Forges & Forges

FEDERAL CIRCUIT COURT OF AUSTRALIA
Forges & Forges [2021] FCCA 1394

File number(s): MLC 12964 of 2018

Judgment of: JUDGE BENDER

Date of judgment: 22 June 2021

Catchwords:
FAMILY LAW – parenting – relocation – Mother’s application to relocate from City E to City B with the parties’ three children aged eleven, eight and five – where previous final orders were made in November 2019 – where the Paternal Grandfather and Maternal Grandmother married when the parties were children – where the Mother was sexually abused by her step-brother and physically and emotionally abused by her step-father growing up and as a result is estranged from her family – the Mother continues to experience the effects of that abuse as the extended maternal and paternal families still reside in City E – Father seeks Mother’s Application be dismissed on the basis of Rice v Asplund as no significant change in circumstances since previous final orders – Mother argues she did not wish to relocate at the time of the previous final orders.

HELD – Father’s Rice v Asplund application dismissed – relocation allowed – children to spend time with the Father on alternate weekends, half school holidays and special occasions.

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Rice v Asplund (1978) FamCA 84

Mulder & Mulder [2021] FCCA 1180

Taylor v Barker [2007] 37 Fam FLR 461

Fawkner v Kado [2020] FCCA 1535

AMS v AIF (1999) 199 CLR 160

U & U (2002) 211 CLR 238

Heath v Hemming(No.2) [2011] FamCA 749

MRR v GR [2010] HCA 4

Tibb v Sheean [2018] FamCAFC 142

Number of paragraphs: 271

Date of last submission/s: 27 May 2021

Date of hearing: 26 May 2021

Place: Melbourne

Counsel for the Applicant: Ms Mallett

Solicitor for the Applicant: Orchard Law

Solicitor for the Respondent: J A Middlemis
ORDERS

MLC 12964 of 2018

BETWEEN:
MS FORGES

Applicant

AND:
MR FORGES

Respondent

ORDER MADE BY:

JUDGE BENDER

DATE OF ORDER:

22 JUNE 2021

THE COURT ORDERS THAT:
1.The Father’s application that the Mother’s application to relocate be dismissed on the basis of the rule in Rice v Asplund be dismissed.
2.The parties have equal shared parental responsibility for the long term care, welfare and development of the children X born in 2010 (“X”), Y born in 2013 (“Y”) and Z born in 2016 (“Z).
3.X, Y and Z live with the Mother.
4.The Mother be permitted to relocate City B with X, Y and Z.
5.X, Y and Z spend time and communicate with the Father as follows:-
(a)each alternate weekend from 5:30pm Friday to 5:30pm Sunday to be extended to 5:30pm Monday if it is a long weekend;
(b)for twelve (12) days in each of the term school holidays as agreed between the parties and failing agreement from 5:30pm on the date school finishes to 5:30pm on the second Wednesday of the holidays;
(c)for the first half of the long summer vacation in 2021/2022 and each alternate year thereafter;
(d)for the second half of the long summer vacation in 2022/2023 and each alternate year thereafter;
(e)if not otherwise with the Father for Father’s Day weekend from 5:30pm the Friday before Father’s Day until 5:30pm on Father’s Day
(f)by telephone/skype/electronically each Wednesday, each alternate Friday at 6:00pm; and
(g)as otherwise agreed between the parties in writing.

6.In the event X, Y and Z are unable to spend a weekend with the Father due to illness, mechanical breakdown or other reasons, they will spend the following weekend with the Father by way of makeup time.
7.Notwithstanding anything else stated in these orders X, Y and Z shall spend time and communicate with the Mother as follows:-
(a)on the Mother’s Day weekend and X, Y and Z will spend time with the Father the following weekend by way of makeup time; and
(b)during the school holidays when X, Y and Z are with the Father by telephone/skype/electronically each Monday, Wednesday and Friday.

8.The Father’s time with X, Y and Z pursuant to order 5(a) herein shall be suspended during the school holidays and resume as if the holidays had not intervened.
9.The parties shall facilitate X, Y and Z telephoning the parent they are not with on X, Y and/or Z’s reasonable request to do so.
10.Changeover for the time X, Y and Z spend with the Father shall take place at City C Police Station or as otherwise agreed between the parties in writing.
11.Each of the Father and Mother be restrained by injunction from permitting X, Y and Z to be in the unsupervised care of the paternal grandfather (Mr D).
12.The Mother, her servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the Father to or in the presence or hearing of X, Y and/or Z and from permitting any other person to do so.
13.The Father, his servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the Mother to or in the presence or hearing of X, Y and/or Z and from permitting any other person to do so.
14.Whichever party receives a copy of X, Y and/or Z’s school report/s shall forthwith provide a copy/copies to the other party, or if the school is agreeable, direct the school to provide copies of such reports directly to the other party.
15.The parties be permitted to attend all school events relating to X, Y and/or Z normally attended by parents and receive at their expense copies of all school reports, school photograph order forms and newsletters.
16.If either party receives notice of a party or other special event for X, Y and/or Z which will take place while X, Y and/or Z is with the other party, he/she shall forthwith give the other party notice of such event.
17.Each party shall advise the other of any serious illness or injury suffered by X, Y and/or Z as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
18.The Mother shall provide the Father with the name and contact details of all of X, Y and Z’s treating medical practitioners and the Father is authorised to speak to those practitioners.
19.The Father is permitted to provide a copy of these orders to X, Y and Z’s treating medical practitioners.

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 under the pseudonym Forges & Forges is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BENDER:
INTRODUCTION

This matter commenced when the Father filed an Initiating Application on 24 November 2020 seeking orders that the Mother be restrained from relocating with the parties’ children X born in 2010 (“X”), Y born in 2013 (“Y”) and Z born in 2016 (“Z), outside the City E area and that otherwise the final parenting consent orders made 21 November 2019 remain in full force and effect.
The 21 November 2019 final parenting orders by consent provided for:
•the parties to have equal shared parental responsibility for X, Y and Z;
•X, Y and Z to live with the Mother;
•X, Y and Z to spend time with the Father:-
•each alternate weekend from 5:30pm Friday to the commencement of school/kinder on Monday;
•for half of all school holidays;
•on special days, including X, Y and Z’s birthdays, the Father’s birthday, Father’s day and Christmas.
In August 2020 X, Y and Z informed the Father that the Mother was planning on relocating to City B. On 25 August 2020 the Father’s solicitors wrote a letter to the Mother’s previous solicitors advising that the Father did not consent to relocation.
On 31 August 2020 the Mother replied to the Father’s solicitors advising that she intended to relocate to City B in January 2021 but had not yet finalised those arrangements. The Mother noted that she had not yet formally advised the Father of her intention to relocate, but that she would do so in a timely manner, together with proposed changes of the final orders made on 21 November 2019.
On 24 September 2020 the Father’s solicitors replied to the Mother’s correspondence confirming that the Father did not consent to her relocating with the children. The Mother was put on notice that if she did not provide written assurance that she would not relocate with the children away from the City E area, then the Father would commence proceedings seeking an injunction to restrain the Mother from doing so.
It is the Mother’s evidence that when she received the correspondence from the Father’s solicitors indicating the Father’s opposition to her relocating, she sought legal advice from her then solicitors. It is her evidence she was advised she could relocate, even in the face of the Father’s opposition as long as she complied with the existing orders for the time X, Y and Z spent with their Father.
The Mother sent the Father an email on 2 October 2020. It reads:
“Formal notification of our move to City B.
I’ve attached proposed changes to the current orders to commence 28/01/2021 open to negotiation.
The decision to move the children and myself to City B is not up for negotiation. However, any changes to support the relationship between yourself and the children will be maintained and open to negotiation.”
The Mother was served with the Father’s Initiating Application on 24 November 2020.
The Mother saw her now solicitors on 10 January 2021. The Mother concedes she was advised that if she were to relocate to City B before the matter was determined, she may be ordered to return to City E.
Notwithstanding the Mother knew the Father did not consent to the children relocating, the Mother relocated to City B with the children on 13 January 2021. She explains she did so because she had made all arrangements for the move to City B, including terminating her lease in City E, signing a new lease in City B and enrolling of X and Y into school. She stated she did not believe she would be made to return to City E.
After an interim hearing on 23 February 2021, orders were made for the Mother to return to City E with the children and that otherwise the final parenting orders made on 21 November 2019 remain in full force and effect. Orders were also made listing the Mother’s relocation application for a priority final hearing in the May sittings of the Bendigo Circuit and for the preparation of a Family Report.
At the start of the final hearing it was agreed that whilst the Father had commenced the proceedings, the matter now for determination before the Court was the Mother’s application to relocate to City B. For this reason the final hearing proceeded on the basis the Mother is the Applicant and the Father is the Respondent.
BACKGROUND
The Applicant Mother was born in 1986 and is aged 34 years. She works in health care and is currently studying health care remotely through F University. She has not re-partnered.
The Respondent Father was born in 1984 and is aged 36 years. He is employed as a Manager at Employer G. He has re-married and his now Wife is Ms H. Ms H has one child from a previous relationship, J who is seven years old. J lives primarily with his Father and Grandmother and spends time with Ms H and the Respondent Father as agreed between Ms H and J’s Father. The Father and Ms H have one child together, K born in 2020 (“K”).
The Respondent’s Father and the Applicant’s Mother commenced a relationship when the Mother was eight years old. They subsequently married.
The Respondent’s Father has five children from a previous relationship, namely the Respondent Father, L, Mr M, Mr N and O.
The Respondent’s Father and the Applicant’s Mother had two further children together, P and Q.
When the Respondent’s Father and the Applicant’s Mother met, the Respondent and his siblings were living in New South Wales. The Applicant lived with her Mother and the Respondent’s Father.
The Mother only met the Father’s brother’s Mr N and Mr M while she was growing up. She did not meet the Father until she was 16 years old and the Father was 18 years old.
When the Mother was nine Mr N came to live with his Father and the Applicant’s Mother.
Mr N sexually assaulted the Mother from the age of 9 over a five year period. On one occasion the Mother found Mr N in bed with her younger sister who was naked and only five years old at the time. The Mother informed her Mother and the Applicant’s Father of this and that N had been sexually abusing her. The Respondent’s Father and the Applicant’s Mother’s response to this was to “belt” Mr N.
The Mother deposes to the Respondent’s Father being very violent and using excessive physical force when disciplining her and the other children in the household. She describes the Respondent’s Father hitting her with a belt, an egg flip, of being dragged by the hair and flipped out of bed by the Respondent’s Father tipping the mattress. The Mother slept on the top bunk. The Mother says the Respondent’s Father would “flog” her for any perceived transgression on her part. The Mother describes him as “a cruel and vicious man and physical punishment was his standard form of discipline.”
The Department of Health and Human Services became involved with the family following reports by the Mother’s school and treating medical practitioners. The Mother was offered counselling through the Centres Against Sexual Assault (CASA) and received support from her treating medical practitioners and her school. She says she received no support from her Mother or the Respondent’s Father.
Due to the family situation, the Mother was initially able to participate in counselling with CASA without parental knowledge or consent. It is the Mother’s evidence that when her Mother and the Respondent’s Father discovered she was receiving counselling with CASA, they were “enraged” and told her that “what happens in the home stays in the home” and that the Mother was to “keep her mouth shut”. The Mother was removed from the CASA program by her mother and step-father who did not allow her to attend any further counselling sessions.
Mr N was ultimately charged with the sexual assault of the Mother and pleaded guilty.
When the Mother was 16 she left home. She initially lived with her grandmother. She left school and moved in with her then boyfriend. From the age of 16 the Mother has been medicated for depression and anxiety.
The parties did not meet until some 4 weeks after the Mother left the home of the Respondent’s Father and her Mother. The Father at that time moved into his Father and the Applicant’s Mother’s house. In his vive voce evidence the Father confirmed that during the period he lived with his Father and the Applicant’s Mother he observed and experienced his Father’s abusive and violent parenting of the children in the household.
When the Mother was 19 the Father moved into the unit the Mother was renting, originally on a house share basis. The parties subsequently formed a relationship and married in 2009.
The Mother describes her relationship with the Father as being categorised by periods of physical and emotional abuse, particularly when the Father was drunk. She deposes in her trial affidavit to occasions where the Father would push, shove and choke her to the point of losing consciousness. This is denied by the Father.
Some 6-months after the birth of the parties’ youngest child Z in 2016, the Mother was diagnosed with Post-Natal Depression (PND) as she had attempted suicide. She was referred to Dr R, psychiatrist from S Hospital, City E.
At or around the time of the Mother’s attempted suicide, the Mother told the Father she thought she was having a breakdown he told her “you are not” and that he wished to separate. He left the Mother and three children for a week before he was advised of the Mother’s diagnosis and returned to the former matrimonial home.
The Mother attended Dr R on a weekly basis for approximately 18 months. Dr R treated the Mother for her PND and also for her anxiety and depression arising from the abuse she had suffered during her childhood and the ongoing distress her interactions with her extended family caused.
It is the Mother’s evidence that after she left home, and particularly after her marriage to the Father, her Mother would visit her without invitation and be abusive and critical of her, accusing her of ruining their family and of being a poor mother and wife.
By January 2018, the parties agreed to completely sever all ties with their extended family.
On 28 February 2018 there was a violent altercation between the Mother and the Father at the former matrimonial home.
It is the Mother’s evidence the Father told her he wished to separate and she believed this was because he was having an affair with another woman. The Father agrees he told the Mother on 23 February 2018 their marriage was over but this was because he found a photo of the Mother’s naked breasts on her phone that she had sent to another man who he alleges subsequently became her boyfriend.
At 4:00am in the morning of 28 February 2018 the Mother woke the Father, who was sleeping on the couch, and confronted him about his alleged affair and his wish to separate.
It is the Mother’s evidence the Father physically assaulted her by choking her, slapping her and pushing her to the ground. The Father left the house and got in his car to drive away. The Mother alleges that because she knew the Father had drunk half a bottle of bourbon, she hit his side window and jumped on the bonnet of his car to try and prevent him leaving. The Father allegedly reversed with the Mother on the bonnet and then drove forward before stopping the car so she could get off. The Father then drove away.
The Father agrees the Mother woke him at 4:00am but it is his evidence it was the Mother who attacked him after which there was a scuffle and they fell to the floor. He agrees the Mother jumped on the bonnet of his car but as he was reversing he didn’t see her. He denies he had been drinking.
The parties separated on this date.
The Police made an application for an urgent ex parte interim Intervention Order on behalf of the Mother, X, Y and Z on 2 March 2018. This order was made final for twelve months on 3 April 2018 when the Father did not appear.
Unbeknownst to the parties at the time, the altercation on 28 February 2018 was seen by X who heard the parties fighting and came out of her bedroom to see what was happening.
Because of the circumstances of the separation the Mother continued to see Dr R until May 2018 at which time the Mother commenced treatment with psychologist Ms T for ongoing psychotherapy.
Ms T assisted the Mother to obtain funding through VCAT for ongoing counselling for herself and X as both of them had been impacted by the violence on 28 February 2018.
Ms T saw the Mother and X for four to six visits before referring them to Ms U, Psychologist, who has been seeing both the Mother and X since August 2018.
After the parties separated, X, Y and Z remained in the Mother’s primary care. They initially spent time with the Father on an irregular day time basis only until the parties entered into a parenting plan on 4 June 2018. That plan provided for the parties to have equal shared parental responsibility for X, Y and Z, for them to live with the Mother and spend alternate weekends with the Father from 5:30pm on Friday to 4:30pm on Sunday, half school holidays and special occasions. The plan provided that changeover take place at City E Police Station.

In the September 2018 school term holidays X, Y and Z spent 9 days with the Father. During this period, X Y and Z were left by the Father in the unsupervised care of his Father. When the Mother became aware of this she stopped all time between the Father and X, Y and Z. After the Father gave an undertaking through his solicitors to not leave X, Y and Z with his father unsupervised, X, Y and Z’s time with the Father recommenced according to the parenting plan
On 9 November 2018 the Father issued proceedings seeking parenting order. The Father’s Application was returnable in Melbourne on 19 December 2018.
On 17 December 2018 interim consent orders were made in chambers that provided for the parties to have equal shared parental responsibility for X, Y and Z, for them to live with the Mother and spend time with the Father each alternate weekend from 5:30pm on Friday to before school on Monday, half school holidays and special occasions. The orders also provided that the Father be restrained from allowing X, Y and Z to be left unsupervised with the Paternal Grandfather Mr D.
On 21 November 2019 final consent orders were made which reflected the interim orders made 17 December 2018.
X, Y and Z have consistently spent time with their Father pursuant to the 21 November 2019 orders save the parties agreed that despite the orders making provision for the children to see the parent they are not with on their and their parents birthdays and their birthdays the children spend such birthdays with whichever parent they are with.
After the parties separated, the Father rekindled his relationship with his Father and the Applicant’s Mother. He had been estranged from his father since 2010. He takes X, Y and Z to see them when they spend time with him or they visit the children in the Father’s home.
It is the Mother’s evidence that after the final orders were made in November 2019, the extended family’s behaviour towards her became worse. It is her evidence the Respondent’s Father would be in Hungry Jacks or in his car over the road at changeover. He would also follow her in his car or drive past her house. The Mother believes he sent her an email in which he told her she had brought misery on herself, was responsible for the breakup of the extended family, was a terrible Mother and threatened to report her to the Department of Families, Fairness and Housing.
The Applicant’s Mother continued to attend the Mother’s house unannounced. Her Mother berated her, threatened her with violence, blamed her for the parties’ separation and told her what a terrible mother she is.
The Mother’s evidence is that when she rings the children when they are with the Father they tell her exactly where she has been, what she has been doing and who she has been with when she has not told the children what she had planned. She believes the extended family are monitoring her activities and movements.
There have been seven reports to the Department of Families, Fairness and Housing in the last 12 months in relation to the Mother’s care of X, Y and Z raising concerns as to the Mother’s mental health, that she is isolating them from family support, she and X have a conflicted relationship and she exposes the children to inappropriate discipline. None of the reports have been substantiated by the Department. The Mother believes the reports were made by the Father and the extended family.
It is the Mother’s evidence that because of the Father’s behaviour post separation, the trauma of her abusive childhood and the ongoing abuse and intimidation by the Respondent’s Father and her family, she does not feel safe, settled or supported in City E. It is for this reason the Mother made the decision in July 2020 that is was in her and the children’s best interests she leave City E and relocate to City B.
What thereafter ensued and how this matter came before the Court is set out in paragraphs 3 to 11 of this judgment.
RICE V ASPLUND APPLICATION
In the Father’s Outline of Case Document filed 24 May 2021 it states under the heading “Other Considerations”:-
“(I)Final Orders were made by consent on 21 November 2019. It is the husband’s submission that there have not been any significant changes to the circumstances of the parties which would warrant those orders being re-litigated.
(ii)It is submitted that the rule in Rice v Asplund (1978) FamCA 84 should prevail in this matter and that the extant orders should remain in place save that the mother be restrained from relocating the residence of the children from the City E area.”
The Law
In the matter of Mulder & Mulder [2021] FCCA 1180 under the heading “the legal framework” Judge Carter sets out the principles that govern whether an application be dismissed on the basis it is not in the children’s best interests that parenting matters be re-litigated. Her Honour held at paragraphs 10-17:-
“10The principles regarding re-hearing parenting disputes are well known. They are set out by the Full Court in Rice & Asplund. In that case, the Court said a subsequent parenting application ought be heard only if the Court is satisfied there is:-
… some changed circumstance which would justify such a serious step, some new matter arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…
11The Full Court said an application to change an earlier parenting order should not be lightly entertained, as that would “invite endless litigation” and that:
It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served.
12This ‘principle’ is a manifestation of the best interests test, based on the notion that continuous litigation over children is not generally in their best interests: see SPS & PLS (2008) 217 FLR 164 (“SPS & PLS”), cited with approval in Poisat & Poisat [2014] FamCAFC 128.
13In addition, the Full Court decision in SPS & PLS said that:
The essential question however is as to the sufficiency of new events to provoke a new enquiry. The answer to this question involves putting events in the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them.
14Put another way, the court must consider whether a variation to the orders would benefit the child more than the disruption and emotional harm to them caused by re-litigation: Marsden & Winch (2009) 42 Fam LR 1(“Marsden & Winch”).
15The Full Court in Marsden & Winch set out the two step enquiry with which the Court is to engage:
(a)firstly, the person seeking to re-agitate parenting orders must establish there is a prima facie case of changes circumstances; and
(b)if so, the Court must then determine whether the magnitude of the changed circumstances justifies embarking on a further hearing.
16That is, simply demonstrating that the circumstances have altered is not sufficient. The Court must consider whether the change is sufficient to require the Court to again consider the parenting issue.
17As was said by the Full Court in Marsden and Winch at [48]:
… the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.”
A court can consider an application under the Rice v Asplund principle at any time in the proceedings. The Father sought it be dealt with at the conclusion of the parties evidence.
Whilst it was the Father who commenced the proceedings, it is the Mother seeking to vary the existing parenting arrangements. As such she bears the onus to show there has been a sufficient change of circumstances that warrants the matter being re-litigated.
The Mother’s Counsel’s submissions in relation to this application were succinct. She argues that the principles set out in Rice v Asplund are not applicable in this case as there has been a clear change of circumstances since the making of the November 2019 orders as the Mother has now formed a clear plan and seeks to relocate to City B. The Mother’s wish to relocate was not something in the Mother’s mind at the time the November 2019 orders were made and this issue was not considered or determined by the Court at that time.
It is the Father’s submission there is very little evidence of a change in circumstances since the making of the November 2019 orders. The Father argues that at the time the orders were made in November 2019 the matters that the Moher argues support an order now being made permitting her to relocate were happening at that time. The Mother was receiving ongoing counselling for the issues from her childhood and the parties’ separation, she was being harassed and abused by her own mother and the Father’s father and X, Y and Z were spending time with their grandparents from whom the Mother is estranged.
The Father submits for these reasons the Mother has failed to establish sufficient reasons to warrant further litigation or any change in the existing orders which are clearly working well for X, Y and Z.
When this matter was before the Court in November 2019 the Mother was not considering relocation. It is the Mother’s evidence that since those orders were made the harassment by her step-father and Mother has increased. The impact of this on her mental and emotional well-being has worsened and she now no longer feels safe, settled or supported in City E.
For these reasons the Mother believes the only way for her to recover from the trauma of her past and heal so she can be the best parent she can be is to move away from City E so she is not constantly exposed to that trauma. She therefore seeks orders permitting her to relocate from City E to City B. This is opposed by the Father.
I agree with the submissions made by the Mother’s Counsel that the Mother’s application to relocate and the reasons such application is now being made clearly establishes a significant change in circumstances since the making of orders in November 2019. I am satisfied that the best interests of X, Y and Z are met by the Mother’s application to relocate to City B being heard and determined.
Accordingly, the Father’s application to dismiss the Mother’s application on the basis of the rule in Rice v Asplund is unsuccessful as the Mother has satisfied the Court there has been a sufficient change in circumstances to warrant her application being heard.
THE EVIDENCE
The Mother
The Mother relies on her trial affidavit sworn on 19 May 2021. The Mother also gave vive voce evidence at the final hearing/
The Mother also relies on the affidavit of her treating psychologist, Ms U, sworn on 19 May 2021.
The basis for the mother’s Application to relocate is set out succinctly in paragraph 57 of her trial affidavit which reads as follows:
“It is not my desire or intention to restrict or obstruct the relationship between the applicant and the children. I am supportive of that relationship continuing. I do not believe however that I can recover from past traumas while I continue to live in City E surrounded by a family from whom I am estranged and from whom I receive no support. I have always been the primary carer for the children, and I believe that it is in their best interest that I am in a situation where I feel supported without the constant anxiety of abuse and harassment from either the applicant or my family. I would like to live a peaceful, settled and stable life and do not believe that will occur in City E. My mental health improved greatly once I left City E. It was the first time in many years I had felt so peaceful.”
The sexual abuse the Mother was subjected to by her step brother and the physical and emotional abuse she was subjected to by her step father are well set out in this judgment, as is the lack of support she received from her own Mother in the face of this abuse.
The Mother has suffered from depression and anxiety since she was 16 and has been treated for those issues since that time.
Between 2016 and 2018 the Mother received intensive therapy which assisted considerably in dealing with her past trauma as well as the post-natal depression suffered after Z’s birth.
It is the Mother’s evidence that the ending of the marriage, the Father’s reengagement with his Father and her Mother who were incredibly supportive of him following the breakup and the increased harassment that she has suffered at the hands of the extended family which is detailed earlier in this judgment has resulted in her feeling unsafe, unsettled and emotionally and psychologically vulnerable.
When giving her vive voce evidence the Mother describe the anxiety she suffers at the thought of her mother turning up at her home as being constant. She stated that when there is a knock on the door and she doesn’t know who it is “my heart goes through my chest.”
It is the Mother’s evidence that she sees members of her extended family, the Father and/or his new wife regularly in City E which triggers her anxiety and reinforces her feeling unsafe and threatened.
The Mother was asked why she had chosen City B to relocate to rather than another country centre which would be sufficiently proximate to City E to enable the existing spend time arrangements to continue.
It is the Mother’s evidence that she chose City B for a number of reasons. The Mother is studying health care and as part of her course is required to do a placement in a hospital. It is her evidence that F University through which she does her course offers placements in City E, Melbourne or City B. The Mother does not wish to go to Melbourne as she is a country girl and the placement in City E is at the City E Hospital where her mother works.
It is the Mother’s evidence that City B is a large country town which has all the necessary medical facilities and schools to support herself and the children.
It is the Mother’s evidence that prior to relocating to City B she made enquiries of the schools in City B and located a school that has specialist supports for children with Autism. She enrolled X and Y in this school and they attended there until the Mother was required to return to City E by order of the court. The Mother notes that Y’s school in City E does not have specialist assistance for him.
It is the Mother’s evidence that her closest friends in City E are Ms V and Mr W. Ms V is originally from City B and her extended family live there. Ms V and her family are proposing to move back to City B in July 2021. It is the Mother’s evidence that Ms V and her family are enormously supportive of her and X, Y and Z and she views them as her family. If she were to relocate to City B she will have the support of Mr W and Ms V and Ms V’s extended family.
While the Mother was candid in her answer that there was nothing positive she can say of the Father, she readily accepts that X, Y and Z have a close loving and positive relationship with him, his now wife and their son and that they enjoy their time with their Father and his family and their relationship with him is very important to them.
It is the Mother’s evidence that her proposal for X, Y and Z to spend alternate weekends with their Father as well as additional holiday time will enable X, Y and Z to maintain their meaningful relationship with their Father as this arrangement does not dramatically change the arrangements that have been in place for their care since shortly after she and the Father separated.
It is the Mother’s evidence that X, Y and Z settled well in City B for the brief period that they lived there before being required to return to City E. It is the Mother’s evidence that she had prepared Y for his change of home and school and that he was enjoying his new school and making friends there.
It is the Mother’s evidence that X, who experiences difficulties in her friendship groups in her school in City E, made lots of new friends in her new school in City B and was voted Vice-Captain by her peers in her new school
The Mother acknowledges that X and Y have told the report writer Ms AA that they don’t wish to move to City B. It is the Mother’s evidence that X’s views in relation to moving to City B have varied since the possibility of a move arose and there have been occasions when X says she wants to go to City B and other occasions when she says she wants to stay in City E.
In relation to Y, the Mother notes that because of his Autism he is change averse but that with appropriate preparation he is able to manage a change in his circumstances which was what occurred at the beginning of this year.
It is the Mother’s evidence that the children managed the travel between City B and City E well in the period that they were living in City B, though she does say that in the last half an hour of the drive Y and Z start to get a bit restless and ask “are we there yet?”
It is the Mother’s evidence that if she is required to remain in City E she will not be able to heal from the trauma from her childhood because she is continually exposed to the perpetrators of the abuse that she suffered.
It is the Mother’s evidence that a move to City B will give her the space and peace which will enable her to recover and allow her to parent to the best of her ability which can only be in X, Y and Z’s best interests.
Ms U
Ms U is a registered psychologist with 35 years’ experience. Ms U swore an affidavit on 15 May 2021 to which was attached a document headed “Court Report” dated 13 February 2021. Ms U gave vive voce evidence at the final hearing.
Ms U’s responds to specific questions that the Mother’s legal representative asked Ms U to address. It is my intention to cite the headings and the relevant comments arising there from:
“1.      Assessment and diagnoses of Ms Forges’ psychological condition
In my professional opinion Ms Forges displays symptoms of Post-Traumatic Stress and Generalized Anxiety Disorder.
…
2.        Recommended treatment plan
I have been Ms Forges’ treating psychologist since 22/08/2018
Treatment has included Mindfulness Cognitive Behavioural Therapy (MCBT), Acceptance Commitment Therapy (ACT), Emotion Focused Therapy (EFT).
Counselling sessions has focused on reducing the severity of post-traumatic stress and anxiety symptoms and helping Ms Forges find a “new normal” life as a single mother with 3 young children.
I have also had joint counselling sessions with her daughter X in order to improve their communication with each other. I have noticed a significant difference in how they are now both able to openly and honestly discuss their feelings and thoughts in a kind and calm manner. They both now regularly demonstrate their ability to successfully find resolve cooperatively. X knows that she is being heard by Ms Forges and her thoughts and feelings are validated and valued.
3.        Nature of my involvement in treating X
Total number of counselling sessions with X to date (are 13).
During these counselling sessions I have been assisting X in helping her regulate overwhelming emotions in relation to her witnessing domestic violence between her parents.
4.        Assessment of the relationship between X and her parents
Initially, I witnessed in counselling sessions that X was reluctant to talk openly and honestly with her mother Ms Forges about her feelings.
Further counselling sessions included both Ms Forges and X learning new ways of communicating their thoughts and feelings in a calm and kind manner.
Over a period of 6 months I have seen a significant change in how mother and daughter relate to one another. I can now say that they have a healthier way of communicating…Ms Forges has also demonstrated to me in counselling sessions that she can truly listen and acknowledge X’s feelings.
X also appears to feel safe sharing her thoughts and feelings with her mother in an open, honest and calm manner.
It is clear that X is experiencing mixed emotions in relation to her father. She clearly wants to have a close relationship with him but Dad doesn’t appear to be able to connect with X at an emotional level.
During our counselling session on 19/11/2020, X reported that her father asked her to choose who she wants to live with. She told me that she told her father “I can’t choose, I’m the child, turning 11 years old next year”.
On 10/12/2021, I requested that Mr Forges attend counselling session with X so she could tell him how she felt about moving to City B. X stated “I want to move to City B but it’s complicated”. Further discussion on this revealed that X is torn with what her father wants and what her mother needs to do.
About 40 minutes into this counselling session, Mr Forges appeared to dislike how the session was going because X was still voicing her agreeableness to moving to City B. He became visibly agitated and started raising his voice. At this point I could see that X was getting upset and she had a frightened look on her face. I asked him to calm down and that he needed to leave so I could talk to X on her own. He immediately left the room.
I did feel somewhat threatened and intimidated by Mr Forges’ actions. His display of aggressive and controlling behaviour visibly upset X and led her to shut down any further conversation with him.
5.Assessment of parents degree of insight into the best interest of the children
In my professional opinion, Ms Forges is moving to City B with her children so she can pursue her career and she can truly re-invent herself and be independent. I recall a comment I made in a prior counselling session with Ms Forges asking her where does she see her future with her children? I may have planted the seed that relocating to another region may be the best option for herself and her children as it appeared that her post traumatic stress and anxiety symptoms were being fueled (sic) by constant environmental triggers in City E.
In my professional opinion, Ms Forges’ decision to leave City E is based on wanting what is best for herself and her children. If Ms Forges is no longer exposed to past traumatic triggers then she has a significantly better chance of leading a happier and more fulfilling life.
6.Possibility of Ms Forges to fully recover psychologically from trauma associated with domestic violence and sexual abuse suffered in the past should she be ordered to return to City E to reside with the children. If ordered to return to City E, the impact that will have on Ms Forges to effectively parent the children.
If Ms Forges was forced to come back to City E with the children she will struggle to be truly independent and free of her past trauma which in turn can significantly reduce her capacity to be truly present with her children.

In her vive voce evidence Ms U confirmed she discussed relocation with the Mother and that it was she who suggested relocation would enable the Mother to fully recover from her childhood traumas as being in City E constantly triggers and reminds the Mother of the abuse that she suffered.
Ms U expressed the view that if the Mother is able to recover from her trauma this will in turn help the children as it will enable the Mother to be fully available to them.
The Father
The Father relies on his trial affidavit sworn 13 May 2021. The Father also gave vive voce evidence at the final hearing.
It is the Father’s evidence that in contrast to the affidavit material that was filed by him in the earlier proceedings before the court and his trial affidavit in which he is critical of the Mother for being estranged from her family and expresses the view that she has no reason for so being, he now believes that there are legitimate problems that the Mother has with her extended family and in particular his Father and her Mother and that it is reasonable that she is estranged from them.
The Father explains this change of position on his realisation that his Father and the Applicant’s Mother have not changed, they have not accepted responsibility for their past behaviour and also in part because of the “reflective considerations” component in his recent studies for his Diploma.
It was put to the Father that in light of the historical abuse that the Mother suffered at the hands of her step-brother and step-father and the most recent harassment by his father and the Mother’s mother, his resumption of a relationship with her mother and step-father would be most distressing for her. Whilst acknowledging this on some level, the Father observed that outside of visiting them with the grandchildren or they visiting his home to see their grandchildren he has nothing else to do with them.
When asked how the resumption of his relationship with his father and the Mother’s mother came about, he explained it was because X asked to see them as she has memories of them from when the parties were together. He observed that he did not want to let his emotions interfere with what the children wanted and that he put his emotions aside so that X, Y and Z were able to have a relationship with their grandparents.
The Father was asked what he thought the emotional impact would have been on the Mother when she discovered that he had allowed his Father to care for X, Y and Z on an unsupervised basis in 2018. The Father responded that he “didn’t think about it” because at that time he had to work and didn’t have many options available to him for alternate care of the children.
The Father denies the Mother’s version of what occurred in the early hours of the morning of 28 February 2018. It is his evidence he had not been drinking. It is his evidence that it was the Mother who attacked him and his response was nothing more than self-defence and he left the premises as soon as he could in order to diffuse the situation. It is his evidence that he did not see X at any time during the altercation and because of this he questions whether she saw the incident at all and is instead only repeating what the Mother told her happened.
In relation to the meeting that he had with X and Ms U in December 2020 when Ms U reports that he became angry and aggressive and she had to ask him to leave her offices, it is the Father’s evidence that he was not angry but became very defensive as he felt he had been “hijacked” by Ms U who he felt was supporting the Mother’s wish to relocate. He denies adamantly that he was aggressive or that Ms U or X had any cause to be intimidated or fearful as a result of his behaviour on that occasion.
The Father was asked whether he was aware that X was unhappy at her current school. He agrees that she is currently having issues with one particular pupil and hasn’t gelled with one of her teachers. He agrees that the school is a small one that consists of the principal, the teacher X is having issues with and two other teachers. He also agrees that X has had trouble in making friends at that school.
When questioned about the support Y’s current school is able to provide him, the Father agrees it doesn’t have “specialist” teacher to assist a child with Autism. He notes however that Y’s school is a small one, that they are fully understanding of him and his needs and he has been progressing satisfactorily at that school.
The Father agrees that he has not been to any parent teacher interviews since the parties separated. His explanation for this is he has difficulties with the school as they fail to communicate or contact him. Despite having full details of where the Mother had enrolled the children in school in City B the Father did not contact that school.
In relation to Y’s Autism and ongoing treatment, it is the Father’s evidence that he did not attend the specialist when Y was assessed but that he received and read the full report in relation to Y’s diagnosis. He has only attended Y’s play therapy on one occasion.
The Father agrees that he received emails from Y’s treaters in early 2020 which indicated there was to be a change in treatment but that “I haven’t followed up with that”.
Annexed to the Father’s trial affidavit was a very concerning piece of written work prepared by X headed “The BB Problem” which depicts a very disturbing, violent interaction between X and the Mother and ends up with the Mother being pushed off the BB Tower and dying.
The Mother only became aware of this piece of work when she was served with the Father’s trial affidavit. In her trial affidavit the Mother deposes that immediately upon reading the Father’s trial affidavit, she rang X’s school to enquire about the work. It is her evidence that the Principal, who was not initially aware of the piece, explained that X’s teacher had asked the children to write a narrative about exaggerated conflict within the family. The Principal of X’s school discovered that the piece was written on or about 23 March 2021 and that many children in X’s class had written similar pieces expressing violence towards their Mothers.
The Father was cross-examined as to what he did when he saw such a concerning piece of work. He was asked whether he rang the school, Ms U or anyone else to ensure that there was no reason to be concerned in relation to X. He responded that he did not “as the school already had the information.”
At the conclusion of his vive voce evidence the Father conceded that it “was not fair that the Mother should have to stay in City E” given the ongoing trauma and anxiety that caused her. It is his evidence however that he doesn’t believe that the Mother has to move to City B to find a place where she can feel safe. He argues there are many places she could move to that are not four hours away and enable the children to continue to spend the same time with him as they currently do.
The Father was asked at the conclusion of his evidence what would he do if the Mother was permitted to relocate to City B with X, Y and Z. He indicated that he would have to “take it on the chin” and ensure it had the least possible impact on the children. He expressed a willingness to meet the Mother in City C for changeover noting that he refused to do so when the Mother unilaterally relocated to City B as she has “done the wrong thing.”
Ms AA
Ms AA is a Regulation 7 Family Consultant with the Federal Circuit Court. She prepared a Family Report in this matter dated 19 April 2021. Ms AA also gave vive voce evidence at the final hearing.
In her report Ms AA describes the Father as cooperative and the Mother as anxious at times noting she requested a plan for the day that involved not crossing paths with the Father.
When discussing the relocation to City B with the Mother, Ms AA sets out in paragraph 39 of her report that the Mother told her that her best friend and family are from City B and her friend is relocating there in June 2021. In addition the mother told Ms AA that she has been offered a placement in City B. The Mother also reported that the school X and Y attended in City B was wonderful and had a specialist ASD program which was suitable for Y. The Mother reported X to make friends easily and that Z has an easy going personality and seemed to adapt to the move. The Mother told Ms AA that she did not believe the children had been impacted negatively by the amount of travel required to spend alternative weekends with the Father.
In paragraph 40 of her report Ms AA sets out the personal gains the Mother sees for herself if she is able to relocate to City B:
“40. …she believes she had has made much progress in the past three years. With a relocation to City B she believes she would be able to live in peace and not have to feel so aware of her surroundings, which she believes would reduce her anxiety….Ms Forges does not believe a relocation to City B would change the children’s relationship with their father, “but everything changes for me, for the better. I just want peace”.”
In paragraph 42 Ms AA sets out what the Mother believes will be the impact on her if she is not permitted to relocate:-
“42.Ms Forges believes there will be a significant impact on her if she is not permitted to relocate to City B with the children – “I’ll die if I have to stay here”. The report writer ascertained that Ms Forges was not expressing intentions to harm herself but a feeling that she would die “on the inside”. “I can’t move on, I can’t study, I can’t work, I just want peace”. Ms Forges stated, At (sic) the same time, “I’ve never wanted to stop my children from seeing him. My job is to support the children’s relationship with him”.”
In relation to the adult relationship Ms Forges succinctly states in paragraph 59 “neither parent has a positive opinion of the other.”
Ms AA describes X as articulate and personable.
In paragraph 68 Ms AA sets out X’s views in relation to a move to City B:
“68. When asked about her experience of living in City B, X reported that she felt bad because it was five hours away from her father. “I cried every day when I was up there”. She stated, “I don’t think City B is the place for me. I would want to stay in City E”. X appeared to indicate that her mother was not supportive of the relationship with her father when they were in City B, stating that she had been grounded for speaking to her father “when I shouldn’t have been”. Although she had been told not to communicate with her father (via Instagram), X stated that she missed him.”
When discussing the family violence incident that occurred when her parents separated Ms AA sets out X’s comments in paragraph 70:
“70. X recalled the alleged family violence incident prior to her parents separating. She reported that she had heard something going on and therefore got out of bed. Her mother reportedly told her to go back to bed. She said she sat on the couch for a little bit but could not go back to sleep. X stated she has since asked her father about this incident and she finds his response confusing. X reported she has seen a photo of her mother’s wrist and her bruised neck.”
In paragraph 71 Ms AA reports that X told her that both parents have sought to draw her into their conflict by sharing inappropriate information with her.
Ms AA describes Y as a quietly spoken child. When discussing the move to City B Ms AA sets out Y’s responses in paragraph 77 and 78:
“77.Y reported that he had predicted the move to City B and starting a new school was going to be “trash”. He found it to be better than he expected and, in particular, he enjoyed the “calm room” at school. Y reported that he also liked the house they were living in and felt sad leaving it. When asked about the travel aspect of the move, Y stated that he did not like that part of it.
78.When asked if he wished to express a preference regard (sic) to living arrangements, Y stated his preference for living in City E.”
Ms AA reported that she did not interview Z due to her age.
Under the heading “Evaluation” Ms AA discusses each of the children in turn.
X is discussed in 101-102 as follows:
“101. X is a bright and articulate child. As described, she is in the difficult position of wanting to please the adults around her. This places her in a vulnerable position and open to influence from adults. It appears both parents have attempted to influence her at times by drawing her inappropriately into their issues. X has felt confused about the family violence incident she experienced, particularly when she has sought clarification from her father and he has denied what X perceives as her experience of it. Her comment to Ms U around this indicates she is aware of the manipulation. She It is particularly inappropriate to expose X to the issues which are playing out in Court. The burden placed on X presents a risk to her psychological well-being. Therapy is not the sole solution for X; she will benefit immensely if both parents are able to change their behaviour in this regard.
102.X presented a somewhat balanced view in regard to her experience of City B. She made friends and enjoyed the more populous school environment. However, she expressed a preference for remaining in City E. From Ms U’s reporting, it appeared that X’s initial preference was to relocate with her mother. The apparent change in preference could be attributed to the influence of Mr Forges and Ms H. In addition, after the incident during the counselling session with X and her father, X may be fearful of expressing a preference that contradicts her father’s. Alternatively, her view may also be congruent with a child of her age who has spent most of her life in the same city.”
Her observations in relation to Y are set out in paragraph 103:
“103.Y is a boy who faces some challenges due to his diagnosis of ASD. This impacts his expected development to a degree. However, it appears Y is managing well. One of the challenges for a child with ASD is coping with change. In regard to the move to City B, it appears Ms Forges planned in advance, taking Y’s needs into consideration and implemented the plan to the degree that Y reported the move was not as negative as he thought it would be and he enjoyed aspects of his new school. Y’s stated his preference for remaining in City E and this is not unusual, taking into consideration his preference for consistency. Wherever his geographical preference, if there are to be any changes to parenting arrangements in regard to scheduling, these would need to be made with Y’s needs in mind and explained and implemented accordingly.”
Ms AA sets out her observations to Z as follows:
“104.Z is a delightful child who appears to have met her developmental milestones. She appears to enjoy her relationships with all family members. She is at a stage of development, as indicated above, where her preference will be for the majority of her time to be spent with her mother, her primary carer. She will cope with spending weekends and shorter amounts of time with her father. Longer times in school holiday periods are likely a stretch for Z, however, having her siblings with her is likely helpful. She is likely to adapt to wherever she is living with the support and care of her mother.”
Paragraphs 107-110 set out the matters considered by Ms AA of relevance in the context of this family going forward as follows:
“107.Ms Forges has psychological vulnerabilities as a result of her experience of childhood trauma and alleged family violence. Trauma impacts the neuroception of safety. Ms Forges has hypervigilance pertaining to her family members. It appears her mother does not respect boundaries and her unannounced visits likely trigger traumatic responses in Ms Forges. Ms U’s reporting indicates that Ms Forges is able to reflect on her parenting and make changes in order to improve her relationships with her children. It is recommended that Ms Forges continues to access professional support that allows her to remain reflective and open to adjustments in her parenting. One of the complicating issues for Ms Forges and the family, is the complex family relationships. Ms Forges clearly felt betrayed when Ms Forges rekindled relationships with the family from whom she had become disengaged. In particular, Ms Forges has a relationship with Mr D who was the main abuser of Ms Forges. This relationship will erode Ms Forges’ trust in Mr Forges. Despite Ms Forges’ personal feelings about Mr Forges, there is no indication she has actively denied the children time with him. It appears she is able to separate her feelings about him as a former partner from the importance of the children having a relationship with him.
108.While Ms Forges has diagnosed mental health challenges, there is nothing to suggest this has impacted her capacity to provide for the children’s basic needs. She has been able to organise an NDIS plan for Y and engage in her part of it’s implementation. Her integration of strategies to manage Y indicates an attunement to him and his special needs. X’s reporting of her mother’s recent behaviour, both in City B and City E, is consistent with the stress and anxiety Ms Forges is experiencing in regard to the Court matter. When the matter is resolved, Ms Forges’ stress will very likely be reduced and hence her behaviour will be modified.
109.Mr Forges has appropriate parenting skills when interacting with his children. He was less specific than Ms Forges in describing Y’s special needs and did not offer any ways in which he has adapted his behaviour to assist Y to manage. There is some discrepancy in information in which Mr Forges complains about not receiving sufficient information about the children and Ms Forges’ claim that she has provided Mr Forges with the contact details of Y’s treating professionals and he has not followed up. There are indications that Mr Forges has placed X in a difficult position in a number of ways. To deny what X believes she witnessed in the incident of family violence appears to be a deliberate attempt to manipulate her experience which has been very confusing for X. In addition, reportedly asking X to make a choice about where she wants to live is also placing an inappropriate and heavy psychological burden on her.
110.The main proposal for consideration is that of relocation. Ms Forges’ reasoning is two-fold in regard to what she wants to move away from and what she is moving to. She is emphatic about the impact on her should she be required to remain in City E, and her description of feeling like she would “die on the inside” indicates a tendency for Ms Forges’ mental health to decline, particularly in regard to depression. Should this be the outcome, the children would likely be negatively impacted as Ms Forges’ parenting capacity would be impacted by a decline in her mental health. She may find it more challenging to meet the children’s basic needs and to remain emotionally attuned to them. Conversely, should Ms Forges be permitted to relocate, her mental health is likely to improve and result in an improvement in her parenting capacity. Her ability to move about City B without meeting the triggers for her trauma, including the perception that she is being watched or followed is likely to reduce her stress considerably. Ms Forges has identified social support already existent in City B and she will be able to build on this once she gets to know other people.”
Ms AA therefore concludes in paragraph 111:
“111.The report writer places the main weight on Ms Forges’ mental health, and the issues that emanate from this. Therefore, it is recommended that Ms Forges be permitted to relocate to City B with the children.”
Under the heading “Recommendations” Ms AA states as follows:
“114.   The children live with their mother.
115.     The mother be permitted to relocate to City B
…
117.     The children spend time with their father as follows:
a.    Each alternate weekend from 5:30 pm on Friday until 5:30 pm on Sunday, with changeover to be at a half-way point.
b.   When there is a long weekend, the changeover to be 5:30 pm on Monday.
c.   During the first part of the term school holidays in 2021 from Friday at 5:30 pm to the following Sunday at 4:00 pm (9 nights) and each alternate year thereafter.
d.   During the second part of the term school holidays in 2022 from the second Friday at 4:00 pm until the following Sunday at 5:30 pm (9 nights) and each alternate year thereafter.
e.   Half of the long holiday period.
f.    The time in c, d and e to be dependent on the outcome of Mr Forges’ psychiatric report.
118.     Neither parent to physically discipline the children.

When giving her vive voce evidence Ms AA was asked what would be the likely impact on X, Y and Z’s relationship with the Father if their time with him was reduced by one overnight in each fortnight. Ms AA responded:
“Well I guess, when it comes to time, it’s often about the quality and not the quantity of time and I’m wondering if it might be possible to make up that time as well at different times, for example, in school holiday periods. But I think – I don’t think that that’s going to have an impact on their relationship as such. I think they have a quite good relationship with their father. A quite close relationship with their father and not having that one overnight each week, I don’t think is going to be too detrimental to their relationship with him. I don’t think it’s going to really change the quality of the relationship with him. It will be less time, but I don’t think it’s going to really change the quality of that relationship too much.”
Ms AA was asked to comment on the impact on the Mother if she was not given permission to relocate to City B. Ms AA responded:
“I think that she will just continue to experience anxiety and trauma symptoms and that, in turn, is going to impact her parenting capacity so she is not going to be…so available to the children and so emotionally in tune to them. I would be worried about the impact that would have.
Having discussed that the Mother’s friend Ms V is moving to City B, Ms AA was asked whether she had formed the view that the Mother’s primary motivation for wanting to relocate was because of Ms V’s move. Ms AA responded:
“No. Her reasons for wanting to relocate were to move away from the source of her anxiety and her trauma. I think that the location of City B might have been because that’s where Ms V is moving. I’m not sure. But I think it was just going to be a bonus for her that she was going to have a friend there and some support there. I think if Ms V wasn’t there, Ms Forges still would have moved somewhere because she was really wanting to ..... really wanting to move away from something that she sees is really detrimental to her psychological health.”
Ms AA was asked about the possibility of the Mother relocating somewhere closer to City E so that the children could continue to spend alternate weekends with their Father from afterschool Friday to before school Monday. Ms AA responded that this raised the possibility of the move being too close to the source of the Mother’s trauma. She stated:
“If it’s an hour away, I think that might be a bit too close for Ms Forges, but that might be close enough for the father to take them to school on a Monday morning. So it’s a matter of how close is close enough and far enough, I guess.”
Ms AA was asked whether the views expressed by X and Y that they wish to remain in City E were genuinely held.
In relation to X, Ms AA expressed the view that she thought X’s view was genuine at the time they spoke but she noted that X’s views have changed from time to time. She stated:
“I think, as we established in the beginning, she – she does – she is a bit of a people pleaser and did tend to – or does tend to – tell people what they want to hear from time to time. So it may have changed over time, but – but – yes. Look, I do think at this point in time – or at that point in time that the report was written – I do think it – it was her wish to – to stay in City E. I think she – the City B experience wasn’t a negative one for her. She coped quite well with it. But yeah, I think she – I think she does want to remain in City E.”
Ms AA confirmed that she continues to hold the view that the greatest weight in determining what is in X, Y and Z’s best interests should be the improvement in the Mother’s psychiatric and emotional health that relocation would allow as this would enable her to be more available and to better parent the children and therefore the outcome would be better for them.
The Law
In this matter the Mother is seeking to relocate from City E to City B with the parties’ three children.
Relocation cases are often discussed as being a discreet subset of parenting cases that should somehow be determined differently to other parenting matters. The jurisprudence makes it clear that this is not so and that a relocation matter is to be determined in the same way that all parenting matters are determined, that is, by following the legislative framework prescribed under the Family Law Act 1975 (Cth) (“the Act”) to determine what orders are in a child’s best interest.
The Full Court in Taylor v Barker [2007] 37 Fam FLR 461 at 475, held:
When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U v U (2002
) 211 CLR 238; 191 ALR 289; 29 Fam LR 74;
(2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
The Act does not address the concept of relocation. However, over time the superior courts have set out a number of principles to assist Judges when they are dealing with parenting matters where relocation is in issue. In paragraph [44] of Fawkner v Kado [2020] FCCA 1535, Judge McGuire summarised those principles as follows:
(a)Relocation matters are to be determined generally in accordance with Part VII of the Act and within the context of making the necessary findings relevant to children's best interests with reference to the factors in s.60CC of the Act but also within the context of s.65DAA considerations of equal time or 'substantial and significant time' and ‘reasonable practicability’;
(b)The child's best interests remain the paramount but not the sole consideration;
(c)Neither party bears an onus to establish that the relocation or a continuation of an existing regime will best promote the interests of the child;
(d)An applicant for relocation need not show 'compelling reasons' in support of the relocation but must, in my view, give or adduce probative evidence which permits the Court, on balance, to find that a parenting order which involves a relocation of a child is in that child's best interest;
(e)The child's best interest must be weighed and balanced with the open 'right' of a parent’s freedom of movement but such right must ultimately defer to the child's best interest;
(f)The Court must consider the advantages and disadvantages of each of the parent’s proposals including the proposed relocation and may, if required, formulate proposals itself in the best interests of the child.
Best Interests of the Child
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
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).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
To determine what is in the best interests of the child, the Court must consider the matters set out in Section 60CC(2) and Section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court must be considered and assessed in the context of each of the parties’ proposals. The Court should then make a decision as to which of the parties proposals or such other arrangements as the Court determines given the Court is not bound by the parties’ proposals (see AMS v AIF (1999) 199 CLR 160, U & U (2002) 211 CLR 238), is in the children’s best interests.
Section 60CC (2)
Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the child’s best interests. They are as follows:
Section 60CC(2)(a) – The Benefit of the Child having a meaningful relationship with both of the child’s parents
In Heath v Hemming(No.2) [2011] FamCA 749, Justice Kent in paragraph [104] reviewed the authorities relating to parenting cases involving proposed relocation. In subsection (a) of paragraph [104], His Honour considered Section 60CC(2)(a) and summarised the case law in relation to the benefit of the child having a meaningful relationship with both of the child’s parents as follows:
(a)s60CC(2)(a) expresses the primary consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents. Similarly, s60CC(3)(b) requires the Court to consider the nature of the relationship of the child with, inter alia both parents and the objects and principles expressed in s60B also contain various references to the involvement of both parents in the life of their child.
In Sigley & Evor (2011) 44 Fam LR 439 the Full Court recently considered what is required by the term “meaningful relationship” in s60CC(2)(a). The Full Court:
(i)approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child (citing Mazorski v Albright[2007] FamCA 520; (2007) 37 Fam LR 518 per Brown J and McCall v Clark[2009] FamCAFC 92; (2009) FLC 93-405 per the Full Court);
(ii)concluded that the preferred interpretation of “benefit to the child of having a meaningful relationship” in s60CC(2)(a) is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (referred to by the Full Court as “the prospective approach”). However, the Full Court noted that s60CC(3)(b) requires a Court to explore existing relationships between a child and the child’s parents and other persons and thus, depending upon the factual circumstances, examination of the evidence as to the nature of the child’s relationships at the date of hearing (referred to by the Full Court as “the present relationship approach”) may also be relevant, for example where a significant relationship had not been established between a child and a parent at the date of trial;
(iii)confirmed that the legislation aspires to promote a meaningful relationship, not an optimal relationship. (Citing M v S[2006] FamCA 1408; (2007) FLC 93-313 per Dessau J at [38]-[39]; Godfrey v Sanders[2007] FamCA 102 per Kay J at [33]-[36] and Champness v Hanson[2009] FamCAFC 96; (2009) FLC 93-407 per the Full Court at [103]);
(iv)concluded that “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a meaningful relationship;
Clearly, if it is determined that a meaningful relationship with both parents is in the child’s best interests the starting point will be to consider whether such a relationship is already established. If not, whilst all factors must be weighed in the balance, it may be a determinative factor in assessing a proposed relocation. If such a relationship is already established, the consideration will be whether such a relationship can be promoted in the context of the proposed relocation. In either case, factors such as the child’s age and level of maturity (s60CC(3)(g)) may assume particular importance. This may also lead a Court to consider some proposal other than that of either party, for example, providing for some period of time before the relocation is permitted to occur during which a “meaningful relationship” with the non-relocating parent may be established or further established or to allow the child to reach an age where it is likely that a meaningful relationship will be maintainable.
X, Y and Z have close and loving relationships with both their parents.
The Mother has always been X, Y and Z’s primary carer and the parties agree that this will continue going forward.
Other than for three weeks after separation and a period of six weeks from September 2018, X, Y and Z have spent consistent alternate weekend time with their Father as well as half school holidays.
If the Mother is permitted to relocate to City B it is her proposal that X, Y and Z continue to spend alternate weekends with their Father, albeit that this time will conclude on Sunday evening rather than Monday morning as is the current arrangement.
It is the Mother’s evidence that she believes that the continuation of regular alternate weekend time between X, Y, Z and their Father as well as extended holiday time will ensure that the meaningful relationship that they have with their Father will continue.
It is the clear evidence of Ms AA that she believes that the X, Y and Z’s close and loving relationship with the Father will be maintained in the event of relocation to City B if they spend time with their Father as proposed by the Mother.
Section 60CC(2)(b): the need to protect the child from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence
Both parties make allegations that the other is over involving X in adult issues by discussing her future living arrangements with her and pressuring her to make a decision about where it is she would prefer to live.
Y told Ms AA that the Father has physically disciplined him stating “my dad slaps me very very hard, so hard I stop breathing”. When this allegedly occurred is not clear although it is the Mother’s evidence that when the parties were together the Father would use physical discipline with Y to try and manage his behaviour, particularly before his diagnosis of Autism.
Neither party however alleges that the other’s parenting is such that the children would be at risk of physical or psychological harm or exposed to physical violence in the care of the other.
While there are aspects of the parties parenting which at times has been less than ideal, I am satisfied that they do not pose a risk of harm either physically or emotionally to the children and that this is not a matter of relevance in this case.
Section 60CC (3)
Section 60CC(3) of the Act sets out the additional considerations the Court must take into account when determining what is in X, Y and Z’s best interests.
Each of the matters set out under this section will be considered in turn where applicable to this matter.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Both X and Y told Ms AA that they would prefer to stay in City E rather than move to City B.
It is Ms AA’s evidence that the views expressed by X and Y when they were speaking to her were genuine at that time.
It is the evidence of the parties, as well as that of Ms U and Ms AA that X is torn between what she knows each of her parents want and that her views have changed over the last twelve months in respect to whether she wishes to relocate or not.
Ms AA observes X to be a child who is keen to please both her parents and it is therefore not surprising that her wishes have vacillated in response to the pressure her parents have put on her to make the decision about where she lives.
Ms U poignantly sets out in her report that X told her that when her Father asked her where she wanted to live she replied “I can’t choose, I’m the child, turning 11 years old next year.”
Ms AA notes that X’s experience in City B was quite positive in the brief period that they lived there. X told Ms AA that she made many friends and enjoyed the larger school and environment. This compares to X’s current small school where she is struggling to form friendships and is having issues with one of the only three teachers on the small teaching staff.
In relation to Y, he too was somewhat surprised at how well the move to City B went. He told Ms AA he thought it was going to be “trash” but he found it better than he expected, he enjoyed the calm room at his new school, he liked the house they lived in and that he felt sad leaving it.
Ms AA expresses the opinion that because of Y’s diagnosis of Autism, it is not surprising that he expresses a preference to stay where he is given the difficulties he has in adjusting to change.
Because of Z’s young age, her views were not canvassed.
Whilst the views of X and Y are relevant, their relatively young ages, the pressure that X in particular has been placed under by her parents and the many other relevant factors in this matter which are of greater weight when determining what is in X, Y and Z’s best interests mean that the views expressed by X and Y will not be determinative in this matter.
Section 60CC(3)(b): the nature of the relationship of the child with:
(a)each of the child’s parents; and
(b)other persons (including any grandparents or other relative of the child)
The Mother has been and will continue to be X, Y and Z’s primary carer. They have a close and loving relationship with her. It is noted that the Mother and X had issues with their communication in the past. Ms U has assisted them to develop strategies to listen to each other and to more effectively communicate with each other. She reports the relationship between the Mother and X to have improved and that they now have a healthier way of communicating and that X feels safe sharing her thoughts and feelings with her Mother in an open and honest way.
X, Y and Z also have a loving relationship with their Father and they enjoy their time with him as well as his now Wife, their little brother K and step-brother J.
Since separation the Father has reconnected with his Father and the Applicant’s Mother and is facilitating a relationship between X, Y and Z and their grandparents.
Given the Mother’s history of abuse at the hands of these people, this decision by the Father is quite distressing for the Mother and she has genuine and understandable concerns that this may be of questionable benefit to the children. She has not however sought to prevent X, Y and Z from seeing their grandparents when in the Father’s care.

The Father’s explanation for making the decision to re-introduce the children to their grandparents is that X asked to reconnect with her grandparents. It is his evidence however that X is currently resisting spending time with the paternal grandfather because he “treats her like a four-year-old.”
The Mother’s closest friends are Ms V and Mr W. The Mother, X, Y and Z have been living with Mr V and Mr W since being ordered to return to City E.
It is the Mother’s evidence that Mr W and Ms V is the closest thing to an Aunt and Uncle that X, Y and Z have and that Ms V and her parents have become her “adopted family” and that she and all the children have a very close and loving relationship with them.
Section 60CC(3)(c): the extent to which each of the child’s parents has taken or failed to take the opportunity:
(a)to participate in making decisions about major long-term issues in relation to the child; and
(b)to spend time with the child; and
(c)to communicate with the child
Other than for a brief period after separation and the period of time whilst undertakings were received from the Father not to leave X, Y and Z with his Father on an unsupervised basis, the children have spent regular ongoing time with their Father since separation.
It is the Mother’s evidence that it is she who has been the driver behind ensuring Y’s behavioural issues were appropriately diagnosed and that he engages with the treaters recommended to assist him going forward.
Further it is the Mother’s evidence that it is she who engages with X and Y’s school with the Father having little involvement with the school other than to drop X and Y off on the Monday morning when they have been in his care for the weekend.
The Father’s evidence confirms he has minimal involvement with X and Y’s school and with Y’s treaters. This is the Father’s choice and not because the Mother has prevented him from doing so.
Section 60CC(3)(ca): the extent to which each of the child’s parents have fulfilled, or failed to fulfil, the parent’s obligation to maintain the child
The Father has payed child support as assessed by the child support agency since shortly after separation. Otherwise the Mother has been financially responsible for the children.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(a)either of his parents; or
(b)any other child or other person (including any grandparent or other relative of the child), with whom he or she has been living
In the event the Mother relocates to City B the distance to City E is such that X, Y and Z’s time with their Father on alternate weekends will have to conclude on Sunday evening rather than on Monday morning.
It is approximately a four hour journey between City B and City E which means that each fortnight X, Y and Z will be required to spend considerable time in their parents’ cars.
It is the Father’s evidence that the distance between City E and City B will reduce the amount of time that X, Y and Z can spend with him and prevent him from being able to take them to school on a Monday morning thereby limiting his ability to be part of their school life.
In relation to the Mother’s proposal that the Father have make-up time in the school holidays, the Father observed that he will be working and therefore questions the benefit to the children in them having that additional time with him.
It is the Mother’s evidence that the children managed the travel between City B and City E in the period that they were living in City B reasonably well though she noted Y and Z got a bit restless in the last hour of the journey. It is her evidence that she believes they will manage the travel and continue to have an ongoing and meaningful relationship with their Father.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
As noted in the previous paragraph, there is some four hours driving between City E and City B which will require X, Y and Z to spend considerable time in their parents’ cars.
Whilst the Mother did all of the driving after she unilaterally relocated to City B as the Father was not prepared to share that travel given the Mother had, to use his words “done the wrong thing”, it is his evidence that he is prepared to share the driving and meet the Mother in City C in the event the Court allows relocation.
Section 60CC(3)(f): the capacity of each of the child’s parents and any other person to provide for the needs of the child including emotional and intellectual needs
It is the Mother’s evidence that if she is required to remain living in City E the regular interaction with her extended family, and in particular her step-father and Mother will be a constant trigger to remind her of the trauma that she suffered at the hands of her family throughout her childhood and since.
It is the Mother’s evidence that she feels unsafe, insecure and victimised in City E and that her relocation from City E to City B will give her stability and a sense of peace and wellbeing that she cannot experience if she remains in City E.
It is the Mother’s evidence that the brief period that she was in City B began to give her that sense of peace, albeit the possibility of being made to return to City E was a constant source of anxiety.
It is the Mother’s evidence that if permitted to relocate to City B her capacity to parent and be more closely attuned to X, Y and Z will be so much better and will enable her to be the best parent she possibly can be to them and as her capacity to meet the needs of X, Y and Z emotionally will be so much better.
Both Ms U and Ms AA support the Mother’s evidence in this regard.
In her report Ms U states:
“If Ms Forges is forced to come back to City E with the children she will struggle to be truly independent and free of her past trauma which in turn can significantly reduce her capacity to be truly present with her children”
In her family report Ms AA writes in paragraph 110:
“The main proposal for consideration is that of relocation. Ms Forges’ reasoning is two-fold in regard to what she wants to move away from and what she is moving to. She is emphatic about the impact on her should she be required to remain in City E, and her description of feeling like she would “die on the inside” indicates a tendency for Ms Forges’ mental health to decline, particularly in regard to depression. Should this be the outcome, the children would likely be negatively impacted as Ms Forges’ parenting capacity would be impacted by a decline in her mental health. She may find it more challenging to meet the children’s basic needs and to remain emotionally attuned to them. Conversely, should Ms Forges be permitted to relocate, her mental health is likely to improve and result in an improvement in her parenting capacity. Her ability to move about City B without meeting the triggers for her trauma, including the perception that she is being watched or followed is likely to reduce her stress considerably. Ms Forges has identified social support already existent in City B and she will be able to build on this once she gets to know other people.”
Both parties have been justifiably criticised for over involving X in adult issues, particularly the question of the Mother’s relocation. It would appear that X is being asked to exhibit a level of maturity by her parents that is not consistent with her age and the parties must not over involve her in adult issues going forward. It will be vitally important the parties do not pressure her about questions of where she lives or give her an expectation that she is expected to or is able to make those decisions.
Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The awful abuse and trauma of the Mother’s childhood and its ongoing impact on her is well set out in this judgment. It is the Mother’s evidence that the overriding reason for her application to relocate is so she is removed from the constant reminders of that abuse which will enable her to heal and be a better parent to her children.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The parties are on the whole responsible parents.
The parties must however stop exposing X to their adult issues. They will also need to ensure they communicate in a child-focussed manner to ensure they jointly make the necessary decisions for X, Y and Z as they mature.
The Father should be much more involved in X, Y and Z’s education and Y’s medical interventions than he is currently. His limited involvement in these areas to date are not the actions of a responsible parent.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family.
Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(a)the nature of the order;
(b)the circumstances in which the order was made;
(c)any evidence admitted in proceedings for the order;
(d)any findings made by the court in, or in proceedings for, the order;
(e)any other relevant matter
The circumstance in which the parties separated is well set out in this judgment.
Three years after the event it is not possible for this court to make a definitive finding of what actually occurred on that night. What is apparent is there was a physical altercation between the parents, in which the Mother sustained injuries and an intervention order was taken out on behalf of herself, X, Y and Z by Victoria Police against the Father for their protection.
I am satisfied that X, unbeknownst to her parents, was a witness to this altercation and her exposure to this violence had considerable impact on her which required her to receive counselling.
There has been no further violence between these parties since separation, though they both concede that they have little regard for the other and struggle to communicate other than on the most basic level in relation to the care of their children.
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Were it not for the Mother’s wish to relocate, the final consent orders in November 2019 would in all probability have seen an end to all litigation between them
It is hoped that with this matter now being determined, the parties will move on and focus on parenting their children to the best of their ability as neither themselves, X, Y and Z have benefited from this litigation and will not benefit from any litigation in the future.
Section 60CC(3)(m): any other factor or circumstance that the Court thinks is relevant
Whilst the Father’s evidence is that his Father is no longer capable of any form of corporal punishment because he is now physically infirm. The parties agree the orders restraining them from allowing X, Y and Z being left unsupervised with his father should remain in force.
Presumption of Equal Shared Responsibility and the Consideration of Equal or Substantial and Significant Time
The Full Court in the matter of Taylor v Barker (supra) stated at paragraph [60]:
“In our view his honour dealt with the relocation proposed in the context of his consideration of section 60CC and section 60DAA, at least in so far as it was possible to do so. It should be implicit in our conclusion in relation to this ground, that a relocation proposal should be considered and evaluated, so far as possible in the context of the making of the necessary findings in relation to the relevant s60C matters; however…such a proposal now also needs to be considered in the context of s60DAA”.
Section 61DAA of the Act provides that the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for that child.
In this matter both parties are in agreement that orders should be made that they have equal shared parental responsibility of X, Y and Z.
Whilst these parties do not like each other and their communication is limited, orders have been in place for them to have equal shared parental responsibility for X, Y and Z since December 2018. The evidence before the Court is that they have been able to make all relevant decisions for their children in a timely and child focussed manner.
In those circumstances it is apparent that the best interests for X, Y and Z are best met by their parents continuing to have equal shared parental responsibility for them.
Where the parents have equal joint parental responsibility for a child, section 65DAA of the Act requires the Court to consider the child spending equal time, or a substantial and significant time, with each parent.
Section 65DAA(1) provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
Sections 65DAA(2) and (3) of the Act provide as follows:
2.        If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; the court must:
(i)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(ii)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(iii)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), 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.
Section 65DAA(5) of the Act provides as follows:
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)       how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)       the impact that an arrangement of that kind would have on the child; and
(e)       such other matters as the court considers relevant.”
In the matter of MRR v GR [2010] HCA 4, the High Court considered the interrelationship between section 60CA, section 61DA(1) and section 65DAA of the Act.
In MRR v GR (supra), the High Court held at paragraph [9]:
“Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", [i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents.”
The High Court then held at paragraph [13]:
“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 (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. 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. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”
The High Court further held at paragraph [15]:
“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 s61DA(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.”
Thus, the Court must consider not only whether it is in the child’s best interests to spend equal or significant and substantial time with each of their parents but also whether it is reasonably practicable for the child to do so.

If it is found that it is in the best interests for X, Y and Z to relocate to City B with the Mother then it is not practical for them to spend either equal or significant and substantial time with their Father.
If relocation is not permitted, neither party is seeking an order for X, Y and Z to spend equal time with both their parents.
Both parties are in agreement that if relocation is not allowed then the current orders which see X, Y and Z living with the Mother and spending alternate weekends with their Father from 5:30pm Friday to before school on Monday (or 9:00am if a non-school day) and half school holidays remain in place.
In the matter of Tibb v Sheean [2018] FamCAFC 142 the Full Court held that children who spend alternate weekend time and half holidays with their non-resident parent are not spending significant and substantial time with that parent as such time does not met the requirements for significant and substantial time as set out in ss 65DAA(3) of the Act. It is therefore arguable that even if relocation is not allowed, the orders proposed by the parties does not constitute X, Y and Z spending significant and substantial time with their Father.
Conclusion
Relocation cases can be amongst the most difficult matters to determine. As a matter of practicality they either result in a decision which sees children living a considerable distance from one of their parents and therefore limiting the amount of time that child can spend with their non-resident parent and the level of involvement that non-resident parent can have in their child’s day to day activities or they result in a parent not being able to have the future they are hoping to pursue.
In this matter the Mother is seeking to relocate with the parties’ three children X, Y and Z from City E to City B.
The Mother had an awful childhood. She was sexually abused by her step-brother and was physically and emotionally abused by her step-father. Her Mother was aware of this abuse and did not protect her from it and was complicit in preventing the Mother from receiving both the practical and psychological assistance that she needed in order to heal from this trauma.
The Mother left home at 16. Not surprisingly, she was diagnosed with anxiety and depression for which she has been treated and medicated ever since.
The Mother commenced a romantic relationship with the Father at the age of 19. These parties met because the Father’s father is married to the Mother’s mother. In other words, the Father’s father is the Mother’s step-father, the person who was the perpetrator of physical and emotional violence to the Mother throughout her childhood.
At the time the parties commenced a relationship the Father was estranged from his family as was the Mother from hers. Despite this the Mother’s mother would arrive unannounced at the Mother’s home and would physically and emotionally abuse the Mother, accusing her of being a poor Mother and being the cause of the family estrangements.
After the birth of Z in 2016, the Mother suffered post-natal depression. She received ongoing medical care from Dr R, psychiatrist, on a weekly basis for nearly two years. Dr R not only assisted the Mother in relation to her post-natal depression, but also her ongoing anxiety and depression arising from the abuse she received in her childhood.
The parties separated in February 2018 following a particularly unpleasant physical altercation between them. Each party claims the others infidelity was the cause of their separation.
X, Y and Z remained living with the Mother after the parties separated. In June 2018 the parties entered into a parenting plan under which X, Y and Z spent alternate weekends and half school holidays with the Father.
In September 2018 the Mother stopped time between X, Y and Z when she discovered that the Father had left them in the unsupervised care of his Father. Some six weeks later time between the Father and X, Y and Z resumed on the basis of an undertaking given by the Father to the Mother through their legal representatives that he would not leave the children unsupervised with his Father.
In November 2018 the Father commenced proceedings in the Federal Circuit Court seeking formal parenting orders. That matter was finalised in November 2019 when final orders were made by consent which provide for the parties to have equal shared parental responsibility for X, Y and Z, for them to live with their Mother and for them to spend time with their Father on alternate weekends from 5:30pm Friday to before school Monday, half school holidays and on special occasions. The orders provide that the parties be restrained from leaving X, Y and Z with the paternal grandfather on an unsupervised basis.
It is the Mother’s evidence that after the final orders were put in place the paternal grandfather would be a physical presence at changeover, would follow her around City E in his car, would drive past her home and she believes on one occasion sent a threatening and abusive email to her in which she was threatened with being reported to the Department.
It is the Mother’s evidence that after the November 2019 orders were made her mother continued to arrive unannounced at her home and accuse her of being a poor mother, threaten to report her to the Department, threaten her physically and continue to blame her for the parties separation and for the schisms within the family.
After separation the Father rekindled his relationship with his Father and step-mother. He takes X, Y and Z to spend time with their grandparents and has them to his home when the children are there so that they can interact with their grandchildren.
The Mother’s involvement with Dr R finished in mid-2018. She saw psychologist Ms T for three months and has been seeing psychologist Ms U since August 2018. Ms U also provided assistance to X who witnessed the violent incident between her parents at the time of separation.
It is Ms U’s evidence that she believes it is she who planted the idea of relocation in the Mother’s mind mid-way through 2020 by suggesting to her that it could be the best option for the Mother to fully recover. Ms U believes that the Mother’s post-traumatic stress and anxiety symptoms are fuelled by the constant environmental and emotional triggers in City E arising from her constant interaction or fear of interaction with her extended family and relocation would shield the Mother from those triggers.
As has been set out in this judgment, the Mother then decided she wanted/needed to relocate to City B with X, Y and Z. She made arrangements for accommodation, employment and schools for the children and informed the Father that she was going to relocate to City B. Whilst the Father advised the Mother he didn’t agree to relocation, the Mother did so anyway. The Father initiated proceedings and the Mother was ordered to return to City E with X, Y and Z until her application to relocate could be properly determined. It is this application that is now before the court.
It is the Mother’s evidence that it is the best interests of X, Y and Z that she be permitted to relocate from City E to City B as such relocation will allow her the peace of mind and ability to move on and heal from the trauma of her childhood, something she cannot do if she remains in City E. It is her evidence that such healing will make her a better parent. She will be more emotionally available and attuned to X, Y and Z and will be able to parent them to the best of her ability which can only be seen to be in their best interests as she is and will continue to be their primary carer.
It is the Mother’s evidence she seeks to relocate to City B for a number of reasons. It will enable her to do the placements that are required for her current health care course at the City B Hospital. It is her evidence that she has been advised that she can only do her placements at City B Hospital, City E Hospital or in Melbourne. She does not wish to go to Melbourne as she is a country girl. Her Mother works at the City E Hospital and it is therefore the last place she wants to be.
The Mother’s closest friends Ms V and Mr W are shortly to move to City B where their family is located. It is the Mother’s evidence that if she is living in City B she will have the support of the family that she has chosen.
It is the Mother’s evidence that there are very good schools for X, Y and Z in City B. The Mother has found a school in City B which has specialist teachers available to assist children with Autism, something that is not available to Y at his current school in City E. The City B school she has chosen is much larger than the school X and Y currently attend. X, who is a sociable girl, will have a much larger group from which to make friends, in contrast to her current very small school where she is struggling to form a friendship group.
It is the Mother’s evidence that X, Y and Z will continue to see their Father on alternate weekends and during the school holidays as they are used to doing if permitted to relocate. She acknowledges they will lose a night each fortnight but argues the children will still maintain the loving and meaningful relationship they have with their Father.
The Father opposes the Mother’s application to relocate to City B.
In the Father’s affidavit material filed in relation to the first proceedings before the court in relation to parenting issues and in relation to these proceedings he is critical of the Mother for being estranged from her family and dismissive of the reasons for her so being. He is also not accepting of her reasons for wishing to relocate.
When giving his vive voce evidence, the Father told the court that he now believes there are legitimate problems that the Mother has with the extended family and that it is reasonable that she is estranged from them.
The Father explained this change of position as being in part a realisation that his Father and step-mother have not changed their views in relation to how they behaved or hold themselves accountable for their actions. The Father also explained that this change in part is due to the “reflective considerations” that he studied whilst completing his Diploma being recent studies that have led to him obtaining employment as the Manager at Employer G.
At the conclusion of his evidence the Father also told the court that “I get it’s not fair on Ms Forges to stay here” but he questioned why she couldn’t move somewhere that won’t impact the time X, Y and Z spend with him under the current orders or require the length of travel that a move to City B will entail.
It is the Father’s evidence that City B is too far away from City E and that the level of travel that X, Y and Z will be required to undertake to spend regular time with him will be too onerous on them. He argues that the move to City B means that the children cannot stay with him until Monday morning and he will not be able to take them to school thereby limiting his ability to be more actively involved in that area of their lives.
It is the evidence of Ms U, the Mother’s treating psychologist that if the Mother were required to remain living in City E she will struggle to be truly independent and free of her past trauma which in turn will significantly reduce her capacity to be truly present with her children.
Ms AA also expresses the view that the Mother’s parenting capacity will be impacted by a decline in her mental health should she be required to remain in City E. She opines that the Mother could find it more challenging to meet the children’s basic needs and to remain emotionally in tune to them if she remains in City E. The Mother’s ability to move about without meeting the triggers for her trauma, including the perception that she is being watched or followed is likely to reduce her stress considerably.
In paragraph 111 in her report Ms AA states that she “places the main weight on the Mother’s mental health and the issues that emanate from that” and for those reasons recommends that the Mother be permitted to relocate to City B with the children.
The clear evidence before the court is that if the Mother is required to remain in City E, or proximate to City E her ability to recover from the trauma and anxiety caused by the abuse she received at the hands of her step-father, step-brother and Mother is limited.
It is the Mother’s evidence that if removed from the environment which triggers her anxiety then she will find peace of mind and as a result be so much more available and attuned to her children and parent them in a way that can only be seen to be in their best interests in circumstances where she is to continue to be their primary carer.
It is the evidence of the Mother’s treating psychologist Ms U and the report writer Ms AA that if the Mother remains in City E her mental health will decline, particularly her depression and anxiety which will impact on her parenting capability. It is their evidence that the Mother would find it more difficult to meet the X, Y and Z’s basic needs and remain emotionally attuned to them if she remains in City E.
The proposal for X, Y and Z to continue to spend alternate weekends with the Father, even though it will be one night less than is the current arrangement is, on the evidence of Ms AA, sufficient to ensure that X, Y and Z continue to have a meaningful relationship with their Father, his wife and their baby brother.
The distance between City B and City E is not so great that it will prevent X, Y and Z spending alternate weekends in City E with their Father.
The Mother’s closest friends Ms V and Mr W are moving to City B where Ms V’s extended family live. If the Mother relocates to City B she will have the support of the extended Ms V and Mr W family.
The Mother can also finish her health care studies in City B including a placement at City B Hospital which will enable her to complete her health care Degree and be better placed to advance herself professionally and properly support X, Y and Z.
X, Y and Z have already had some experience of living in City B and from all reports found it to be quite a positive experience. X liked her new school, made lots of friends and was accepted within her peer group more readily than is currently the case in City E. Y was provided with a level of assistance for his special needs in his school in City B that is not available to him at his current school in City E. Z is a happy will adjusted little girl who is at an age where she needs the care of her primary carer.
I am of the view that the best interests of X, Y and Z are met if their primary carer is able to find peace and recover from a very troubled past. This is not going to happen if the Mother has to remain living in City E as she would be constantly exposed to the triggers for her trauma. It is apparent that the Mother’s best chance of finding peace is in City B where she will have personal support of the family she has chosen, positive employment prospects, a comfortable home that the children like and the children will have access to good schools and other supports.
I am satisfied that the Mother will ensure that X, Y and Z spend regular alternate weekend and holiday time with their Father and that their meaningful relationship with him will be supported going forward.
It is therefore my view that the best interests of X, Y and Z are met by orders being made that permit the Mother to relocate to City B with them and for them to spend regular alternate weekend time and holiday time with their Father. They will have a primary carer who is able to be truly available to meet their needs, something she cannot do if she remains in City E, and will be able to maintain their meaningful relationship with their Father.
The Father gave evidence that he is prepared to meet the Mother in City C for changeover. Accordingly, orders will be made that changeover take place in City C. Given the length of the journey this will also provide a break in the journey for X, Y and Z to stretch their legs, run around and be resettled to finish their journey each weekend.
The orders will also provide for X, Y and Z to spend additional time with the Father in the school holidays. Even if the Father is at work for some of that time, the children will be in his household, experiencing his day to day life and will have the opportunity to spend more time with him, their step-mother and baby brother.

I certify that the preceding two hundred and seventy-one (271) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender.
Associate:
Dated: 22 June 2021

[2021] FCCA 1394

22 June 2021

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Procedural Fairness

Remedies

File number(s):	MLC 12964 of 2018
Judgment of:	JUDGE BENDER
Date of judgment:	22 June 2021
Catchwords:	FAMILY LAW – parenting – relocation – Mother’s application to relocate from City E to City B with the parties’ three children aged eleven, eight and five – where previous final orders were made in November 2019 – where the Paternal Grandfather and Maternal Grandmother married when the parties were children – where the Mother was sexually abused by her step-brother and physically and emotionally abused by her step-father growing up and as a result is estranged from her family – the Mother continues to experience the effects of that abuse as the extended maternal and paternal families still reside in City E – Father seeks Mother’s Application be dismissed on the basis of Rice v Asplund as no significant change in circumstances since previous final orders – Mother argues she did not wish to relocate at the time of the previous final orders. HELD – Father’s Rice v Asplund application dismissed – relocation allowed – children to spend time with the Father on alternate weekends, half school holidays and special occasions.
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Rice v Asplund (1978) FamCA 84 Mulder & Mulder [2021] FCCA 1180 Taylor v Barker [2007] 37 Fam FLR 461 Fawkner v Kado [2020] FCCA 1535 AMS v AIF (1999) 199 CLR 160 U & U (2002) 211 CLR 238 Heath v Hemming(No.2) [2011] FamCA 749 MRR v GR [2010] HCA 4 Tibb v Sheean [2018] FamCAFC 142
Number of paragraphs:	271
Date of last submission/s:	27 May 2021
Date of hearing:	26 May 2021
Place:	Melbourne
Counsel for the Applicant:	Ms Mallett
Solicitor for the Applicant:	Orchard Law
Solicitor for the Respondent:	J A Middlemis

ORDER MADE BY:	JUDGE BENDER
DATE OF ORDER:	22 JUNE 2021