Halsey & Darlow - [2023] FedCFamC2F 717

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Halsey & Darlow [2023] FedCFamC2F 717

File number(s): CAC 2016 of 2022

Judgment of: JUDGE BETTS

Date of judgment: 19 May 2023

Catchwords: FAMILY LAW – Parenting – where the mother seeks to relocate with the children back to City B – where the father seeks that the children remain living in the Region C– where the mother will remain living in the Region C if she is unsuccessful – where the father will relocate to City B if he is unsuccessful – where both parents are child-focused and have agreed to implement an “equal time arrangement” whether in the Region C or in City B – where the Court considers that there may be adverse impacts on the mother’s parenting capacity in the event she stays in the Region C– mother’s relocation application successful – best interests of the children.

Legislation: Family Law Act1975 (Cth), Part VII

Cases cited:
Adamson & Adamson (2014) FLC 92-622

AMS & AIF (1999) 199 CLR 160

MRR v GR (2010) FLC 93-424

U & U (2002) 211 CLR 238

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 2 Family Law

Number of paragraphs: 184

Date of last submission/s: 18 May 2023

Date of hearing: 15 and 16 May 2023

Place: Newcastle

Counsel for the Applicant: Ms Mahony

Solicitors for the Applicant: Parker Coles Curtis

Counsel for the Respondent: Mr Guyder

Solicitors for the Respondent: The Family Law Co

ORDERS

CAC 2016 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HALSEY

Applicant

AND:
MR DARLOW

Respondent

order made by:

JUDGE BETTS

DATE OF ORDER:

19 MAY 2023

THE COURT ORDERS THAT:
Parental Responsibility
1.That the parents have equal shared parental responsibility for the children X born in 2017 and Y born in 2020 (“the children”).

Permission to Relocate the children
2.That the mother be permitted to relocate the children to the Region D as and from the end of this academic school year 2023.

Living arrangements during school terms
3.That the children shall live with the mother and the father, as agreed between the parents in writing, however failing agreement, and until such time as Y commences Kindergarten in 2026, as follows:

Week 1 (3 night blocks)
(a)From 4pm Sunday to 9am Wednesday with the mother; and
(b)From 9am Wednesday to 9am Saturday with the father.

Week 2 (4 night blocks)
(c)From 9am Saturday to 9am Wednesday with the mother; and
(d)From 9am on Wednesday to 4pm Sunday with the father.

4.That in the absence of an agreement in writing between the parents, and upon Y commencing Kindergarten in 2026, the children shall live with each of the parents on a week-about basis, with changeover to occur on a day to be determined, but failing agreement, at the conclusion of school/childcare on Friday.
5.That changeover shall occur as agreed between the parents in writing, however failing agreement in writing:
(a)On school days, at the children’s school and/or childcare; and
(b)On non-school days, with the parent whose time with the children is concluding transporting the children to the other parent’s place of residence.

Living arrangements during school holidays and Christmas arrangements
6.The children shall live with each parent for equal time during the school holidays as agreed between the parents in writing but failing agreement as follows:
(a)With the father for the first half of Terms 1, 2, and 3 school holiday periods in odd numbered years, from the conclusion of school or 3pm on the last day of school/daycare until the midpoint of the school holiday period, and with the mother for the second half.
(b)With the mother for the first half of Terms 1, 2, and 3 school holiday periods in even numbered years, from the conclusion of school or 3pm on the last day of school/daycare until the midpoint of the school holiday period, and with the father for the second half.
(c)In the Term 4 school holidays, as follows:
(i)In odd numbered years, the father to collect the children on the Friday closest to the end of Term 4, and the children will remain in the father's care for one week and each alternate week thereafter.
(ii)In odd numbered years, the mother to collect the children at the end of the first week of holidays on the Friday from the father and the children will remain in the mother's care for one week, inclusive of Christmas and Boxing Day, and each alternate week thereafter.
(iii)In even numbered years, the mother to collect the children on the Friday closest to the end of Term 4, and the children will remain in the mother’s care for one week and each alternate week thereafter.
(iv)In even numbered years, the father to collect the children at the end of the first week of holidays on the Friday from the mother and the children will remain in the father’s care for one week, inclusive of Christmas and Boxing Day, and each alternate week thereafter.

IT IS NOTED THAT:
A.That for the purposes of Order 6:
(a)“School holidays” includes pupil free days and public holidays that fall within the school holiday period;
(b)Changeover is to occur no later than 3:00pm on the changeover day or failing agreement, on the day that is 12:00pm on the midpoint between the first and last days of the school holidays (“the midpoint day”); and
(c)At the conclusion of the school holidays the usual cycle of time that the children spend with the parents pursuant to Order 3 shall continue as if the school holidays did not occur.

B.The parents intend in the future to vary the Term 4 school holiday time referred to in Order 5 c above so that it becomes two equal blocks of time for each parent, such halves to alternate every year and they intend that this change takes place when the children are developmentally ready. In the event that the parents cannot reach agreement in relation to this variation, then they shall attend FDRP mediation and failing resolution of this issue the parties are at liberty to make an application to this Court to vary this order.

Schooling/childcare
7.That the parents shall do all things necessary to enrol X in Year 1 at either E School, F School, or G School from 2024, and if any dispute arises between the parents as to which school, including any other school not listed in this Order, the parents shall attend FDRP mediation and failing resolution of this discrete schooling issue, the parties are at liberty to make an application to this Court for a decision as to which school.
8.That the parents shall do all acts things necessary to enrol Y in the K Early Learning Centre in Suburb L, or Suburb M Early Learning Centre for 4 days care a week from January 2024, and if any dispute arises between the parents as to which day care centre, including any other day care centre not listed in this Order, the parents shall attend FDRP mediation, and failing resolution of this discrete day care centre issue, the parties are at liberty to make an application to this Court for a decision as to which day care centre.

Extracurricular activities
9.That the parents shall do all acts and things and sign all documents necessary to enrol X in sporting activities or sports programs from the commencement of the relevant term as applicable for extracurricular activities.
(a)That the parents do all acts and things and sign all documents necessary to enrol X and Y in sports at N Sports Centre from the commencement of the relevant term as applicable for extracurricular activities.

Special Occasions
10.That notwithstanding any other Order to the contrary the children shall live with the parents on days of special significance, as agreed between the parents in writing, however failing agreement, as follows:

In years when Easter does not fall within the school holiday periods:
(a)The mother shall have the children from the conclusion of school/daycare on the Thursday before Good Friday and until 4pm on Easter Saturday, and the father shall have the children from 4pm on Easter Saturday until the commencement of school/daycare on the Tuesday after Easter Monday.

Mother’s Day
(b)From the conclusion of school/daycare or 4:00pm on the Friday immediately preceding Mother’s Day until the commencement of school/daycare or 9:00am on the Monday immediately after Mother’s Day.

Father’s Day
(c)From the conclusion of school/daycare or 4:00pm on the Friday immediately preceding Father’s Day until the commencement of school/daycare or 9:00am on the Monday immediately after Father’s Day.

Children’s Birthdays
(d)The father will organise a birthday party for each child's even numbered birthday.
(e)The mother will organise a birthday party for each child's odd numbered birthday.
(f)The parents will give each other one month’s notice of the birthday party dates. noting that, in practice, this will mean that each parent has one party each year to organise (for example, X will be 6 in 2023 and Y will be 4 in 2024).

Other Family events
11.For weddings, funerals, milestone birthdays and other significant family events, the parents agree to facilitate the children’s attendance with the relevant parent, giving as much notice to the other parent as practicable.

Communication
12.That the children shall have telephone/videocall communication with the parent with whom they are not already spending time, as agreed between the parents in writing, and at any reasonable time requested by the children, with the duration of the call to last as long as the children are willing to talk but not more than 30 minutes.
(a)That each parent is restrained from making negative, derogatory or disparaging comments about the other parent or members of the other parent’s family or household or their friends or colleagues in the presence or hearing of either child.
(b)That the parents shall:
(i)Keep the other advised at all times of their current residential address, email address and mobile telephone numbers.
(ii)Advise the other as soon as practicable in the event that either child suffers any illness or injury including details as to any medical practitioner, hospital or medical practice attended.

Authority to third parties
13.That these Orders act as an authority to medical, health, sporting, and educational providers of the children, to release information about or discuss the children’s progress and/or health and other needs, to either parent and each parent provide such further written authority as may be required as may be required from time-to-time and inform the other parent of the names and addresses of any such medical, health, sporting, and educational service providers.

Passports
14.If either parent wishes to obtain passports for the children, they shall make a written request to the other parent enclosing the Passport Application for the issue or renewal of an Australian Passport for the children, and the other parent shall sign all documents necessary to provide their authority for the issue or renewal of the passports and return same to the other party.
15.The parents will share equally the cost of the children’s passports and costs of renewals.

International Travel
16.In the event either parent wishes to travel internationally with the children to a Hague convention country, they must provide the other parent with three (3) months advance written notice of their intended travel departure date and that parent is then permitted to travel internationally with the children to that Hague convention country provided that the parent intending to travel with the children provides to the other parent documents evidencing the following items at least 28 days prior to the intended travel:
(a)A flight itinerary from the airline of the proposed travel arrangements including the departure and return dates;
(b)Confirmation of valid travel insurance for the children for the duration of the intended travel; and
(c)A telephone number that the children can be contacted on while travelling.

17.The matter is removed from the List of Active Pending Cases.

Notation
A.It is agreed between the parties, that unless otherwise agreed between the parties in writing, pending relocation to the City B region, X shall continue to attend O School in Suburb P NSW, and Y shall continue to attend Q Day Care in Suburb R, NSW.

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

These reasons for judgment were delivered orally.
INTRODUCTION
These parenting proceedings relate to two young boys, X born in 2017, who is presently five years of age; and his little brother, Y born in 2020, who is presently three years of age.
They are the children of the applicant mother in these proceedings, Ms Halsey, and of the respondent father, Mr Darlow. The case is an interesting one in that I can say without hesitation that I have before me two of the most child-focussed and selfless parents that I have ever seen in this court.
The mother desperately wishes to relocate with the children back to City B, for reasons that I will explore. The father desperately wishes the children to remain living in the Region C, also for reasons that I will explore. Each parent is entirely genuine in their desire as to what would be in the best interests of the children. Each parent makes the sacrifice to the court that, in the case of the mother, she will not leave the local area – that is, the Region C area – if she is unable to relocate, and in the case of the father, that he will himself relocate to City B in the event that the court considers that it would be in the best interests of the children to live there.
That is to say, this is a “relocation case” in which, whatever the outcome, the children will be spending quality regular time with both parents. Indeed, in the course of the hearing, the parties agreed upon proposed orders which deal with each eventuality. That is to say, if the children continue to live in the Region C area (in the event the mother’s application to relocate is refused) – the parties will implement an equal time arrangement as well as providing for equal time during the school holidays and various other detailed orders which will maximise the children’s relationship with each of the parents as well as facilitating relationships with the extended family. Exhibit 8 is a proposed order in the event that the relocation application is granted. That is, if the children live in the City B area. And the orders are practically identical, save for obviously some differences in relation to schooling.
The case, really, is not therefore so much about the time that the children will spend with each parent. That much is settled and agreed. The issue, really, is whether an equal time parenting regime would be best implemented in the Region C, or in the City B region.
CHRONOLOGY OF EVENTS
The mother is 37 years of age, having been born in 1985. The father is 31 years of age, having been born in 1991.
The mother originally hailed from Town S, in South Australia. When she attended University there, she graduated with a degree. She subsequently went to City B to undertake further study and work within the T Organisation, where she met various fellow qualified friends of hers, or people who went on to become her friends. She was quite happily settled in City B, effective from 2009, working in various professional roles. She had no family in City B, but she was very happy there.
She had numerous friends who she describes in her affidavit as her:
“urban family.”
The father went to University at the V University. He obtained a degree. He subsequently found himself in City B, also working in professional roles, effective from 2014.
He was less happy in City B. He did not have, it would seem, a very wide friendship group although he had some family members there at that stage, who have since moved away.
The parties formed a relationship around 2015 or 2016. (The difference is immaterial.) They started living together in City B in 2017, and X was born while they were living there.
At that stage, each of the parents was employed in the public service. The mother was working for a department, effectively as a professional in broad terms, and the father was working with another department in a professional capacity.
The parties had some difficulties in their relationship. The father was quite unhappy in City B and for her part, the mother suffered from some anxiety and depression. She suffered post-natal depression after the birth of X for which she sought appropriate treatment. She has had a long history of low mood and heightened stress, for which over the years she has always actively sought helpful and appropriate psychological treatment which she has always found to be effective. She is a person who throughout her life has had a conscious awareness of mental health and wellbeing issues.
That said, there were stressors and difficulties in the party’s relationship. Each of them was working and the challenges of raising young X, no doubt, got to both of the parties at different times.
There is some dispute about various matters that are said to have occurred while the parties were living together. The mother says that the father was somewhat agitated and had some difficulty managing his own emotions and that on occasions, he was overly physical with X and generally somewhat unhappy. The father denies that he was ever overly physical with X and, indeed, expressed great offence when the topic was raised with him by the Family Report writer in these proceedings, Dr Z. It is clear that there was tension and difficulty between the parents, however, and it is also clear that their relationship had its problems.
The father accuses the mother of pushing X down onto the bed quite hard on one occasion, as well as kicking a hole in a door in the course of an argument.
As with the allegations made by the mother about the father being overly physical, these allegations against the mother were not really explored at the trial and to be fair, largely fall away. Neither party contended that the other posed any risk of harm to the children and, indeed, neither party contended that the other had perpetrated abuse or family violence.
Nonetheless, their relationship had its difficulties and I accept that to some extent they struggled in the course of raising young X.
The mother took a year’s maternity leave when X was born before returning to part-time employment, which quickly graduated from two days per week back to four days per week. The father was actively involved in looking after X as well. He too worked four days per week and each parent was actively involved in X’s day-to-day care.

In 2019, the parties decided to relocate out of City B to live in Region C where the father has significant family. Indeed, his family have always been based here. He is one of several siblings, all of whom live locally, and so the children have numerous uncles and aunts as well as various cousins living in the area, together with the paternal grandparents.
There is some dispute between the parties as to the permanency or intended permanency of the move. The mother, for her part, considered that it was a trial period because she wanted to see whether things would be better in the parents’ relationship if they lived close to the father’s family and had their support. However, when she left her employment she was also at pains to ensure that that she did so on what was effectively unpaid maternity leave. This had the practical effect that her job was effectively “held open” for her for that period.
For his part, the father did not consider that the move was a trial but rather, a permanent move.
I do not make any finding adverse to either party’s credit in this respect. I was impressed with both parties as witnesses. I consider both of them to have been honest with the court and I consider that this is just one area where they genuinely disagree. This factual dispute does not really matter much in terms of the outcome of the case.
The mother took up employment with an organisation, a job which required her to work full-time during the closing months of her pregnancy with Y. She did not enjoy the role. She struggled in the role to some extent, and it grated against her long-term desires and expectations and, indeed, the mutual expectations and hopes of the parties that each of the parents would be available at least some of the week to help look after the children.
The father was able to obtain a transfer in his employment, remaining with the same department, but being obliged to attend at an office in Suburb AA for a few days each week. In short, he was able to continue a City B-based role, but from City BB.
Unfortunately, notwithstanding the family support that the parties had from the father’s various family members, the relationship between the parents continued to deteriorate. Again, I do not propose to address the details of that, to the extent there is any dispute. I am satisfied that each parent sets out in their evidence, both orally and in their affidavit, what they consider to be accurate from their own perspective.
It suffices to say that the mother took another year off work on maternity leave, so that she could be fully available for Y, and that the father was continuing to work for the same department, but that the parents’ relationship was slowly getting worse.
It is common ground that by late 2020 the father was aware that the mother was unhappy living in the City CC area, which is where they were based at that time. His perception was that the mother was not interested, or perhaps not sufficiently interested, in engaging with his extended family. The mother does not agree with that, but in any event she was clearly unhappy.
The father says that the mother and he talked about relocating again, this time to Adelaide, which would be closer to where her family lived, being her father, the maternal grandfather, and her mother, the maternal grandmother. (The mother’s parents are separated; the maternal grandfather has re-married.)
The other possibility that was discussed between them was returning to City B. It is interesting that the mother says that the parties definitely agreed to relocate back to City B, and the father says that:
I deny that in [late] 2020, [Ms Halsey] and I reached an agreement to relocate back to [City B], nor did we even consider that option.
I have seen the evidence in this case, particularly exhibit 6, being various tenancy applications and related documents, from which it is clear the mother was actively pursuing a return to the City B region and looking for accommodation there and filling out various applications to lease properties. She was clearly the driver of this process.
There is one particular tenancy application, which appears at page 10 of 17 of exhibit 6, seemingly written by the father, which seeks that he, the mother and the children be considered for a rental property at EE Street in the City B region.
The father denies ever writing this application, but said that he may have; he simply did not recall doing so. The mother says that he did write it.
I am satisfied that the father did write that entry, or that if the mother wrote it on his behalf, then he was aware of it at the time. But again, as was the case when the parties first relocated from City B to the Region C, it was a situation where they had different views or expectations. That is to say, the father was not in my view at all committed to returning to City B, at least from his perspective, although he may have given the mother mixed signals about that. The mother, for her part, was absolutely committed to returning to City B - so committed, in fact, she made a non-refundable daycare deposit for X.
The fact that it was non-refundable meant that a short time later the parties, in fact, forfeited the deposit. That came about when the father was offered a position, this time with the FF Organisation, based in the City BB region. He decided to take that job in the interests of keeping the family together and hoping that the mother would come to enjoy City BB.
The mother decided to, very reluctantly in my view, stay around in Region C.
The relationship between the parties became increasingly tense and difficult. They engaged in regular verbal disagreements. They did their best to shield the children from those disagreements, but it is clear that to some extent the children were exposed to that unhappiness.
Ultimately, the parties separated on 25 April 2021, and each of them obtained separate accommodation.
Now, I have said earlier that these are two very selfless and very good parents, and this point is underscored by what happened next.
Notwithstanding their interpersonal relationship difficulties, of which there were many, on 30 July 2021 the parents were able to agree to a Parenting Plan. The Parenting Plan reflected mutual respect for each of the parties as parents, a desire to support the emotional wellbeing of the children and it recorded their agreement to share parental responsibility equally. Essentially, the parties reached agreement for the children to live with the mother, but spend increasing increments of time with the father. This was particularly child-focused in relation to young Y, who of course was still only some 15 months of age at that stage.
The parties agreed that by the time Y was three years old, in 2023, that they would be moving towards equal shared care for both children with “blocks of time”. Their goal was that Y would be on the same arrangement as X.
The parents enthusiastically and actively participated in the children's lives, notwithstanding their separation. The father had Wednesdays off work at that stage, and the mother, who was by then back in employment, would have Fridays off work. The children otherwise spent time in daycare on Mondays, Tuesdays and Thursdays.
In 2022, the mother became much more focused on returning to live in the City B region. She was really, by that stage, quite unhappy living in the then City CC region, notwithstanding that she had bought her own home there. In my view, she was rather desperate to get back to the life she knew and back to the employment roles that she enjoyed, particularly in the public service.
She pressed the father to agree to a relocation back to City B. The father did not agree.
Ultimately, the mother commenced these proceedings in City B on 25 October 2022.
On 31 October 2022, the proceedings came on before a Judicial Registrar. By consent the parents entered into some interim orders, which provided that they would forthwith attend upon Dr Z for the preparation of a privately funded Family Report addressing all of the usual considerations that would be relevant in a case such as this, as set out in section 60CC of the Act. It was also noted in the consent order that the mother would not relocate the children unilaterally on an interim basis without the father’s consent or an order being made by the Federal Circuit and Family Court of Australia.
It was also noted that pending the final hearing of the mother's application to relocate the children, the parties agreed they would adhere to the parenting arrangements currently in place for the children. There is some confusion about what that notation may exactly have meant. At that stage, the parenting arrangements had not yet graduated to an equal time arrangement as provided for in the Parenting Plan. However, the children were effectively living with each of the parents on a 6:8 fortnightly arrangement, that is to say they spent slightly more time with the mother (8 nights) than the father (6 nights). The mother understood, apparently from something said by the Judicial Registrar, that the status quo would be best for the children, rather than graduating to the equal time provided for in the Parenting Plan. The father interpreted the notation to mean that the Parenting Plan would simply roll on and continue progressing to equal time.
Frankly, I can read the notation both ways. Again, it is a matter of communication, more than anything else, and I do not consider that it makes any real difference. It suffices to say that the father was spending practically equal time with the children, though not quite equal time.
The mother went on to sell her home that she had purchased in the City CC region. She sold it, in part, because she was desperate to relocate back to City B. She also said in her evidence, and I accept, that she was under significant financial stress at the time and that she simply could not afford to pay the mortgage, particularly with interest rates rising in 2022.
By that stage, the mother had obtained her current employment role, where she is employed as a professional for the GG Organisation. She works remotely, but is required to attend Sydney semi-regularly. She felt under significant financial pressure in terms of meeting her obligations to keep paying the mortgage, particularly given the costs of commuting to and from work.
Subsequently, the mother more recently obtained rental accommodation in a suburb called Suburb HH, which is relatively close to the City BB CBD, and she has been residing with the children there since then. The father has remained living in the City CC region (Suburb JJ) in a rental property of his own. Each of the parties has been on a formal lease that has now expired and each of them is renting month-to-month.
The mother continues working as a professional for the GG Organisation where she works four days per work or a 0.8 employment level. The father has since transferred his employment from the FF Organisation to the KK Organisation where he is again working in a professional role. He started in that role in 2022 and was promoted in late 2022. These are the parties’ current work roles. The father, like the mother, also works on a 0.8 basis. Like the mother, much of his work is undertaken from home although, in the father’s case, he has to periodically apply to continue working from home to continue to receive that approval.
THE TRIAL / MATERIAL RELIED UPON BY THE PARTIES
The matter proceeded to trial before me this week on Monday and Tuesday, 15 and 16 May. At the hearing, Ms Mahony of Counsel appeared on behalf of the applicant mother and Mr Guyder of Counsel appeared on behalf of the respondent father.
The mother read and relied upon the following documents: Case Outline document filed 12 May 2023; Initiating Application filed 25 October 2022 (although that has effectively been superseded by exhibits 7 and 8); the affidavit of the mother filed 1 May 2023; the affidavit of the mother’s friend Ms LL filed 26 April 2023; the affidavit of the maternal grandfather filed 26 April 2023; the affidavit of the mother’s friend Ms MM filed 26 April 2023; the affidavit of the mother’s friend Ms NN filed 26 April 2023; and the Financial Statement of the mother filed 26 April 2023.
The father read and relied upon the following documents: Case Outline document filed 15 May 2023; Amended Response filed 20 January 2023 (although that has since been superseded by exhibits 7 and 8); the father’s affidavit filed 26 April 2023; and the financial statement of the father filed 21 May 2023.
The parties tendered various documents as exhibits in the proceeding. Perhaps most significant is the Family Report of Dr Z of 16 November 2022 which was marked as exhibit 1. There are various other documents that were tendered as exhibits and I will refer to these as relevant.
I also had the benefit of seeing both the mother and the father give their evidence in cross‑examination and I have already observed that they are two very decent and, in my view, very honest people who just have different views and different recollections about various events. I also had the benefit of hearing oral evidence from Dr Z as well as oral evidence from the maternal grandfather, Ms NN and Ms MM. Ms LL was not ultimately required for cross‑examination.
THE LAW
These are parenting proceedings which arise pursuant to the provisions of Part VII of the Family Law Act1975 (“the Act”).
There are a number of key objects and principles which underpin the operation of Part VII. These are to be found in section 60B of the Act. I do not propose to re-state them, save that I would make the observation that, but for the court needing to determine the locality of where the parents undertake an equal time arrangement, these parents have otherwise been able to agree on all parenting aspects concerning the children and each of them has actively supported the other parent’s role in the children’s life. In my view, these parents have more than adequately met the aspirational goals set out for parents in section 60B of the Act, which is to their enormous credit, both of them.
When deciding whether or not to make a particular parenting order, the children’s “best interests” must be regarded as the paramount consideration: sections 60CA and 65AA. In arriving at a best interests determination, the Act prescribes mandatory considerations in section 60CC. There are two primary considerations in section 60CC(2)(a) and 60CC(2)(b). There are 14 further “additional considerations” prescribed in section 60CC(3)(a) through to section 60CC(3)(m), the last such provision being a “catch-all” designed to accommodate the facts of each individual case and family that comes before the court.
Section 61B of the Act defined parental responsibility as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” Section 65DAC of the Act obliges parents who share parental responsibility to consult with each other about major long-term issues and to make a genuine effort to come to a joint decision.
Section 61DA of the Act imports a rebuttable statutory presumption that, when making a parenting order for children, it would be in the children’s best interests for the parents to be allocated equal shared parental responsibility. The making of such an order triggers the statutory pathway set out in section 65DAA of the Act. Essentially, section 65DAA requires that the court consider as the first option making an equal time order - that is, an order for the children to spend time on an equal basis with each parent - provided such an order is in the children’s best interests and reasonably practicable.
Notably in this case, the parents both agree to an order for equal shared parental responsibility, which I am comfortably satisfied is the appropriate order to make here, particularly given the generally very amicable and workable arrangements the parties have been able to implement both during the relationship and post-separation.
Both parties also agree that there ought to be an equal time order. That is to say, each of the parents contends, or perhaps more accurately “concedes”, that it would be “reasonably practicable” for that parent, either in the mother’s case to remain living in the Region C, or in the father’s case to move to the City B region. “Reasonable practicability” is a jurisdictional fact: see the decision of the High Court of Australian in MRR v GR (2010) FLC 93-424.
Relocation cases themselves can pose particular and complex issues. In Zahawi & Rayne [2016] FamCAFC 90, the Full Court (comprising the late Thackray J, Murphy and Austin JJ) made the following observations about relocation cases:
47.All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U & U:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
48.“Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
I do observe here however, that given that the mother will not leave the Region C unless the children can go with her and given that the father will move to City B in the event that the children are permitted to leave with the mother, that some of these issues fall away. That is to say, the parents will be implementing an equal time arrangement although the locality where it occurs remains to be determined.
I should also add that, as was set out by the Full Court in Adamson & Adamson (2014) FLC 92-622, it follows from the decisions of the High Court in AMS & AIF (1999) 199 CLR 160 and in U & U (2002) 211 CLR 238 that in parenting proceedings there is no requirement for a parent to demonstrate “compelling reasons” to live where the parent chooses to live - be that a proposed new location or, axiomatically, in their current place of residence. The right of a parent to effectively live where he or she wants to live and the freedom of mobility of that parent only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference, and then the interference is legitimate only to the extent necessary to avoid such adverse effects.
In U & U (supra), the High Court also held that this court is not strictly bound by the competing parenting proposals of each party. Subject to each party being given procedural fairness, the court can craft different orders, if required, to meet the best interests of the children in any given case. This is perhaps academic in the present case however, where the parties have a comprehensive agreement in terms of what should be the orders made, depending on the court’s assessment of where the equal time arrangement should be implemented.

To avoid doubt, I should also be clear in saying that although each party set out their proposed orders by way of agreement in the event that that party is unsuccessful, I do not regard such agreement as a concession as to the appropriate outcome, nor as a proposal by that party. Each party clearly wants the children to live in the location that they have respectively nominated.
Before considering the best interest considerations in this case, I would make one last observation. That is to say, relocation cases, or cases in which, as here, the court has to determine where the equal time parenting arrangement should be implemented, are inevitably discretionary decisions upon which judges can reasonably come to disagreement based on the same evidence. As I said to the parties during the course of the hearing, there is an inevitable element of discretion in cases such as this and each case inevitably turns on its own facts and on the individualised exercise of discretion by reference to those facts and to the applicable law.
Against that background, then, I propose to specifically address the best interests considerations in section 60CC.
BEST INTERESTS
The first primary consideration in section 60CC(2)(a) is the benefit to the children of having a meaningful relationship with both of the children’s parents. There is nothing to distinguish between the parties’ proposals in this respect as each proposes an equal time regime regardless of location.
Section 60CC(2)(b) addresses the need to protect the child from physical or psychological harm, from being subjected or exposed to abuse, neglect or family violence. In this case, no relevant issue arises.
In terms of the additional considerations, the children are too young to express any particular view for the purposes of section 60CC(3)(a).
In terms of the parents’ involvement in the children’s lives, each parent has maximised their opportunity to participate in decisions about major long-term issues and to spend time and communicate with the children.
Each of the parents has also properly financially supported the children and neither parent complains about the other in that respect.
The parties will incur some difficulty, each of them, in terms of their living arrangement in the event that the court were to select one location over the other. But given that the parties have agreed that they will live in close proximity to each other, I consider that the practical difficulties and expenses associated with the parents spending time with the children have essentially been taken off the table for the purposes of this hearing. The parties will make it work.
There are no Aboriginality or Torres Strait Islander cultural issues in this case.
There are no issues related to family violence.
There are no submissions made in relation to making the order that is least likely to lead to the institution of further proceedings.
In terms of the children themselves, they are both relatively young. X is an outgoing, well‑settled boy who appears to be rather sporty from what I have read. His younger brother, Y, is less outgoing and at this stage perhaps more closely bonded to his mother.
I should say that I don’t propose to further address subsection 60CC(3)(i) - the attitude to the child and to the responsibilities of parenthood - because, given what I have already observed, it would be fair to say that each of these parents has an exemplary attitude in that respect.
The real issues in this case turn on just a few of the additional considerations to which I will now turn and, in particular, section 60CC(3)(b), section 60CC(3)(d), section 60CC(3)(f) and section 60CC(3)(m). In a sense, they are all independent but also interrelated.
Section 60CC(3)(b) requires the court to consider the nature of the relationship of the child with each parent and with any other persons, including other grandparents or relatives of the child. I will begin with that.
It is common ground that the mother has no family in the City B region, although she does have a significant friendship group who she describes as her “urban family”, some of whom have children. No doubt there are some budding relationships in this respect for these children, however, the far more established relationships, at least at this stage, relate to the father’s paternal extended family.
As I indicated earlier, they all live in the Region C area. The children have several cousins. Each Friday night, the father and the boys have dinner with the father’s brother Mr OO and his two children, PP aged two, and QQ aged under six months old. They usually have takeaway. They have a good time together and X in particular enjoys playing with PP and often guides Y and PP in their games.
On a Saturday morning, the boys and the father go walking or bike-riding to his parents’ home, being the paternal grandparents, and they have breakfast with them. I accept the father’s evidence that the boys have a very close relationship with the paternal grandmother who knits them garments in the winter and that she also has a toy collection that the boys enjoy playing with.
Each alternate Saturday, they usually have lunch with another one of the father’s siblings so that the boys can spend time with their other cousins.
I accept the father’s evidence that his family is big on birthday celebrations and that the boys usually attend birthday parties with him and enjoy playing with their cousins. Apparently, there are several family birthdays each year.
The paternal grandmother and the father’s siblings are able to collect the children from school or daycare if required and have been able and willing to provide the father with support in caring for the children. The father expresses the concern that, if the children are permitted to relocate to City B with the mother, they will lose the benefit of this close and loving relationship. This is a legitimate concern on his part and would be a loss for the children. I do, however, note that it is common ground in this case that the parents, much to their credit, agree that they have been an excellent parenting team. That is to say, usually the father would rely on the mother to help out in the event that he needed some assistance with the children rather than relying on the extended paternal family, and the mother is the same.
It is primarily these two parents who have done the overwhelming bulk of the caring for these children. Nonetheless, the paternal family relationships are significant relationships for the children and, if the children were to relocate to City B, there would be a concomitant loss or more accurately diminution, of those relationships.
The father’s family did visit him with some regularity when he lived in City B however, and it would also be possible for the father to be able to take the children to spend time with the extended paternal family on occasional weekends as well as during school holiday periods, which will be provided for in the orders.
This particular factor, looked at individually, favours the children remaining in the Region C.
Subsections 60CC(3)(d), 60CC(3)(f) and 60CC(3)(m) are, in a sense, linked. Subsection 60CC(3)(d) deals with the likely effect of any changes in the child’s circumstances, including the likely effect of their separation from either parent or any other person with whom they have been living. Subsection 60CC(3)(f) deals with the capacity of each of the child’s parents and of any other person including any grandparent or other relative, to provide for the needs of the children, including emotional and intellectual needs. Subsection 60CC(3)(m) refers to any other fact or circumstance that the court thinks is relevant.
As these remaining considerations intersect and are to some extent overlapping and linked, I propose to deal with them collectively.
The mother’s case in a nutshell is that if she has to remain living in the Region C, she will be at an enormous disadvantage which will, in turn, adversely impact her parenting capacity for the children and, in turn, will impact the children adversely.
The mother has a longstanding history, as I have indicated, of anxiety and other mental health difficulties. But more recently, she has been diagnosed as being on the Autistic Spectrum. She has also been diagnosed with Attention Deficit Hyperactivity Disorder for which she now takes medication.
In the course of the mother’s life, she has had some difficulty in meeting people and developing her social skills. She is a very intelligent woman but, clearly, it has been a longstanding problem for her. Until recently, she did not have a “label” for it - but when the Autism label was given to her, it all made sense to her. (There had been a previous suggestion that she had Bipolar Disorder given some of the mood swings she had experienced but this apparently, according to her treating psychiatrist, is a common mis-diagnosis for adults with ADHD.)
In terms of the mother’s Autism, she, through her treating psychologist Ms RR, has lodged an application with the NDIS for some specific funding support. The mother’s NDIS application is annexed to her affidavit and was prepared by Ms RR. It confirms that the mother has a diagnosis of Autism Spectrum Disorder as well as ADHD, both of which have been lifelong impairments. There are various supports requested for the mother as set out in that application, consisting of the following:
·To improve functional capacity, it is recommended or requested that she obtain fortnightly psychology followed by monthly psychology support; fortnightly occupational therapy support followed by monthly occupational therapy support; social and self-care group programs, such as mindfulness courses, social connection groups.
·It is also recommended that the mother have fortnightly cleaning and lawnmowing/yard maintenance provided for her around the home as well as support for muscle aches due to driving, such as physiotherapy or acupuncture.
·It is also recommended that the mother have prescription sunglasses to alleviate pain from bright daylight when driving. This is because, due to her Autism, she has particular sensory sensitivity.
The mother’s psychology services are recommended in order to help her “manage anxiety, social exhaustion and executive functioning issues that impact on communication. Also, psychology will assist [Ms Halsey] with education about social functioning for Autistic people and non-Autistic people. [Ms Halsey] will learn ways of communicating her needs rather than constantly masking, which leads to exhaustion and Autistic burnout which then impacts on every other part of her life.” The psychology support is requested in order to help “improve confidence and understanding in social situations” and attendance at sensory-friendly group activities is also requested where there is a possibility of making friends. It is suggested that the mother attend ‘SS Program’ workshops, or yoga or Pilates classes.
There are various other requests for support also included in the mother’s NDIS application. These include a meal delivery plan because the mother struggles with the overloading sensory experience of attending the shops, particularly after working, as well as assistance with nutritional guidance and support. The purpose of the fortnightly occupational therapy is to assist with executive functioning challenges and planning, and with fortnightly housecleaning and lawn maintenance.
I should say that the mother’s application is as yet undetermined.
Ms RR has prepared a detailed report which assesses the mother’s Autism and which is also annexed to the mother’s affidavit. Her report records:
Autism Spectrum Disorder.
A.Persistent deficits in social communication and social interaction across multiple contexts as manifested by the following currently or by history (examples are illustrative not exhaustive, see text):
1.Deficits in social/emotional reciprocity ranging, for example, from abnormal social approach and failure to normal back-and-forth conversation; to reduced sharing of interests, emotions or affect, to failure to initiate or respond to social interactions.
2.Deficits in nonverbal communicative behaviours used for social interaction ranging, for example, from poorly integrated verbal and non-verbal communication; to abnormalities in eye contact and body language, or deficits in understanding and use of gestures; to a total lack of facial expressions and non-verbal communication.
3.Deficits in developing, maintaining and understanding relationships ranging, for example, from difficulties adjusting behaviour to suit various social contexts; to difficulties in sharing imaginative play or in making friends; to absence of interest in peers.
B.       Restrictive repetitive patterns of behaviour, interests or activities as manifested by at least two of the following, currently or by history (examples are illustrative, not exhaustive):
1.        Stereotyped or repetitive motor movements, use of objects or speech…
2.Insistence on sameness, inflexible adherence to routines or ritualised patterns or verbal/non-verbal behaviour, (eg, extreme distress at small changes, difficulties with transitions, rigid thinking patterns, greeting rituals, need to take same route or eat food every day).
3.Highly restricted, fixated interests that are abnormal in intensity or focus, (eg, strong attachment to or preoccupation with unusual objects, excessively circumscribed or perseverative interest).
4.Hyper- or hyporeactivity to sensory import or unusual interest in sensory aspects of the environment, (eg, apparent indifference to pain/temperature, adverse responses to specific sounds or textures, excessive smelling or touching of objects, visual fascination with lights or movement).
C.       Symptoms must be present in the early developmental period but may not become fully manifest until social demands exceed limited capacities or may be masked by learned strategies in later life.
D.       Symptoms cause clinically significant impairment in social, occupational or other important areas of current functioning.
E.       These disturbances are not better explained by intellectual disability (Intellectual Developmental Disorder) or global developmental delay. Intellectual Disability and Autism Spectrum Disorder frequently co-occur to make comorbid diagnoses of Autism Spectrum Disorder and intellectual disability, social communication should be below that expected for general developmental level.
Challenges and Support Needs
Mobility
Although driving her son to daycare is essential, this involves a 30-minute drive twice per day. For [Ms Halsey], driving leads to burnout and head and shoulder aches. This is due to sensory overload (brightness of daylight), executive functioning challenges (intense focus and shifting attention) and proprioception issues. These challenges cause stress for [Ms Halsey] and, as a result, she has had a number of minor accidents and penalty notices.
Communication
[Ms Halsey] struggles with expressive communication in all social settings, particularly in the workplace. She experiences social exhaustion and sensory overload after being around people. As a result of “masking,” [Ms Halsey] has been unable to express her own needs in professional and personal relationships.
Socialising
[Ms Halsey] struggles with making and keeping friends and relationships as well as with managing her emotions. Due to financial stress, [Ms Halsey] does not have a budget for social activities to meet other adults or to do relaxing activities. [Ms Halsey’s] established family and friends are interstate which has led to isolation. Also, as mentioned above, [Ms Halsey] experiences social exhaustion after being around people in social situations and requires recovery time from socialising.
Learning
[Ms Halsey] struggles with learning new skills and remembering information in the workplace, particularly when under stress. [Ms Halsey] is interested to educate herself further about how Autistic people learn so that she can pass this information on to her manager. [Ms Halsey’s] learning struggles are due to challenges with executive functioning. She requires extra time and extra information to break down, understand and retain new information. She also struggles to learn with auditory input only and needs additional inputs, such as visual and tactile, to assist with learning.
Self-Care
[Ms Halsey’s] executive functioning challenges means that she finds shopping, cooking and meal planning challenging and the energy required to do it detracts significantly from her capacity to function in the workplace. [Ms Halsey] experiences strong sensory overload in supermarkets and often exclusively uses online orders when she can afford it. When overwhelmed and burnt out, she also struggles to meet her own needs and finds it difficult to regulate her emotions.
Self-Management
[Ms Halsey] experiences significant challenges with daily tasks and making decisions. [Ms Halsey] lives in a house prone to ant infestation so regular cleaning is a necessity and, with small children, this is exhausting for her. The lawn needs regular mowing to prevent weeds overgrowing, which prevents outdoor play with her children. [Ms Halsey] is frequently overwhelmed by parenting challenges and money stress.
[Ms Halsey] struggles to prevent clutter from accumulating and implementing effective house organisation systems. Budgeting is an ongoing challenge and [Ms Halsey] spends the majority of each week without funds available, relying on the food shopping done earlier in the pay cycle to be sufficient. [Ms Halsey] prioritises feeding her children and limits her own food intake. [Ms Halsey] is regularly arranging later payments on bills, cancelling non-essential appointments like the dentist or car repairs.
Conclusion and Recommendations
[Ms Halsey] meets DSM criteria for Autism Spectrum Disorder. It is clear that she has struggled with her daily functioning over many years as a result of undiagnosed and now diagnosed Autism. She struggles in all life domains and requires ongoing support. [Ms Halsey] struggles in the following situations:
•Work - easily experiencing autistic burnout due to variety of factors associated with autism (social exhaustion, social expectation, sensory overload, executive functioning).
•Sensory overload and sensitivities - this is possible in any public setting for [Ms Halsey] and, as a result, she often avoids going out.
•Emotion regulation - when overwhelmed and burnt out, [Ms Halsey] struggles to manage anxiety and low mood.
•Social situations - [Ms Halsey] experiences social anxiety due to a variety of factors associated with autism which leads to social exhaustion and withdrawal which is required for her recovery. [Ms Halsey] is also socially isolated.
•Daily life tasks and planning: due to stress, burnout, executive functioning issues and anxiety about finances.
[Ms Halsey] would benefit from applying for NDIS funding. [Ms Halsey] would greatly benefit from support for improved functioning through psychology, occupational therapy, dietician, social access programs and home help such as cleaning and yard maintenance. This intensive and substantial support will allow [Ms Halsey] to continue to work and also manage her competing priorities which are her children, self-care and her home. Additionally, support through NDIS will allow her to achieve her personal goals in relation to mental health, community and social participation, communication and life administration tasks. Please contact me if you have any further questions about this report.
To put it plainly, the mother experiences a genuine, recognised disability in the form of Autism. She may or may not obtain the NDIS services that have been requested on her behalf by her psychologist but, on any view, she experiences a disability which impacts her.

Against that background, her evidence of her experience in terms of adjusting to life in the Region C makes perfect sense. It has been a real and significant challenge for her. Although she has a capacity to make friends, as is evident from the friends she has made in the City B region as set out in her affidavit, it is not something that comes easy to her and it is something that requires a degree of support.
In this respect, the mother’s employment circumstances are also relevant. The mother has a very specialised skillset. Effectively she has worked as a professional in numerous roles. I accept her evidence that these are the sorts of positions that were sought-after in City B, but are far less relevant to employment in the City BB and City CC region.
The mother has, as I have indicated, been able to obtain employment with the GG Organisation, as I have indicated earlier. She has worked there since mid-2022 but her role is based in Sydney. The mother has worked most of the time from home and has found that very difficult, and I accept her evidence that she has struggled emotionally in working from home.
As Dr Z indicated, some people who are Autistic benefit from being relieved of the social pressure of interacting with people at work whereas others, and the mother is one of these people who fall into this category, enormously benefit from having some structure and some social interaction in the workplace setting. The mother, I accept, has found her professional role in City B “soothing” in that respect and it was very supportive of her.
The mother’s current contract with the GG Organisation commenced in mid-2022 and ends in 2023. There is no guarantee that her employment will continue. The mother annexes to her affidavit an email from her employer which states that:
Dear [Ms Halsey],
As we have discussed the remote working arrangement has not been as successful as we hoped. [Professional roles] are fast-paced and challenging, involving close work with small teams in a highly agile environment. It is very difficult to perform these roles from home.
We acknowledge your efforts to make the remote working arrangement a success. However, at this stage, we are unable to commit to permanency past the end of your contract in 2023.
The mother said that she has since had some further discussions with her manager, but these were not positive discussions in terms of her future capacity to continue working in this role.
The mother’s evidence is that she has had to commute from anywhere between two (2) and four (4) hours (depending on traffic and the like) to and from her employer in Sydney for training, and meetings up to once week. She has had to pay for accommodation, food, fuel, parking, and tolls or train fares, out of her own pocket. She said her physical presence has often been required there, which she has found financially unsustainable, physically draining and emotionally taxing. Having regard to her Autism, and to the matters set out in Ms RR’s report and NDIS application, I accept that this is so.
The mother also says that when she is at home she finds that the isolation greatly decreases her productivity. She had particular difficulties as a result of extreme weather events in the middle of 2022, which made it impossible for the mother to meet her contracted hours, and she was depriving herself of sleep in an attempt to catch up. I accept the mother’s evidence that being a very “driven” person with a keen sense of responsibility to her employer, that she has emotionally struggled with feeling that she cannot do what is expected of her.
Moreover, it is somewhat troubling that her contract may not be extended this year. There are absolutely no guarantees in this respect. That is to say, in a month the mother may be an unemployed person - with a disability - and in a very disadvantaged situation. The mother certainly could apply for, and perhaps obtain, other employment in the City BB region, and, indeed, her counsel conceded that the mother would be able to get a job somewhere, but not one which matched her skill set. She would just have to “make it work”. Or to put it as the mother put it in the witness box, “I will survive but I will not thrive.”
The mother has applied for various roles which are commensurate with her specialised skills. She applied for, and was successful interviewing for various professional roles, and as well as successfully interviewing for a role as a professional at a large organisation. However, she did not meet the requirements of either of those employers because she did not live within a commuting distance of the Sydney CBD offices.
She said in her evidence, and I accept, that she had contemplated asking the father to relocate to Sydney, but this seems not to have been an option as the father did not want to live in such a large city. And I do not criticise him for that. I just make the point that these were not jobs that were really available to the mother.
The mother has applied for New South Wales-based roles at TT Company, UU Organisation, and VV Organisation. In 2022, she received an interview request after applying for a role as a professional with WW Company, but she declined the interview when they told her that the position was based in either Sydney or City B and could not be performed remotely.
I accept the mother’s evidence that a talent acquisition consultant contacted her in 2022 advising that they had seen her profile on ‘Linked In’ and found it suitable for a professional role with a large client in City B. However, when the mother told this person that she lived in City BB, she did not hear back from them.
The mother has since signed up with three recruitment agencies: XX Company, YY Company and ZZ Company, and she has been advised they have no available positions in the City BB region that suit her at this time.
Fully remote work roles are, on the mother’s evidence, decreasingly available, but, in any event, they do not serve her work style or her mental health for the reasons I have indicated earlier. That is to say, the mother really benefits from having a physical connection to work. I accept the mother’s evidence that her specific skillset is far less relevant and are able to be commoditised in an employment market locally than in City B.
The mother also has other employment possibilities in City B, which are referred to in her affidavit, and which she is very eager to pursue.
The first option that is available to her is to work as a professional at the AB organisation. The second and more lucrative and exciting possibility is to be promoted to a managerial level at the AC Organisation. She has received an oral offer in that respect, which she understands is being held open for her, but it is unclear for how long. This is a job which, in particular, would give her an opportunity to work in a small team. It would be based in City B and would involve direct supervision of at least two staff members. She is certainly keen to take that position if she can.
By way of comparison, the mother’s current salary at the GG Organisation, until 30 June 2023, is approximately $120,000 plus superannuation. Because she works a 0.8 role, she receives an income of approximately $99,000. The role which is available to her pays approximately $100,000, but is more generous with superannuation, the overall package being approximately $120,000, which is not too dissimilar from her current income.
The position with the AC Organisation involves a range of salary from approximately $110,000 to approximately $124,000 plus superannuation with a total remuneration package of between approximately $129,000 and $140,000. The mother is optimistic that she would be able to start at the top of that employment band, given her work history, and that in time she would have the possibility of promotion to a senior level, which would increase her salary by approximately $30,000 gross. In due course, she would hope that this is a viable career path towards a role in the public service.
That is to say, the mother’s work opportunities in City B are significant and they are real. Also relevant for the mother, and something upon which she personally places great faith, is that the public service actively and consciously strives to embrace neuro-divergent employees, as set out in their website and also in the organisation’s report from 2022.
The mother considers, not unreasonably, that City B offers her a future in a way that City BB does not. Her experience in seeking employment roles in City BB has been unsuccessful, save for the initial role she took when she first moved here in 2019, which was ultimately disbanded, and which she did not enjoy.
Effectively, the mother’s argument is that as a person with Autism with a very specialised skillset, she ought to be given the opportunity to return to the City B region where she feels supported by her many friends, and where she can be the best mother that she can be to these children. She considers that her future in City BB is potentially going to be “stunted”, and as I indicated earlier, that it would be a case of “surviving rather than thriving”.
Dr Z considered this matter, and, indeed, all other relevant matters in her comprehensive Family Report. She has set out the relevant history as it was recounted to her, and she analysed the advantages and disadvantages to the children consequent upon each party’s proposal being accepted.
Dr Z indicated that she was concerned for the impact on the children of having an absent father if they relocated, and the impact on the mother and her capacity to manage her mental health appropriately if not well-supported.
The former risk has been taken out of the equation, because the father will be following the mother. The latter risk, ie. the potential impact on the mother and the capacity to manage her mental health appropriately, are the “live” issues. And the mother places reliance upon them in support of her argument that she should be able to live in the City B region.
The mother told Dr Z that becoming unemployed, which is presently on the cards for her at this time, worried her greatly as her skillset is highly specialised, and not easily transferrable to other employment opportunities.
She also told Dr Z about her mental health issues being triggered, and that she had been lonely for a very long time and feeling bereft of support.
Dr Z considered each of the different scenarios. Relevantly, the two scenarios that remain “live” are the parents both living in the Region C, or the parents both living in the City B region. Dr Z considered that if both parents lived in City B that the current parenting arrangement would be able to continue: evidenced by exhibit 8. Dr Z considered that the current parenting arrangement was working for the parents and children, and that it prioritised the children’s need, and, therefore, any residential area that facilitated continuation of equal time was a positive outcome for the children. However, Dr Z considered that as the children would lose the benefit of the father’s extended family if they moved to City B, that it would be in her words “a poor outcome for the children.”
In terms of both parents living in the Region C, and the current care arrangements continuing, Dr Z noted that the parties could implement the shared care arrangement, which would work in the children’s best interests. She considered that this would be the better outcome for the children than moving to City B.
However, there are some caveats to what Dr Z said. In particular, she said that, although the mother presented as highly capable and child focussed and that she would continue to meet the children’s needs:
Hopefully she will also begin to make friends and create the lifestyle, including her work/family balance that she seeks. However, this remains unknown. If the mother is unable to create the lifestyle that she desires, and is unsuccessful in developing an appropriate support network, then her mental health may decline, and this could have a detrimental impact on her parenting capacity.
As Dr Z noted at paragraph 123 of her report:
There are, however, some concerns relating to the mother’s mental health. She has described a history of depression and anxiety, and a recent episode of acute depression and heightened behaviour. The possibility of bi-polar 2 disorder is being explored.
[I interpose here that she has since been diagnosed with autism, as indicated, as well as ADHD.]
Returning to the Family Report, Dr Z said:
It is it noted that the mother reported a recent period where she was crying continuously and could not get out of bed. It is likely that this impacted her parenting capacity and her ability to prioritise the children’s needs. However, when mental health is managed well and is appropriately supported, for example, by accessing professional interventions, medication when needed, a strong and well-developed support network, appropriate self-care and healthy lifestyle choices, such as appropriate nutrition and exercise and adequate sleep, mental health can be managed well. Well managed mental health problems are not a barrier to adequate and appropriate parenting. It was the view of the report writer that the mother was an intelligent and insightful adult who is child focussed. She has, in the past, identified her mental health needs appropriately and accessed support when needed. She is currently engaging in these supports again, and she is aware of the importance of self-care and strong support.
Dr Z reiterated those views in the witness box when she said that:
There are enormous advantages to the children in having all of their family members available in the local area, and that the children gained a sense of identity from those relationships which was to their advantage.
With respect to the NDIS application, Dr Z also considered that there were appropriate clinics and other supports available to the mother in the City BB region.
In short, the mother’s diagnosis did not impact Dr Z’s recommendation, namely that the loss of the paternal extended family outweighed the benefit of the parents moving from the City BB region. She did not think that the mother remaining in City BB would trigger a mental health episode that would not be able to be well-managed.
Having said that, Dr Z also agreed with Ms Mahony in cross-examination that an identified Autism issues are social and communication deficits, and that people with Autism, such as the mother, do regularly have difficulty building and maintaining social relationships, and can experience high anxiety and stress especially when experiencing difficulties. They can have higher rates of depression and higher levels of anxiety.
Dr Z accepted that maximising the mother’s functioning as a parent, and her opportunity to mix with people, would help maximise her parenting capacity. She accepted that the mother’s employment role in terms of supporting neurodiversity would definitely be of benefit to the mother, this being City B-based employment with the public service, and that there would be flow-on benefits for the children. That said, Dr Z was not aware of the details of the neurodiversity support programs per se.
Dr Z did say in cross-examination that:
If the mother was unsuccessful in obtaining appropriately supported employment in the [City BB] region, and she was under financial stress, that this would definitely impact her, as she is vulnerable, and that such stressors may continue and undermine her parenting capacity.
But Dr Z still considered that the mother could access support and counselling and that she would seek appropriate support.
Dr Z had also said in her Family Report that the mother had a well-developed and strong support network in City B, with a positive workplace environment to return to, and that her desire to relocate to City B was not made lightly but had been given significant thought. She observed that the relocation was extremely important to the mother and had been reinforced by the mother’s mental health decline in the Region C. Dr Z said that there was no doubt:
that a well-supported and mentally well mother for the children is in their best interests, and that the children’s long-term development and wellbeing is associated with their parents’ wellbeing and security. If the mother is prevented from proceeding with the relocation to [City B], it will cause her a great deal of distress, and she will likely need.....ongoing support in terms of counselling to assist her adjust and accept this restraint.
Dr Z considered that, from a child-focussed point of view, the issue really was how well or poorly the mother would adjust to remaining in City BB. Dr Z clearly considered that an optimistic approach, ie. a glass “half full” rather than a glass “half empty” approach, was essential for the mother. In this respect there was one positive and optimistic tone from the mother. Having recently moved to Suburb HH, the mother told Dr Z that she had picked an area that was closer to parks and bushwalking areas. She had looked at many schools, and found O School, where X is now enrolled, to be the most likely to meet the family’s needs. She said that she rented a home in walking distance to the school, and that the walk to school was adjacent to a public reserve. She said that she was trying to find a compromise to begin to create a life for the children in City BB, if they were unable to relocate. She said she felt that there was a sense of community in the area, and she was hopeful that she would be able to make friends and build a support network if required to do so. She said that since moving to Suburb HH, she had felt, for the first time, that remaining in City BB could possibly work.
These Family Report interviews took place in November of 2022, and I did not detect the same level of optimism from the mother at trial, nor indeed in her affidavit.
In short, the mother is doing the best she can in what I consider are circumstances of real difficulty and real sacrifice for her.
Mr Guyder for the father understandably contended that the mother would be able to cope, that she would be able to find appropriate employment in the Region C, and that she would seek help in respect of her mental health.
Mr Guyder also argued that the father would himself be unhappy and disappointed if he had to relocate to City B. To begin with, he would be stepping back from all of his extended family, which I accept, is a significant detriment. He would also have no particular supports of his own there although it is not suggested that he has the same social deficits the mother has. Quite the contrary, the father says that he is in good mental health and there is no real evidence to suggest otherwise.
The mother complains about the father having some anger management issues during the relationship, but this was also in the context of the relationship breaking down. And to a very large extent, the father denies these things, they were not put to him specifically, and I am inclined to the view that the father has no mental health issue whatsoever. The mother’s commentary that the father felt unhappy in City B, I absolutely accept. Indeed, she goes as far as to say that the father expressed “contempt” for City B at one stage, which I also accept to be true. He certainly did not enjoy living in City B.
He did not like the weather. He did not like the cost and inconvenience of renting. And, in general, he was no fan of living in Region D.
The mother, very frankly, told the Family Report writer that the father had not enjoyed living in City B. And there is no question about that. He did not like it there. He did not have any particular support network.
Mr Guyder, therefore, contended that, in short, there would be no negative impact on the mother’s parenting capacity if she was unable to relocate, although she may, of course, be sad. Equally, he said that the father would be sad if he “had to” relocate to City B, where he was unhappy and had no real friendships.

That is to say, Mr Guyder effectively sought to submit that the parties were on a more or less equal footing in terms of their respective “sadness” and difficulties in parenting if either of them had to do so in the location contended for by the other parent.
Ms Mahony, for the mother, said that it was a much more nuanced issue. That is to say, that there was positive evidence of the mother’s functioning as a parent being impaired when her mental health was under stress, as evidenced by her laying in bed for days when she was depressed, as well as the admitted history of mental health difficulties, against the backdrop of her Autism diagnosis.
Ms Mahony submitted that compromised parenting in the respective locations was the key difference between these two parents, and that although the mother would seek support and would do the best she could to help herself to be a better parent, that she would still experience great disadvantages and issues in Region C. She submitted that the mother’s employment prospects - indeed, vastly better employment prospects - in City B, would give her a future, and would give her a supported employment role which would provide a much more stable base for her, together with her friendship and other supports that she has in the City B region.
Ms Mahony thus contended that the overall change in circumstances for the children in moving to City B would be for the better. That is to say, the mother could parent optimally, and this would outweigh the disadvantage of the children losing their regular - or as regular - interaction with the paternal family although it was conceded that the father would, at least initially, be unhappy about living in City B.
Mr Guyder contended that the mother was looking at City B through “rose coloured glasses”. She has not lived there for four years. Some of the friends that she relied upon for support have children of their own and will not now be as available as they might have been back then. The mother had also complained, at the time she left City B back in 2019, about there being a lack of support there.
The mother was cross-examined about that. Her evidence was that, in the email she sent to the father expressing those concerns about City B, that what she said was very much influenced by the father. At that time, amongst other things, the mother had expressed to the father that City B people were not really “their people”, and so the loss (in moving away) would not be great. In that email she did however also say that she was concerned “What if [City BB] people are even less our people than [City B] people?”
Having seen and heard the mother give evidence, I am satisfied that whatever her view was of City B people at that time, she feels that City BB people are “less their people”.
The mother also had said to the father, in that 2019 email, that she liked her professional work but not the AB Organisation, and long term she did not see herself doing it “because you have to be a workaholic to get anywhere”. The mother said that this was the father, effectively, projecting his views onto her. That is to say, he thought that you had to be, by his definition, a “workaholic”. The mother’s evidence is, perhaps, a little bit of revising history, but, equally, I do not know that being a “workaholic” is what the mother ever was in her role. I do not understand that she was working very long hours, and, indeed, she intends to go back to a 0.8 role, and had worked in a 0.8 role in City B previously.
So although the mother may, perhaps, be unintentionally whitewashing things to some extent, in relation to her experience in City B, equally I do not genuinely think, looking at the evidence, that such a work role involves being a “workaholic” by any stretch of the imagination.
In the same email, the mother also talked about the important extended paternal family connections, as well as to not wanting to do long commuting - which is in a sense, what she is condemned to currently doing by travelling to and from Sydney.
The mother’s email does reflect that there is an element of “rose coloured glasses” at play, but not to the extent that Mr Guyder would suggest.
The mother is more optimistic than she was when she left City B. But at the time she left City B she was also in what seems to have been a stressful, and to some extent, failing marriage.
Mr Guyder said that the father’s parenting capacity may be adversely affected if he was to live in the City B region. I do not accept that to be the case, noting his own unequivocal evidence that he has never had any mental health difficulties of his own. He has had some counselling by reason of the relationship breakdown, and he accepts that. I also note that Dr Z considered that the father would be able to adjust and create a meaningful life for himself in City B in much the same way as she thought the mother could do locally. That is, the father would also have to take a “glass half full” or optimistic approach, rather than a “glass half empty” approach.
CONCLUSION
When I weigh up all of the evidence in this case, against the backdrop of the two parents that I have, I have found this to be an extremely finely balanced case.
Certainly, there are real benefits to the children remaining in the Region C. X seems to be doing quite well here. The children see both parents regularly, and they have support from the paternal family, which cannot be underestimated. There is no doubt about any of these things.
But there are also risks of a long term and, perhaps, more sinister nature, in terms of the impacts on the mother who has a disability which is a recognised disability, in, effectively, having to make substantial career sacrifices, and, in a sense, having to experience potential real financial uncertainty in her life, including looming potential unemployment, and/or stunted career prospects.
The risks are real as well. The mother clearly has been a resilient person throughout her life. Indeed, in some ways it is quite extraordinary that she has reached the age of 37 years before being diagnosed with Autism. She obviously knew that she had difficulties. The father witnessed them for himself. But she managed to navigate her way through those, and with some challenges, to forge for herself, a number of important friendships in the City B region, as well as a budding successful career within the public service.
I might add, the father has also been very successful in terms of his own professional career. There is no question about that.
It is not a simple matter of whether a parent will be happier or unhappy in the location in question. There are other significant matters at play here, including, as I indicate, the mother’s disability, and also question marks as to the long term financial security of the mother living in the local region.
I am concerned that there may be adverse impacts on the mother’s parenting capacity in the event that she stays in Region C. Notwithstanding the assistance that she will seek in relation to her Autism, and notwithstanding the positivity and resilience she has displayed, it may not work out for her, which in turn will have a markedly negative impact on the children.
Respectfully, it is true as Justices Gummow and Callinan observed in U & U that:
The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents. Obligations, both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
In my view the mother in this case has made a lot of sacrifices.
She left City B in the first place, largely driven by the desire to keep the relationship with the father on foot, and with the specific request of her then employers that they keep her job open for 12 months.
Then when she was very keen to return to her former employer in City B she unhappily agreed to stay in the City CC area in late 2021 when the father obtained his job at the FF Organisation.
She has worked in a commuting role to and from Sydney, which has not worked well, particularly given her disability, and which is by no means guaranteed to continue in a month’s time.
At what point ought a parent to keep making sacrifices?
The father has an established career in the public service, and I have little doubt that he will much more easily be able to obtain similar employment in the City B region, though he will do so through “gritted teeth”, and perhaps with a sense of resentment about it. And I can well understand why he would much prefer to stay living in the local region with these children.
In a sense, the benefits to the children in staying are obvious, but the risks, in my view, are obvious too.
In a case where the two most important people, bar none, are these very good and very cooperative pair of parents in what is a very finely balanced case, I have come to the view that the risk of requiring the mother to stay in this area outweighs the benefit and that the mother’s relocation should be allowed.
For these reasons, I, therefore, propose to make the orders set out by the mother in exhibit 8.

I certify that the preceding one hundred and eighty-four (184) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts.
Associate:
Dated: 19 May 2023

File number(s):	CAC 2016 of 2022
Judgment of:	JUDGE BETTS
Date of judgment:	19 May 2023
Catchwords:	FAMILY LAW – Parenting – where the mother seeks to relocate with the children back to City B – where the father seeks that the children remain living in the Region C– where the mother will remain living in the Region C if she is unsuccessful – where the father will relocate to City B if he is unsuccessful – where both parents are child-focused and have agreed to implement an “equal time arrangement” whether in the Region C or in City B – where the Court considers that there may be adverse impacts on the mother’s parenting capacity in the event she stays in the Region C– mother’s relocation application successful – best interests of the children.
Legislation:	Family Law Act1975 (Cth), Part VII
Cases cited:	Adamson & Adamson (2014) FLC 92-622 AMS & AIF (1999) 199 CLR 160 MRR v GR (2010) FLC 93-424 U & U (2002) 211 CLR 238 Zahawi & Rayne [2016] FamCAFC 90
Division:	Division 2 Family Law
Number of paragraphs:	184
Date of last submission/s:	18 May 2023
Date of hearing:	15 and 16 May 2023
Place:	Newcastle
Counsel for the Applicant:	Ms Mahony
Solicitors for the Applicant:	Parker Coles Curtis
Counsel for the Respondent:	Mr Guyder
Solicitors for the Respondent:	The Family Law Co

CAC 2016 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS HALSEY Applicant
AND:	MR DARLOW Respondent

order made by:	JUDGE BETTS
DATE OF ORDER:	19 MAY 2023