Holt & Holt - [2022] FedCFamC2F 608

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Holt & Holt [2022] FedCFamC2F 608

File number(s): NCC 1624 of 2021

Judgment of: JUDGE KEARNEY

Date of judgment: 13 May 2022

Catchwords: FAMILY LAW – parenting – children aged 7 & 5 - whether interstate relocation be allowed – impact on significant and substantial time – potential adverse effect of separation - no serious risk of harm issues – poor co‑parenting relationship – best interests of children

Legislation: Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA

Cases cited:
Aldridge & Keaton [2009] FamCAFC 229

AMS v AIF [1999] HCA 26

Angeli & Farina [2021] FedCFamC1F 266

Franklyn & Franklyn [2019] FamCAFC 256

Hepburn & Noble [2010] FamCAFC 111

Mazorski & Albright [2007] FamCA 520

MRR & GRR [2010] HCA 4

Star & Duggan [2009] FamCAFC 115

Taylor & Barker [2007] FamCA 1246

U v U [2002] HCA 36

Division: Division 2 Family Law

Number of paragraphs: 392

Date of hearing: 28 February 2022, 1 & 2 March 2022

Place: Newcastle

Counsel for the Applicant: Mr Guyder

Solicitor for the Applicant: Braye Cragg Solicitors

Counsel for the Respondent: Mr Duane

Solicitor for the Respondent: Dawson & Gardiner Solicitors
ORDERS

NCC 1624 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HOLT

Applicant

AND:
MS HOLT

Respondent

ORDER MADE BY:

JUDGE KEARNEY

DATE OF ORDER:

13 MAY 2022

THE COURT ORDERS THAT:
1.The mother’s application to relocate the children to live in Victoria is dismissed.
2.The mother shall have sole parental responsibility for the children:
(a)X born in 2014 (‘X’); and
(b)Y born in 2016 (‘Y’)

3.The children shall live with the mother.
4.Unless otherwise agreed in writing between the parties, the children shall spend time with the father as follows:-
(a)Until 27 June 2022:
(i)In week one, from the conclusion of school Friday (or 3.00pm if a non‑school day) until 4.00pm Sunday; and
(ii)In week two, from the conclusion of school Wednesday (or 3.00pm if a non-school day) until the commencement of school Thursday (or 9.00am if a non-school day).

(b)During each school term as exercised by the children’s school, commencing 27 June 2022:
(i)In week one, from the conclusion of school Friday (or 3.00pm if a non‑school day) until the commencement of school Monday (or 9.00am if a non-school day); and
(ii)In week two, from the conclusion of school Wednesday (or 3.00pm if a non-school day) until the commencement of school Thursday (or 9.00am if a non-school day).

5.Unless otherwise agreed in writing between the parties, the children shall spend time with each of the parties, during the following school holidays as exercised by the children’s school/s:-
(a)During the Autumn, Winter and Spring school holidays
(i)In even-numbered years:
A.With the mother from the conclusion of school on the last day the children are required to attend school until 4.00pm on the middle Sunday of the school holidays; and
B.With the father from 4.00pm on the middle Sunday of the school holidays until 9.00am on the first day the children are required to return to school.

(ii)In odd-numbered years:
A.With the father from the conclusion of school on the last day the children are required to attend school until 4.00pm on the middle Sunday of the school holidays; and
B.With the mother from 4.00pm on the middle Sunday of the school holidays until 9.00am on the first day the children are required to return to school.

(b)During the Summer school holidays:-
(i)in even-numbered years:-
A.with the mother –
·    from the conclusion of school on the last day the children are required to attend school until 4.00pm on the third Sunday of the school holidays; and
·    from 4.00pm on the fifth Sunday of the school holidays until 4.00pm on the sixth Sunday of the school holidays
B.with the father –
·    from 4.00pm on the third Sunday of the school holidays until 4.00pm on the fifth Sunday of the school holidays; and
·    from 4.00pm on the sixth Sunday of the school holidays until 9.00am on the first day the children are required to return to school.

(ii)in odd-numbered years:-
A.with the father –
·    from the conclusion of school on the last day the children are required to attend school until 4.00pm on the third Sunday of the school holidays; and
·    from 4.00pm on the fifth Sunday of the school holidays until 4.00pm on the sixth Sunday of the school holidays
B.with the mother –
·    from 4.00pm on the third Sunday of the school holidays until 4.00pm on the fifth Sunday of the school holidays; and
·    from 4.00pm on the sixth Sunday of the school holidays until 9.00am on the first day the children are required to return to school.

6.Unless otherwise agreed in writing between the parties, the children shall spend time with each of the parties, during the following special occasions:-
(a)Over the Mother’s Day weekend with the mother (if the children are not already living with the mother) from the conclusion of school Friday (or 3.00pm if a non-school day) until the commencement of school Monday (or 9.00am if a non-school day).
(b)Over the Father’s Day weekend with the father (if the children are not already spending time with the father) from the conclusion of school Friday (or 3.00pm if a non-school day) until the commencement of school Monday (or 9.00am if a non-school day).
(c)On each of the children’s birthdays with the parent whom they would not otherwise see in the afternoon –
(i)from the conclusion of school until 7.00pm on a school day; and
(ii)from 12.00noon until 5.00pm on a non-school day.

(d)During the Christmas festive period –
(i)in even-numbered years, with the father from 3.00pm Christmas Eve until 3.00pm Christmas Day.
(ii)in odd-numbered years, with the mother from 3.00pm Christmas Eve until 3.00pm Christmas Day.

7.Unless otherwise agreed in writing between the parties, to implement changeovers of the children between them:-
(a)where time is specified to commence or conclude on a school day then the changeover location is the children school/s; and
(b)at all other times, the changeover location is the McDonald’s restaurant at Suburb B.

8.The children shall have telephone or FaceTime communication with the party they are not otherwise in the care of each Monday and Wednesday from 5.30pm to 6.00pm and to facilitate this communication, the party who has the care of the children will:-
(a)call the other party’s nominated mobile telephone number; and
(b)ensure the children are given privacy to speak to the other party.

9.Each party is restrained and an injunction shall issue prohibiting them from denigrating the other party, the other party’s family or a person with whom the other party has a domestic relationship, in the presence or hearing of the children and shall remove the children from the presence or hearing of any other person doing so.
10.Notwithstanding the allocation of sole parental responsibility to the mother:-
(a)each party is at liberty to liaise directly with any medical or allied health professional involved with the children, including being added to any case plan involving C Families or any other form of counselling and to facilitate this order, the parties are to immediately notify each other in writing of the contact details of any appointments the children may have with their medical treators or allied health professionals;
(b)each party is at liberty to liaise directly with the children’s educational providers as to the children’s progress including but not limited to them:-
(i)receiving copies of all reports, newsletters, photographs (at their own expense);
(ii)accessing any school apps; and
(iii)attending any school events to which parents are usually invited to attend;

(c)each party is at liberty to attend any extra-curricular or sporting events to which parents usually attend.

and to give effect to the above, this order shall constitute an irrevocable authority between the parties and the various service providers for that purpose.
11.The parties shall notify each other as soon as reasonably practicable of any serious medical condition, significant trauma, illness or injury suffered by the children requiring medical treatment, transportation by ambulance, hospitalisation or attendance/referral to a medical practitioner whilst in their respective care and as soon as practicable, provide to the other party details of such illness, injury, medical treatment, or hospitalisation; and if not clear from Order 10 above, this order shall constitute an irrevocable authority between the parties and the applicable medical treatment providers or health professionals for the purpose of engaging with the other party.
12.Forthwith, the parties shall provide to each other their residential address, contact telephone number and email address and advise the other parent in writing of any change to same as soon as practicable or within forty-eight (48) hours of such change occurring.
13.Unless otherwise specified, any reference to the parties communicating or reaching agreement “in writing” shall include but not be limited to communications via text message and email.
14.All outstanding Part VII applications are withdrawn and dismissed.

THE COURT NOTES THAT:
A.Despite the allocation of sole parental responsibility to the mother, the Court anticipates the mother will change the children’s residence to a location that supports the children being able to travel to and from school to each party’s house so as not to adversely affect the children’s best interests or welfare.
B.The Part VIII proceedings remain listed in chambers for consideration on Thursday 9 June 2022 at 9:00am with no requirement for appearances.

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

These proceedings involve a parenting dispute invoking Part VII of the Family Law Act 1975[1] (Cth) between the Applicant, MR HOLT (‘the father’) and the Respondent MS HOLT (‘the mother’).
[1] Unless otherwise specified any reference to legislation shall be a reference to the Family Law Act 1975 (Cth)
There are two children the subject of the dispute namely, X (‘X’) who is seven (7) years of age and Y (‘Y’) who is five (5) years of age, collectively described as ‘the children’.
The genesis for the parenting proceedings was each party’s desire to formalise the arrangements between them for and about the children, with the prevailing features of the dispute being the father’s desire for the children to live week-about with each parent and the mother wanting to relocate the children’s residence from Town D, New South Wales to Town E, Victoria.
The main issues to be determined by the Court were:-
(a)the allocation of parental responsibility;
(b)with whom the children should live;
(c)what time and what communication the children should have with the other parent.
For the reasons which follow, I have made orders dismissing the mother’s relocation application and for the children to live with her and spend substantial and significant time with the father which will result in the children ultimately spending four nights a fortnight with him during school terms and otherwise the children spending (essentially) equal time with each party during the school holidays.
THE EVIDENCE
The father read and/or relied upon the following documents:-
(a)Further amended initiating application filed 23 February 2022;
(b)Notice of child abuse, family violence or risk filed 14 May 2021;
(c)Affidavit of Mr Holt filed 7 February 2022[2];
(d)Affidavit of Ms F (‘MS F’)[3] filed 7 February 2022;
(e)Affidavit of Mr Holt filed 23 February 2022;
(f)Outline of Case document filed 28 February 2022 – marked Exhibit “F1”.
(g)Various other exhibits.[4]
[2] For convenience, references to any content within the trial affidavit of Mr Holt shall be prefaced by “1” followed by the numbered paragraph enclosed within square brackets and any annexures to the affidavit identified alphabetically.
[3] Out of respect for each person’s personal preference about how they may wish to be identified in terms of their preferred honorific, persons (other than the parties or the children) shall be referred to by their surname only.
[4] Exhibit “F2” employment contract between J Pty Ltd and Ms Holt effective 08.11.2021, exhibit “F3” C Families complete case profile report counselling note regarding X in January 2021, exhibit “F4” COPS … 29.05.2021
The mother read and/or relied upon the following documents:-
(a)Amended response to initiating application filed 15 February 2022;
(b)Affidavit of Ms Holt filed 15 February 2022[5];
(c)Affidavit of Mr G (‘Mr G’) filed 25 February 2022[6];
(d)Outline of Case document filed 25 February March 2022 – marked Exhibit “M1”;
(e)Minute of Order “NSW” – marked Exhibit “M2”;
(f)Minute of Order “Victoria” – marked Exhibit “M3”.
[5] For convenience, references to any content within the trial affidavit of Ms Holt shall be prefaced by “..” followed by the numbered paragraph enclosed within square brackets and any annexures to the affidavit identified alphabetically.
[6] For convenience, references to any content within the trial affidavit of Mr G shall be prefaced by “..” followed by the numbered paragraph enclosed within square brackets and any annexures to the affidavit identified alphabetically.
In addition, both parties asked me to read the family report (‘the family report’) prepared by court child expert, Ms H (‘the child expert’) dated 24 December 2021 - marked Exhibit “B”.[7]
[7] For convenience, references to any content within the family report of Ms H shall be prefaced by “..” followed by the numbered paragraph
Other than as recorded in this judgment, I make no observations about the general credibility of the parties.
Overall, and despite cross-examination from the mother challenging her opinions, I found the child expert to give measured and thorough evidence with the basis of her opinions clearly expressed. On that basis, wherever there were inconsistencies between the evidence of the mother and the child expert, I preferred the evidence of the child expert.
Having regard to the evidence, factual findings are made on the balance of probabilities and statements of facts set out below shall constitute findings of fact.
THE PROPOSALS OF THE PARTIES
Taking a broad brush approach to the final orders sought by the father in his further amended initiating application filed 23 February 2022, his relief required orders to be made that:-
(a)The parties have equal shared parental responsibility for the children;
(b)The mother be restrained from relocating the residence of the children more than 25km from the Town D area without his prior written consent;
(c)The children to live week-about with each of the parties, provided the Court was satisfied that the mother could facilitate a relationship between the children and the father;
(d)The children to live with the father and spend four nights with the mother in each fortnight, if the Court was not satisfied that she could facilitate a relationship between the children and the father;
(e)The children to spend multiple consecutive nights with each of the parties during school holidays, in the event that the children are not living in a week-about arrangement;
(f)The children to spend time with each of the parties on special occasions including mother’s day, father’s day, their birthdays and to have video communication with the parent with whom they are not living on Christmas Day;
(g)Specified arrangements for changeovers;
(h)The children to have FaceTime communication with the parent they are not living with or spending time with each Monday and Wednesday;
(i)The parties being able to obtain and share with each other information about the children and otherwise be able to both attend significant school, extra-curricular and sporting events in which the children are participating;
(j)The parties being restrained from doing certain things which could otherwise see the children exposed to parental conflict;
(k)The parties keeping each other informed of any changes to their residential address or contact details.
The mother’s amended response to initiating application filed 15 February 2022 sought various parenting orders. By the conclusion of the trial, she had refined her proposals which were encapsulated in two exhibits.
Exhibit “M2” reflected her proposal in the event the children were to remain in New South Wales and in summary sought:-
(a)The mother have sole parental responsibility for the children;
(b)The children live with her;
(c)The children spend time with the father as follows:-
(i)Until 2022 (Y’s sixth birthday) for three nights a fortnight from Friday to Sunday in week one and from Wednesday to Thursday in week two;
(ii)From 27 June 2022 for four nights a fortnight from Friday to Monday in week one and from Wednesday to Thursday in week two;
(d)The children to spend multiple consecutive nights with each of the parties during school holidays which broadly meant an equalisation of the holiday time;
(e)The children to spend time with each of the parties on Christmas Day;
(f)Specified arrangements for changeovers;
(g)The children to have FaceTime or other video/telephone communication with the parent they are not living with or spending time with each Monday, Wednesday and Friday;
(h)The parties being able to obtain and share with each other information about the children and otherwise be able to both attend school events to which parents are usually invited;
(i)The parties being restrained from denigrating each other in the presence of the children and to remove them from any person doing so;
(j)The parties keeping each other informed of any changes to their residential address or contact details.
Exhibit “M3” reflected her proposal in the event the children were to re-locate to Victoria and in summary sought:-
(a)The mother to have sole parental responsibility for the children;
(b)The children to live with her noting that her intention was to relocate the children to Town E, Victoria four (4) days prior to the commencement of Term 2 of the Victorian school year;
(c)The children to spend time with the father as follows:-
(i)In City AF at the conclusion of week 3 of each school term from 3.00pm Friday to 9.00am Monday with changeovers at Suburb B;
(ii)In the Town K area at the conclusion of week 6 of each school term from 3.00pm Friday to the commencement of school Monday with the changeover not specified;
(iii)For two additional weekends each school term from 3.00pm Friday to the commencement of school Monday provided the father gave the mother at least seven (7) days’ written notice of his intention to exercise such time; and
(iv)At all other times as agreed between the parties, upon the father giving at least seven (7) days’ written notice of his request to spend time within the Town K area.
(d)The children to spend time with the father during the school holidays as follows:-
(i)eight (8) consecutive nights during the Term 1 and Term 3 holidays;
(ii)14 consecutive nights during the Term 2 holidays;
(iii)multiple consecutive nights during the Term 4 holidays which alternated each year from the first to the middle Saturday and then the middle to the final Saturday of the holiday time;
with all changeovers to occur at Town L.
(e)The children to have FaceTime or other video/telephone communication with the parent they are not living with or spending time with each Monday, Wednesday and Friday;
(f)The parties being able to obtain and share with each other information about the children and otherwise be able to both attend school events to which parents are usually invited;
(g)The parties being restrained from denigrating each other in the presence of the children and to remove them from any person doing so;
(h)The parties keeping each other informed of any changes to their residential address or contact details.

In order to properly consider the issues for determination, the relevant chronology in these proceedings is explored below.
CHRONOLOGY
The mother was born in 1985 and she is now 37 years of age.
The father was born in 1985 and he is now 37 years of age.
In 2004 the parties commenced their relationship at which time the mother was completing a Diploma.[8] About a month later, the father enlisted into the armed forces and travelled to City M for recruit training before moving to City N for his initial employment training.[9] In 2004 (whilst the father was at City M), the mother moved to Suburb O Victoria and was employed at a farm.[10]
[8] [7]
[9] [7]
[10] [8]
In 2005, the parties commenced living together at City N. The father agreed that at this time, the mother’s chosen field of study was in the health care industry and when they moved, she could not secure work in that industry and instead she secured work at a local factory.
In 2005, after 14 months of training, the father was posted from City N to Town P and the mother left her employment to move with him. Initially the parties moved to Town Q and the mother couldn’t secure work in the health industry but did secure other work such as cleaning at a local business. I heard that at some point the mother secured work with a local company. She also commenced formal studies as a health care worker.
In 2006, the parties moved from Town Q to Suburb R.
In 2009, the father was posted to Town S and the mother gave up her employment to move with the father. It was common ground that irrespective of the reasons, the mother did not secure work in the health care industry and instead took on various retail jobs including work at a local business called “Company T”.
In 2011, the mother obtained employment with the Employer U as a admin assistant.
In 2011, the parties moved into Defence Housing Australia (‘DHA’) accommodation.
In 2013 the parties were married and in the same year purchased their first home at Town V.
In 2014 X was born.
In 2014, the parties returned to City N and I accept the father’s oral evidence that the parties made the decision to move there so that the family (with young X) could be closer to the mother’s family who were then within three hours’ driving time away. I also accept his oral evidence that in pursuing the transfer he had to (using his words) “fight with my employer for it”. I accept the father’s evidence that the decision to move was to provide the mother with short-term support and that both parties wanted to be close to home and have access to medical and family support if they needed it.
In giving his evidence I observed the father to be empathetic about the reality of a new baby in the household and the benefit derived from having family support closer than it was in Town S.
In mid-2015 the parties sold their first home and purchased a home at Town W and in cross‑examination the father agreed that this decision was made to give some stability to the family.
In 2016 Y was born.
In late 2016, or at least no later than January 2017, the father received a posting to the United States of America (‘USA’) and about a month later, the mother (with young X and Y) joined him in City Z.
In February 2017, the parties sold the Town W home.[11]
[11] [228]
The City Z posting lasted four months before the family returned to Australia in May 2017.
At some stage the father was posted from City N to Town P and in September 2017, the parties purchased vacant land at Town D.[12]
[12] [231]
In December 2017 the father accepted an overseas posting to the United States of America and the family lived back in the USA for about a year.
In December 2018, the family returned to New South Wales so the husband could resume his posting at Town P.
In early 2020, a home (‘the family home’) was built on the Town D vacant land, in which the family lived until separation.
At interview with the child expert, the mother described the nature of the children’s relationship with the father as –
“it was pretty good when we were together because he would come home from work, and he played with them. So, it was good when he left.”[13]
[13] -43
The mother’s written evidence[14] was that during the relationship, the father was not a “hands on” parent –
89. Mr Holt was not a “hands on” parent during the course of our relationship as he would not assist with the night feeds, comforting or changing the children. I recall several occasions when I was feeding Y and I had to force Mr Holt from the bed to have him respond to X. On occasions, Mr Holt would also shower with the children but not dry or dress them in their pyjamas or assist with other aspects of their night-time routine.
[14] [89]
The two statements are on one level incongruous unless one infers that by “hands on” the mother is speaking only of the domestic chores related to raising children, as opposed to the play time that children enjoy with their parents. I do not know, and the incongruity was not explored in cross-examination but from her trial affidavit, I could find not one positive statement of the father’s parenting during the relationship.
The father denied that he was not “hands on”.
Although some of his oral evidence was contradictory, when pressed, the father properly conceded that during the relationship the mother looked after the children more than 50% of the time, that she was the homemaker and he was the income-earner. It was uncontroversial that the mother took 12 months maternity leave after the birth of each child. [15]
[15] [59] (12 months for X) and [76] (12 months for Y)
On 4 May 2020 the parties separated. The relationship endured for about 15 years with X being five (5) years of age and Y being almost four (4) years of age.
The mother’s written evidence was to the effect that the separation was caused because of her discovery that the father had been having an affair with Ms F as well as other women for at least three years.[16] In support of her conclusion she annexed email communications allegedly between the father and an airport motel near the Town P airport.[17] She agreed that she had been pretty hurt about the end of the relationship.
[16] [103]
[17] See n-103 and annex “A”
In his oral evidence the father accepted that the circumstances around the parties’ separation had caused a great deal of upset. He also accepted that the separation was “complicated” because there were a lot of accusations and denials about whether he was telling the truth. He also accepted that he told “some fibs” to the mother and that there was some gossip floating around the military base because of the circumstances of the separation.
For about three months up until August 2020, the parties agreed that the children should live with the mother and spend time with the father each alternate weekend (after-school Friday to before-school Monday) and on Wednesdays afternoons.
The father’s evidence was that the mother unilaterally stopped the Wednesday afternoon arrangement on 12 August 2020.[18] At that time, the father said that the mother had contacted him and explained that the reason was to the effect of, “Because I don’t want to see you anymore”. In cross-examination the mother disputed saying words to this effect. It was put to the mother that her decision was made at the time that the family counselling (between them) ended. The mother denied this.
[18] 1-9
In cross examination the father denied that the Wednesdays had been cancelled following the mother communicating to him that the time was too unsettling for the children.
When it was put to the father that the children would be clingy towards the mother after a weekend spent with him, the father said that they were also clingy to him.
The state of the evidence did not permit me to make a finding about why the Wednesday time was cancelled but I can comfortably say that the mother felt sufficiently empowered to make the decision and that at the time she did so, she did not express any concern about the children being exposed to any risks arising from the father’s inability to properly supervise them or otherwise ensure their physical safety was prioritised.
On 28 August 2020 the parties participated in family dispute resolution and whilst a parenting plan was drafted, it was never signed.[19] The agreement did not speak of the parties’ intention to introduce each other’s prospective new partners to the other party before permitting the new partner to meet the children.
[19] 1 [12] & annex “A”
On 3 October 2020, Y hurt his head in a playground accident with it being common ground that he presented with an “egg” shaped lump on his head.[20] The father agreed that following Y hurting his head, he did not contact the mother but rather he simply returned Y to her and the parties discussed the incident at the changeover.
[20] [121]
In cross-examination, the mother said that she became aware of what I shall loosely describe as “the Pub incident’ prior to Christmas 2020. Despite her apparent concerns for the children’s safety on that occasion, she had no explanation for why she then allowed the children to have two consecutive nights with the father unsupervised.
It appeared to be common ground that the children spent time with the father from Christmas Day 2020 until 27 December 2020 and that the understanding was that the father would not see the children again until 9 January 2021. On or about 26 December 2020, Y burnt his hand whilst in the father’s care and the father communicated this to the mother and sent her a photo of the injury.[21] The mother agreed that before New Year’s Eve, she had received the photo and communication from the father about Y’s hand being burned.
[21] 1 [145] & [148]
Although not addressed in the mother’s affidavit, in cross-examination the mother acknowledged her awareness of a meeting between the father and Mr G on 28 December 2020. She also acknowledged that she was aware that the father was going on a holiday and was very hurt at that time, trying to process her “strong emotions” about the father because they had never gone on a holiday.
I pause here to reflect that in the mother’s trial affidavit she describes a trip to Brisbane (albeit she says the circumstances of the trip were constrained by a unilateral decision of the father’s) and their honeymoon.[22]
[22] [44], [47] & [48]
On 1 January 2021 it was common ground that the mother sent a text message to the father asking for him to care for the children for the day. The mother expressed regret in “trying to set him up” by sending the message, because she knew that he couldn’t care for the children because he would be away.
The mother agreed that shortly thereafter (on 6 January 2021) she then sent a text message to the effect that the children would no longer have unsupervised time. She denied that her change of position was a form of punishment for the father’s holiday plans. The mother said the reason the children’s time had been suspended was due to the injuries sustained by the children and the decisions the father had made. There was no explanation of what were the decisions the father had made.
It was common ground that between 27 December 2020 and 23 January 2021 the children spent no time with the father. The impact for the children about this significant change to their lived experience (including whether they returned to their ‘clingy’ behaviour) was not the subject of evidence and so I can make no finding in that regard.
In cross-examination of the father, he denied that the mother had informed him about her decision to take X to counselling. At some time though he must have been informed by someone because in cross-examination he accepted that on 7 January 2021 he had contacted the counselling service to discuss withdrawing his consent to counselling continuing but said that ultimately he had not withdrawn his consent. I accept the father’s evidence on this issue because it is also reflected in exhibit “F3”, relevant excerpts of which are set out below –
The writer called Mr Holt and advised that Ms Holt had agreed to the OPC being approached about speaking with him about the counselling. He indicated he was still concerned that Ms Holt was refusing him being added to the case but agreed to the plan for the writer to contact the Family Case counselling next week to see if she would be willing to speak to him
…
Mr Holt advised that
-he initially called C Families to ask to be added to the Family Case so as to be included in something his son was doing, provide input to the counsellor from his perspective, be informed about how his son’s counselling was going. He was told by C Families that he could get no information because he was not a member of the case.
…
-he does not think X needs counselling (describing him as good at school and a good little boy), but he did not want to withdraw consent for the counselling but without any information or opportunity for input he was concerned that the counselling might not be helpful or be biased.
…
Mr Holt agreed with the plan for the writer to contact his ex-wife and seek her permission for Mr Holt to have some involvement in the family case or a discussion with the family case counsellor.
On 23 January 2021, the children spent supervised time with the father for three (3) hours.
On 28 February 2021, the children spent supervised time with the father for one (1) hour.
On 10 March 2021 the parties engaged in solicitor-assisted mediation but there remained controversy about what agreements were reached.
During the balance of March 2021, the children spent time with the father on two three-hour occasions and then during April and May 2021 they spent time with him on three separate occasions for six hours.
It was common ground that the parties were able to (at short notice) facilitate the children spending time with the father in the family home at Easter time on 1 April 2021.
On 14 May 2021, the father commenced parenting proceedings and (broadly speaking) sought that the parties have equal shared parental responsibility for the children who should live week‑about with each of them.
The mother agreed in cross-examination that the first session that X attended was on 26 May 2021 with Ms AB (psychologist) and that she sat in. The mother agreed that during the session, X told the psychologist that he wanted to spend more time with his father and that X wanted to spend from Wednesday to Wednesday. It was put to the mother that she was upset when she heard this, causing her not to agree to the overnight time starting that weekend. The mother denied this. When it was put to her that she did not tell the father about X’s comments, she said that she “strictly liaised” with her solicitors. Her response was unhelpful and vague. Given the lack of any document from her solicitor to support that they told the father of X’s session and/or his views, I infer that the father was unaware of either circumstance at that time.
In observing her, the mother’s evidence about her willingness to have the father involved or have access to X’s counselling was confusing and I remained unclear about what her attitude was about what the father’s involvement should look like.
It was common ground that on 28 May 2021, the father caused his solicitor to send a letter to the mother’s solicitor confirming what he understood to be the agreement reached at the solicitor-facilitated mediation which meant that the next day he would spend his first overnight visit with them in five months. The mother said that she had instructed her solicitors to send correspondence refuting the start-up of overnight time, but this letter had unfortunately not been sent until after close of business.
The mother did not dispute that in the discussion between the parties at the changeover at the start of the time, she said that she would pick the children up at 4.00pm and that, based on the father saying he was keeping the children overnight, she told him she would call the Police.
Exhibit “F4” was put to the mother who denied various parts of the recorded conversation between her and the Police. Where there is a conflict, I prefer the Police account of what happened and am satisfied that despite being told by the Police outside the father’s home that he was just as entitled to the children as she was, she asked them to make a record of the incident so that she could provide it to her solicitor. There was no evidence either within the exhibit or arising from cross-examination that would suggest any controversy about the children’s welfare on this day. Nor was there any recording of family violence issues.
The father agreed that he didn’t tell the mother that he intended on facilitating the children meeting Ms F on 12 June 2021 (which they did) and said in cross-examination that - “I probably could have told her - but I don’t do that with any other friends, and as far as the boys were concerned Ms F was just a friend.” Upon reflection, the father agreed and acknowledged that the mother would have been very hurt about the separation and that (essentially) he could have been more diplomatic.
When the mother was cross-examined about this issue, she had no issue with the father waiting over 12 months to introduce the children to Ms F but was critical that he had not adhered to her understanding of the shared parenting plan[23] which she said stipulated that the parties would introduce any new partners to the parties first. A review of the shared parenting plan does not support the mother’s understanding of the document.
[23] See n-19
On 25 June 2021, the mother filed her material in response, which enlivened Part VIII as well as responding to the parenting application. Relevant to the parenting dispute before me and broadly speaking, the mother’s relief sought that she have sole parental responsibility for the children who should live with her. She also sought that the children live at Town E, Victoria and that irrespective of where the children may live, they should spend regularised time with the father.
There was a line of questioning about Y’s change in day-care providers in mid-2021 during which the mother acknowledged that she had not informed the father about the change citing that it was the first day of the school holidays and that she had to scramble to find something and then she didn’t want to change it back. It was unclear to me whether the mother ever had a direct conversation with the father about her decision.
On 28 June 2021, the Court made interlocutory parenting orders by consent (‘the June 2021 orders’) as well as ordering the father to file a reply to the Part VIII application and otherwise adjourned the proceedings to 24 September 2021. In summary, the June 2021 orders provided for:-
(a)the children to live with the mother;
(b)the children to spend time with the father in a graduated regime of :-
(i)six hours each alternate Saturday until he provided the mother with a hair follicle test relating to his alcohol consumption (‘the HFT’);
(ii)overnight time each alternate weekend from Saturday to Sunday, in the event that the results of the HFT did not indicate a high or excessive consumption of alcohol;
(iii)two consecutive overnights each alternate weekend from Friday to Sunday, in the event that the father provided a certificate of completion of a parenting after separation course.
(c)how the parties should communicate and share information with each other about the children and otherwise avoid the children being exposed to parental conflict.
On Friday 16 July 2021, the children commenced spending two consecutive nights with the father each alternate weekend in accordance with the June 2021 orders.[24]
[24] 1 [71]
On 23 August 2021 the father’s solicitor sent a letter to the mother’s solicitor[25] which inter alia sought that the children spend extra time with him on Father’s Day (5 September 2021) from 9.00am to 5.00pm. The mother said that she had given instructions to her solicitors to respond to the letter and after that it was out of her hands. The father said that he never received a formal response to his letter. The mother said that ultimately, having not heard anything further, she contacted the father herself to organise Father’s Day between him and the children.
[25] 1 [88] & annex ”F”

Whilst acknowledging the father’s request for time between 9.00am and 5.00pm, she agreed that she had pressed for time between 10.00am to 3.00pm (which had occurred). In cross‑examination she noted that the time she allowed was “five hours of my time.” By way of explanation, she said that she had already made plans for the boys to make things for her father. Whilst I acknowledge that the mother permitted the children to spend time with the father over and above what was set out in the June 2021 orders, self-evidently from her oral evidence, on this issue, my observation of the mother at trial was that she minimalised the children’s relationship with the father, in preference to their relationship with her and/or Mr G.
My view about the mother’s attitude was solidified by a Facebook post[26] published on 5 September 2021 that the mother was taken to. She agreed that she was the author of the Facebook post. Despite not naming the father, it is apparent from the excerpt below that the mother is referring to the father –
A huge happy Father’s Day to the most amazing Dad and poppy! Mr G
You always led by example to show us what a great dad and husband will do for his family, I unfortunately settled for someone who was incapable of consideration for anyone but himself.
16 months post separation and out of that environment, I can now see, you have always demonstrated that we shouldn’t settle for anyone willing to do anything less.
Thank you for always being there for me and my 2 boys. You are the best man and role model we have in our lives…
[26] 1 [92] & annex “G”
The mother agreed that whilst the father was not named, it was possible that mutual friends of the parties including co-workers at the military would assume that she was talking about the father.
The mother said that insofar as she was aware, the post was not viewable to the public. After further challenge it was conceded by the mother’s counsel that the post remained viewable to the public.
On 30 October 2021 it was common ground that Y was in the mother’s care when he suffered a serious injury requiring hospitalisation.[27] In the family report, the father is reported not to seek to blame the mother for the accident and the report writer makes the point that the incident demonstrates that even with the most watchful and vigilant parent, children can get injured.[28]
[27] -88
[28] See n-27
On 1 November 2021, procedural orders were made to facilitate the parties attending mediation in relation to the Part VIII dispute and otherwise to facilitate the production of a family report and the allocation of a trial. In addition, interlocutory parenting consent orders were made replacing the existing “spends time with” regime between certain dates as well as for some telephone communication between the children and the mother.
On Friday 10 December 2021 family report interviews of the children occurred as well as face‑to-face observations with the children and each of the parties. The mother was asked about events following the family report interviews on Friday 10 December 2021.[29] She agreed that the interviews concluded at 2.00pm and that pursuant to court orders, the children were meant to be in the father’s care from 3.00pm. She agreed that she had initially resisted the father taking the children earlier, saying –
“This is my bonding time with the children…I was put on the spot…I was not expecting the see Ms F there…I felt intimidated by them making that demand without prior consultation…”
[29] -67
During cross-examination, the mother was reminded that the parties had been separated for 18 months by the time of the interviews and it shouldn’t have been a problem should it. The mother repeated that it was bonding time but consistent with the child expert’s record of the event, said she didn’t complain.
On about Sunday 12 December 2021 the mother is recorded in the family report as saying that she had asked the father if she could have the children returned to her early so she could start her trip to Victoria.[30] After an exploration of the circumstances around the father refusing to accommodate the mother’s request for the commencement of the children’s holiday time with her to be brought forward to earlier in the day so that she could travel to Victoria, the father appropriately agreed with the proposition that his behaviour showed a lack of flexibility on his part. When responding to questions about why the mother commenced the trip knowing the travel would endure into the evening the mother refused to countenance another option other than the one taken by her.
[30] -68
On Tuesday 14 December 2021 the family report interviews of the parties occurred via audio‑visual means.
The father agreed that on 27 December 2021 the call had not occurred between the children and the mother due to there being no reception. In her affidavit the mother says that the father did call her back to say there was insufficient reception to make a FaceTime call.[31]
[31] [139]
In her affidavit, the mother says the father failed to respond to her attempts to make a FaceTime call and that when he did respond to her message about the missed call he said that the children were at the playground and he had left his phone in the car.[32] The father denied that he did not attempt to call the mother on 29 December 2021, saying that various attempts were made.
[32] [14]
Shortly before 2 January 2022, Y fell off his bicycle causing him to lose a baby tooth and sustaining a scab and bruise to his chin. The father agreed that he did not inform the mother about this incident and she first learned of the event at a changeover on 2 January 2022 when the father said he told the mother about the injury.[33] The father said that he thought that because no medical attendance took place, he did not have to tell the mother sooner than that.
[33] [142]
When it was put to the father that his behaviour showed a lack of respect for the mother’s role and that she deserved a call when the accident happened, he responded by saying “I’m not going to call her every five minutes”.
On 10 January 2022, an order was made releasing the family report dated 24 December 2021.
Whilst not the subject of cross-examination, it appears from the mother’s evidence about her employment with the Employer U, that at some point she must have left the Employer U. The father asserts she did so in order to take a position at Employer AC.[34]
[34] 2 [11]
It was apparent from exhibit “F2” and the mother’s oral evidence that on 8 November 2021 she had entered into an employment contract as an admin assistant on a gross salary of $110,000 per annum with a three-month probationary period and with the location to be initially at Town P and then Canberra (‘the J Pty Ltd job’). The father said that in accepting the J Pty Ltd job, the mother had resigned from her position at Employer AC.[35]
[35] 2 [12]
At annexure “C” to her trial affidavit, her employer wrote to the mother recording that she was to have re-located to Canberra from 4 January 2022 but this had not occurred and so her probationary period had not been successfully completed, meaning her last working day was 14 February 2022.
The mother described the “admin assistant” work as giving her no satisfaction, involving admin work and largely computer-based.
In summary, the cross-examination on this topic was to the effect that the mother was not serious about moving to Town E but rather would move to Canberra, or as it was ultimately put to her, anywhere other than her present location. The mother denied this and was clear to say that her intention was to move to Town E and at the time she accepted the J Pty Ltd job, she had had a very open discussion with her employer about her intention. The mother said that she took the J Pty Ltd job because “it was a good income to tie me over until the end of the final hearing when I could re-locate.”
Noting the manner in which the father was cross-examined about the mother’s decision to forgo her career in the health care industry to follow the husband’s career path, the mother was cross‑examined about employment opportunities in that field in the local area. When it was put to her that there were positions available within a 50 kilometre radius of Town D, the mother said that this would require unreasonable travel and she would not be readily available to the children. She also said that any such job would have to fit into school hours and she would need family support if she was to return to that field. She explained that the J Pty Ltd job allowed her to work from home.
The mother was taken to annexure “2” to the father’s affidavit in reply which set out the results of a search conducted in relation to employment opportunities. The mother said that she was not qualified for a lot of the positions but for some, she possibly could be qualified.
During cross-examination, the mother said that if she had to stay in the Region AD she would have to leave Town D to secure accommodation because after all her bills were paid should would be left with cash of between $50,000 and $80,000. She agreed that she could afford a rental bond, she could afford rent and there was an ability for her to find employment. This evidence about her employability was consistent with her capacity to find employment during the relationship (in whatever form).
The evidence of the paternal grandfather was not challenged. In his affidavit, Mr G describes the significance of the intergenerational farm, “AE” and his desire for his daughter, at some point in the future, to carry on the family legacy of farming.[36] The mother’s affidavit specifies that her father is looking to transfer the operation of the farm to another family member and her wish to be able to take over the operation in circumstances where no other family member was interested.[37]
[36] [7] & [8]
[37] [171]
There was no information in either affidavit about the income the mother would be expected to earn, the hours she would work or when she would actually start. In the family report she told the child expert that with her father providing her with accommodation, she could work less and be more available for the children.[38]
[38] -37
Mr G said that he would move out of his home on the farm to allow his daughter and the children a home. Mr G also deposed to being agreeable to subdividing his property so that the mother could purchase some land from him on which she could build a new home for her and the children.[39]
[39] [10] & [11]
In her affidavit the mother reflected that a move to Town E would increase the children’s exposure to both their maternal grandparents and extended family members and also give her much more support than she currently has.[40]
[40] [172] & [173]
The father said that he understood that the mother (and the children) have the benefit of quite frequent visits with Mr G. From her oral evidence, I heard that the children were making something for Mr G on Father’s Day 2021 and self-evidently from her Facebook post, the mother holds the view that the children have a close relationship with their grandfather.
On 28 February 2022 the trial was due to start, but by consent, the trial was stood over until the following day as the parties were confident of resolving the Part VIII dispute.
On 1 March 2022, the parenting trial commenced and final property adjustment orders were made by consent on all aspects of the parties’ property save for superannuation which was given an adjourned date to afford procedural fairness to the superannuation trustee (s 90XZD and r 10.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)[41]).
[41] Unless otherwise specified any reference to subordinate legislation shall be a reference to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021
It was common ground between the father and MS F that they do not co-habit but do see each other frequently. MS F said that the father had briefly talked to her about the possibility of him moving to Victoria and that she had told him that she and her former husband had agreed to stay in City AF (and continue to share the care of their children).
MS F indicated that she had no intention of moving and irrespective of whether she sought employment in her field in either City N or Victoria more generally, her options would be limited.
The father acknowledged that arising from the property adjustment orders made by consent on 1 March 2022, it was likely that the mother would receive cash of something less than $194,000.
In response to questions about whether he foresaw any difficulty for the mother in finding/purchasing accommodation for her and the children to move into once the family home was sold, the father said that he considered that the mother had access to support from the maternal grandparents who he understood visited the mother quite frequently.
He acknowledged that the bee farm at Town E provided suitable accommodation for the mother as well as a job. He disagreed with the proposition that the mother’s preferred occupation was as a health care worker, responding by observing that she had accepted two positions working in the “supply field”.
The father also agreed that the children are well cared for by the mother but was unwilling to make concessions about the children being probably more closely attached to the mother.
The father denied the mother’s allegations that he drags out changeovers and denigrates her in front of the children.
The father disputed that the twice weekly FaceTime calls on Mondays and Thursday at 5.00pm have occurred consistently.
When asked if he thought the mother would comply with any orders that were made, the father said no.
There was consensus that the father has contractual obligations to stay with the armed forces until 2024. The parties agreed that the father could de-list from the armed forces but it would come at a financial cost because he would have to repay the armed forces bonus money the parties received in early 2020. In cross-examination the father said that this was impossible as he did not have that money available to him but acknowledged that he would be receiving a share of the sale proceeds once the family home was sold.
The father agreed that the children love their mother and that they need a loving and caring relationship with her. He denied that if they lived with him and not with her that they would be upset about this but accepted that it would be a massive change for them. He agreed that the mother was very unhappy about living in City AF.
In summary, when asked about whether the mother remaining in the City AF area would just serve as a reminder of everything that went wrong, the father said that the mother is no longer in the armed forces and he denied that her remaining in the area should serve as a reminder.
The father acknowledged that he has not asked his employer if he could move to say City N in order to accommodate the mother’s desire to relocate the children and agreed he could ask on compassionate grounds. He then said the reason he hadn’t asked was that because of his specific skill set, he had to be employed at Town P. He acknowledged that he could have a career other than in the military.
The father denied that he could continue his relationship with the children over distance. He acknowledged that he had thought about the potential of making the mother very unhappy if she was unable to move to Victoria and agreed that it could be a big problem but that he also believed that the mother could be happy in Town P. The father’s oral evidence was that he considered that the children would be best served by them having equal time so as to allow them to have two loving parents.
When asked about why the father couldn’t take up a role at the City N facility, the father said that the position was outside his skill set and for the same reason, said that it was unlikely that there would be an available posting there. When asked about alternate employment in Melbourne as a professional, the father denied he had the skills to take on such a role and when the nature of the machinery he would be working on was clarified, the father said that he had no idea if he could take on that role.
There was some cross-examination about the father’s failure to meet his obligations to financially support the children arising from an apparent agreement reached at the solicitor‑facilitated mediation. The tenor of the father’s evidence was that he had either been unaware of the expense and/or had not been asked to reimburse/contribute towards it. When pressed about Y’s pre-school fees, the father said that he had not contributed because the mother had unilaterally moved Y without telling him the details. In their affidavits, the parties gave evidence about child support payments. The mother’s affidavit attests to the father paying $730 per month which she says are received sporadically but does not depose to any arrears.[42] The father says he pays $760 per month as assessed and he denies he is ever late because such payments are automatically deducted from his income.[43] The issue did not feature in cross-examination.
[42] [167]
[43] [261]
When asked about the state of the parties’ co-parenting relationship, the father agreed that it could be better, but indicated that in the future it could improve. He denied that the parties did not have the capacity to make decisions together and when it was put to him that one example of why there was no capacity was due to him not telling the mother about Y having a serious injury, he denied that Y had had one in his care.
In cross-examination, the mother confirmed that if she were not permitted to re-locate the children following the trial, then it was the mother’s expectation that she would seek to do so upon the father being transferred by the armed forces which she expected would happen in 2024.
In terms of the mother’s proposal in the event that the children did not re-locate, the mother said that the reason why the children should spend from Fridays to Sunday afternoons with the father each alternate week was to give them “stability and routine…that’s what they need at their young age”.
When asked about a changeover at the start of the school day on Mondays, the mother said that this had been trialled already and that the children had been “extremely overtired and very hard to get back into their routine”.
The mother agreed that there were no longer any risk issues around the father’s alcohol consumption or supervision of the children. The mother said that the father had the capacity to care for the children over a weekend but not when they were attending school.
She said that she was unaware of any concerns about the father dropping the children to day‑care or school on Monday mornings.
Currently, X attends year 2 at Town D Public School and Y attends kindergarten at Town D Public School with both children attending OOSH on weekdays.
When asked to describe X:-
(a)the father described his eldest son as being a “calm, cool and collected little fellow” who thought things through before acting;
(b)the mother said her eldest son was a “thinker” who was kind, caring and having emotional intelligence.
When asked to describe Y:-
(a)the mother said her youngest son he too was kind and caring, a lover of animals and was a “fire cracker”;
(b)the father said that Y was a “pocket rocket” who was full of life and could be a “bull at a gate”.
On 2 March 2022 the parenting trial concluded and I reserved my decision.
THE FAMILY REPORT
The family report process occurred over two separate days, four days apart.
In cross-examination the child expert confirmed her opinion that the mother’s presentation was very much from an adult perspective and she was unable to talk about things from the children’s perspective. In short, the child expert said that the mother’s “adult focus …concerned me”.

After identifying the key subject issues of the litigation and the safety and risk matters identified in the proceedings, the child expert identified a further issue of concern, namely the mother’s willingness and ability to facilitate a relationship for the children with their father.[44]
[44] -25a)
The child expert made some general observations about the mother’s presentation and concluded by saying this –
…Throughout her interview, the mother consistently spoke very negatively about the father, and it was evident she held a considerable amount of resentment and hostility towards him.[45]
[45] -26
The child expert was not challenged about her observations and how she recorded the mother’s conversations.
It was suggested to her that the mother’s reactions should be seen through the prism of not having met MS F until their exchange at the observation session and that this was an explanation for how she reacted at the end of the session in suggesting that the father was affecting her “bonding time” with the children. It was suggested that this “first meeting” also informed how the mother presented at the audio-visual interview insofar as she was not mentally prepared for it.
Under cross-examination the child expert was empathetic to how the mother may have felt (and then reacted) at meeting MS F for the first time, however she said that there had been a gap of four (4) days between the two sessions and that the mother had “immediately launched” into the interview session to talk about her concerns. Accepting the empathetic concession the child expert made later in her cross-examination about the mother’s behaviours at the observation session, when reflecting on both stages of the family report process, the child expert described the mother’s attitude as being “proprietary”.
On the topic of how the mother would support the children’s relationship with the father in the event that they moved to Victoria, the mother was recorded as saying –
“I guess as much as I can, allow the facetime communication, allowing them to call their dad at any time they request to. Allowing him to visit them whenever he wants, within reason obviously”.[46]
(my emphasis)
[46] -38
The child expert records this about some of the mother’s concerns if the children cannot relocate –
39.The mother said if she was not allowed to relocate, “I think there would be severe mental health impacts (on her) because it is him controlling my life even though we are not together. He knows I never wanted to post there. It is that constant reminder that he has control over my life. He knows that I hate it there (City AF region) and I never wanted to be there, even being there is the constant reminder he has control over my life. I don’t get to live my life the way I wanted to live it. He still expects me to sacrifice for him, but we are not together anymore, and he has never sacrificed for me. He could post to City N or Melbourne.
In summary, the family report included the following about the mother’s mental health:-
(a)At presentation the mother has unresolved emotional issues arising from the distress she experienced at separation.[47]
(b)In the past (namely immediately post-separation) the mother had been assessed as having high levels of stress, anxiety and depression but had sought assistance through counselling which had improved her situation considerably.[48]
(c)The mother has no formal diagnosis regarding mental health with her current mental health self-described as being “great”.[49]
(d)Currently the mother does not have a mental health condition that is likely to significantly impact on her capacity to care for the children.[50]
[47] -126
[48] -97
[49] -97
[50] -101
The child expert also accepted that if the children were not able to relocate it was “fairly appropriate” for the mother to feel “trapped”; but when pressed as to whether these feelings could then affect her parenting capacity or her overall mental state, the child expert said that she could not assess that and would not guess at it.
The child expert said she was not qualified to opine if the mother could cope if she stayed in the Region AD. The child expert said that the mother would likely be very distressed, as would the children if they were separated from the father.
In cross-examination, the child expert suggested that now was a real opportunity for the mother to be proactive and access therapeutic services to assist her moving forward. It was apparent to me that the child expert saw therapeutic engagement as a way for the mother to be able to appropriately self-reflect and support the children having a strong relationship with both their parents into the future.
The family report records many expressions by the mother about the father, his relationship with the children and/or his parenting capacity including as follows:-
(a)In relation to her alleged concerns about the father’s parenting approach, the father’s parenting is “null and void. Non-existent. It is hard for me to comment because when he lived in the house, he didn’t do anything with them, and I am not there to visualise what he does with them now. He claims he did the night-time routines, if that is the case, why do you now find it so difficult to get them to sleep. They sleep in his bed now.” She also commented, “to me he has not shown responsibility he is able to look after them”.[51]
(b)It was noted the mother had described the father’s parenting approach and she was asked to describe the nature of the relationship between the children and the father. She said, “I don’t know how to answer that question.” (Q. What are you struggling with?) “Putting it into words.” (Q. Can you give me some examples?) “He has not put any of his time aside for the children. He does not go out of his way to sacrifice what he wants for what they need.”[52]
(c)…The writer asked the mother if she saw any benefits to the children of a relationship with the father and she said, “…Not unless he is willing to change a whole lot” and referred to the father not doing a parenting course she had asked him to do. The mother acknowledged she did not think a parenting course would improve the father’s parenting of the children, but in her mind, the father completing a parenting course would, “show me he is willing to do something he doesn’t want to do for the benefit of his children, I was looking for some kind of gesture that he was willing to sacrifice for the benefit of his children on some level.”[53]
(my emphasis)
[51] -82
[52] -42
[53] -45
When speaking of the same issues about the mother, the family report includes statements by the father as follows:-
(a)…“she is a good mum who loves the boys and is very caring. Sometimes I think her priorities are not quite right, everything she does she believes is in the best interests of the boys…she is very possessive of them and that side of things but in general she is a good mum, and she is caring.”[54]
(b)When asked about the children’s relationship with their mother, the father said, “I think it is very loving and they certainly love their mum. They freely talk about her, and I encourage that because that is what I want in the end. The best thing in the end for them is a loving relationship with their mum and with me…”[55]
(c)When asked about the benefit to the children of a relationship with their mother, the father said, “…there are huge benefits to having both parents in your life. It helps create more rounded people, input from both parents gives a better perspective on things. Rather than just my perspective they have hers as well, it gives them more information to make decisions which might influence how they see the world growing up…”[56]
(d)The father described the mother’s strengths as, “very caring, very loving. She is very protective of them and will do anything to protect them or to go to bat for them.[57]
(my emphasis)
[54] -55
[55] -56
[56] -57
[57] -58
In expressing her concerns, the child expert said in cross-examination that if the mother persists and continues to hold a negative, resenting and hostile attitude to the father and maintains her concerns that he poses a real and persistent risk then there is the potential for her to undermine the relationship the children have with the father. If there is no real risk, but the mother continues to hold firm, then there is the risk of this impacting the development of the relationship between the father and the children. For example, there might be further allegations or concerns that could possible disrupt the time between the children and the father.
In response to a question about whether there is a real prospect of the children’s relationship with the father eroding over time if they saw the father for alternate weekends in City AF or even more infrequently, the child expert said that there was a potential for that to occur.
In the family report, the child expert said that –
129.A significant consideration in whether the children should relocate away from the area where the father resides is whether the mother’s relocation will significantly diminish the ability of the children to have a relationship with their father. In this regard the writer considers that the significant distance between the households is to the extent that arrangements could not be restructured without a substantial diminution in the quality of the relationship between the children and the father.
(my emphasis)
The child expert expressed the concern that given the mother’s strong negative views, those views would continue to affect her capacity to support the children’s relationships with the father such that practically, difficulties may arise where the mother tells the father that the children are telling her they don’t want to go or don’t want to talk to him and this might be accurate because, having limited exposure to the father means the children feel a loyalty demand to act or express themselves in a way that they think will satisfy the mother’s needs.
In the family report, the child expert expressed an opinion that the mother has unresolved emotional issues arising from the distress she experienced at separation which are impairing her ability to cut through her animosity towards the father so as to support the children having a meaningful relationship with him. In her view, the child expert considered that the mother would likely struggle to facilitate a meaningful relationship between the children and the father now and into the future.[58]
[58] -126
In cross-examination the child expert described the mother’s negativity towards the father as intense and palpable saying that the mother didn’t believe that the children would benefit from a relationship with the father but that if the father’s influence is significant enough then the children will be able to have that meaningful relationship.
In response to a question about how the mother thought the children’s relationship with father may be affected if they relocated to Victoria, the mother is recorded as saying that she thought that the relocation would not make a difference at all, opining that the time would have more quality rather than the current “constant” time because now the children sit in front of the PlayStation or get told to play with MS F’s children rather than the father having to entertain them himself.[59]
[59] -44
The child expert considered that the children were sufficiently resilient to embrace a relocation but this transition would be more difficult as they would contemporaneously be mourning the loss of their father. Overall her evidence was to the effect that if the children were relocated it would be very difficult and disruptive for them and their development.
Paragraph 119 of the family report said this –
119.X and Y both have warm and friendly personalities with emotional regulation that is age appropriate. They are, however, likely to have experienced grief and loss associated with the separation of their parents. This occurred for them at a very young age when they had limited capacity to understand what was happening and when their coping capacities would have already been stretched by meeting normal developmental milestones. Unfortunately, the parents were not able to work collaboratively during this difficult and confusing time for X and Y to prioritise their emotional needs. Further, the writer considers it is likely that the mother’s own emotional difficulties in managing the grief she was experiencing reduced her ability to respond to the children in an attuned way, particularly regarding the children’s need for an ongoing relationship with the father.
In my view, a demonstrable example of the children’s coping capacity was reflected in the discourse during cross-examination of the father about the children being clingy not only towards the mother but also towards the father.
When asked would a reduction in time still permit the relationships to remain meaningful, the child expert said that this would be more difficult if they lived in a household where there were no positive views about the father. Under cross-examination from the mother’s counsel, the child expert said that the mother’s presentation to her was such that –
“...she’s unlikely to be very flexible around the children having additional time with the father…and that worried me. When you live at a distance you need that parent who’s living at a distance to really encourage and promote it quite actively, because we’re not having what I talked about before, the father being able to promote that meaningful relationship because they’re with him more consistently. So that’s where it becomes more important.”
She opined that the children would lose their meaningful relationship with the father if they spent irregular time or very limited time with him (including only seeing him two weekends a term) and that if they lost their meaningful relationship with the father, this would have risks to their development. In exploring this answer, the child expert said that in general terms, children will feel quite confused and blame themselves for the loss of the relationship, thinking it is their fault.
The child expert’s view was that the mother’s unresolved emotional distress was impeding her ability to separate the children’s need to have a loving and meaningful relationship with the father, from the animosity she felt for him which was consistent with her opinion within the family report.[60]
[60] -126
The child expert’s evidence continued, opining that as children reach adolescence they start developing their identity and this where they –
“…really rely on having both parents to think about who they are, the way they want to be, what role models they’ve had, and to work through to develop into their own identity. So if they haven’t had both parents that can be more of a struggle for them. You also sometimes see in adolescents if children haven’t had a relationship with one parent they can come to idealise them perhaps, and choose to live with that other parent. That can be disruptive for them. So there’s a range of possibilities, but I feel comfortable saying it would be very difficult and distressing for the children (losing the meaningful relationship with the father) and not preferred.”
Furthermore, the child expert told the Court that the loss of a meaningful relationship can possibly lead to problems with the children forming relationships of their own, saying that –
“It’s about general adjustment. Of course having relationships of your own, and healthy relationship is part of that adolescent period, so that could be an impact, yes. But the other possibility as well is that they come to resent the mother if they perceive that she stopped them from having a relationship with their dad”
In the family report, the child expert spoke about the importance of the children spending substantial enough time in the father’s household to reality test the mother’s negative view of their father.[61] As examples of the mother’s attitude towards the father, I observed within the family report the mother was recorded as describing the father as “narcissistic” on multiple occasions, and saying things like the father is a “narcissistic arsehole” or a “compulsive liar”[62] and that “I don’t believe anything that comes out of his mouth these days. Everything he says has been proven to be wrong”.[63] To give some context to the last statement made by the mother, I note that the father admitted in cross-examination that he told “some fibs” at or around the time separation, but whether that explains why she says that “everything” he says has been proven “wrong” is far from clear to me and may be demonstrative of other factors at play.
[61] -124
[62] -61, 64 & 96
[63] -61
The child expert said that substantial and significant time would permit the children to gain their own experience of the father, allowing them to independently inform themselves of the mother’s views.
The child expert found the father’s evidence to be child-focused. [64]
[64] -47
The child expert said that although the mother holds strong views, she considered that the mother would comply with orders. However, on its own, compliance may not be enough to ensure the children maintain a strong relationship with the father because in a summary of her evidence, the child expert did not consider the mother had the capacity to support the children’s relationships with the father. In essence, the child expert was concerned that because the mother already thinks the children struggle in their relationship with the father (a topic I will explore later), if she is able to relocate the children and they express reticence about their time or communication with the father, she may not have the capacity to engage in appropriate strategies to ameliorate any worries they (or she) may have (whether real or imagined).
The child expert considered that any orders should be prescriptive so that both parties were clear about their obligations.
As part of the family report’s recommendations[65], the child expert recommended that the children spend five (5) nights a fortnight with the father and otherwise live with the mother. In cross-examination, the child expert explained that given the children were very young, it would be developmentally preferable for them to see both their parents each week.
[65] -133 to 141
When asked about why this type of regime would work better than equal time, the child expert explained that if the same week night is selected each week, there is a consistency in terms of arrangements for school and extra-curricular activities that may be scheduled on that day. This would be different to a week-about regime where every school week each parent will swap duties which may require them to have good communication and co-operation between them when unexpected events arise.
The child expert’s opinion was that the co-parenting communication between the parties fell short of these characteristics and in those circumstances, it was likely the children would have to try and manage or navigate any subsequent parental conflict which would likely be physically and emotionally draining for the children and may impact on their ability to attend to age-appropriate developmental tasks.[66]
[66] -124
In terms of his parents, X was recorded to say to the child expert that he wanted to “see them the same amount of time”.[67] In response to questions about X’s stated views, the child expert said that his responses showed no indication of being coached. Y told the child expert that he wanted to spend more time with his father (maybe a week) but the child expert was unable to glean at what frequency (if any) Y thought that should happen.[68]
[67] -106
[68] -112
Y also said to the child expert that he knew his parents were not friends because –
…“Mum told me Dad was being mean.” (Q. what did she say he was mean about?) “She didn’t say because it was just meant to be adult talk”.[69]
[69] -111

In making this finding I have also reflected on whether the mother’s negative attitude is so pervasive as to cause a change in residency. I am not persuaded that it is, because it is common ground that the children have a strong relationship with the father despite the mother’s views and I accept her evidence that even though she has a poor view of the father, when the children have expressed a reluctance to spend time with the father, she has encouraged them to do so and the term time and holiday time as ordered has continued. What I am concerned about is that if the time is not so consistent in frequency, her capacity to continue to encourage and support may erode and risk the children being exposed to parental conflict when she has a different view on, for example, the appropriateness of the proposed visits or the activities that the children should engage in, particularly for the ad-hoc visits by the father.
In my view, and in the best interests of the children, the only way to support the paramount consideration of a meaningful relationship between them and the father is for the children to spend substantial and significant time with the father.
Based on the evidence, the mother has not satisfied me on the balance of probabilities that she can support the quality of the children’s relationships with the father in any other way. The mother is the children’s primary attachment figure and to change that situation now would only increase, not decrease, her negative views of the father and thus the potential for the children to be exposed to conflict.
I am satisfied that substantial and significant time between the father and the children will permit the children sufficient exposure in his household to ensure that the father is able to take an active part in their schooling and extra-curricular lives as well as giving them the chance to inform themselves about what sort of a father he is, independent of what the mother’s household may or may not expressly or implicitly convey.
I turn now to a consideration of whether the children having substantial and significant time with the father and otherwise living with the mother is reasonably practicable by reference to s 65DAA(5) and where appropriate my earlier ‘best interests’ findings.
CONCLUSION – IS IT REASONABLY PRACTICABLE?
In addition to s 60CC I need to consider the reasonable practicability of both parties’ proposals as they relate to substantial and significant time:-
The mother’s proposal
For the children to spend substantial and significant time with the father, the parties have to live relatively close to each other noting that for now, both parties do live in the same area. In my view this means that the children should not be spending more than 45 minutes in a car driving from their school to each party’s home.
It is common ground that the family home is being sold. In his outline of case document, the father submits that the mother could live in the Region AD.[118] Inferentially from Exhibit “M2”, the mother must hold a similar (if reluctant) view about her capacity to remain within proximity to support the children’s substantial and significant time with the father.
[118] Exhibit “F1” para 8, page 7
Nonetheless, the mother says that after the sale of the family home, she will not have sufficient funds to purchase another home in the area, she has limited supports and her mental health will be impacted if she stays. She is currently unemployed but agreed in cross-examination that she would be able to find some form of employment.
The evidence about a future in Town E left me able to find that her accommodation would be secure. Given her expectation of receiving between $50,000 and $80,000 nett, I am unwilling to find that it is reasonably practicable that the mother will have the resources to buy and build a new home.
I accept that due to her accommodation in her father’s home, the mother’s intention is to work less hours and be more available to the children. What the mother’s future employment looks like remains nonetheless unclear. I wish to acknowledge the mother’s oral evidence that to return to employment within the health care industry within the area she now lives in would require the support of family. The issue was not fully explored in cross-examination so I remain unclear about why this would be the case and I am unwilling to make any finding in that regard.
The main points of difference about her employment prospects are that in Town E, she would not have to work as many hours to earn a level of income that will pay for her living expenses (including the benefit of free accommodation), leaving her more time for the children.
In either state, I find that the father will continue to meet his child support obligations.
The father says that the mother will have sufficient funds to rent an appropriate home in the area, there is insufficient evidence to support a finding that her capacity will be impaired by a decline in her mental health if she stays and agrees she will have limited support.
The child expert’s evidence could be seen as limited because in considering the mother’s future, she was told that the mother was on a ‘six-figure salary’ which ended two months later. The child expert was aware of the mother’s limited supports and reflected on the mother’s mental health and any risks on the mother’s future parenting capacity. I accept the child expert’s view that the mother does not have a mental health condition that is likely to significantly impact on her capacity to care for the children.
The lack of support the mother has now, versus what is on offer at Town E has weighed heavily on me. In this regard, she told the child expert she has “literally no family support” in the City AF area.[119]
[119] -36
In the absence of any compelling evidence from the mother and without any expert evidence, I am not persuaded to make a finding that to dismiss the mother’s relocation application would have the effect of impairing either her future mental health and/or capacity to care for the children. In my view, the evidence points to the mother being in great mental health, securing employment and being able to raise two healthy and largely happy boys despite her unhappiness with the circumstances of separation, access to limited supports and her desire to move the children.
For the reasons above, and taking account of all the evidence, I am satisfied that the mother could remain in the Region AD, albeit I accept that she would be renting and may have to leave the Town D area which may necessarily result in the children changing schools.
I will explore my reasons for this finding below.
I accept the mother will receive sufficient funds from the parties’ property settlement to be able to afford a rental bond and being able to make rental payments. The mother told the court that she will have access to at least $50,000 after all her debts are paid. In addition, she will not have the burden of the existing mortgage to pay because the family home is to be sold and the debt paid off. Whether the mother needs to tap into her capital for long is unclear because presently she is unemployed, but she says she would be able to find some employment.
This evidence from her was consistent with her long history of employment in various fields.
I accept the father’s submission that on the balance of probabilities the evidence does not meet the threshold for me to find that the mother’s mental health will be adversely impacted such as to affect her future parenting capacity. To the child expert, the mother declared that she sought therapeutic assistance post-separation and now, almost two years on, her mental health is ‘great’. She says this despite having had to live in the Town D area for the same period of time.
I have already recognised that any decision requiring the father to have substantial and significant time (and consequently prohibiting the children’s relocation) is likely to risk feelings of bitterness and unhappiness. Whilst there was no specific affidavit evidence from the mother about this, I acknowledge that there is a level of antipathy towards the area premised on the sacrifices she has made in following the husband around, never wanting to live in the area and the father having broken an earlier promise to stay in City N (which he denied).
On the potential impacts on her, I have considered the mother’s views as set out at paragraph 39 of the family report.
There was no expert evidence about the mother’s mental health prognosis and the child expert refused to be drawn on the topic.
With the above evidence in mind, the best I can do is to acknowledge the mother will have these feelings and to try and ameliorate them, I intend to give her some autonomy about her future home.
It was uncontroversial that the mother does not have family support in the area but the father told the court that he understands that the mother’s family does regularly travel to visit her. Within the family report, the mother is reported to say she has a positive ongoing relationship with Mr G, describing him as very supportive of her and the children.[120] I have no doubt about the mother’s emotional connection to the bee farm upon which her father lives, but noting AMS v AIF, she does not need to demonstrate a compelling reason for her desire to relocate the children.
[120] -30
Within her affidavit, the mother did not expand upon any concerns she holds for her mental health prognosis or ongoing capacity to parent the children if they were not permitted to relocate, save to say that she has a very limited support network without elaborating any further on that topic[121] and in that vacuum (noting the father says that members of her family do visit her frequently) I am somewhat limited in the findings I can make other than to accept that the mother will have limited supports if she remains in the Region AD area but what that actually looks like and the effects it will have on her remain somewhat of a mystery given that currently (save for what I have already referred to) there was no compelling evidence of any relevant concerns about the children and/or the mother’s future care of them.
[121] [172]
Whilst I accept that the mother will be upset about not being permitted to relocate the children, for the reasons above, I am satisfied that she has the capacity to implement substantial and significant time between the children and the father, despite not having as much support as she would like and despite the potential for her to feel bitter and unhappy about her situation.
Given the comment from Y about his mother describing his father as “mean” and the child expert’s concern about the mother’s view that the children currently struggle with their relationship with the father, I accept that there is a risk of the children being exposed to the mother’s bitterness but the frequent transitions between households is a protective factor against their best interests or welfare being adversely affected.
I have already explored and made findings about the parties’ poor communication and lack of trust.
In my view, the level of communication the parties do have is sufficient to enable them to resolve difficulties in the implementation of substantial and significant time as proposed by the mother. This is because save for one incident of inflexibility/stubbornness (depending on whose perspective you look at it from) before the mother was to take the children away for a holiday in December 2021, there was no evidence of any difficulties with the implementation of the existing regime of time. The mother did give some evidence about her concerns with the father dragging out changeovers but this was denied and in any event, from the lack of evidence, it seems that the parties have been able to navigate any issues that may have arisen at changeovers. In the future as most of the changeovers would occur in a school setting, this would likely disavow the father from any such behaviours (if they existed).
In addition, I accept the child expert’s view that if the orders are prescriptive and the parties know their obligations, the orders will be complied with.
I have already addressed the impact on the children of the change to their circumstances insofar as they would be spending more time with the father then currently. Both parties supported an increase in time in circumstances where the children did not relocate and I am satisfied that any increase in time is reflective of the strong relationships the children have with the father. In addition, the increase is supported by the child expert who sought that the time increase to five, not four nights a fortnight. In my view there are nothing but positive outcomes for the children who will have the benefit of living with their primary attachment figure and spending substantial and significant time with the father.
Section 65DAA(5)(e) invites me to consider any other matters that I consider relevant.
I have already explored the Court’s recognition of the mother potentially having feelings of bitterness or unhappiness about my decision not to permit the children to relocate. I acknowledge the mother has travelled ‘far and wide’ supporting the father during the relationship and that she feels aggrieved about now being asked to stay in a location not of her choosing.
For that reason, I am not going to make a coercive order about a geographical area within which the children must live. It is oppressive and uncalled for in circumstances where there is no doubt in my mind that the parties will comply with Court orders and the mother has not taken steps to unilaterally move the children away.
The mother is entitled to her freedom of movement where it does not adversely affect the children’s welfare[122]. I have found that if the children are relocated, then their welfare will be adversely affected because they will, on the balance of probabilities, lose their meaningful relationship with the father.
[122] See U v U
I am confident that the mother will find a home that is appropriate and affordable for her and the children and will not be at such a distance as to be too onerous for the children to experience in terms of travelling from the father’s home to school four times a fortnight.
Both parties sought that each of them give notice of any changes to their address on 48 hours’ notice. The benefit of a notice period is that if a party is concerned about an impending change of residence adversely impacting on the children, they have time to try and resolve it, failing which they can apply to the Court. In circumstances where I have not given them (the parties) procedural fairness[123], I will not change the effect of their consensus position, but the parties are on notice about the Court’s view regarding how any proposed change of residence for the children should support the children having a meaningful relationship with both parties.
[123] See n-122
CONCLUSION – PARENTAL RESPONSIBILITY
Pursuant to s 61DA when asked to make a parenting order, I am required to apply a presumption that it is in a child’s best interests that the parents have equal shared parental responsibility, absent a finding that one of the parents has engaged in abuse of the child, family violence or it is not otherwise in a child’s best interests.
The father sought the allocation of equal shared parental responsibility. The mother sought that she be allocated sole parental responsibility.
The child expert reservedly supported the allocation of equal shared parental responsibility which, given their conflict, would be supported by both parties successfully completing the ‘Keeping Contact’ program. Neither party sought an order about their participation in such a program.
The child expert supported equal shared parental responsibility as a way to ameliorate her concern about the mother marginalising the father from the children’s lives given her overwhelmingly negative opinion of him. I have already made much reference to those concerns and the mother’s comments to the child expert.
I am not inclined to agree with the child expert that the way to redress her concern is through the allocation of equal shared parental responsibility. I am also not convinced that the parties can effectively and co-operatively co-parent given their track record to-date which causes me to find that it is not in the children’s best interests to allocate equal shared parental responsibility. It will only lead to the risk of the children being exposed to parental conflict and the inherent uncertainty that flows.
The children will live with the mother and she should be accorded sole parental responsibility with the caveat that I have already expressed about ensuring that any location she moves to must not adversely affect the children’s welfare insofar as the substantial and significant time they are to spend with the father which will require them travelling to and from school with him on four occasions each fortnight.
To ensure that the father is not marginalised (to use the child expert’s language), I will make orders ancillary to parental responsibility which will mean that both parties have access to information about all the important issues affecting their children such as access to their educational, extra-curricular, allied health professionals and medical information with the ability to attend events to which parents are ordinarily invited.
None of the proposals went so far as to identify “C Families” but given the evidence, it is incumbent on me that the only way to support the children’s best interests and ensure the organisation knows it can speak to the father about anything to do with X’s counselling in particular, is to specify that he be joined to the case plan (if this has not already happened). The orders will also extend to the parties being obliged to keep each other informed about injuries or other such events that affect the children.
I have already explored why the children should live with the mother and I will so order.
I have already explored why the children should spend substantial and significant time with the father but in summary it is because:
(a)They will benefit from having a meaningful relationship with the father;
(b)The mother has some limitations to her capacity to support the emotional needs of the children to have a meaningful relationship with the father;
(c)Regular weekly time between the children and the father will ensure that they get a balanced view of the father’s household and ameliorate any negativity that may arise in the mother’s household;
(d)The children will benefit from the increase in time that flows from their change in circumstances because it will allow the father quality time to engage them in their schooling, any extra-curricular activities they may have in the future and general weekend and holiday time, including with other significant persons;
(e)There are minimal prospects of future litigation or parental conflict if the tyranny of distance is removed from the parties’ changeover arrangements and communications.
In recognition of the strong relationships the children have with each of their parents, the orders will also include holiday time (in the form sought by the mother) and the children spending time with both parties on special occasions (in iterations reflective of one or other of the parties’ proposals).
I have already explained why I do not intend to make the coercive order the father sought. I have included a notation acknowledging that whilst the mother has sole parental responsibility (leaving her free to solely make decisions about the children’s major long-term issues) my expectation is that given the Orders I have made, any move from the family home will only be to a location that supports the children being able to travel to and from school to each party’s house and which does not adversely affect their best interests or welfare.

The family report did not recommend electronic communication, but both parties sought it. I have preferred the father’s proposal of twice weekly calls because given some of the historical difficulties that both parties allege, the less often they have to ensure the children are available, the more chance the calls will go smoothly for the children with the consequent reduction in parental frustration (and possibly conflict) that would flow from an inability to communicate with the children.
Orders are made to give structure to the manner in which the mother and the father are to communicate with each other.
An injunctive order has been made in light of the parties’ cross-allegations about denigration and Y’s disclosure to the child expert. Although other restraints were sought by the father, I made no findings to support orders being made as sought by him.
The father sought an order about the provision of medication however I made no findings to support such an order being made.
The mother is a good mother who loves her children. She has moved and set up a home for the children on countless occasions and at times she has felt isolated, worn out and unappreciated. I acknowledge those sacrifices. The Court recognises the role that the mother has played so far in the children’s lives. By supporting the children to live in the local area so as to ensure easy compliance with the Orders, the mother will be giving the children a priceless gift of having a warm, loving and secure relationship with the two people they love most of all.
For the reasons above, I am satisfied that the Orders I have made are in the bests interests of X and Y.

I certify that the preceding three hundred and ninety-two (392) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney.
Associate:
Dated: 13 May 2022

File number(s):	NCC 1624 of 2021
Judgment of:	JUDGE KEARNEY
Date of judgment:	13 May 2022
Catchwords:	FAMILY LAW – parenting – children aged 7 & 5 - whether interstate relocation be allowed – impact on significant and substantial time – potential adverse effect of separation - no serious risk of harm issues – poor co‑parenting relationship – best interests of children
Legislation:	Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA
Cases cited:	Aldridge & Keaton [2009] FamCAFC 229 AMS v AIF [1999] HCA 26 Angeli & Farina [2021] FedCFamC1F 266 Franklyn & Franklyn [2019] FamCAFC 256 Hepburn & Noble [2010] FamCAFC 111 Mazorski & Albright [2007] FamCA 520 MRR & GRR [2010] HCA 4 Star & Duggan [2009] FamCAFC 115 Taylor & Barker [2007] FamCA 1246 U v U [2002] HCA 36
Division:	Division 2 Family Law
Number of paragraphs:	392
Date of hearing:	28 February 2022, 1 & 2 March 2022
Place:	Newcastle
Counsel for the Applicant:	Mr Guyder
Solicitor for the Applicant:	Braye Cragg Solicitors
Counsel for the Respondent:	Mr Duane
Solicitor for the Respondent:	Dawson & Gardiner Solicitors

NCC 1624 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR HOLT Applicant
AND:	MS HOLT Respondent

ORDER MADE BY:	JUDGE KEARNEY
DATE OF ORDER:	13 MAY 2022