school and just wandered around by himself during lunch and recess. His first two years of school were during the Covid lockdowns and this year is his first real year at school. He is quite a smart child and does well at school academically but can be disruptive at times and struggles a little socially.
The family report writer observed Y appeared a lot more confident than X about expressing his feelings through his interview and appeared to have a bright, outgoing personality.
Any views expressed by the children and any factors (such as their maturity or level of understanding) that the court thinks are relevant to the weight it should give those views
X
X expressed a clear view to the family report writer to spend equal time with both parents. She preferred a “week about” arrangement rather than the arrangement that was in place at that time, which saw the children move back and forth between their parents’ care every few days.
In relation to the proposed relocation to live near Town C, to the family report writer the mother acknowledged X was not so keen to move.
The mother deposed to X’s views as follows:
When we mentioned the possibility of moving to [X], she was initially hesitant and had believed what her paternal grandmother had said to her about never being able to see her Dad, friends and family again. Over time, she has seemed more positive about possibly relocating and seems to understand that she would still see her Father often and still see her extended family (located in Melbourne) and friends. [X] understands that this is a decision that the Court will make and that it is not up to her.
The father deposed X has consistently and strongly told him she does not want to go to the country. He said she told him she wants to go to a high school that at least one of her friends is going to.
The family report writer asked X how she would feel if the adults decided they would live in Town C and spend time with the father on alternate weekends and she said, “I’d feel a bit sad”, “Cos I want to see dad as much as we see mum.”
When cross-examined, the parties each acknowledged X may be telling each of her parents what she thinks they want to hear.
Y
The mother informed the family report writer Y is very keen to move.
She described Y’s views in her trial affidavit in the following terms:
[Y] is supportive and excited at the idea of moving, he wakes up each morning asking if today is the day we get to move to the country. I have also explained to [Y] that ultimately the Court will decide and when we know the decision we will let him know. He tends to get confused by this sometimes and does not understand why we can’t just go today.
The family report writer asked Y for three wishes he would like. He answered, “[t]o get a farm. To get a dog. To have 1,000 toys.” X wished for infinite money and “lots of dogs.” I note the children have a dog at the father’s home but not at the mother's home.
In relation to the time he spends with his parents, Y told the family report writer he would prefer a week about arrangement, explaining that would show his parents “are finally getting along”.
The family report writer asked Y how he would feel if the adults decided he and X will move to Town C with the mother and spend alternate weekends with the father and he answered, “I would feel happy and sad cos we are seeing mummy most of the time then daddy not a lot.” When asked how he would feel if the adults decided they did not live in Town C, he said, “I would feel sad cos I really want to live on a farm.” He said he would miss the father “[a] little bit.”
In relation to Y’s views, the family report writer expressed her expert opinion as follows:
[Y] is the opposite to [X] about relocation, as clearly [the mother] has appealed to [Y]’s love of outdoors and what such a move would provide him with. It is my view, that [Y] has little concept of what such a move would be like, as [Y] would no longer spend half of his time with [the father]. [Y] feels excited about living on a farm, but also sad about not seeing [the father] as much. It is my view that [Y] is impressionable, easily influenced, especially in terms of ‘his world’ and what sounds like very positive changes for him.
Weight to be given to children’s views
In relation to the weight to be put on the children’s views, the family report writer expressed the following opinion:
It is my view, that [X] and [Y] are too young without enough mature experience (which some children at 12 and upwards may have) to be able to make informed views about relocation, whereas their views on shared care have come about from their experiences of living in a shared care arrangement. While [X] and [Y]’s views need to be listened to, other factors also need to be considered.
I do have concerns about the children’s views being impacted by exposure to their parents’ views and feelings.
For example, the father openly acknowledged a conversation between the children and his mother in 2022 when Y said, “[w]e’re moving to [Town D]” and X responded, “[n]o we’re not, [Y]”. He described his mother responded abruptly, “You realise that you won’t get to see your Dad as much as you do now?” The father denied this created fear and stress for X but given X’s personality as described by both parents and her tendency to worry, I expect it did.
In respect of his own discussions with the children, the father gave evidence he has not told the children he will be sad if they move and that he has tried his best not to have any detailed conversations with them about the proposed move. He confirmed this when cross-examined, consistently giving evidence he does not raise the issue with the children and if they raise it with him, he listens to what they have to say and then tells them it is something the parties will sort out together. I accept that evidence.
The mother and Mr J were open in saying that they regularly discuss their desire to move to the country with the children. For example:
(a)The family report writer reported “[the mother] said she has had many discussions with [X] about living up there”;
(b)As indicated described earlier in my reasons, Mr J gave evidence there is a regular discussion in their home about moving to the country and acknowledged the children hear those discussions.
In light of the above matters and having regard to the children’s young ages and their personal characteristics described in my reasons, whilst I take into account the children’s views as expressed to their parents and to the family report writer, I do not put significant weight on those views.
The extent to which the children’s parents have taken or failed to take the opportunity to participate in long-term decision making in relation to the children, to spend time and to communicate with the children
Both parties have taken opportunities to participate in long-term decision making in relation to the children. For example, they have so far been able to agree on the children’s care arrangements and primary school attendance. They agree the secondary school the children are zoned for is not suitable for them. They have agreed to X receiving counselling from a psychologist. They have also both taken the opportunity to spend time with and communicate with the children.
The father was cross-examined about school events he attends. He gave evidence he attends parent-teacher interviews, concerts and assemblies each time the children have received an award. He conceded there are a number of events he had not attended, including a school parade, sports activity and meet the teacher event. I do not find the father’s failure to attend a number of school events constitutes a failure on his part to take up the opportunity to spend time with the children or reflects poorly on his attitude towards the children.
The mother provided details in her trial affidavit of the organisational role she regularly undertakes in respect of the children’s care, including arranging their activities, appointments and the like. The father acknowledged the mother undertakes that role. He said he thinks she prefers to have control over those matters (later acknowledging that was a negative way of putting it) and he would be happy to share in that role. I am not satisfied the father leaving these organisational matters to the mother constitutes a failure on his part to be involved in the children’s care or decision making about them or reflects poorly on his parenting attitude.
The extent to which each of the children’s parents have fulfilled or failed to fulfil their obligations to maintain the children
The parties equally share responsibility for the children’s financial support by agreement between them. There is no child support assessment in place. This is another indication of the level of cooperation between the parties and the positive attitude they each hold towards their parenting responsibilities.
The likely effect of a change in the children’s circumstances, including the likely effect of a separation from a parent or other significant persons in their lives
I agree with the family report writer’s assessment that:
A relocation for [X] and [Y] would mean a major change for them, not just in their living arrangements (including losing the shared care time with [the father]) but also in their environment moving from city living to country living.
In her trial affidavit, the mother claimed that if the children live in the Town D/Town C area, their close relationship with the father “will not change”. In her case outline she submits the proposed relocation “will affect the quantity of time but not the quality of time the children spend with the [f]ather.” When cross-examined, the mother conceded there would be change for the children if the father only collects them from school on one occasion each week (on Friday afternoons) as opposed to the ten occasions he currently delivers them to and collects them from school each week, but did not agree it would be a “significant” change. She agreed it would be a change for the children not waking up in the father’s household each day in alternate weeks. When asked if that would be a change for the better, she answered in a deflective manner, “the benefits in my opinion of living in the country could also be great as well.”
The mother gave evidence about supporting the children’s relationship with the father and their extended family, by regular communication via phone, facetime and their iPads. However, she acknowledged in her evidence regarding her relationship with Ms U that speaking by phone a few times a week is different to living nearby and seeing Ms U in person. The mother and Mr J gave evidence Mr J misses his family living in Melbourne. When giving this evidence, they did not seem to appreciate the analogous impact on the children of seeing their father irregularly.
The father submits the children’s relationship with him will be “greatly diminished” if they relocate to live in Region B. He deposed, “I do not believe I can parent effectively in a weekend once a fortnight.” He expressed concern the children will have friends’ parties to attend, extra-curricular activities and other commitments that will prevent them from spending time with him each alternate weekend as proposed.
In relation to the impact of a relocation on the children’s relationship with the father, the family report writer expressed the following opinion:
[X] and [Y] are both at developmental ages, where they have developed and maintained strong secure and trusting relationships with [the mother] and [the father], so in terms of relocation, these relationships would be able to be maintained with the facilitation, encouragement and support of [the mother] and [the father].
The mother relied on this evidence to support her submission that the court can be confident the children will maintain their relationships with the father and their other family members from Region B. I accept the submission the children can maintain a meaningful relationship with the father and their other family members long-distance. However, I confirm my impression from the mother’s evidence that she underestimates or has understated the impact of her proposed relocation on the children and their relationship with the father. I consider it is inevitable the nature and quality of their relationship with be adversely affected if the children spend only two nights each fortnight during school term periods (plus an extra two nights once a month on the mother’s proposal or for long weekends on the father’s proposal), after spending equal time with their parents for more than three years. They will go from seeing him on nine days in a 14 day period, to seeing him on three days in a 14 day period. He will collect them from school once a fortnight, rather than delivering them to and from school on up to 10 occasions a fortnight. He will no longer be able to actively participate in their lives mid-week during school term periods on a regular basis, as he currently does.
The family report writer expressed her opinion about the impact of a relocation on X as follows:
Regarding relocation to [Town C], [X] wants to see each parent equally, so such a major move leaves [X] very unsure about this. [X] lacks confidence, so in my view, she may not make friends easily or quickly. This may raise anxiety in [X], possibly leaving her with some grief, maybe some fearful feelings, as she may well grieve losing half her time with [the father]. For [X], it appeared that relocation raises apprehension, doubts about the unknown future with a relocation.
[…]
[X] lacks confidence, is reserved and may not make new friends easily. It is my view, that in the short-term, [X] may not manage a relocation without suffering anxiety, some grief at losing [the father] as well as her extended family members and her friends at school.
In relation to the impact of a relocation on Y, the family report writer expressed her view that:
[…] in the short-term, [Y] may manage a relocation as for him it would be exciting, a new adventure with the prospect he would live on ‘a farm’ and have animals. In addition, [Y] is outgoing, confident, he has been positively influenced by [the mother], and may well make new friends without too much trouble.
In relation to the long-term impact on the children of a relocation, the family report writer said:
It is difficult to predict how relocation may affect [X] and [Y] long-term as it would depend on several factors such as where they live, how much time they spend with [the father], how they manage at school and whether they develop new friendships.

When cross-examined, the father gave evidence he had contemplated moving to Region B. However, he has lived his whole life in the suburbs of Melbourne. His family live nearby – his father at Suburb AG and his sister and niece at Suburb E. He deposed he would not contemplate moving away from his father who is recently widowed. In relation to his employment, the father has worked for his current employer for five years, receiving a promotion three years ago. The father deposed that he enjoys his position and proposes to continue working with his employer for the foreseeable future. He was concerned moving to regional Victoria would not provide him with opportunities to advance in his career beyond his current position but conceded he had not looked for jobs in the region. The father also has the benefit of renting a home owned by his father.
I asked the father if he would consider moving if the children moved and he said it would be a very hard thing for him but given the gravity of being away from the children he does not know.
Whilst he did not rule it out, I accept it would be difficult for the father to relocate to live in closer proximity to the children if they live in the Town D or Town C areas. He would be moving alone, away from his family and supports, a secure job that he enjoys and which affords him with flexibility given the relationship he has established with his employer.
PARENTAL RESPONSIBILITY
Section 61DA requires the court when making a parenting order in relation to a child, to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. That presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. There are no such allegations made in this case. The presumption may also be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The parties join in seeking an order for equal shared parental responsibility.
Section 65DAC sets out the effect of a parenting order that provides for shared parental responsibility. In particular section 65DAC(3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue.
The mother submitted that whist the parties have different parenting styles and different expectations in relation to some things, they are both able to work together and make decisions for the children save for in respect of her relocation proposal. That is my clear impression from the evidence.
By the conclusion of the final hearing, the parties agreed it would not be necessary for me to make any orders in relation to the children’s secondary school education expressing confidence this is something they can discuss and make a decision about at the appropriate time, once the children’s living arrangements are known.
In these circumstances and having regard to my assessment of the parties’ cooperative co-parenting relationship, I am satisfied it is in the children’s best interests for the parties to have equal shared parental responsibility as they have proposed.
CHILDREN’S CARE ARRANGEMENTS
Given an order is to be made for equal shared parental responsibility, section 65DAA(1) requires me to consider whether it is in the best interests of the children and reasonably practicable for the children to spend equal time with each parent or, if not, then substantial and significant time with each parent.
The Full Court in Taylor v Barker confirmed this approach is required in a relocation case and that: [34]
… the options of the child spending “equal time” or “substantial and significant time” with each parent must be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. …
[34] at [81]–[83].
Equal time
In relation to the court’s assessment of the reasonable practicability of options for equal time and substantial and significant time, as the plurality of the High Court said in MRR v GR:[35]
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of the order… A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist…
and:[36]
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
[35] (2010) 240 CLR 461, per French CJ, Gummow, Kayne, Kiefel and Bell JJ at [13].
[36] at [15].
If the children live in the areas of Town D or Town C and the father remains living in Suburb E, it will not be reasonably practicable for the children to continue spending equal time with their parents due to the geographical distance between them and the travel time required, of between two to three hours each way.
Whilst it is the mother’s desire to live on acreage in regional Victoria, it is not her case that it is impracticable for her to live in her current area or another location where the current shared care arrangement can be maintained. This is reflected in her alternate proposal.
If the children continue to live in the area of Suburb E, Suburb M or even in Suburb CC or Town EE as the mother has considered, I am satisfied it would be reasonably practicable for the children to continue spending equal time with both parents. If the mother moves to Suburb CC or Town EE, the children would be required to travel a greater distance between their parents’ homes and to and from school whilst in the mother’s care, but neither parent contended that would not be practicable.
Substantial and significant time
Section 65DAA(3) provides that a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)      the time the child spends with the parent allows the parent to be involved in:
(i)        the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Whilst the children’s time spent with the father would be significantly curtailed if they live in the Town D or Town C areas, the orders proposed by each of the parties in the event of that outcome do meet the requirements for substantial and significant time as considered by their Honours Ainslie-Wallace and Ryan JJ in Ulster & Viney.[37] The children would continue to spend time with the father mid-week during school terms (albeit reduced time), including on Friday afternoons and on Mondays which are non-school days coinciding with weekends the children spend with the father. The children will continue to spend time with the father on weekends, school holidays and for special occasions. The father will also continue have involvement in their daily routine, noting 65DAA(3) does not limit the question of involvement in daily routine to school weeks.[38] I also accept the mother’s submission, after considering the evidence of the father and Mr KK, that the husband has sufficient flexibility in his employment to travel at least occasionally to Region B during the week to attend events of significance to the children.
[37] Ulster & Viney (2016) FLC 93–722 at [84]–[91] (“Ulster & Viney”) referring to Eddington and Eddington (No 2) (2007) FLC 93–349.
[38] Ulster & Viney per Ainslie-Wallace and Ryan JJ at [91] and Strickland J agreeing at [4].
Evaluation of parties’ proposals
I have carefully considered the evidence and the submissions made on behalf of both parties in support of their proposals, both in their case outlines and by their counsel. I have evaluated the advantages and disadvantages to the children’s best interests of each the parties’ proposals, including as set out below.
Children living in Region B
The key advantages of the children living with the mother in the environs of Town C or Town D as she proposes include:
(a)Fulfilment of the desire of the mother and Mr J to live on acreage in regional Victoria and to enjoy the lifestyle they see that offers to them, with a flow on effect to the children from their happiness;
(b)Living on a larger property provides the children with a greater opportunity to enjoy playing outside and having pets. This is something Y in particular is excited about; and
(c)Living closer to the maternal grandfather, their aunt Ms U, and to Mr J’s family, with the benefits of more regular personal interactions with those family members.
Those advantages are to be weighed against the disadvantages of the children living in the Town C or Town D areas, which include:
(a)The children’s time with the father will be significantly reduced during school term periods, from equal shared care to two nights per fortnight plus an additional weekend per month (on the mother’s proposal) or for all long weekends (on the father’s proposal). The family report writer described this as “a drastic reduction” in time;
(b)The children will no longer benefit from the father taking them to and from school and to their extra-curricular activities as they currently do in alternate weeks and regularly attending important school events. He may attend from time to time if he undertakes the drive to the Town D or Town C area, but not with the same regularity as he currently does;
(c)The parties agree X has some emotional difficulties. The family report writer expressed the expert opinion X may not manage a relocation without suffering anxiety and some grief;
(d)The mother was unsure when cross-examined if X could continue attending upon her existing psychologist remotely or if she would need to change psychologists. Her enquiries indicated there is a psychologist available at AA School. This would require a change in support for X, who only began seeing her current psychologist in October 2023;
(e)The mother deposed Y has also struggled with his emotions;
(f)The family report writer was unable to predict how a relocation may affect the children long-term, expressing the opinion that would depend on several factors such as, how much time they spend with the father, where they live, how they manage at school and whether they develop new friendships. Aside from the time the children spend with the father, which she observed will reduce drastically, there is considerable doubt about the other variables identified by the family report writer as follows:
(i)The children will be required to change schools. This is in the context of X recently being diagnosed with a learning disability, with the assessment of that disability being finalised at the time of the final hearing in liaison with her classroom teacher. The mother deposed X was at least 12 months behind in some areas of learning, although when cross-examined accepted she might not be that far behind. Either way, these difficulties may make it difficult for her to transition to a new school;
(ii)The children will be moving away from their existing friendships. The mother gave evidence X does not make friends easily. She said Y struggles a little socially, does not really have many close friends and has often mentioned to her that he had no-one to play with at school and just wanders around by himself during lunch and recess. The mother suggested moving schools will provide the opportunity for new friendships but did not seem to consider the impact on the children if they find it difficult to adjust socially and make new friends. Whilst the family report writer thought Y may make new friends without too much trouble, she was of the view X may not make new friends easily given her lack of confidence; and
(iii)It is not yet known where the children will live if they move. They will require at least two moves. The Suburb M property is up for sale. The mother proposes they initially live temporarily in Mr J’s investment property in Town D. She has also contemplated moving with the children into a property owned by her father in Town BB or living with her father in Town C while waiting to buy or build their “forever home”. The mother agreed this is not ideal although she does not think this puts the children under stress.
The family report writer was not cross-examined, so these matters were not explored further with her;
(g)As the mother pointed out in her affidavit, the children have had to contend with a lot over recent times including home learning during Covid-19 lockdowns (which she identified X struggled with in particular), the parties’ separation, “my wish to relocate”, and the death of their paternal grandmother. A relocation will require them to contend with the significant further changes and uncertainty identified above. The mother and Mr J hope to have more children, which would bring further change for the children. It is not known how the children will cope with those changes, particularly X who the parties have identified is already struggling to cope emotionally;
(h)The children will be required to travel up to five hours each alternate weekend to spend time with the father in Suburb E or approximately 2.5 hours return if they spend time with him at Town F. I accept the mother’s evidence the children are accustomed to undertaking regular travel to regional Victoria and travel well but note this is quite different to a permanent requirement to travel each alternate weekend to spend time with a parent;
(i)The children will not be able to play a sport or participate in extracurricular activities each weekend, if they spend alternate weekends in the Region B and in Suburb E. The mother acknowledged when cross-examined that Y is keen to join a sports team. She hadn’t yet looked into activities for the children if they move and how this might work, as Y had only raised the prospect of sports over the last week. She suggested the father could stay in his home at Town F for the children to attend their activities on alternate weekends. However, this would see them spending time with him in holiday accommodation rather than in his home and make it more difficult to see their family and friends in Suburb E;
(j)The mother acknowledged when the children are older they may not want to travel every weekend. She seemed uncertain about how she might manage that, saying it is not something she has experienced before, having not yet raised teenagers; and
(k)Living closer to the maternal grandfather, maternal aunt (Ms U) and to Mr J’s family has the corresponding disadvantage of seeing the children live further away from their paternal grandfather, paternal aunt (Ms HH), maternal grandmother and her husband, maternal aunt (Ms LL) and the children’s cousins (Ms LL’s three sons and Ms HH’s daughter, JJ). As mentioned earlier, I am confident the parents will each support the children’s relationships with their extended relatives on either scenario as best they can given the difficulties posed by geography. However, I find it likely the quality of the children’s existing relationships with family nearby to where they currently live is likely to be diminished if the children move away from the area of their current homes.
Children living in proximity to Suburb E
The children living in proximity to Suburb E would have the following advantages for their interests:
(a)The children can continue to spend equal time with both parents;
(b)They can continue to attend their current school and maintain their existing friendships;
(c)The father can readily continue to take them to and from school in alternate weeks and regularly attend important school events and their extra-curricular activities;
(d)X can continue to receive support with her learning difficulties from her current school and receive support from the psychologist she has recently begun attending;
(e)The children can continue to experience both parents involved in all aspects of their lives as they currently do; and
(f)The children can continue to enjoy their relationships with all extended family members as they have been to date, including the maternal grandfather and their aunt, Ms U, and Mr J’s family on weekends and during school holidays; and
Those advantages are to be balanced with the following disadvantages:
(a)The mother (and Mr J) will be disappointed in the outcome and as they will not be able to fulfil their desire of living on acreage near Town C or Town D, closer to the maternal grandfather, to Ms U and to Mr J’s family; and
(b)Y may be disappointed as he has been looking forward to moving to a farm, although he may be able to have pets if the mother and Mr J purchase a home on a larger block (for example, in Suburb CC or Town EE as they have also contemplated) and the children will continue to spend time in regional Victoria on weekends and holidays as they have been.
Determination
Balancing all of the above matters and the mother’s right to freedom of movement, I find it is in the children’s best interests for them to continue to spend equal time with both parents, living in proximity to their current home and school. I also find this outcome reasonably practicable.
I will therefore make the orders proposed by the parties in this eventuality, as set out in the updated joint minute.
RESTRAINT SOUGHT BY THE PARTIES
The father seeks an order in the following terms:
That the mother be and is hereby restrained from relocating the children’s principal place of residence further than [40] km from [Suburb E Centre].
If her primary application is unsuccessful and the children do not live in the Town D or Town C areas, the mother seeks an order in these terms:
Each parent is permitted to relocate within [60]km from [Suburb E Centre].
I do not intend to make an order in the terms sought by either party, taking into account particularly:
(a)The principle that parents enjoy as much freedom to live where they please, as is compatible with their obligations pertaining to their children;[39]
(b)The parties will have equal shared parental responsibility for the children, requiring them to consult with one another and make joint decisions about major long-term issues for the children,[40] including issues about:[41]
(a) the child’s education (both current and future); and
[…]
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
(c)The mother’s oral evidence of the areas in which she has contemplated living with the children if her application to live in the Town D or Town C areas is unsuccessful, including Suburb CC (a distance of approximately 25 kilometres from the father’s home and their school in Suburb E)[42] or Town EE (which counsel for the father submitted was 40 kilometres from Suburb E)[43]; and
(d)Neither party alleged the other parent will make unsound decisions for the children.
[39] Franklyn & Franklyn [2019] FamCAFC 256 [28] referring to AMS v AIF at [223]–[224]; [231]–[232], Sampson and Hartnett (No.10) (2007) FLC 93–350 and Zanda & Zanda (2014) FLC 93–607 at [132]–[136].
[40] Section 65DAC of the Act.
[41] As defined in section 4 of the Act.
[42] Exhibit B.
[43] This submission was not challenged and Town EE was not included in the jointly provided maps and travel information (Exhibit B).
OTHER ORDERS

Save for the orders sought by each of them to fix a radius within which the children may live, the parents agreed on the terms of all orders to be made in the event the children do not relocate. I have considered the proposed orders as set out in the updated joint minute and find those orders reflect the best interests of the children. Again, I commend the parties for their ability to agree on those arrangements.
CONCLUSION
For all of the above reasons, I am satisfied the orders set out at the commencement of these reasons are in the best interest of the children and make orders in those terms.

I certify that the preceding two hundred and thirty-five (235) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A. Humphreys.
Associate:
Dated: 16 February 2024

File number(s):	MLC 2140 of 2022
Judgment of:	JUDGE A. HUMPHREYS
Date of judgment:	16 February 2024
Catchwords:	FAMILY LAW – PARENTING – relocation – mother seeks children (now aged 11 and 8 years) live with her in Region B and for the children to spend time with the father on alternate weekends (from Friday to Sunday), for one additional weekend each month, and for additional holiday time – application resisted by the father who seeks children continue to spend equal time with both parents – evaluation of competing proposals – mother’s application refused – order for children to continue spending equal time with both parents – no order made confining the area in which the parties may live with the children – all other parenting orders made by consent.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC 61DA, 65D, 65DAA, 65DAC
Cases cited:	A v A: Relocation Approach (2000) FLC 93–035; [2000] FamCA 715 Adamson & Adamson (2014) FLC 93–622; [2014] FamCAFC 232 AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 Asher & Wilkinson (2020) FLC 93–945; [2020] FamCAFC 44 Blinko & Blinko [2015] FamCAFC 146 Eddington and Eddington (No. 2) (2007) FLC 93–349; [2007] FamCA 1299 Franklyn & Franklyn [2019] FamCAFC 256 Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102 Malcolm & Monroe (2011) FLC 93–460; [2011] FamCAFC 16 Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21 Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520 McCall & Clark (2009) FLC 93–405; [2009] FamCAFC 92 Morgan & Miles (2007) FLC 93–343; [2007] FamCA 1230 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 Rochford & Fitzhugh [2019] FamCAFC 218 Sampson and Hartnett (No.10) (2007) FLC 93–350; [2007] FamCA 1365 Sayer & Radcliffe and Anor (2012) 48 Fam LR 298; [2012] FamCAFC 209 Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22 Taylor & Barker (2007) FLC 93–345; [2007] FamCA 1246 U v U (2002) 211 CLR 238; [2002] HCA 36 Ulster & Viney (2016) FLC 93–722; [2016] FamCAFC 133 Wagstaff & Wagstaff (2022) 65 Fam LR 461; [2022] FedCFamC1A 119 Zanda & Zanda (2014) FLC 93–607; [2014] FamCAFC 173
Division:	Division 2 Family Law
Number of paragraphs:	235
Date of last submission/s:	23 November 2023
Date of hearing:	20 & 21 November 2023
Place:	Melbourne
Counsel for the Applicant	Ms Agresta
Solicitor for the Applicant	Keane Family Law
Counsel for the Respondent	Ms Mansfield
Solicitor for the Respondent	Conlan Cummings Lawyers

MLC 2140 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS ESTES Applicant
AND:	MR ESTES Respondent

ORDER MADE BY:	JUDGE A. HUMPHREYS
DATE OF ORDER:	16 FEBRUARY 2024