Henrik & Henrik
[2025] FedCFamC2F 278
•6 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Henrik & Henrik [2025] FedCFamC2F 278
File number(s): MLC 11698 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 6 March 2025 Catchwords: FAMILY LAW – Parenting – interim hearing – section 65DAAA – change in circumstances – clarification of the law at [79] of Radecki – where both parents seek to either vary or obtain further orders – whether change of residence of one parent necessitates a change of school – whether a change of residence and change of residence is only a “small change” and does not qualify the section 65DAAA test – sufficient change of circumstances for the court to reconsider the final orders found and interim orders made for a change of the children’s school. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DAA & 65DAAA Cases cited: Licata & Buxton [2019] FCCA 3181
Radecki & Radecki [2024] FedCFamC1A 246
Re F: Litigants in Person Guidelines (2001) FLC 93 072
Rice & Asplund (1978) 6 FamLR 570
SPS & PLS (2008) FLC 93-363
Division: Division 2 Family Law Number of paragraphs: 73 Date of hearing: 11 December 2024 Place: Melbourne Counsel for the Applicant: Ms Malik Solicitor for the Applicant: Landers & Rogers The Respondent: In Person ORDERS
MLC 11698 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HENRIK
Applicant
AND: MR HENRIK
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
6 MARCH 2025
THE COURT ORDERS THAT:
School enrolment
1.Mr Henrik (‘the Father’) and Ms Henrik (‘the Mother’) do all acts and things to enrol X born in 2015 and Y born in 2018 (‘the children’) to attend primary school at C School in Suburb B for the commencement of the 2025 school year.
Section 65DAAA
2.Pursuant to section 65DAAA of the Family Law Act 1975 (Cth), the Father be and is granted leave to bring parenting order proceedings before the Court to vary the final parenting orders made by consent on 4 November 2022.
Family Dispute Resolution
3.Pursuant to Section 13C(1)(b) of the Family Law Act 1975 (Cth), the parties and their legal representatives (if any) shall attend:
(a)Part 1 of the confidential Court-based Family Dispute Resolution (FDR) Conference with a Registrar (as Family Dispute Resolution Practitioner) on a date to be fixed, with each party to attend separately at times to be advised; and
(b)Part 2 of the confidential Court-based FDR Conference on a date and at a time to be fixed but not later than seven (7) days after the date referred to in order 3(a).
4.The matter shall be referred to the Executive Director – National Registrar Operations and Practice for allocation and listing of the FDR Conference dates.
5.Any party who has not previously provided the Court with an email address must provide the preferred email address (and include details of the file name and Court file number) to …@... within 2 days of the making of these orders.
Further listing
6.The matter remains listed before Judicial Registrar Diaz on 10 February 2025.
7.Reasons for decision be and are reserved.
8.The parties are at liberty to apply to the Court for Orders relating to a 62G(2) Family Report after the Family Dispute Resolution.
AND THE COURT NOTES THAT:
A.The reasons are reserved due to the illness of the Judge (COVID).
B.The Executive Director – National Registrar Operations and Practice will notify all parties and legal practitioners on the record of the dates and times fixed for all parts of the FDR Conference.
C.The FDR Conference is an opportunity for the parties to make a genuine effort to resolve their parenting dispute in a confidential, child focussed setting. The parties are to be resolution focussed and respectful during negotiations, and to be mindful of the financial and emotional costs associated with prolonged litigation.
D.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet) any unrepresented party will not be permitted to personally cross-examine the other party/parties.
F.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
H.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
The matter of Henrik was heard before me for an interim defended hearing on 11 December 2024 during my interim week. Given the increased number of hearings I had that day, I reserved my reasons and decision with the hope of providing to the parties oral reasons the following week. The orders of 11 December 2024 noted as follows:
A.Oral reasons for judgment have been listed for delivery at 11.30 am on Wednesday 18 December 2024 via Microsoft Teams, and it is a matter for the parties whether or not they are represented by solicitors and/or counsel at the judgment delivery.
My associates subsequently sent out a Microsoft Teams link to all parties on 11 December 2024 attaching the orders that were made that day.
It was in unfortunate circumstances that I contracted COVID-19 in the days leading up to 18 December 2024 and felt too unwell that I was unable to return to Chambers to deliver oral reasons for judgment on 18 December 2024.
The hearing proceeded via Microsoft Teams on 18 December 2024, where I joined the proceedings remotely and advised the parties of the current situation. Nonetheless, and although I did not deliver ex tempore reasons, I still made orders in the matter of Henrik and reserved my reasons for decision.
These are my reasons in the matter of Henrik.
BACKGROUND
At this interim hearing, the parents of X born in 2015 (‘X’) and Y born in 2018 (‘Y’) (collectively referred to as ‘the children’) seek the Court’s assistance for the children’s schooling arrangements for the year of 2025.
The parties commenced a relationship in 2009 while they both were living in the United States of America. The parties commenced cohabitation in or around November 2010 and were married in 2014 in Australia. Although married in Australia, the parties moved back to the United States for a time until permanently relocating back to Australia in 2019. The parties separated under the one roof in or around July 2020 and the respondent father, Mr Henrik (‘the Father’), moved out into his own residence in early 2021. The parties have not yet divorced.
At the time of the interim hearing before me, the applicant mother, Ms Henrik (‘the Mother’), was a qualified professional in the United States, however, was unable to work in Australia as she has not undertaken the further requisite training. The Father was unemployed, however, he told me from the Bar table that he is actively searching for new employment.
The Mother currently resides in Suburb D and the Father continues to reside in Suburb E (as he has done so since 2021).
Orders sought
Through the assistance of the case outlines of both parties, I was able to have a clear understanding of what each party sought prior to the hearing. The Mother sought the following orders.
1.The parties do all acts and things to enrol [X] born [in] 2015 and [Y] born [in] 2018 (the children) to attend primary school at [C School] in [Suburb B] for the commencement of the 2025 school year or earlier if agreed between the parties in writing.
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2.That the determination of the threshold issue pursuant to section 65DAAA of the Family Law Act 1975 (Cth) be listed for Hearing on a date convenient to This Honourable Court in respect of the Father's application for sole parental responsibility for education and a variation to the parenting arrangements contained in the Final Orders dated 4 November 2022.
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3. The Father pay the Mother's costs of and incidental to these proceedings.
4.Such further and other interim order or orders as this Honourable Court deems appropriate.
The Father sought the following orders.
1. Section 5 of the Final Court Orders of 2022 be replaced with the following:
2.During School term as defined by the Victorian Department of Education, The children spend time with and communicate with the Father as follows:
2.1Week 1 & 2 of a 4 week cycle each Monday from the conclusion of school (or 5:30 PM in the event of a non-school day) until the commencement of school Friday (or 10:00 AM in the event of a non-school day);
2.2 Week 3 of a 4 week cycle each Wednesday from the conclusion of school (or 5:30 PM in the event of a non-school day) until the commencement of school each Wednesday (or 10:00 AM in the event of a non-school day) of the following week (Week 4 of the 4 week cycle), or until the last day of term if the school term would finish before the end of this period;
Outside school term (School Holidays)
2.3 From the Friday before the second Saturday outside of school term at 5:30 PM until the following Monday at 10 AM (to be repeated every 2 weeks until the next school term).
2.4otherwise agreed, with the parties to provide notice to the other of any such commitments as soon as possible.
2. Paragraph 2 of the Final Court Orders of 2022 be replaced with the following:
2.1The Father have sole parental responsibility for the Education of the children of the marriage [X] born [in] 2015 ("[X]") and [Y] born [in] 2018 ("[Y]")("the children") and for this purpose the Father be solely responsible for making decisions about the Education of [X] and [Y].
2.2The parties have equal shared parental responsibility for [X] and [Y] and for this purpose the parties be jointly responsible for making decisions about major long-term issues in respect of [X] and [Y] including but not limited to:
2.2.1 Religious and cultural upbringing;
2.2.2 Health;
2.2.3 Names; and
2.2.4 Changes to the children's living arrangements which might make it significantly more difficult for the children to spend time with each parent.
3. The parties to attend court-based dispute resolution conference.
4.The court shall appoint an Independent Children's Lawyer to represent the legal rights of [X] and [Y]
5.The parties shall do all things to enable a Family Report to be prepared by a Court Child Expert.
6. The parties shall complete a family violence awareness course.
7.The Mother pay the Father's costs of and incidental to these proceedings.
FIRST WAVE OF LITIGATION
The proceedings before me this day are not the first set of proceedings in this court between the Mother and the Father. The parents sensibly concluded previous parenting proceedings (‘the first wave of litigation’) in this Court via consent orders on 4 November 2022, made in Chambers. It is also worth noting that the parties were also able to reach an agreement on final property orders which were made in Chambers on 28 October 2021. The final parenting orders brought a conclusion to the first wave of litigation. Those orders are as follows.
1. All previous parenting orders be and are hereby dismissed.
2.The parties have equal shared parental responsibility for the children of the marriage [X] born [in] 2015 ("[X]") and [Y] born [in] 2018 ("[Y]") ("the children") and for this purpose the parties be jointly responsible for making decisions about major long-term issues in respect of [X] and [Y] including but not limited to:
2.1 Education;
2.2 Religious and cultural upbringing;
2.3 Health;
2.4 Names; and
2.5Changes to the children's living arrangements which might make it significantly more difficult for the children to spend time with each parent.
3.For the purposes of implementing Paragraph 2 the form of consultation between the parents about making major long-term decisions shall be:
3.1 In writing in so far as practicable;
3.2 Carried out in good faith;
3.3 Non-derogatory.
4. The children live with the Wife.
5. The children spend time with and communicate with the Husband as follows:
As and from the date of these Orders:
5.1Each Tuesday from the conclusion of school / childcare (or 3:30pm in the event of a non-school / kinder day) until the commencement of school Wednesday (or 6:00pm in the event of a non-school / kinder day);
5.2Each alternate weekend from the conclusion of school / kinder on Friday (or 3:30pm in the event of a non-school / kinder day) until 4:00pm on Sunday.
As and from the commencement of Term 1, 2023:
5.3In week 1 from the conclusion of school / kinder Wednesday (or 5:30pm in the event of a non-school / kinder day) to the commencement of school / kinder Friday (or 10:00am in the event of a non-school / kinder day);
5.4In week 2 from the conclusion of school Friday (or 5:30pm in the event of a non-school / kinder day) to the commencement of school on Monday (or 10:00am in the event of a non-school / kinder day).
As and from the commencement of Term 1, 2025:
5.5In week 1 from the conclusion of school Wednesday (or 5:30pm in the event of a non-school day) to the commencement of school Friday (or 10:00am in the event of a non-school day);
5.6In week 2 from the conclusion of school Friday (or 5:30pm in the event of a non-school day) to the commencement of school on Monday (or 10:00am in the event of a non-school day).
5.7For one half of each term holiday period at times to be agreed and in the absence of agreement for the second half in 2025 and each alternate year thereafter and for the first half in 2026 and each alternate year thereafter;
5.8For one half of the long summer holiday period at times as agreed and in the absence of agreement to be taken in alternating week blocks of seven continuous nights with the Husband to have the second week in 2025 and each alternate year thereafter and the first week in 2026 and each alternate year thereafter.
As and from the commencement of Term 1, 2031:
5.9Each alternate week from the conclusion of school Monday (or 5:30pm in the event of a non-school day) to the commencement of school the following Monday (or 10:00am in the event of a non-school day)
5.10For one half of each term holiday period at times to be agreed and in the absence of agreement for the second half in 2025 and each alternate year thereafter and for the first half in 2026 and each alternate year thereafter;
5.11For one half of the long summer holiday period at times as agreed and in the absence of agreement to be taken in alternating week blocks of seven continuous nights with the Husband to have the second week in 2025 and each alternate year thereafter and the first week in 2026 and each alternate year thereafter.
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8.For the purpose of changeover that does not otherwise occur at the children's school / kinder, the Wife or her agent deliver the children to the Husband's residence at the commencement of his time with the children and the Husband or his agent deliver the children to the Wife's residence at the commencement of her time with the children, unless otherwise agreed in writing.
9.The parties will facilitate the children's attendance during the school term at regular extra-curricular activities, medical, allied health appointments and school activities unless otherwise agreed, with the parties to provide notice to the other of any such commitments as soon as possible.
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The children were to live with the Mother and spend time with the Father on a gradually increasing shared care arrangement. At the time of these orders, the Mother was living in Suburb F and the Father resided in the Suburb E, and X attended upon G School, close enough to each parents’ then rented home.
THE SECOND WAVE OF LITIGATION
The second wave of litigation was brought before the Court as the parties were unable to agree upon the school for the children in 2025. The Mother purchased a home some considerable distance from the children’s previously agreed school in Suburb E in mid-2024, with the settlement taking place a month later (‘the settlement date’). The Mother has had a further child in 2023 and expects the birth of another child in 2025. The Father is not the father of those children. Thereafter, the Mother undertook the considerable travel to facilitate the children remaining at G School for the year of 2024.
The Mother sought that the children move school to C School, which is closer to her current residence, while the Father sought that the children remain in their current schooling.
Because of this disagreement, the Mother filed an initiating application on 16 September 2024, which ultimately sought interlocutory and final orders concerning the enrolment of X and Y for school in 2025 and the matter was listed before me by a Judicial Registrar of this Court on 21 October 2024.
The Father remained a litigant in person throughout this interim hearing, and the Mother was legally represented by solicitor and counsel. I had regard to the Father being a litigant in person and provided some information to the parties pursuant to the settled law of the obligations of a Judge described in Re F: Litigants in Person Guidelines (2001) FLC 93 072 at [253].
The matter was stood down to allow the Father the opportunity to seek the assistance of the duty lawyer, and he did so. The matter was recalled in the late morning and proceeded for a contested hearing. Although given the opportunity, no party was cross-examined during this hearing.
During the hearing, the Father pressed the issue of section 65DAAA of the Family Law Act 1975 (Cth) (‘the Act’) to vary the final parenting orders that were made by consent on 4 November 2024. The Mother, through counsel, opposed this application and submits that her relocation to the Suburb D area was not a ‘traditional’ relocation and that this move was simply to provide the Mother with financial security as she is now a registered homeowner.
APPLICABLE LAW
The provision to consider first is section 65DAAA of the Act. Section 65DAAA of the Act is as follows.
Section 65DAAA Reconsideration of final parenting orders
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
I am guided by and bound by the statements of the Full Court in Radecki & Radecki [2024] FedCFamC1A 246 where at [79] Austin, Carew and Williams JJ found:
79We therefore conclude, for the purposes of s 65DAAA(1) of the Act, and having regard to the principles espoused in Rice and Asplund and subsequent authority, the proper interpretation of “consider” should not be a literal one. The word “consider” in s 65DAAA should be construed to mean the Court is required to contemplate the evidence and to make findings of fact as to what changes in circumstances (if any) there have been since the making of the anterior parenting orders. If there is no positive finding of changed circumstances, that is the end of the matter. If there is a positive finding as to changed circumstances, the second stage of the process requires the Court to make its determination, subject to the overarching best interests principle, as prescribed by s 65DAAA(1)(b) and otherwise having regard to relevant s 60CC considerations and the matters referred to in s 65DAAA(2).
Hence, section 65DAAA is not to be taken as its literal meaning but the meaning attributed to it by the Full Court. Hence, to make the meaning of section 65DAAA apparent to a litigant in person, it can also be described thus: if a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless the court has considered whether there has been a significant change of circumstances since the final parenting order was made, and if it is found that there has been a significant change of circumstances since the final parenting order was made then the balance of the matters in section 65DAAA must be taken into account considering the best interests of the children as the paramount consideration.
Standard of proof
This being an interim hearing, I cannot make final findings of fact on disputed facts between the parties. However, on a Rice & Asplund (1978) 6 FamLR 570[1] (‘Rice & Asplund) on the papers – now, after 6 May 2024, a section 65DAAA hearing on the papers – it is clear enough that the previous statements in regard to procedure in regard to a Rice v Asplund hearing continue to apply. Hence, the Applicant’s evidence, unless inherently implausible or contradictory, is to be taken at its highest even if disputed. The thrust of the Mother’s case was that now that she had moved to the home that she had purchased, albeit unilaterally, the burden of the travel on her and the children in the circumstance of that frequent travel and the further baby in the car with one more on the way, meant that the existing school placed such a burden on her that it was not in the children’s best interest that they continue with the current school. I accept, and accepted, that assertion of fact.
Other Family Law Act provisions
[1] Or (1979) FLC 90-725
On this interlocutory or interim hearing, it is necessary to consider the provisions of the Act, noting the reference the section to 60CC within section 65DAAA.
Relevant sections include the following:
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
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60CAChild's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
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60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (4), in determining what is in the child's best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs ;
(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child's family.
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61DAAEffect of parenting order that provides for joint decision - making about major long - term issues
(1)If a parenting order provides for joint decision - making by persons in relation to all or specified major long - term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
(a) to consult each other person in relation to each such decision; and
(b) to make a genuine effort to come to a joint decision.
(2)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Precedents as to change of school
The principles and authorities are helpfully set out by Judge Kelly, as he then was, in Licata & Buxton [2019] FCCA 3181.
[109]The parents’ interests in securing an arrangement that is convenient for them is a matter that is appropriate to take into account: Eden & Eden-Proust . This is because, while the interests of the child are required to be the paramount consideration, s 60CA does not provide that those interests are the sole consideration: AMS v AIF ;Eden & Eden-Proust .It follows that some regard should be had to the relative inconvenience to each of the parents with respect to matters such as any necessary transport arrangements: Eden & Eden-Proust .
[110]For example, in Low & Chapman , Monahan J observed that to enrol a child at a school which was located at a place mid-point between the parties’ residences was perhaps ‘an obvious option’ where the parties live some distance apart. I did not understand His Honour to be suggesting any more than that such an option may be an obvious point for consideration alongside any other suitable options.
[111]While it will ordinarily be of importance to consider the effect on the resident parent, this does not mean that the convenience of the non-resident parent is ignored: Bilz & Breugelman. Again, it may be added that the distinction between a resident and non-resident parent becomes diluted where the parties have agreed upon a week about parenting arrangement, particularly one that has been on foot and to which the parties have adhered to for some years.
[112]The views of the children may be a relevant but usually not a determinative consideration: s 60CC(3)(a) Bilz & Breugelman ;Re G. The child’s views on schooling may be of lesser weight if the child is of a young age: Stevens & McLaren.
[113]The process of evaluating competing school proposals should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where those schools are prima facie satisfactory: Bilz & Breugelman .The location of the school to the children’s residence remains an important factor: Re G.
[114]The court may be assisted in the resolution of a schooling dispute by the opinions of an expert: Stevens & McLaren. By s 60CD(2) the court may ‘inform itself of views expressed by a child’ by a number of means, including a report given to the court by a family consultant under s 62G(2) or, subject to the Rules of Court, ‘by such other means as the court thinks appropriate’: Bondelmonte.
[115]Competing views have been expressed as to the relevance of the parties’ agreement as to how schooling should be implemented. In Eden & Eden-Proust , Thackray J indicated that the existence of an agreement between parties would be an important factor. In Re G, the parties’ prior agreement on the issue was held not to carry much weight.
CHRONOLOGY OF EVENTS
First wave of litigation
The Mother commenced property proceedings on 28 April 2021. On 28 October 2022, property orders were made by consent. On 4 November 2023, parenting orders were made by consent, thus concluding the first wave of litigation.
2023
In 2023, the Mother gave birth to her third child, a son named H, conceived by way of artificial conception.
26 February 2024
On 26 February 2024 the Mother first brought to the attention of the Father her idea of relocating to an outer suburb in Melbourne via email on the morning of 26 February 2024.
First - I wanted to see if you might be open to collectively working towards moving further out […] where quality of life might be a bit more affordable, especially in the long term. […] keeps us still central to your parents.
Neither of us will be in a position to ever buy where we currently are and rent will keep going up. The kids would benefit from long term permanent housing and [X] asks nearly every day about a 'forever home’...
Or in the alternative, me relocating and moving the children's school with the ability to help with pickup/drop off on your days and/or perhaps altering the schedule in some way.
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I recognize moving schools is never the ideal choice, but sometimes it does need to be done, and the younger the children are - the easier.
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Just reflecting on the future and trying to come up with options.
The Father responded to this email the next evening.
[Ms Henrik],
I've received this email and will respond when I am calm enough.
The Mother responded the next morning.
Simply writing to see how you feel about things related to the children's wellbeing as it affects everyone's future; and trying to be nice in offering to play with the schedule a bit if need be given the challenges you are having in securing lasting employment.
It was not for another week until the Father replied to the email of the Mother of 26 February 2024. The Father advised the Mother this was due to personal and family reasons, and on 7 March 2024, the Father asserted:
I think the kids have settled in locally extremely well with school, activities, and friends. The blended class levels at [G School] also provides [X] with the opportunity to learn about more advanced topics and I think [Y] will Benfield from this also. I do not want to disrupt that stability.
They have a great quality of life being able to walk to school and between their two houses. They can walk to shops, cafes, library, train and tram lines which are important services which they will start to be able to access independently in a couple of years.
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As for a permanent home/forever home are you looking to purchase somewhere? The kids will be at school/ university for the next couple of decades but after that they might move interstate/overseas for work.
I'm open to other discussions but at this stage I would not like the kids to change schools.
The Mother replied to this email a day later, which concluded the email chain between the two parents:
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I agree - the children have developed routine and community. They also have great walkability. I don't wish to take them away from this without good reason…
I am though working towards trying to buy at some point. As you are aware Australia is becoming very unaffordable and there is a great housing insecurity. I am not confident if I lost this rental I could secure another one given the 30% rent/income ratio requirement and competition. Definitely not in this area…
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I have always wanted to give our kids what you have - the comfort of a family home they can always come back to and have memories held within, and lifelong childhood friends from primary school they grow old with…
April 2024 communication
Further communication between the parents occurred through April 2024. The communication was not hostile, however the Father did not respond to these emails as a matter of urgency. This further communication started on 1 April 2024, when the Mother advised she had not purchased a home:
In the event [Y] has said something that has made it look like we purchased a house last weekend - we didn't. I just took them looking…
But again, I have racked my brain every which way to make everybody happy and least disruptive, etc. - but long term housing security is vital to the kids' wellbeing. The rents are not financially sustainable and they just keep going up and the housing deficit keeps increasing. I continue to welcome a conversation about how to plan longer term – but without conversation and realistic long term plans - I have to move forward on my own assessments.
I don't want you to be caught off guard. I wish we could discuss things and make plans for the kids' future…
…Even if we don't move - the school zones are very highly regulated now. I'm not confident our zoned public high school is great or what [X] needs either. So staying put, finances aside, is not necessarily the best answer either. Our primary school is lovely - but [X] isn't being challenged.
As noted before I am looking further out […]…
The Mother brought up the issue of the children’s schooling and her residence again during April 2024. On 13 April 2024 the Mother emailed the Father the following:
…
I would really like you to agree and support this decision. I'd like to be able to search in good conscience for a house and find a place that is best for the kids (living, school, neighborhood, etc.)…
It is not financially viable to stay put while rent continues to jump and wages don't. I have a small window I feel I can purchase before I am priced out even "further out."…
It is not about "me" and what I want, even though I am sure to you - it might feel that way. It's about ensuring the children have stable housing and a roof over their heads…
If I follow my emotions - I would just ride the status quo. It breaks my heart to disrupt the kids' schooling, to leave the community that not only they - but I have here. But that is not responsible…
…I fully commit to driving the children in for the rest of 2024. If you don't want to move at the end of the year - I will share the driving load from your home. I know from your perspective it's hard to plan anything with a job unknown…
…
Again I would really like you to agree. I'd like to both make the decision to move the children further out - for their future.
If you have any further thoughts - hearing them sooner rather than later would allow me to figure them in. As I have stated in the past - silence just forces me to make decisions from my perspective only.
(Emphasis added)
The Mother followed up her email the following day advising the Father of C School:
I am considering a possible house in the [C School] District this week. Seems like a really good school…
I think the house could provide a good quality of life on multiple fronts for the kids. If you haven't been out to the areas near it ([surrounding suburbs]) - I strongly suggest you take a look around.
…
[C School]
- trying to build a conversation around these possibilities.
Other school zones I have been searching within:
…
The Father responded to the email on 17 April 2024:
I don't really understand why you want to move…
…
The Mother responded:
Why? It's very simple and I have stated it in every single email.
As stated the cost of living. Financial. Renting is not financially sustainable here…
May 2024 correspondence
The Mother purchased her Suburb D property in mid-2024, with settlement the following month. The Father allegedly found this out through the parties’ daughter. On 8 May 2024, the Father emailed the Mother:
[Y] just told me that you have purchased a new house. Can you please provide some more information?
The Mother replied two days later:
Yes, I am in the process of finalizing a purchase but was waiting for everything to become unconditional before saying anything. Details pretty much parallel the ideas I have been trying to discuss with you over the past couple months.
As I have stated repeatedly this is a financially motivated decision. We are in the midst of a housing crisis and unsustainable rent. Securing long-term housing for the children is of utmost importance…
…
… I can not afford anything closer to our current location…
I have committed to driving the kids back to school at [G School] (provided it's not too much for them) through the end of the school year, but we will then need to look at changing schools as it is not sustainable for years.
…
…I am willing to help with the driving on your days.
We will move [mid-year]…
The parties courteously emailed back and forth for some time including the Mother stating:
Make no mistake - I understand the annoyance and impact all of this has on you, and I don't discount it or take it lightly. But unfortunately it is life at the moment and we must deal with it in a manner that puts the children first. I fully support the children having time with you - this is not a means to diminish that or intentionally take away the quantity of minutes. It is simply a need of present day reality and circumstances. Life and the world has changed since we first agreed to enrol [X] in [G School].
June 2024 communication
The Father stated on 12 June 2024:
…
My position is that I don't think moving to [Suburb D] is in the children's best interest because:..
I don't think it is in the children's best interest to change schools because:..
The Father continued to question the Mother’s financial situation in further email correspondence between the parents. Emails included on 19 June 2024 when the Father wrote:
The information you have given me about your financial situation does not indicate there is any compelling reason to move to [Suburb D] …
In mid-2024 the Mother paid for her new home in Suburb D, some distance from the children’s school.
July 2024 communication
In July of 2024, courteous emails continued, including from the Mother:
Mediation and emails that circle round and around will not all of sudden result in me selling our home and moving back to [Suburb F]. It is not going to change all the circumstances and motivating factors behind it.
…
I had my mediation intake session a month ago, they stated you had not been responsive to their attempts to schedule you in. Again - this just draws out the inevitable.
The Father responded on 6 July 2024:
In my opinion you have made a very poor decision and expect me to abdicate my parental responsibility to reduce the impact or that poor decision.
…
Maybe you could consider renting out the house in [Suburb D] and renting a place close to the children's school again. Or buy a place closer to the children's school. Or allow the children to stay close to their school more often.
The Father also wrote on 12 July 2024:
I don't see moving […] km away from the children's school and buying a house as a helpful course of action f[o]r [X] and [Y].
It is in response to this the Mother advised the Father of her new address and the settlement time:
Buying a house and moving ensures the kids and I have a roof over our head, and I can pay not only all the immediate child expenses but future and unforeseen
…
Moving back is not an option.
…
We are moving this weekend. Our new address is … It is a safe and well maintained home…
In further emails, the Father queried:
Before I detail a reply, do you consider moving to [Suburb D] a significant change to the children's living circumstances? What is your opinion?
Mediation
Mediation occurred on 13 August 2024, where the parties could not come to an agreement on the schooling for the children in 2025 and subsequently a section 60I certificate was issued. In further emails, the Father emailed the Mother:
On 30 August 2024, the Mother’s solicitors wrote to the Father with a Notice of Intention to Start Proceedings:
Accordingly, this correspondence contains a notice of intention to start proceedings pursuant to the pre-action procedures contained in Schedule 1 of the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (Cth), copy enclosed for your reference along with a copy of the Central Practice Directions.
THE ISSUES IN DISPUTE
The Father’s parenting case
Sole parental responsibility
Because of the disagreement between the parties regarding the children’s schooling, the Father sought an order that he have sole parental responsibility regarding education, he says, to ensure further disagreements do not end up in further litigation.
Final orders made
The Father points to the fact the Final Orders were made in this matter by consent only 2 years before this hearing. The Father submitted that this idea of moving to an outer suburb was not raised during the discussion of a resolution for the parenting matters in 2022.
Appointment of an Independent Children’s Lawyer
The Father also sought that there be an Independent Children’s Lawyer appointed in these proceedings. I did not make an order for that as I considered that consideration to be premature in this matter and there were no allegations of abuse in these proceedings.
The Mother’s case
The Mother relied upon paragraph 83 of the decision of SPS & PLS (2008) FLC 93-363 (‘SPS & PLS’) which observed as follows:
83. Accordingly, the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes.
It was the Mother’s case that her relocation to a suburb so distant from the children’s school contemplated by the consent orders necessitated a change of the children’s school because of the burden on her and the children of the additional travel, and the additional travel in the context of a further baby in her care with another on the way. But, she said, the relocation and the need to change the children’s school was not a sufficient change of circumstances that would justify re-opening proceedings – this was, she said, merely a minor change as contemplated by the orthodox Rice v Asplund authorities, and hence the Father should not be permitted to agitate residence arrangements as he sought.
The Mother’s case meant that with the existing living and spend time orders, a change of school would mean less travel for the children overall, notwithstanding that this placed additional travel time and burden of that travel on the Father, not her. The Mother says the change of school and the imposition of the additional burden of the travel on the Father was not a sufficient change in circumstances that would satisfy the threshold test contained in section 65DAAA and/or Rice & Asplund. The Mother’s case was that school would be simply changed, and that was it.
I did not accept that submission. The significant changes in circumstance since the making of final orders included the following:
·Each of the parties had issued proceedings that sought a change to the existing orders; and
·One of the parents has re-located a significant distance from the children’s previously agreed school; and
·That necessitated a significant burden of almost daily travel upon the Mother and the children; and
·Since the orders were made, the Mother had given birth to another child (now a baby) and there is another on the way. Very soon the Mother’s household will consist of the children of the orders and two other children. This will have a significant impact on the practicality and ease of travel over the longer distance involved with the school imposed by the Mother and will significantly impact upon her and her children; and
·The impact of the change of residence of the Mother was such that she asserted it was necessary to change the children’s school to a school opposed by the Father and the Father asserted that the impact of the change of residence of the Mother was such that it was necessary to change the children’s living arrangements so that they could remain in attendance at their existing school.
Hence, I was satisfied that there was a sufficient change in circumstances that justified the final orders being reconsidered.
I did not accept the Mother’s submissions that the change in school and change in impact upon the travel of the Father was immaterial and/or the type of “small” change contemplated by paragraph 83 of SPS & PLS recited above.
The second stage of the section 65DAAA test
That there is a change in circumstance does not determine whether the previous orders should be reconsidered. As was always the case with the jurisprudence of Rice & Aslund, and as is now set out within section 65DAAA, having determined that there has been a significant change in circumstances I must consider the welfare of the children. By applying the orthodox jurisprudence of Rice & Asplund, I must take the Mother’s case at its highest unless implausible or internally inconsistent. Hence, I accept, for the purpose of this hearing, that the Mother’s case of the additional travel imposed upon the children following the purchase of her new home is a matter of considerable burden and impact on the children, and an unnecessary burden that could be avoided by a change of school.
In determining the second part of the section 65DAAA test, it is necessary to consider the matters of section 60CC, and I did. The matter of the safety of the children did not inform this dispute. The children are too young for their wishes to have any considerable weight, save that I proceed on the basis that if asked, they would express the opinion that they like their school and prefer to stay there, with all other things being equal.
The developmental, psychological and emotional needs of the children include the ordinary everyday circumstance of the travel to their school being a matter that is practical and unnecessarily burdensome on the parent with whom they live with most of the time. I was satisfied that each parent had the capacity to provide for the children’s needs, and that the Father had the capacity to undertake the additional travel on the times he was required under the existing order to deliver the children to the school. And I so found, notwithstanding the additional burden upon him and the irritation he must have felt of having these circumstances imposed on him with the Mother purchasing a home such that the children remaining at their existing school was impractical and burdensome upon them.
Implications of both parents’ cases included the concept that it was to the benefit of the children to have a relationship with both parents.
Pursuant to section 60CC(2)(f), “anything else that is relevant…” I considered the unilateral nature of the Mother’s actions that has brought about this controversy. I was satisfied that those circumstances would be irritating to the Father. But the relocation and the further children conceived by artificial conception were ordinary, everyday circumstances that many parents seek and strive for. That is, the ordinary everyday human need of secure accommodation for themselves and their children, and the desire to have children. Having considered the unilateral nature of this, but balanced off against those considerations above, the ‘unilaterality’ of the Mother’s relocation was not significant or determinative in my decision.
I considered that the implied reasoning behind the existing parenting orders included that both parents then lived in rented accommodation, reasonably close to the children’s then agreed school. The practical travel arrangements to the then agreed school was a significant matter. I also considered whether, upon a reconsideration of the matter, there was a prospect of the final order being varied in a significant way. I was satisfied that the Father’s case for variation of the orders was not hopeless and hence there was some likelihood that the living arrangement orders would be varied. I was also satisfied that there was potential benefit, as well as detriment, to the children of the final orders being reconsidered. I was not satisfied it was in the interests of the children that following a change of school and a change of their travel arrangements and the burden imposed upon the Father, that he should not be permitted to agitate a change in the children’s living arrangements. It is unnecessary that I further weigh or attempt to predict the likelihood of success of the Father’s current application. I took into account that there is detriment to the children with their parents in dispute regarding their living arrangements. I took into account the potential impact on the children of the burden of further travel on the Father.
In all of those circumstances I was satisfied that it was in the best interests of the children for the final parenting order to be reconsidered.
CONCLUSION
Having considered that it is in the best interest of the children for the final parenting order to be reconsidered, I was not prepared to make any further changes to their living arrangements on an interim basis.
Decision on change of school application
On an interim hearing it was necessary to deal with a change of school issue, and I was satisfied that it was in the children’s interest that I do so. But, of course, to determine the change of school on an interim basis did not mean I was determining the change of school on a final basis, and I did not do so. Nonetheless, considering a change of school on an interim basis needs to take into account that such a change may well have great weight on the final hearing of such an issue. Hence, a change of school on an interim basis must be very carefully considered.
I was satisfied of the common ground position that the existing school was a fine school for the children. I was also satisfied that the Mother was a sufficiently careful and astute parent that her choice of school following the relocation was a sensible one and that the school chosen by the Mother would be at least a good and adequate school for the children.
As explained under the heading of the section 65DAAA hearing, I was and am satisfied that the children travelling from where they live with their mother to their then existing school was a significant burden on them and an unnecessary burden on them. I was and am satisfied that on those relatively few occasions that it is the Father’s turn to travel to school and the additional burden of that travel needs to be balanced on the relevant infrequency of it.
In those circumstances, and taking into account that this school was unilaterally chosen by the Mother and opposed by the Father, I was and am satisfied that a change of the children’s school on an interim was and is in their best interests. I was and am satisfied that it is in the children’s interests to attend the school in the area of, or within a practical travelling distance from, the home where they live most of the time.
Those are my reasons.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 6 March 2025
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