Gage & Masalis - [2022] FedCFamC1F 431

Federal Circuit and Family Court of Australia
(DIVISION 1)
Gage & Masalis [2022] FedCFamC1F 431

File number(s): MLC 3393 of 2021

Judgment of: WILLIAMS J

Date of judgment: 20 June 2022

Catchwords: FAMILY LAW – PARENTING – Relocation – Where the mother unilaterally relocated with the child from Victoria to Tasmania – Where the decision was not child focused – Evidence of the child’s living circumstances in Tasmania was not forthright, does not promote a sense of housing security or that the child is well-settled – Both the maternal and paternal extended families live in close proximity to the father’s home and the child has no family in Tasmania except for the mother – The child has a close relationship with both parents, however the father is best placed to be able to provide stability and consistency for the child into the future – Where the considerations for relocation are finely balanced – Orders made for the child to return to Victoria – Orders made for the child to live in a week about arrangement in the event the mother returns to Victoria or alternatively school holiday time in the event the mother remains living in Tasmania.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA

Cases cited:
A v A: Relocation Approach (2000) FLC 93-035

AMS v AIF (1999) 199 CLR 160

Cowley & Mendoza [2010] FamCA 597

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

Mazorski v Albright [2007] FamCA 520

McCall & Clark (2009) FLC 93-405

Re F: Litigants in Person Guidelines (2001) FLC 93-072

Sigley & Evor [2011] FamCAFC 22

Taylor & Barker [2007] FamCA 1246

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 1 First Instance

Number of paragraphs: 187

Date of hearing: 16–17 & 19 May 2022

Place: Melbourne

The Applicant: Litigant in person

Counsel for the Respondent: Ms Ryan

Solicitor for the Respondent: Murdoch Clarke
ORDERS

MLC 3393 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR GAGE

Applicant

AND:
MS MASALIS

Respondent

order made by:

WILLIAMS J

DATE OF ORDER:

20 JUNE 2022

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The parties have equal shared parental responsibility for X, born 2016 (“the child”).
3.The child live with the father as from 4 July 2022.

Spend time arrangements in the event the mother remains in Tasmania
4.Unless otherwise agreed in writing, the child spend time and communicate with the mother as follows:
(a)in Victoria, on the provision of two (2) weeks’ written notice to the father of the proposed dates, at times agreed between the parties;
(b)in Tasmania as follows:
(i)In the Victorian gazetted school holidays:
A.in the Term 1 school holidays from the Saturday after school term ends for a period of nine (9) nights;
B.in the Term 2 school holidays from the Saturday after school term ends for a period of twelve (12) nights;
C.in the Term 3 school holidays from the Saturday after school term ends for a period of nine (9) nights;
D.in the long summer school holidays in even numbered years, for a period of twenty-nine (29) nights from 27 December;
E.in the long summer school holidays in odd numbered years, from 23 December for a period of twenty-nine (29) nights.

(c)such further or alternate time as agreed by exchange of text message.

Spend time arrangements in the event the mother returns to Region D
5.The child live with each parent on a week about basis, from after school (or 3.30 pm if not a school day) Friday until the commencement of school (or 9.00 am if not a school day) the following Friday.
6.The child spend time with each parent on special occasions, if she is not otherwise in their respective care pursuant to Order 5 hereof, as follows:
(a)the child shall spend time with the mother on the Mother's Day weekend each year from 5.00 pm on the Saturday immediately preceding Mother's Day until the commencement of school on Monday;
(b)the child shall spend time with the father on the Father's Day weekend each year from5.00 pm on the Saturday immediately preceding Father's Day until the commencement of school on Monday;
(c)the child shall spend time on her birthday as agreed between the parties, and failing agreement, with the parent she is not residing with, as follows:
(i)if a school day, from after school until 7.30 pm;
(ii)if a non-school day, from 10.00 am until 3.00 pm.

(d)the child shall spend time with each parent at Christmas in odd numbered years:
(i)with the father from 3.00 pm Christmas Eve until 3.00 pm Christmas Day;
(ii)with the mother from 3.00 pm Christmas Day until 3.00 pm Boxing Day;

(e)the child shall spend time with each parent at Christmas in even numbered years:
(i)with the mother from 3.00 pm Christmas Eve until 3.00 pm Christmas Day;
(ii)with the father from 3.00 pm Christmas Day until 3.00 pm Boxing Day.

Communication with the child in the event the mother remains in Tasmania
7.If the child is not otherwise in their respective care, the parties will have telephone/FaceTime communication with the child as follows:
(a)each alternate day commencing the day after the child leaves their care at 5.00 pm for weekdays and 10.00 am on weekends;
(b)for the father on his birthday and the birthday of any present or future siblings in the father’s family at 10.00 am if it falls on a weekend and at 5.00 pm if it falls during the week;
(c)for the mother on her birthday and the birthday of any future siblings in the mother’s family at 10.00 am if it falls on a weekend and at 5.00 pm if it falls during the week;
(d)for the mother on Mother’s Day at 10.00 am;
(e)on the child’s birthday at 10.00 am if it falls on a weekend and at 5.00 pm if it falls during the week;
(f)on Easter Sunday at 10.00 am.

Communication with the child in the event the mother returns to Region D
8.The parties each have and facilitate reasonable telephone/FaceTime communication with the child when she is in the care of the other parent, and failing agreement, on Tuesdays from 5.00pm–5.45pm and otherwise at the child’s request.

Costs of and arrangements for flights between Melbourne and City B in the event the mother remains in Tasmania
9.Until the child attains the age of nine (9) years, she shall be accompanied on flights between Melbourne and City B by an adult.
10.Both parents are at liberty to have the child accompanied by a third party between Melbourne and City B, and in the event they elect to do so they will identify the accompanying third party to the other parent by text message no later than the day prior to travel.
11.The mother or her nominee shall accompany the child between Melbourne and City B during Term 1 and 3 school holiday periods and the return trip from City B to Melbourne in Term 2 and long summer holidays.
12.The father or his nominee shall accompany the child from Melbourne to City B in the Term 2 and long summer school holidays.
13.After the child attains the age of nine (9) years, in the event either parent considers she should be accompanied to City B or Melbourne, that parent will be solely responsible for the costs of their own ticket.
14.The mother shall be responsible for booking and payment of both the flights of the accompanying adult and the child until the child has attained the age of nine (9) years, for both the forward and return journeys in the Term 1 and Term 3 school holidays.
15.The father shall be responsible for booking and payment of both the flights of the accompanying adult and the child until the child has attained the age of nine (9) years, for both to forward and return journeys in the Term 2 and long summer school holidays.
16.Unless otherwise agreed between parties, the father drop the child off to Melbourne Airport and pick her up from the Melbourne Airport when visiting the mother during school holidays.

Changeover of care arrangements in the event the mother remains in Tasmania
17.The changeover venue shall be as agreed between the parties and failing agreement, at the airport gate at which the child’s flight arrives in City B or Melbourne.
18.If the mother is exercising ad hoc time with the child in Victoria, the venue for changeover of care will be as agreed in writing, and failing agreement, at the father’s home.

Changeover of care arrangements in the event the mother returns to Region D
19.The changeover venue shall be at the child’s school (or home if the child is not attending school that day) with the parent who has the care of the child to effect changeover at the conclusion of their time with the child.

Communication arrangements between the parties
20.The parties communicate with each other for all urgent matters regarding the child by way of text-message or phone call.
21.For all non-urgent matters, the parties may at any time communicate with each other regarding the child by way of email, particularly if documents are being sent between the parties.

Therapeutic Support for the child
22.In order for the child to commence therapeutic counselling within a reasonable timeframe of her relocation to Victoria, the parties will agree upon a psychologist, social worker or mental health worker with experience in working with children (‘the practitioner’) that the child can be referred to for counselling; and should a medical referral from a general practitioner be required, the father will attend on the child’s general practitioner to request a mental health plan and referral for the child.
23.Once the practitioner has been agreed, the father will secure an appointment for the child and notify the mother of the date and time in reasonable time for her to arrange to attend the appointment remotely.
24.The father will cause the child to promptly attend appointments with the practitioner.
25.Both parents will do all necessary things to provide the practitioner with authority to speak directly to the child’s school should he or she wish to.
26.Both parents will comply with the reasonable recommendations of the practitioner including, but not limited to, attending regular and consistent appointments as recommended by the practitioner.

Injunctions and Responsibilities
27.The parties are hereby restrained by injunction from, and using their best endeavours to ensure that no other person:
(a)denigrates the other parent or members of that parent’s family within the child’s hearing or presence; and
(b)initiates discussions of these proceedings with the child or with any other person in the child’s presence or hearing.

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

29.That each party is entitled to attend all day-care, school and extra-curricular activities involving the child, including:
(a)sporting fixtures;
(b)extra-curricular activities that allow for parental attendance;
(c)pre-school and school functions and events that allow for parent attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews and canteen duties.

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

The applicant is the father and the respondent is the mother of the child, X, born in 2016 ("the child").
The child was born in the area of F Town in Region D, Victoria where both parents then lived. Until October 2019, the parents lived within 4km of each other, with the exception of the period May 2017 to July 2017 when the mother lived in R Town, approximately 45 km from the father's home. The father remains living in F Town.
In September 2019, the child travelled with her mother to Tasmania for a holiday. The father consented to the child travelling to Tasmania for a holiday because he was reassured by both the mother and her partner the travel was temporary and the child would ultimately return to Victoria.
Around late January/early February 2020, the mother advised the father she wished for the child to remain permanently with her in Tasmania. In June and July 2020, the parents undertook mediation via Zoom with T Services and agreed on short-term shared care.
The father commenced proceedings on 26 March 2021, seeking the child's return to Victoria. The mother filed a response on 13 April 2021, seeking the child be permitted to remain in Tasmania with her.
Issues in Dispute
The substantive issue in dispute at the trial was whether the child should be permitted to remain living with her mother in Tasmania or whether an order should be made requiring the child to return to Victoria to live with her father.
The parties were substantially in agreement about the time the non-residential parent should spend with the child. The only area of dispute was whether, if the child remained living in Tasmania, her time spent with the father during term one and term three school holidays should be for a period of 12 nights, as proposed by the father, or nine nights, as proposed by the mother.
The parties also substantially agreed about electronic communication between each parent and the child, changeover arrangements, if the child was ordered to live with the father in Victoria, the child should attend therapeutic support and that they should retain equal shared parental responsibility for the child.
Synopsis
I have determined it is in the child's best interests that:
(a)the child live with her father in Victoria;
(b)in the event the mother returns to live in the Region D area, the child live in a week about arrangement with each parent;
(c)if the mother remains living in Tasmania, the child spend time with her mother during the Victorian school holidays and at other times by agreement.
Relevant procedural history
On 26 March 2021, the father filed an Initiating Application in the Melbourne registry of the Court seeking interim and final orders that the parents have equal shared parental responsibility for the child, the mother relocate back to the Region D area with the child, and thereafter the child live with each parent on a week about basis.
On 13 April 2021, the mother filed a Response seeking a final order that the parties have equal shared parental responsibility for the child and leave to further particularise final orders sought. She sought interim orders providing for the child to live with her, the father return the child to her care no later than 17 April 2021 and for the child to spend Tasmanian gazetted school holidays with the father in F Town.
On 15 April 2021, the father's application was listed before a Senior Registrar who made interim orders providing for the parents to retain equal shared parental responsibility, the child to remain living with the mother in Tasmania and for her to spend time with her father in Victoria during the Tasmanian gazetted school holidays.
The Registrar also ordered a Child Inclusive Conference which occurred on 27 August 2021. The assessment took place during the Covid-19 pandemic when Victoria was subject to severe lockdown restrictions and was conducted electronically. The report was released subsequent to the interviews.
On 1 October 2021, the applications were listed before me for a Case Management Hearing and procedural orders were made in anticipation of a trial in March 2022. An order was made for a family report which was released on 16 February 2022.
The trial was originally scheduled to commence on 24 March 2022, however the mother contracted Covid-19 and was unable to participate in the trial. The adjourned trial commenced on 16 May 2022 and proceeded electronically as the father was located at F Town and the mother and her legal advisers in City B.
Background
The father is aged 33 and is employed in allied health. He is also an artist and musician. He has re-partnered and has a 22 month old daughter with his new partner, who is currently pregnant with another child.
The mother is aged 26 and is a part-time student at the S University completing a bridging course. She has re-partnered.
The parents were in a relationship from around July 2014 until April 2015. At the time of the relationship both parties lived in the F Town area, where the mother remained living, until her departure to Tasmania in September 2019. The father remains living in F Town.
The child was born in 2016 after the conclusion of the parental relationship. Following the child's birth she lived with her mother and spent time with her father as agreed between the parents. When the child was 18 months old she began to spend overnight time with her father and by the time she attained two years of age, according to the mother, her time with her father increased to 2–3 nights per week. According to the father, from January 2018 his time with the child increased so that she spent 2–4 nights a week with him, including a two week stay during Easter 2018.
Both parents agree prior to the mother's departure to Tasmania, their relationship was amicable, they were able to successfully co-parent and spending time with both parents frequently was beneficial for their daughter.
In September 2019, the mother advised the father that she wished to travel with the child to Tasmania for a holiday. The father consented, relying on assurances from both the mother and her partner that the travel to Tasmania would be temporary and the child would return to live in the F Town area.

According to the mother, in around January and February 2020 she formed an intention to remain in Tasmania with the child and advised the father of her unilateral decision. Both parties agree that the father did not consent to the child remaining in Tasmania.
According to the father, prior to attending a series of mediations via zoom in June and July 2020, the mother unilaterally imposed a regime whereby the child would spend 10 days a month with her father. Subsequent to mediation, the parties agreed on a short-term equal care arrangement so that the child would spend a month with each parent and fly interstate to effect change over. At mediation the parties entered into a parenting plan reflecting this arrangement.
Due to Covid-19 travel restrictions between states, both the parents have spent significant periods without seeing the child. The child has travelled between Victoria and Tasmania on numerous occasions between November 2019 and the date of the trial. The child's travel is referred to in greater detail later in these reasons.
The proposals of the parties
The father’s proposal
Prior to the commencement of the trial, the father filed an Amended Initiating Application which sets out with precision the final orders he seeks. The orders sought are summarised as follows:
(a)the parties have equal shared parental responsibility of the child;
(b)the mother relocate back to Region D with the child and the child live with each parent on a week about basis;
(c)changeover to occur at the child’s school, or home if the child is not attending school that day;
(d)the parties each have and facilitate reasonable telephone/FaceTime communication with the child when she is not in their care as agreed with this time to include Tuesday from 5.00pm–5.45pm and otherwise as the child requests;
(e)each party be able to attend all school and extra-curricular activities involving the child;
(f)each party be restrained by way of injunction from relocating the child outside of the Region D area without the written consent of the other party;
(g)in the event the mother refuses to relocate back to the Region D area, the child shall live with the father and spend time with the mother as follows:
(i)during the gazetted Victorian school term holidays (being terms 1, 2 and 3) for ten consecutive nights commencing the first Saturday of the holidays;
(ii)from after school Friday to the commencement of school on Monday, provided that the mother gives the father 14 days’ notice that she will be visiting the F Town area;
(iii)the mother is to cover the expenses of the child’s airport and train travel to and from Tasmania as applicable, as well as facilitate interstate travel as her guardian;
(iv)unless otherwise agreed between the parties, the father drop the child off at Melbourne Airport and pick her up from Melbourne Airport when visiting the mother during school holidays.
The father relied upon the following documents:
(a)Amended Initiating Application filed 20 March 2022;
(b)affidavits of the father filed 4 February 2022 and 26 March 2021;
(c)witness statement of Mr G, the paternal grandfather dated 28 April 2022;
(d)witness statement of Ms J, his partner dated 26 April 2022;
(e)witness statement of the Ms H, neighbour, dated 26 April 2022;
(f)witness statement of Ms K, father's landlady, dated 28 April 2022.
The Mother’s proposal
Prior to her final submissions, counsel for the mother provided a proposed minute of orders sought by the mother. The orders sought are summarised as follows:
(a)the parties have equal shared parental responsibility of the child;
(b)the child with the mother in Tasmania;
(c)the child spend time with the father in Victoria for nine nights during Term 1 and 3 term holidays, 12 nights during Term 2 holidays, 29 nights during the long summer holidays and otherwise in Tasmania on the provision of two weeks written notice;
(d)spend time and communication during special occasions;
(e)in the event the child is ordered to live with the Father in Victoria, the mother spend time with the child in Victoria on the provision of two weeks written notice to the father and otherwise spend time with the child in Tasmania during school holidays;
(f)if the child is not otherwise in their respective care, the parents will have telephone/video call communication with the child each alternate day and for special occasions;
(g)the child be accompanied on flights between Melbourne and City B until she attains the age of nine years and both parents be at liberty to have the child be accompanied by a third party. The mother be responsible for accompanying the child to and from City B during Term 1 and 3 school holiday periods of spend time and the forward journeys (that is City B to Melbourne) for the term 2 and long summer school holiday periods of spend time and the father accompany the child on the return journeys (that is Melbourne to City B) during term 2 and long summer school holidays;
(h)the child commence therapeutic counselling in the event she is ordered to live with the father in Victoria.
The mother relied upon the following documents:
(a)Response to Initiating Application filed 13 April 2021;
(b)affidavits of the mother filed 11 May 2022, 17 February 2022 and 13 April 2021;
(c)statement of her partner, Mr L dated 16 May 2022.
The following documents were tendered by the mother and received into evidence:

Exhibit Number Description

M-1 Messenger exchange dated 25 June 2021 between the parents

M-2 Proof of Evidence Statement of Mr L dated 16 May 2022

M-3 Table of comparative school holiday terms

M-4 Flight costs between Tasmania and Victoria during the school holidays of Terms 1-3

The following documents were tendered by the father and received into evidence:

Exhibit Number

Description

H-1

Witness statement of Mr G, paternal grandfather dated 28 April 2022

H-2

Witness statement of Ms J, his partner dated 26 April 2022

H-3

Witness statement of the Ms H, neighbour, dated 26 April 2022

H-4

Witness statement of Ms K, father's landlady, dated 28 April 2022

Preliminary Matters
Electronic Trial

The matter was heard electronically via Microsoft Teams due to the mother currently residing in Tasmania and the father residing in Region D, Victoria.
On 1 October 2021, I conducted a Case Management Hearing and ascertained the views of the parties to conduct the proceedings electronically by Microsoft Teams. Both parties were agreeable to that course of action.
Procedural orders for an electronic trial were made and undertakings sought and accepted from counsel as to the practicalities and logistics of the witnesses giving evidence and being cross-examined.
I am confidently satisfied that the matter was appropriate for an electronic trial and that justice and equity, and procedural fairness were afforded to both parties. I wish to compliment the father and counsel for the mother for the manner and spirit of cooperation in which the trial was conducted.
Self-Represented Litigant
At the commencement of the trial, as the father was self-represented, I advised him of the requisite matters, in accordance with the guidelines referred to in Re F: Litigants in Person Guidelines (2001) FLC 93-072, and provided him with a copy of the relevant provisions of the Family Law Act 1975 (Cth) ("the Act"). I also provided him with procedural assistance about the running of the trial.
None of the provisions of s 102NA of the Act were applicable and thus the father was able to cross-examine the mother during the trial.
The applicable law
Evidence
The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject- matter of the proceeding; and
(c)       the gravity of the matters alleged.
The father and mother relied upon their respective affidavits. The affidavits recounted the history of the parties' relationship and their parenting dispute. I have examined that evidence and do not propose to repeat it in these reasons. It is not necessary for a trial Judge to refer to every piece of evidence or argument presented during a trial.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:
62.…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
Credibility of Witnesses
Father’s witnesses
The father gave evidence and was cross-examined by counsel for the mother. Additionally, the father relied on the witness statements of his partner, father, neighbour and landlady. Each of the witnesses adopted their statements in the witness box and were tendered into evidence as exhibits. There was no objection by counsel for the mother to this course of action.
The father gave evidence in a very respectful and direct manner. He impressed me as an honest and responsive witness who demonstrated considerable insight into his daughter's relationship with her parents and extended family and her emotional and physical needs. He was considered, informed, measured and child focused in his answers to questions and did not make any attempt to embellish his answers to assist his case. I accept his evidence as unequivocally truthful. Where his evidence differs from the mother, I prefer his evidence, for the reasons referred to in my discussion of the mother and her evidence.
The father's partner also impressed as a direct and truthful witness, who was responsive to questions asked. She was not cross-examined in any great detail and I accept her evidence. Her observations about the child's behaviour in the father's household demonstrated a close relationship and insight with the child.
The paternal grandfather was also a direct and responsive witness whose evidence was not challenged in cross-examination in any particular detail. I accept his evidence.
Both the father's neighbour and landlady adopted their statements under oath. They were not cross-examined and I accept their evidence as unchallenged.
Mother's witnesses
The mother gave evidence and was cross-examined by the father. The mother's partner, Mr L adopted his statement in the witness box and was cross-examined by the father.
The mother was an evasive witness and the many of her answers to questions were non-responsive. Her answers were crafted to present herself in a favourable manner and to provide answers she thought would promote her desired outcome. Examples of this include her indirect answers to questions about where the child was actually living and the circumstances of her housing. She had a poor recollection about the various housing circumstances of the child since her arrival in Tasmania in September 2019 and her narrative was confusing and difficult to follow. She did not openly volunteer information which may have been adverse to her case and sought to provide a positive gloss on her circumstances. An example of this was her description of a vehicle, which was parked on a block in Tasmania, which belonged to her friend, as a permanent "tiny home" located on land which the owner apparently intended to hold on trust for her. She described carrying out modifications to the vehicle as a "process of building a home on land". The mother was not a forthright witness and where her evidence differs from the father, I prefer his evidence.
In stark contrast to the mother, her partner was responsive to questions asked and I accept his evidence. He was particularly truthful and candid when he stated he would be prepared to return to Victoria and was prepared to support the mother and the child wherever they may be.
The Family Report writer – Ms M
The family report writer conducted two assessments of the family. The first assessment was for the preparation of a Child Inclusive Conference Memorandum which occurred in August 2021 and the second for a family report, which occurred in January 2022.
Ms M was cross-examined by both the father and counsel for the mother. She impressed as a professional, informed and considered professional witness. I refer to her two reports and evidence during cross-examination later throughout these reasons.
Statutory Pathway
Relocation cases are determined in the same manner as all parenting cases, namely by following the statutory framework set out in the Act, to determine what orders are in the children's best interests.
In Taylor & Barker [2007] FamCA 1246, their Honours Bryant CJ and Finn J at [53] said:
53.…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; (2002) FLC 93-112 and Bolitho & Cohen (2005) FLC 93-224).
In Cowley & Mendoza [2010] FamCA 597, His Honour Murphy J stated at [31] as follows:
31.…A "relocation case" is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances. A relocation case falls to be determined like any other parenting case…
Referring to relocation cases, his Honour Justice Kent in Heath & Hemming (No.2) [2011] FamCA 749, at paragraph [101], stated:
101.Whilst the statutory framework does not deal differently or specifically with cases involving a proposed relocation from other parenting cases, such cases attract the description of "relocation cases" because they bring into sharp focus the central issue of balancing statutory imperatives concerning children's best interests in the context of the legitimate and competing interests of parents. The task is to achieve, by the application of the law, Orders which are legitimate by reference to both "best interests" considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of ""best interests" may well mean that one party's choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child's "best interests" being served by Orders which do not give one parent "optimal" arrangements or outcomes.
The child's best interests are the paramount, but not the only consideration in relocation cases. A parent who seeks to relocate need not show compelling reasons, but must adduce evidence which enables a court, on balance, to find a parenting order permitting location is in the best interests of the child (A v A: Relocation Approach (2000) FLC 93-035). The child's best interests must be weighed and balanced with the "right" of freedom of movement of the parent who proposes to relocate, but that right must defer to the child's best interests (AMS v AIF (1999) 199 CLR 160).
Part VII of the Act sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how a Court is to determine what is in a child's best interests by reference to the primary considerations (s 60CC(2)), the benefit to the child of having a meaningful relationship with both of the child's parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and additional considerations (s 60CC(3)) including any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child's circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child's family, whether it would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child and any other relevant fact or circumstance.
In applying the primary considerations the court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse neglect or family violence (s 60CC(2A)).
As far as parental responsibility is concerned, Section 61DA provides, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interests of the child for the child's parents to have equal shared parental responsibility. Where the presumption applies, s 65DAA requires the Court to consider whether equal time or substantial and significant time is in the child's best interests and reasonably practical.
An order for shared parental responsibility requires decisions about major long term issues to be made jointly in consultation with the other person. In this case, both parents seek an order for equal shared parental responsibility. I address equal shared parental responsibility later in these reasons.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child's parents
There was no dispute the child would benefit from a meaningful relationship with both parents. The primary issue for determination was the father’s contention the child should be returned to Region D because that would maintain and improve a prospective meaningful relationship between the child, himself and extended family. If the mother remained living in Tasmania, then that would of course impact the child’s relationship with her mother.
In Sigley & Evor [2011] FamCAFC 22, the (then) Full Court of the Family Court referred to the following propositions concerning s 60CC(2)(a):
(a)a meaningful relationship is one “which is important, significant and valuable to the child” (Mazorski v Albright [2007] FamCA 520, Brown J at [26]);
(b)the enquiry is “prospective” which requires a court to 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 (McCall & Clark (2009) FLC 93-405 at [118]).
Counsel for the mother cast the father’s application in terms of seeking an optimal relationship with the child, not just a meaningful relationship. I do not accept that categorisation and consider the father’s case was based on the child’s overall best interests, particularly the stability which the father is able to provide the child.

There is no dispute the child has a close and positive relationship with her father, however the child was removed to Tasmania in September 2019 and since that time has spent frequent time with her father in Region D, for longer periods than the future time proposed by the mother.
If the child returns to live with the father in Region D and the mother remains in Tasmania, there will be a change in the nature of the relationship between them, although I am confident the relationship will continue to be meaningful. Despite the mother’s position at trial, I do not accept she would once again prioritise her perceived needs over her relationship with her daughter and remain in Tasmania. For reasons referred to subsequently, I am confident the mother will return to the Region D area with her daughter. That will enable the child to live in a shared care arrangement and her meaningful relationship with both parents will flourish.
The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse
Neither party contended the child was at risk of harm in the other parent’s care, on a day to day basis.
The mother's evidence was that she had no welfare concerns for the child in her father's care and she considers the father to be a caring loving and patient father.
The father's evidence was that until recently he and the mother have made decisions primarily together concerning the child's welfare, including conversations about parenting styles, nutrition and activities, their relationship has been amicable and that they have each tried their best to be friendly for the sake of their daughter. That must be seen in the context of the mother's unilateral decision to relocate the child to Tasmania and her lack of candour and information about the location and living circumstances of the child in Tasmania, which has led to a souring of the parental relationship and a breakdown of trust.
During the interviews with the family consultant, the father raised concerns about the negative emotional impact on the child resulting from a unilateral relocation to Tasmania, including the child's relationships with her father and extended family members, the child's living arrangements inside an old school bus and his lack of knowledge about the other adults living on the property where the bus is located.
During her final submissions, counsel for the mother submitted that the child should be protected from the risk to her emotional health, if she did not live with her primary carer. That risk includes loss of her primary attachment, school and friendship networks. I will address that submission later in these reasons.
Additional Considerations
The additional considerations are set out in s 60CC(3) of the Act. I will now consider the additional considerations.
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
The child is six years old. At the time of the Child Inclusive Conference in August 2021 she was aged five years, and at the time of the family report in February 2022, she was about to turn six.
The Child Inclusive Conference assessment identifies that the child has a close and secure relationship with both her parents. No attempt was made to elicit her views about her future living circumstances.
The family report interview was conducted approximately six months after the first assessment. The family consultant described the child as vibrant and friendly, who happily engaged with her throughout the interview. Her focus was able to be maintained for a significant period of time particularly when considering her age and stage of development.
The interview for the family report occurred whilst the child was spending holiday time with her father over the summer holidays. When asked who her go to trusted adult was, the child reported it was her father. During-cross-examination, the family consultant's evidence was that the child also clearly had a trusted relationship with her mother.
The child reported to the family consultant that she would like to live with her father. When asked why that was so, the family consultant noted that she seemed to focus on the different living arrangements and home environments over preferring one parent to the other. She enthusiastically described her room at her father's house with all of her teddies and spoke of enjoying her own space. She was able to describe different routines in each parent's home and appeared to enjoy a level of structure and predictability in her day-to-day life, seemingly finding comfort in having certainty and stability.
She further explained to the family consultant that her mother lived in the bush and she did not like the bush although she was unable to articulate the reasons why.
Because of her young age and stage of development, the child is not capable of forming or articulating a rational or mature view as to her future living arrangements and I do not intend to place significant weight on her views.
The nature of the relationship of the child with:
(i) each of the child's parents;
(ii) other persons (including any grandparent or other relative of the child)
It is uncontroversial that the child enjoys a close and loving relationship with each of her parents. The relationship was clearly identified in both assessments conducted by the family consultant.
The mother repeatedly claimed she was the child's primary attachment, whereas the farther emphasised the shared care nature of the historical parenting arrangements. I accept the father's evidence about the care arrangements for the child since her birth and that the child's care prior to her departure to Tasmania was effectively shared. That is because of my assessment of the father as a truthful witness, who did not embellish facts to shore up his case, in contrast to the mother who repeatedly did so.
Subsequent to the child's departure to Tasmania, she has primarily lived with the mother, with the proviso of the extended four month period in Victoria between July 2020 and November 2020.
During cross-examination, the family consultant confirmed she regarded the mother as the primary carer of the child. However, she qualified that statement by explaining in the case of this child, there was not a large discrepancy between primary and secondary carer. The father was not the primary attachment, but was a very trusted adult. I accept her evidence about the child's attachment.
As to the child's relationships with other persons, the father emphasised the child's significant relationships with her extended paternal and maternal families in F Town. The child has a strong bond with her immediate paternal and maternal families including cousins. Both the paternal and maternal grandparents live within 4 kilometres of the father's home and the father ensures the child spends time with her extended family when she is in the father's home.
The paternal grandfather, prepared a statement dated 28 April 2022 which was adopted by him prior to giving evidence. He described the relationship between the child and her paternal grandparents, which included visits and sleepovers to their home shortly after the child's birth. Prior to the child's relocation to Tasmania, she had regular weekend contact with her paternal grandparents including weekend visits to their home and overnight stays. The child participated in family activities, mealtimes, meal preparation, picking fruits and vegetables and participating in chores around the home. The child fitted into the family and her behaviour demonstrated that she was comfortable and happy with her extended family. The paternal grandfather was not challenged about this evidence and I accept it.
The paternal grandfather described the change in the child's relationship with her paternal grandparents subsequent to her removal to Tasmania. He described the child as being withdrawn and initially clinging to her father prior to gradually starting to reintegrate into the family environment. He observed that the child did not feel like she belonged during the initial stages of her visits to her paternal grandparents and that sleepovers became rarer and eventually stopped.
He has observed that the child has become more sensitive to receiving instructions or requests, exhibiting anger and frustration when asked to do something, becoming demanding and generally uncooperative and she has lost her feeling of being an integral part of her extended family, due to the protracted absences from her family. The paternal grandfather was not challenged to any degree about this evidence and I accept it.
The father correctly contended that the mother had blocked the paternal grandmother's access to her Facebook messenger subsequent to the mother receiving a letter from the paternal grandmother in 2016, which the mother perceived as critical of her. The mother attempted to minimise her lack of communication with the paternal grandmother. During evidence in chief, the mother said she had downloaded a communications app, Caribu sometime in 2021, at a cost of $15 per month and had advised the father’s other family members could use it. She ceased her subscription later in 2021 and resumed using Facebook messenger and a children's messenger app. She unblocked the paternal grandmother from Facebook messenger three months ago.
The father and his partner have a daughter, aged 24 months, with another child on the way. According to the father, the child has an excellent relationship with both her step-mother and half-sibling.
The father's partner also prepared a statement dated 26 April 2022, which she adopted prior to giving evidence. She describes observing the child's emotional well-being becoming more erratic and her ability to adjust to the father's household becoming problematic, subsequent to her departure to Tasmania. She also describes the close relationship the child has with both sides of her family, although these relationships have become more distant since the child left the F Town area.
The relationship between the child and her half sibling is mainly wonderful, however there are some jealousy issues, as would be expected. Because the child no longer lives in close proximity to her half sibling, she has observed a change in their relationship and describes their respective upbringing as “only children” and that they are deprived of developing a proper sibling relationship. The father's partner was not challenged to any significant degree and I accept her evidence. Once the new baby is born later this year, the child will have a second half sibling.
Apart from the mother, the child does not have any family members in Tasmania.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
to participate in making decisions about major long-term issues in relation to the child;
to spend time with the child; and
to communicate with the child
I will first address the participation of both parents in making decisions about major long-term issues in relation to the child.
Prior to the mother's decision to unilaterally relocate the child's residence to Tasmania, which occurred sometime in early 2020, the parties had managed a cooperative co-parenting relationship and were able to make joint decisions for the benefit of their daughter.
In early 2020, the mother unilaterally made one of the most significant and important major long-term decisions in relation to the child, without any consultation with the father, which was to permanently relocate the child to Tasmania. The mother's decision precipitated the father's current application to the Court.
In terms of opportunity to spend time with and communicate with the child, obviously the mother has availed herself of every opportunity since September 2019 when she and the child travelled to Tasmania for ostensibly a holiday and from early 2020, when she positioned herself as the child's primary carer, without the father's consent.
Subsequent to attending three sessions of Zoom mediations in June and July 2020, the parents reached agreement about the time the child would spend with her father. The initial agreement was for the child to spend a month in the care of each parent, with the child flying between Tasmania and Victoria. This arrangement was interrupted by Covid-19 lockdowns and travel restrictions, where the child has remained with one parent and has been unable to spend time with the other parent. The child's time with her father in Victoria since her removal to Tasmania has been as follows:
·3 November 2019 – 26 November 2019;
·20 December 2019 – 11 January 2020;
·21 February 2020 – 4 March 2020;
·2 July 2020 – 4 November 2020;
·16 December 2020 – 30 January 2021;
·25 March 2021 – 17 April 2021;
·20 May 2021 – 23 May 2021;
·21 July 2021 – 24 July 2021;
·18 September 2021 – 9 October 2021;
·10 December 2021 – 30 January 2022;
·Term 1 2022 school holidays.
Subsequent to the orders of a Senior Registrar made on 15 April 2021, the child has spent time with her father in Melbourne during the Tasmanian gazetted school holidays.
As to electronic communication between the child and her parents, it was accepted that the child does not particularly like electronic communication and there have been difficulties with it. The father's partner described the mother having to offer an incentive to the child to call her father, by allowing her to watch a cartoon in return for calling her father. She also describes the child as being reluctant to speak to her mother via video calls and no proper connection between the child and the parent to whom a call is made.
The father also identified the child's dislike of electronic communication.
Notwithstanding the problems with electronic communication, the parents agreed, in the future the child should have regular electronic communication with the non-residential parent.
It is clear the father has also availed himself of every opportunity to spend time and communicate with the child. I find both parents have done so.
Parental obligation to maintain the child
The father was briefly cross-examined about his financial support for the child. His evidence was he pays around $72 per month child support, in accordance with an assessment. Prior to the current assessment, he paid $118 per month child support. He also agreed that the mother had met the majority of the cost of the child's flights between Victoria and Tasmania and he had only contributed a modest amount.
Obviously, each party is otherwise required to meet the financial cost of the child when she is in the care of each parent. I accept and find both parents fulfil their obligations to maintain the child.
The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his parents
The mother proposes the child spend time with the father during Tasmanian gazetted school holidays, and if the father desires to travel to Tasmania, spend time with him in Tasmania, provided the mother is afforded appropriate notice.
The father proposes the child return to live in the Region D area and spend time with her mother, effectively in a mirror image of the mother’s proposals. If the mother returned to the Region D area, the father proposes the child live in an equal shared arrangement with both parents.
According to the mother, as the child has primarily lived in Tasmania since September 2019, her proposals do not result in any significant change to the child's current living circumstances. To remove the child from her primary attachment would be detrimental to her health and psychological well-being, would result in significant disruption to her day to day life, schooling, social and friendship network.
In the Family Report, the family consultant opined that a disruption to the child's relationship with her mother will be distressing for her and would impact her in the immediate future. Her oral evidence during cross-examination was removal from her mother’s primary care would not be so traumatising, because of the child’s strong relationship with her father. A disruption of the relationship with her mother could also have long-term impact on her understanding of the relationship and sense of self-worth. If the child were to interpret the disruption in her relationship with her mother as abandonment or rejection, it will likely impact on her ability to form relationships and trust other people as she grows older which would impact her life into her adulthood. Eventually the child would settle into the father’s care, and she would require therapeutic intervention to support her to adjust, process and make sense of this significant change in her life.
The family consultant also identified in her report that if the child remains living in Tasmania with her mother she will not have the opportunity to be raised within a community with her extended family members, both maternal and paternal. That will impact on the depth of those relationships and will hinder the amount of time the child will be able to spend with her father and her younger half-sister.
The mother contended she had actively supported and promoted the child’s relationship with her father since the child’s removal to Tasmania. Her commitment to do so was demonstrated by the time the child had spent with her father in Victoria and that the mother had been primarily responsible for the cost of air travel between Victoria and Tasmania. Notwithstanding the child’s current living arrangements, she continues to enjoy a close and loving relationship with her father, although it was conceded the relationship could not be described as optimal.
The father contended that the child’s relationship with him and his extended family has been detrimentally affected subsequent to the child’s unilateral relocation to Tasmania. His affidavits refer to the detrimental effect on the child of having long periods of absence from her father and family. He considers the move to Tasmania has unsettled the child’s sense of security and home, the child is in constant transit between the two homes and he is concerned about her emotional and psychological well-being in the long-term, if the current arrangements persist. The child has been deprived of the opportunity to participate in day-to-day activities with her father, including attending school in the local community and the child’s bonds with her grandparents which eventuated from spending significant periods of time with them in the first four years of her life, are diminishing. The return of the child to Region D would enable her to experience a loving and caring environment which the father is able to provide for her and to experience a family life with her half-sibling and the child who is on the way.
According to the family consultant, both scenarios will require the child to continue to commute between Tasmania and Victoria to spend time with one parent. That is more likely to become increasingly challenging to the child as she gets older and raises concerns about how such an arrangement can be sustained in the long-term and the level of emotional burden on the child.
The parent’s previous respectful and amicable co-parenting relationship will assist the child moving between homes and to settle relatively well. However, it will not fully protect the child from being burdened with a loyalty split in the future and will place the child in an increasingly precarious and uncomfortable position. According to the family consultant, and I accept as the child gets older and develops a more sophisticated understanding of the family dynamic, her divided loyalties could decrease her capacity to move between her parents with the ease she currently experiences. If that occurs and becomes overwhelming for the child, the easiest way for her to cope is to align herself with one parent and reject the other. There is a concern about how the current care arrangement can support the child in the long-term to maintain a close and meaningful relationship with both of her parents.

Maintaining such a high level of travel for the child without a sense of stability and home poses significant problems and likely does not align with her best interests.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that the difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
Irrespective of whether the child remains in Tasmania or is ordered to return to Region D to live with her father, there will be considerable practical difficulty and expense for her to spend time with and communicate with the other parent.
It is the mother’s firm position that she will not return to the Region D area as she is happy in her current circumstances and has a supportive network of friends. She is fearful a return to Region D may adversely affect her mental health and thus her parental capacity to care for the child. I refer to this in greater detail later in my reasons in my discussion of the capacity of each parent to provide for the child’s emotional needs.
If the child remains in Tasmania and spends time with her father in accordance with the mother’s proposal, then her time with her father will be limited to less frequent longer periods primarily during school holidays.
Similarly, if the child is ordered to return to Region D, then her time with her mother, if she maintains a position of refusing to accompany the child to Region D, will also involve less frequent and longer periods of time with her and significant travel.
It is common ground the mother currently lives approximately one hour from the C Airport, the flight between City B and Melbourne is just under one hour, excluding wait time at airports, the travel to City O, a regional city near the father’s home, involves a four hour train trip, and to arrive at F Town a further car journey is required. This is not a situation where both parties live in capital cities and the main focus of the commute is from home to airport, the plane flight and thereafter the commute to the home of the other parent.
Travel between the two parental homes requires significant organisation and cooperation between the parents and arduous travel for a child, which when considering waiting times, would probably occupy almost the whole day.
As to the expense of flights, counsel for the mother produced a document indicative of the flight costs for both Qantas and Virgin, which are the only airlines to provide a service for unaccompanied minors (Exhibit M-4). The parents agreed a parent would accompany the child until she reached the age of nine and thereafter she would travel as an unaccompanied minor.
Since her unilateral relocation to Tasmania, the mother has met the cost of air travel for the child and herself. During cross-examination, the mother said she had managed the cost of travel by using after pay style services and she intended to continue to do so, however she sought a contribution from the father. The mother is solely dependent upon social security payments of $1,000 per fortnight. In response to a question from the court as to whether she had investigated the probable reduction of her Centrelink payments because she had commenced a de facto relationship with her partner, she was equivocal, vague and unable to say what her future Centrelink benefits would be, nor was there any evidence proffered about her partner’s income and capacity to meet the cost of travel for the child in the future.
The father was unequivocal that he was unable to afford the cost of travel and his family expenses would obviously increase upon the birth of the expected baby. There was also no evidence about the income of the father’s partner.
Absent proper evidence about financial capacity of both parents, the mother’s position was that I should assume, because she had done so in the past, she would continue to be able to meet the cost of the child’s interstate travel. That is a particularly troubling submission, when considering her evidence that her Centrelink income is likely to be reduced because of cohabitation with her partner.
The evidence of the family consultant emphasised the importance of the child regularly seeing the other parent and 9 to 10 weeks between visits would be a particularly long period. Ideally the child should see the other parent every five weeks or so, which would involve additional expense and logistics to enable that to occur. There was no evidence that either parent was inclined to do so or had the financial capacity to purchase additional airfares.
Another practical consideration is the lack of overlap of the term two and term three Victorian and Tasmanian school holidays. Counsel for the mother prepared a comparative chart of the respective state holidays (exhibit M-3). The holidays for term two and three 2022 in each state are as follows:

School Holidays Tasmania Victoria

Term 2 holidays 2022 9 July – 24 July 2022 25 June – 10 July 2022

Term 3 holidays 2022 1 October – 16 October 2022 17 September – 2 October 2022

There are two overlapping days in the term two holidays, excluding the last day of term and two overlapping days in the term 3 holidays, excluding the last day of term. There was no evidence whether the holidays would coincide in the future.
This will obviously adversely affect the time the child will spend with her father and in due course, her siblings if the mother’s proposal were implemented. There are obvious practical difficulties for the father, as he would need to make care arrangements for the child in his household if he is unable to obtain leave during the Tasmanian holidays. The half-siblings would not be able to spend term two and three holidays together. As the mother does not have any current work commitments, there was no evidence of future employment of the mother and as she does not have any other children, there are no such practical difficulties for her if the child travelled to Tasmania during the Victorian school holidays.
The capacity of each of the child's parents to provide for the child's needs, including his emotional and intellectual needs
There was no doubt the father had the requisite parental capacity to provide for the emotional and intellectual needs of the child. In the mother’s own words, she has no concerns about the child in the father’s care, and considers him to be a caring, loving and patient father.
Objectively, the mother has the capacity to cater for the needs of the child and the father does not criticise the mother’s day-to-day care of the child, save for his lack of knowledge of the circumstances of the child including where she is actually living from time to time. The lack of criticism of the mother’s care of the child must be seen in the context of the mother’s unilateral relocation of the child to Tasmania without the father’s consent or knowledge. The mother’s decision to do so resulted in the child being uprooted from her home, father and extended family which has and will continue to have significant implications for the child’s ability to maintain these relationships from a distance, to the same extent and quality she did prior to relocation.
The family consultant described the mother’s decision to relocate as reflecting adult centric decision-making, raising possible concerns about her ability to prioritise the needs of the child above those of her own. If past unilateral decision making is indicative of the mother’s future decision-making, it could result in increased likelihood of the child and mother being transient and depriving the child of feeling settled and safe in one community.
In her final submissions, counsel for the mother contended that if the mother returned to F Town she would suffer trauma which would be detrimental to her mother’s health and by extrapolation, her parental capacity.
The mother deposes to being traumatised at the prospect of being returned to Region D and was observed by the family consultant to be visibly panicked and upset at the prospect of return to that area. The mother contends she has been exposed to two traumatic events which would preclude her from returning .The first such event is described in paragraph 29 of the mother’s affidavit of 13 April 2021. She deposes around two years before she arrived in Tasmania (in 2017) she had a platonic relationship with a man for around one month, throughout which she suffered serious physical assaults and extreme psychological abuse and manipulation. In her affidavit filed 17 February 2022 at paragraphs 40–41, she asserts she suffered sexual assaults and extreme psychological abuse and manipulation by the man. She claims that she has only begun to heal from that experience since arriving in Tasmania. She did not say where in Victoria the asserted abuse occurred.
The second event involves her mother’s new husband. Prior to relocation to Tasmania, the maternal grandmother remarried and her new husband moved into the home, where the mother was living with the child. The mother and the new husband did not get along and she was subject to hostility from the mother’s husband which involved on one occasion a physical attack on a friend and an alleged threat to kill the friend. The mother claims she is unable to return to her mother’s home as there is a risk of the child will be subjected to family violence.
The father cross-examined both the mother and her partner about the alleged attack. It was common ground there was no police report.
The mother provided scant evidence about whether she had obtained any professional assistance for her professed trauma. In her affidavit of 13 April 2021, the mother deposed to being engaged “with a psychologist in Tasmania that I trust to work through the residual trauma”. In her affidavit of 17 February 2022, she deposes to only recently beginning to heal from her experiences since arriving in Tasmania with the help of counselling offered through E Services and in the family report she reported she “would likely benefit from therapeutic interventions”. She did not adduce any expert evidence from a mental health professional.
Whilst I accept the mother may well be distressed at the prospect of return to Region D, as it does not coincide with her current desired living arrangements, I do not accept such distress arises from the events relied upon by the mother, nor does it necessarily preclude her return to Region D. The mother admitted to spending social outings with her family in Region D, while staying with a friend, Ms U in R Town for weeks at a time. She also confirmed she had stayed with her maternal aunt, Ms V, who lives in the Region D area for maybe a week at a time. In his affidavit of 4 February 2022, the father deposes to the assistance the mother has received from many family members and friends in Victoria including accommodation and offering support for change over. He deposes to having collected the child from the mother’s maternal aunt, Ms V on several occasions whilst the mother has been staying there. Annexure H-2 to that affidavit is a copy of a text message from the mother to the father, which occurred on Saturday, 29 January 2022 which refers to the mother’s stepfather, Mr W, assisting with change over from R Town to F Town. A return of the child to Region D would not require the mother to live with her mother, nor would she be required to live in the immediate F Town area.
The evidence of the mother’s partner was that he was prepared to travel and live anywhere, to support the mother and the child. This is not a situation where the mother will be torn between an understandable desire to live with a new partner in a fresh location and effectively be forced to choose between a child and a new relationship.
The asserted trauma the mother would experience if she returned to Region D is entirely incongruent and inconsistent with her conduct to date and future proposals. Her evidence during cross-examination was that she had stayed with her friend Ms U in R Town for extended periods and her future proposal is she would accompany the child and remain with her in Region D, notably R Town, whilst the child spent time with her father during some of the school holidays.
As referred to earlier in these reasons, the mother has a propensity to embellish evidence to shore up her case and to suit her purposes, and I consider this to be another such example.
The maturity, sex lifestyle and background of the child and of either of the child’s parents and any other characteristics of the child that the court thinks is relevant
The father is originally from Europe, although he has lived in Australia since he was 11 years old. There was no evidence about the mother’s heritage.
The child was born in the F Town area and remained living there until her unilateral removal in September 2019. According to the family consultant, she is a vibrant and friendly child who happily engaged with the writer throughout the interview. There were no particular lifestyle or background factors pertaining to the child.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father impressed as a caring, responsible and insightful parent. He viewed the parental dispute through the eyes of his daughter and her perception of what was happening in her life and the divided loyalties she would face. I have no concerns about his attitude to the child, whom he clearly loves and nurtures, nor him fulfilling the responsibilities of parenthood.
During the interviews for the family report, the mother acknowledged and reported that she understood the disruptive impact the relocation has had on the child’s life and that she created the situation which has placed the child in a difficult situation by separating her from a loved parent.
The mother seemed to have an adult centric view of her actions in unilaterally removing the child from her father and extended family, and sought to justify her actions in terms of what she thought was best for herself. Otherwise, I accept that she cares appropriately for the child and loves her dearly.
Any family violence involving the child or a member of the child’s family
There are no family violence allegations involving the child. The mother alleges her step father has engaged in family violence towards her and her partner.
Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings
It is preferable that any orders I make in this proceeding will be least likely to lead to further proceedings. That is in the context of the mother’s decision to unilaterally relocate the child interstate, effectively by subterfuge.
Any other fact or circumstance that the Court thinks is relevant
During cross-examination by counsel for the mother, the family consultant identified a significant issue for this child, namely which parent could provide the most long term consistency and stability for her.
From the mother’s perspective, her current living arrangements provide the child with stability and security. Her evidence was she now has secured long term housing about a 15–20 minute drive from the child’s school and near Y Town, a Tasmanian country town about an hour or so drive from C Airport. The mother persistently described her accommodation as a “tiny house” located in a block of substantial acreage, which was owned by her friend. According to her, the friend has permitted her to effectively annex some bushland acres around her home, even describing it as holding the land on “trust” for her.
The reality of the mother’s living circumstances is significantly less optimistic than her various descriptions of her home. In her affidavit of 17 February 2022, she deposed to being in the process of building a home on land owned by her close friend Mr N, he intends to hold the land in trust for her and the land is situated at Y Town, close to the child’s school.
Prior to the commencement of final submissions, a significant amount of time was devoted to attempts to locate the address of the property via Google Maps. Indeed a printout of heavy bushland with a dot and a rectangle drawn on it was provided to me by the mother’s counsel to assist identification of where the child actually lives. It was clear the location is extremely remote and in the middle of intensely thick bushland, not far from Mr N’s house. There did not seem to be any other houses or structures discernible in the immediate area, apart from Mr N’s house. The mother’s evidence was that the driveway to her property was 7 km long and unmade, until she was prompted by her partner to review that estimate to 4 km. She admitted the roads were unmade in the area although she contended that the child’s drive to school was of approximately 20 minute duration. She persisted with the fiction of building a house on the block with her counsel describing the metal frame of the vehicle comprising the structure of the tiny house.
During cross-examination by the father, she agreed the vehicle was many metres in length and several metres wide. The vehicle arrived on Mr N’s property in September 2021 and subsequently she and her partner Mr L have undertaken renovations to the vehicle. Photographs of the child’s bedroom in the vehicle were annexed to her affidavit filed 11 May 2022. She did not provide any other photographs of the vehicle to enable a sense of what are the child’s actual living conditions. There were no photographs of adjoining “rooms”, exterior of the vehicle nor the bushland surrounding the vehicle. Her evidence during cross-examination was she and her partner slept in a room on the other side of a partial wall adjoining the child, the family now had access to an independent shower with hot and cold running water and there was an inside toilet for the child located next to her bedroom. She also insisted the vehicle had cooking facilities, although she did not elaborate what these entailed nor did she describe the exterior cooking facilities. There was no evidence about heating and cooling. I do not agree with the mother’s categorisation of the vehicle as a tiny home, particularly because of the evidence of her partner, who said the vehicle was able to be driven and was recreationally registered. Because of the mother’s lack of candour and evidence about her living circumstances, I was left with the impression the child’s accommodation was essentially glorified camping in the middle of a thickly forested bushland block.
In order to assess the future stability of the child’s living arrangements with the mother, it is also necessary to examine the mother’s accommodation in Tasmania since 2019, which does not support her contention of consistency and stability. When questioned about where she had actually lived since arriving in Tasmania, the mother’s narrative was difficult to follow. Doing the best I can, she lived in a recreational vehicle travelling around Tasmania for about four months, at Christmas 2019 she parked the recreational vehicle on a friend’s property at BB Town for about a month, prior to having a falling out with the friend. In February 2020, she travelled in the recreational vehicle to Mr N’s property at Z Street, Y Town, staying there for a couple of months and in June 2020, she started to housesit for a friend, Ms AA, in Y Town, where she stayed for about two and a half months. Thereafter, she returned in the recreational vehicle to Mr N’s place and then either house sat or rented a property in P Town. In her affidavit filed 17 February 2022, her address was P Town and she deposed to renting a three bedroom property in the town, near the child’s school. She purchased the second vehicle around February/March 2022 for $1,500 and moved into it not long after. The vehicle is currently situated on Mr N’s property.
The mother deposes to a large support network of friends in Tasmania who are more supportive than her biological family. None of her friends were called to give evidence on her behalf.

She also deposes to the child having friends in Tasmania, some of whom are the children of the mother’s friends and others are school friends. I accept that is so, but that needs to be contrasted with the extensive maternal and paternal family network in Region D. The child is described by the family consultant in favourable and glowing terms and I have every confidence she would be able to settle in and make new friends if she attended school in the Region D area.
The only discernible consistency and stability in the child’s living circumstances is her attendance at the local primary school since early 2022. The mother insisted the father had agreed to the child attending the primary school, whereas the reality was he had no option other than to agree to the child commencing school in 2022.
Because of the mother’s transient accommodation since September 2019 and her lack of candour about the child’s living circumstances, I do not have any confidence the mother’s present circumstances in Tasmania are likely to continue. To permit the child to remain in Tasmania in a vehicle parked on someone’s property in the middle of heavy bushland, may not provide her with stability, routine and a settled life, as suggested by the mother.
In contrast to the mother’s evidence, the father was open and candid about his current living arrangements and his future proposals, after the birth of the new baby. The father has lived in Australia since his family migrated from Europe when he was around 11 years old, and has lived many years in F Town. He lives in close proximity to both the extended maternal and paternal families. The father proposes the child would be enrolled in a local primary school Q School in F Town where the child will immediately be able to attend upon final orders for her return to Region D. He describes the child’s own room and accommodation in his home. The father conceded his family would require larger accommodation once the new baby is born, and I am confident he will make suitable arrangements for the child’s accommodation.
Parental Responsibility
Both parties seek an order that the parties retain equal shared parental responsibility for the child.
I am also of the view that the statutory presumption of equal shared parental responsibility should apply in this case. There is no evidence to rebut the presumption and indeed neither party sought to do so. As referred to earlier in these reasons, both parties have maintained a positive co-parenting relationship and are likely to continue some level of cooperation into the future. I accordingly intend to make an order that the parties retain equal shared parental responsibility for their daughter.
Having determined that it is in the best interests of the child that there be an order for equal shared parental responsibility, I am now required to address the statutory pathway set out in s 65DAA(1)-(5).
There was no dispute that if orders were made permitting the child to remain in Tasmania, then an order for shared care would not be practical. Both parents sought orders that the child live with them and that the child spend time with the non-residential parent during the child’s school holidays, as gazetted in the state of residence. There was little dispute about the configuration.
The father also sought orders that if the mother returned to the Region D area, the child should live in a week about arrangement with both parents. The mother did not adopt that position and maintained that she would not return to Region D. She did not make any proposals based on her return to Region D. I accept that if she returned to Region D the father’s proposals for a shared care arrangement would be in the best interests of the child and reasonably practical.
I do not accept the mother’s evidence that she would not return to the F Town area, if I ordered the return of the child. That is because of a number of reasons.
First, despite her being a poor historian and attempting to embellish her case before the court, I find it difficult to contemplate that she would prefer to remain in her current circumstances in Tasmania whilst her daughter lived interstate. She seemed to be a loving mother and has a close relationship with her daughter. The current proceedings may cause her to reflect about her past adult centric decision making, as identified by the family consultant, and actually prioritise her daughter’s needs ahead of her own. Additionally, her partner Mr L, candidly said he would support the mother and child wherever the mother chooses to reside. This is not a case where the mother would be bereft of support if she returned to Region D. According to her own evidence, she has supportive friends and family members in Region D, her friend Ms U and aunt Ms V, and would also have the support of her partner.
Secondly, as previously referred to I do not accept the basis of the mother’s asserted reluctance to return to Region D.
Thirdly, the mother would not be required to return to her mother's home in F Town for a shared care arrangement to be implemented. She is at liberty to return to a nearby town of her choice.
Lastly, the mother's evidence in paragraph 10 of her affidavit filed 17 February 2022 that she is a part-time on campus student at the S University, was contradicted by her oral evidence in cross-examination that she is studying online. She presumably would have no difficulty continuing with her studies if she moved from Tasmania.
Conclusion
In support of the mother’s application for the child to remain living with her in Tasmania, counsel for the mother submitted:
(a)to separate the child from her mother, her primary attachment would be emotionally and psychologically detrimental to the child;
(b)the child has maintained a close and loving relationship with her father and extended family, notwithstanding relocation;
(c)the mother’s commitment to the child’s future relationship with her father is demonstrated by her efforts to enable time between the child and her father subsequent to her unilateral relocation;
(d)the travel commitments including financial impost, are not overly onerous and reasonably predictable;
(e)the child is settled in her new environment, including her school and friends;
(f)the relationship proposed by the father is optimal, and the court is not required to ensure a relationship is optimal, rather meaningful;
(g)the mother demonstrated genuine distress at the prospect of return to Region D.
In support of his application for the child to return to Region D, the father submitted:
(a)the optimal relationship for the child would be to live with her father as her primary carer;
(b)the child has been proud to be a member of a large and extended family since a very young age;
(c)her extended family unit is of the utmost importance to the child;
(d)she has deep ties to her small regional community;
(e)her current circumstances in Tasmania are that she lives in an isolated location in a small van or renovated bus, surrounded by strangers, although she has had some experience of living in multiple rental properties;
(f)the mother has not demonstrated any long-term housing plan despite her best endeavours to do so;
(g)the mother has not been forthright about the child’s location and living circumstances to either the court or the father;
(h)the current accommodation in the renovated bus may be suitable in the short term, but the mother has failed to demonstrate any long-term planning for the child’s living arrangements;
(i)despite the court case concluding, the mother has failed to provide sufficient photographs of the actual living circumstances of the child, and it is impossible to know what they are;
(j)in contrast, the father has lived in stable accommodation in close proximity to extended family and will continue to do so;
(k)the child’s experiences since unilateral relocation to Tasmania should be seen through her eyes, namely she was removed from a tight loving intact family and community to a transient lifestyle, and now lives in a bus in remote bush, which she says she does not like;
(l)the visits to her father and extended family are rushed and she does not have sufficient time to relax with her family and find her identity and place in the family unit;
(m)the opportunity to spend time with her sister and the baby on the way are limited to school holidays, some of which do not coincide between states;
(n)living in her father’s home will provide a sense of identity and connection with her family including extended family members, whom she will see on a regular basis;
(o)the child will attend a local primary school and will be able to reconnect with children in the community;
(p)the child will have her own room in the father’s home and will be part of a family with siblings;
(q)the mother’s willingness to move to Tasmania was a lifestyle choice for herself and not made with any consideration of the best interests of the child;
(r)the mother had the opportunity to be honest about her motives when she initially travelled to Tasmania, but she did not do so and remained there by subterfuge;
(s)the mothers position of having experienced trauma only came to light after she made a decision to remain in Tasmania;
(t)the father would cooperate with the recommendations of the family consultant, to obtain therapeutic counselling if the child was in his primary care.
In this case, as in most relocation applications, the considerations for and against relocation are finely balanced and the decision involving interstate relocation is particularly difficult.
The most compelling positive consideration in the mother’s proposal for the child to remain in Tasmania is that the mother is the child’s primary attachment and she has a strong desire to live in Tasmania, for her personal lifestyle reasons. She maintains her mental and psychological health has improved since her relocation to Tasmania, which would in turn enhance her parenting capacity, as would her housing security, as she perceives her current living situation. There is no expert evidence about the mother’s mental health and earlier in these reasons, I address the inconsistencies about the mother’s evidence in this regard. I accept the mother’s evidence that she would facilitate the relationship between the child and her father, in accordance with her proposals.
The family consultant identified the disruption to the relationship between the mother and child will be distressing for the child and would impact her in the immediate future, as well as possible long term impact on the child. She also identified if that occurred, the child would be assisted by therapeutic intervention.
There are a number of negative considerations in the mother’s proposal, which are positives in the father’s proposal. Firstly, the removal of the child from her father, siblings, extended family, both maternal and paternal and the community into which she was born and spent the early formative years of her life.
Secondly, the logistics and expense of travel between the parents’ current homes. The travel is between two relatively rural areas which, particularly in the case of travel to the father’s home, requires a monumental logistical effort and many hours of train and car travel, subsequent to an interstate flight. Whilst the child has been so far compliant with onerous travel, most of that has occurred prior to the child commencing school in February 2022. During 2021, the child’s travel periods were not constrained by her school attendance, which allowed a significant degree of flexibility for travel times. Future travel will need to occur during the school holidays of the state where the child lives. Victoria and Tasmanian school holidays do not coincide for two terms a year. As identified by the family consultant, the child is currently compliant with travel, however that may well change in the future as she gets older and travel becomes increasingly challenging to maintain. Those future challenges raise concerns about how realistic and sustainable long term travel will be, and the level of emotional burden the child will continue to hold. I am not convinced that either parent will be able to continue to finance the cost of travel, including accompanying the child until she attains nine years of age. The mother is reliant on social security benefits, which on her own evidence are likely to reduce to an unknown degree, because she is now living with her partner and receiving financial support from her partner. If the child lives with the father, the mother has the option of travelling to Victoria to visit her, because there was no evidence of any constraints preventing her doing so.
Thirdly, the mother’s contention that the child is settled in her new environment and that she has housing security, is difficult to sustain. The reality of the relocation is the mother and child have had multiple living circumstances since arriving in Tasmania in September 2019, including living in a recreational vehicle, housesitting, short term rentals, and since March 2022, living in a converted vehicle in a remote location surrounded by heavy bush. There is no evidence to satisfy me the mother’s current living circumstances are sustainable for a child, or long-term, or the mother would truthfully keep the father appraised of the child’s whereabouts or living circumstances. That is particularly so in the context of the mother’s tendency to embellish and present her evidence in an overly optimistic manner, such as describing her being permitted to park the bus on a friend’s property as the land being held in trust for her and her failure to precisely advise the father of the child’s whereabouts and living circumstances.
Fourthly, the mother’s decision to relocate to Tasmania, according to the family consultant, was adult focused and not focused on the best interests of the child. The decision lacks long term foresight and raises serious questions about the mother’s capacity to prioritise the child’s needs above her own.
There are positive considerations in the father’s proposal. Firstly, the child would be returned to live with her father and his immediate family, and in the area where her extended maternal and paternal families live. Secondly, she would have secure accommodation in her father’s home, including her own bedroom and have the benefit of living with her younger sister, and when born, younger brother. Thirdly, if the child travelled to Tasmania, as the mother does not currently have any other children, nor is she employed, there would not be any significant problems with the term school holidays not coinciding. The mother also has the capacity to spend time with the child in Region D, as she has previously done, which could alleviate the child’s travel to Tasmania. The mother also has the capacity to travel to Victoria to spend time with the child, in between term holidays, subject to finances. According to his evidence, the father has no financial capacity to leave his family in Victoria to travel to Tasmania to spend time with the child in between term holidays.
The most significant negative consideration of the father’s proposal is that the child would be separated from her mother. However, according to the evidence of the family consultant, in this family, because of the close relationship between the child and her father, there is not a large disparity between primary and secondary carer. Although the father is not a primary attachment, he is a very trusted adult. The father was also willing to arrange psychological assistance for the child, if required, if she were returned to his care.
According to the family consultant, when there is a good relationship between the child and both parents, a significant consideration in determining the best interests of this child, is which parent can provide the most consistency and stability for the child in the long term. This is not a situation where the mother and child have established consistent and stable connections with community and school over a significant time and to order the child’s return would cause significant disruption to the child’s schooling and sense of community. The child has only been enrolled at her school and lived in her current community since February 2022. In contrast to the mother’s current circumstances, the father has lived in his community for many years, the child was born there, her extended maternal and paternal families live there and the father enjoys support from the local community. Having weighed and considered the evidence and the proposals of both parents, I am persuaded it is the father who is best placed to be able to provide stability and consistency for the child into the future.
Contrary to the mother’s evidence, I am not persuaded the mother will remain living in Tasmania, if the child is ordered to return to Region D, for the reasons previously referred to and in particular the willingness of her partner to live wherever the mother chooses to live, including a return to Victoria. The father’s proposal acknowledges the child should resume living in a shared arrangement if the mother chooses to return, which demonstrates insight and child focused decision making on the part of the father. If the mother does not remain in Tasmania, then the disruption to the child’s relationship with her mother will not eventuate. It is up to the mother whether she makes a child focused decision about her future living arrangements.
On a finely balanced consideration of all relevant factors, I determine that the child’s best interests are best met by the child primarily living with the father in Region D, if the mother continues to live in Tasmania. The child will spend time in Tasmania with her mother during Victorian gazetted school holidays, at times which will be a mirror of the mother’s proposal for the child to spend time with the father, and at other times by agreement, when she is able to travel to Victoria.
If the mother chooses to return to the Region D area, the child should live in a week about arrangement with each parent, as proposed by the father. I do not propose to specify any radial distance between the parent’s homes, as that was not raised at trial and I consider both parents are capable of positive communication to ascertain a workable distance between their respective homes and the child’s school, to implement shared care of the child. Both scenarios will ensure the child will continue to enjoy a meaningful relationship with both her parents.
Due to the discrepancy between the Victorian and Tasmanian gazetted school term dates, the final day of Term 2 in Tasmania is 8 July 2022 and the first day of Term 3 in Victoria is 11 July 2022. As such, I will delay the child’s return to Region D until 4 July 2022. This timeline strikes an appropriate balance between the child completing all but the final week of Term 2 in Tasmania and enabling the child to relocate back to Victoria and settle in before commencing Term 3 at a new school.
As to the particulars of the orders I intend to make, I have adopted the orders proposed by the mother for the child to spend time with her during school term holidays and the long summer holidays, except that time will coincide with the Victorian gazetted school holidays. The periods of time proposed by the mother are a day or so less than proposed by the father, but I assume as the time was proposed by the mother, it is satisfactory to her. Because the school holidays between the two states do not substantially coincide, the child should travel to Tasmania to spend time with her mother during her Victorian school holidays. Otherwise, she would miss a significant number of days of school in Victoria, when there was no evidence why the mother would require time to occur in the Tasmanian school holidays. It is obviously in the child’s best interests to attend school on the required days.

The time for the long summer holidays is in accordance with the mother’s proposal of 29 nights, which she proposed for the father, if the child remained in Tasmania. The father did not raise any objection to that proposal and I assume it is satisfactory to him. His proposal did not include any time for the long summer holidays for the child and the mother, which I assume is an omission, as there was never any suggestion that would be in the child’s best interests. The orders will ensure the child spends Christmas Day alternating with each parent and that she will not be travelling on Christmas Day.
Both parents agreed the child should be accompanied by an adult until she turned 9 years of age, which would enable her to travel as an unaccompanied minor. The orders will provide flexibility for the parents to have another adult accompany the child, if they are personally unable to do so. I have also made orders for the travel costs to be shared by the parents. Although the mother has borne the cost of travel to date, the financial position of both parents is not strong and both are reliant to some extent on social security. I am cognisant the father may well be aggrieved, but on the scant evidence about each parties’ financial position, I consider such an order to be the most equitable.
The orders for special occasions strike a balance for the child so that she enjoys and experiences time with each parent. In making the orders for electronic communication, I have had regard to the evidence of the family consultant as to appropriate time. I am confident the parents will be able to appropriately manage electronic time.
I am also confident the parents will manage changeover arrangements, as they have done many times in the past and will continue to do so.
I will make orders accordingly.

I certify that the preceding one hundred and eighty-seven (187) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.
Associate:
Dated: 20 June 2022

File number(s):	MLC 3393 of 2021
Judgment of:	WILLIAMS J
Date of judgment:	20 June 2022
Catchwords:	FAMILY LAW – PARENTING – Relocation – Where the mother unilaterally relocated with the child from Victoria to Tasmania – Where the decision was not child focused – Evidence of the child’s living circumstances in Tasmania was not forthright, does not promote a sense of housing security or that the child is well-settled – Both the maternal and paternal extended families live in close proximity to the father’s home and the child has no family in Tasmania except for the mother – The child has a close relationship with both parents, however the father is best placed to be able to provide stability and consistency for the child into the future – Where the considerations for relocation are finely balanced – Orders made for the child to return to Victoria – Orders made for the child to live in a week about arrangement in the event the mother returns to Victoria or alternatively school holiday time in the event the mother remains living in Tasmania.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA
Cases cited:	A v A: Relocation Approach (2000) FLC 93-035 AMS v AIF (1999) 199 CLR 160 Cowley & Mendoza [2010] FamCA 597 Heath & Hemming (No.2) [2011] FamCA 749 Mazorski v Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405 Re F: Litigants in Person Guidelines (2001) FLC 93-072 Sigley & Evor [2011] FamCAFC 22 Taylor & Barker [2007] FamCA 1246 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division:	Division 1 First Instance
Number of paragraphs:	187
Date of hearing:	16–17 & 19 May 2022
Place:	Melbourne
The Applicant:	Litigant in person
Counsel for the Respondent:	Ms Ryan
Solicitor for the Respondent:	Murdoch Clarke

MLC 3393 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR GAGE Applicant
AND:	MS MASALIS Respondent

order made by:	WILLIAMS J
DATE OF ORDER:	20 JUNE 2022

Exhibit Number	Description
M-1	Messenger exchange dated 25 June 2021 between the parents
M-2	Proof of Evidence Statement of Mr L dated 16 May 2022
M-3	Table of comparative school holiday terms
M-4	Flight costs between Tasmania and Victoria during the school holidays of Terms 1-3

Exhibit Number	Description
H-1	Witness statement of Mr G, paternal grandfather dated 28 April 2022
H-2	Witness statement of Ms J, his partner dated 26 April 2022
H-3	Witness statement of the Ms H, neighbour, dated 26 April 2022
H-4	Witness statement of Ms K, father's landlady, dated 28 April 2022

School Holidays	Tasmania	Victoria
Term 2 holidays 2022	9 July – 24 July 2022	25 June – 10 July 2022
Term 3 holidays 2022	1 October – 16 October 2022	17 September – 2 October 2022