Lando & Robin
[2025] FedCFamC2F 837
•20 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lando & Robin [2025] FedCFamC2F 837
File number(s): PAC 150 of 2025 Judgment of: JUDGE JENKINS Date of judgment: 20 June 2025 Catchwords: FAMILY LAW – APPLICATION FOR REVIEW –mother unilaterally relocated with the children – review of orders for mother to return children to area where parties had been living – best interests of children – allegations of coercion and control – freedom of movement –determination that children return from Suburb B to Suburb C pending a final hearing – application for review dismissed. Legislation: Family Law Act 1975 (Cth) ss 60CC, 60CE, 60CG Cases cited: AMS v AIF (1999) 199 CLR 160
B & B: Family Law Reform Act 1995 (1997) FLC 92-755
Bustillo & Bustillo [2024] FedCFamC1F 556
Franklyn & Franklyn [2019] FamCAFC 256
Morgan v Miles (2007) 38 FamLR 275
SS v AH [2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 65 Date of hearing: 13 June 2025 Place: Melbourne – via Microsoft Teams Counsel for the Applicant: Mr Dura SC Solicitor for the Applicant: Rossi Simicic Lawyers Counsel for the Respondent: Mr Kearney SC Solicitor for the Respondent: Bartier Perry Lawyers ORDERS
PAC 150 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LANDO
Applicant
AND: MR ROBIN
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
20 JUNE 2025
THE COURT ORDERS THAT:
1.By no later than 11 July 2025:
(a)the Mother shall do all things necessary to cause the primary residence of each of the children X born in 2014, Y born in 2017 and Z born in 2022 (collectively “the children”) to be re-established in the Suburb C Local Government Area (LGA); and
(b)each of the Mother and the Father shall do all things and sign all documents necessary so as to cause and permit the children X and Y to resume attendance at D School, Suburb C from the commencement of Term 3 2025 and to remain enrolled and in attendance at such school pending further order.
Pending further order
2.Upon compliance with Order 1, each of the Mother and the Father be and hereby is restrained from causing and/or permitting the place of residence of the children or any of them to be changed to a place outside of the Suburb C LGA.
3.Pending compliance with Order 1 the children shall live with the mother and shall spend time with the father:
(a)from the conclusion of school on Friday 20 June 2025 until 5.00pm Sunday 22 June 2025; and
(b)on each Tuesday from the conclusion of school (or 3.00pm in respect of any child not in attendance at school on such day) until 5.00pm; and
(c)subject to order 6 herein, from the conclusion of school on Friday 4 July 2025 until 4.00pm on Friday 11 July 2025, it being noted that the children conclude Term 2 of school on Friday 4 July 2025;
with changeover to occur at school when the children (or any of them) are in attendance at school at the commencement of any period of time and otherwise at McDonalds, Suburb E.
4.Upon the Mother’s compliance with Order 1, then the children shall live with the Mother in the Suburb C LGA and shall spend time with the Father during school term time on an alternating basis as follows:
(a)on the first weekend following the resumption of school and each alternate weekend thereafter, from 9.00am Sunday to the conclusion of school (or 3.00pm in respect of any child not in attendance at school on such day) Tuesday; and
(b)immediately following the second weekend after the resumption of school and each alternate week thereafter from the commencement of school (or 9.00am in respect of any child not in attendance at school on such day) Monday to the conclusion of school (or 3.00pm in respect of any child not in attendance at school on such day) Wednesday.
5.Notwithstanding any other order herein, the children shall live with the Father:
(a)during the school holidays:
(i)subject to order 6 herein, for one half of each school holiday period following terms 1, 2 and 3 as agreed or in the absence of agreement, during the first half of the school holiday period in odd numbered years and the second half of the school holiday period in event numbered years; and
(ii)during the school holiday period following term 4 as agreed or in the absence of agreement, each alternate week with changeover to commence at 10.00am each Sunday;
and shall otherwise live with the Mother during the school holiday periods;
(b)in 2026 and each alternate year thereafter from 3.00pm Christmas Eve until 3.00pm Christmas Day and in 2025 and each alternate year thereafter from 3.00pm Christmas Day until 3.00pm Boxing Day PROVIDED THAT the children shall live with the mother in 2025 and each alternate year thereafter from 3.00pm Christmas Eve until 3.00pm Christmas Day and in 2026 and each alternate year thereafter, from 3.00pm Christmas Day until 3.00pm Boxing Day;
(c)from 3.00pm on the day immediately prior to Father’s Day until the commencement of school (or 9.00am in respect of any child not in attendance at school on such day) Monday PROVIDED THAT the children shall live with the Mother from 3.00pm on the day immediately prior to Mother’s Day until the commencement of school (or 9.00am in respect of any child not in attendance at school on such day) Monday; and
(d)at such other times as may be agreed between the parties in writing.
6.Until further order, during each period in which the children are spending block school holiday time with the father in accordance with Order 3(c) and 5 (a), that Z be returned to the mother’s care for two (2) nights during each period of block school holiday time as agreed between the parents in writing and failing agreement from 4.00pm on the third (3rd) day until 10am on the fifth (5th) day.
7.Save as otherwise provided herein, time shall commence and conclude at school when the children (or any of them) are in attendance at school at the commencement of any period of time and otherwise at McDonalds Suburb E.
8.The parent with whom the children are living/spending time shall cause the children to contact the other parent between 5.00pm and 6.00pm on each Saturday and Wednesday using the children’s iPads and during such periods of contact shall ensure that the children and each of them are free to communicate in an uninterrupted and private manner with the other parent.
9.Each of the Father and Mother continue to limit their communication to matters involving the children and shall communicate via the parenting application Divitto, except in the event of an emergency involving the children.
10.Within twenty-eight (28) days of the date of these Orders, each of the Father and Mother shall do all things necessary to enrol both X and Y in:
(a)the F Program NSW-ACT through G Centre; and
(b)a counselling service at a place local to the children in accordance with the recommendation of Ms H.
11.Paragraphs 7(b), 7(c), 8, 9 of and notation A to the Orders of 28 March 2025 continue.
12.Each of the Father and the Mother do that necessary to complete J Centre program ‘Bringing up Great Kids’.
13.For the purpose of these Orders, school holidays are deemed to commence on the last day of school requiring attendance and conclude at 5.00pm on the day prior the first day of the school term requiring student attendance.
14.The Application for Review filed 2 April 2025 be otherwise dismissed.
AND THE COURT NOTES THAT:
A.Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS:
This is a parenting matter concerning three children, X aged 10 years old, Y aged 7 years old, and Z aged nearly 3 years old (“the children”).
This is a review of orders made by Senior Judicial Registrar Nielson (“the SJR”) on 28 March 2025. Being a review hearing, it is a hearing de novo.
Since the hearing before the SJR in March, the parties have attended for a private child impact report (“the CIR”) with Ms H (“Ms H”) on 26 May 2025 which was dated 2 June 2025 and filed 5 June 2025.
The central issue for this review is the mother’s desire to live in the Suburb B area of Sydney, where she unilaterally moved with the children in January 2025.
Prior to the move, the mother lived in Suburb C, another suburb of Sydney, where she and the father had resided since 2017.
The SJR made orders for the mother and children to return to live in the Suburb C area. The mother seeks to review those orders, which were stayed pending the review.
BRIEF BACKGROUND
The parties were in a relationship from early 2011 to March 2023.
The care arrangements for the children during the relationship are in dispute. However, in about September 2024 the parents reached an agreement, whereby the father would spend time with the children from Sunday morning until Tuesday each week. This was in line with his work arrangements as a community worker.
In early January 2025, the father endeavoured to increase his time with the mother and when he was unsuccessful, he informed her that he would be spending equal time with the children.[1]
[1] Mother’s affidavit filed 22 April 2025 (“Mother’s affidavit”) at [30].
On 7 January 2025, the father kept the children in his care for additional time without the mother’s agreement. The mother attended to collect them but eventually agreed to an additional night (on that occasion). However, the following day there was a further dispute between the parties that led to the New South Wales police being called.
On 11 January 2025, the mother informed the father she would be retaining the children in her care pending a court determination. She simultaneously signed a lease on a property owned by her partner in Suburb B and moved to that location with the children shortly thereafter.
The father filed his application in this proceeding on 14 January 2025.
The mother did not inform the father of the children’s whereabouts until about 5 February 2025.
The matter came before the SJR for an interim hearing on 28 March 2025, whereby orders were made for the mother to return with the children to the Suburb C area by 22 April 2025.
The mother filed a review of those orders on 2 April 2025, and on 11 April 2025, the same orders made by the SJR were stayed pending this review hearing.
DOCUMENTS RELIED UPON
The father relied upon:
(1)his affidavit filed 29 April 2025;
(2)his case outline filed 12 June 2025; and
(3)the report of Ms H dated 2 June 2025.
The mother relied upon:
(1)her application for review filed 2 April 2025;
(2)her affidavit filed 22 April 2025;
(3)the affidavit of Mr K filed 22 April 2025;
(4)the affidavit of Ms L filed 22 April 2025;
(5)the affidavit of Ms M filed 22 April 2025;
(6)her case outline filed 23 April 2025; and
(7)her notice of child abuse, family violence or risk filed 10 March 2025.
In addition, the parties referred to various documents in the tender bundles provided to chambers, and otherwise relied upon a joint minute of proposed orders setting out which orders were agreed, and which were in dispute. This became joint exhibit one, ‘J1’ in the matter.
CONDUCT OF THE PROCEEDINGS
The matter proceeded by way of submissions on Microsoft Teams. I have had regard to each of the submissions, including the written submissions provided by each of the parties in their case outlines. I have taken into consideration the evidence relied upon by the parties to the extent that it is relevant to the submissions.
Just because I do not refer to a particular part of the evidence or a particular submission, does not mean I have failed to take it into account.
Being an interim hearing the evidence has not been tested. Each party argues there is reason to doubt the evidence of the other party. The mother says, for example, that the father has provided evidence of his parenting role which is inconsistent with his other evidence whilst the father says the mother informed the children’s new school of an Apprehended Domestic Violene Order (“ the ADVO”) which did not exist. For that reason, although I have regard to the matters in dispute, I have endeavoured where possible to rely on agreed facts and less contentious evidence.[2]
[2] see Franklyn & Franklyn [2019] FamCAFC 256 and SS v AH [2010] FamCAFC 13.
THE LAW
As stated by the Full Court in B & B: Family Law Reform Act 1995 (1997) FLC 92-755 at [84,194]:
Relocation cases are not a separate category within the Family Law Act… each is a case under Part VII relating to the best interests of the children are within a particular context and… is to be determined in accordance with the principles contained in that Part1
[emphasis added]
Section 60CC (2) of the Family Law Act 1975 (Cth) (“the Act”) specifies six matters which must be considered in determining what is in the child’s best interests. The matters to be considered include:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views[3] expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
[3] By virtue of section 60CE of the Act, nothing in Part VII permits the court or any person to require the child to express his or her views in relation to any matter.
Whist I have considered each of the matters under section 60CC of the Act I shall only specifically refer to the factors which have formed the basis of my decision.
Pursuant to subsection 60CC(2A) of the Act, I have also taken into account the allegations of family violence, abuse or neglect involving the child.
Pursuant to Section 60CG of the Act I must also make sure that whatever orders I make do not expose a person to an unacceptable risk of family violence and whether any such orders are consistent with any family violence Order. I was informed at this hearing, that contrary to some of the evidence, that there was no such family violence order in place.
I also note, however, that although the best interests of the children are the paramount consideration, they are not the sole consideration in a parenting matter. The court must also factor in a party’s right to freedom of movement.
Safety of the children and the children’s caregivers
The mother says that she had to move when she did because of the father’s coercive and controlling behaviour which had become increasingly concerning. She says that in November/December 2024 the father’s behaviour “escalated to a point where I started to hold grave fears for the safety of our children as well as myself.”[4] The mother’s evidence is that this came to a head in January 2025 with the father insisting on shared care and withholding the children from her. The mother also points out that the father engaged in a very public “discussion” with his followers on TikTok about shared care. The mother says that this led to her making the decision to move to Region O “where most of my support network resides.”[5]
[4] Mother’s affidavit at [5].
[5] Mother’s affidavit at [6].
It is argued for the mother, that the father’s behaviour in late 2024 and early 2025 must be seen in the context of a history of family violence committed by the father. The father for the most part denies the family violence, although he admits placing a tracking device in her car when he suspected she was having an affair. In this regard it is concerning that the father continues to try and justify his actions. I note that although he expressed remorse to Ms H, he has never said this to the mother.[6] Further to this, messages sent to the mother by the father indicate a disturbing attitude to the mother, for example telling her to “Keep spreading your herpes around and leave the kids to me.[7]
[6] Child Impact Report by Ms H (“CIR”) at [35].
[7] Mother’s affidavit at annexure ‘B’.
However, even if I accept the mother’s evidence in its entirety, there were other steps she could have taken to protect herself and the children from the father’s behaviour, other than immediately moving to the Region O of Sydney. I acknowledge on the mother’s evidence that she approached the police to obtain an ADVO in early 2025 and that the police did not take any action, however, the mother could have brought her own application. Otherwise, she could have filed an application for orders in this court, as she foreshadowed to the father on 11 January 2025. However, it appears she had already decided to move to Suburb B before any such application could be determined. There is also reason to question the mother’s bona fides given that themother asserts most of her support networks are in Region O, yet her parents live in Suburb C, and her sister in Suburb N.
It is also concerning that the mother did not inform the father of her move until 5 February 2025, and that she did not include any information about the father when she enrolled the children in the new school. Indeed, for reasons that are unclear, the mother informed the school there was a current ADVO in place, despite her own evidence indicating that the police would not take out an ADVO, and the court being informed that no ADVO was presently in existence. Neither party explained what the court was to make of correspondence from a domestic violence service which indicates an ADVO was actually made in early 2025 for two years.[8] Either, the mother had an ADVO relating to an address in Suburb P which may have negated the need to move, or as per the mother’s evidence, there was no such ADVO in existence, in which case she misled the school. I am unable to make a finding about these matters, but it again causes me to have concern about the mother’s true motivations for her move to Suburb B.
[8] Father’s tender bundle at [182].
Views of the children
The mother’s evidence is that the two eldest children, X and Y, are happy and “have settled extremely well” in the Region O of Sydney. Z is said to be “thriving.”[9] However contrary to this, Senior Counsel for the father referred to notes from parent/teacher interviews on or about 13 March this year in which Y is recorded as stating “I get sad because I don’t get to see my dad...” and in reference to what she likes to do in her spare time she states “see my dad.”[10] The mother made no reference to this in her affidavit sworn around that same time and did not raise it in the interviews for the CIR.
[9] Mother’s affidavit at [100].
[10] Father’s tender bundle at [172].
In the CIR, it was evident that the two girls are mature and articulate. Z was not interviewed due to his young age, but it was clear he had a strong bond with each of the parents. In the CIR, X reported her preference was “45 per cent” to stay in Suburb B but she “would more like to return to Suburb C.” She said she would “not care” about returning to her former school as “she had friends at her former school.”[11] Y told Ms H that she wished to return to her previous school.
[11] CIR at [16].
Nonetheless, the evidence also suggests the father has spoken directly to the children and involved them in the dispute. For example, X made reference to the father having to sell their “forever home”[12] and Y reported the father telling her she would be returning to her old school in about a month.[13] The father also appears to have had conversations with the girls, which he records as “speeches,” and which relate to their home and their relationship with the father.[14] X also reports that her mother is “pretty nice” to her father but her father is “rude back.”[15]
[12] CIR at [16].
[13] CIR at [25].
[14] Father’s tender bundle at [158] and [159].
[15] CIR at [27].
It is also clear that the children have been exposed to the conflict between the parties, with X reporting memories of her parents arguing and describing being “in the middle.”[16] This culminated in the incident on 8 January 2025, in which the police were called to attend the property.
[16] CIR at [19].
For these reasons, and because of their relatively young ages, I am reluctant to place much weight on the expressed views of the children in this matter.
Needs of the children
On the evidence, as it stands, both parents appear to lack insight into the emotional needs of the children. Each appears to have partaken in a form of tug of war over the children, with the father insisting on shared care and the mother ceasing all time between the father and the children and moving away. Neither parent acknowledged the impact of their behaviour on the children.
Otherwise, the main issue concerning the children’s needs related to Z and his ability to cope with longer periods away from the mother. This was not something the father appeared to have any insight into, proposing orders that the older girls and Z could simply move to live primarily with him if the mother did not wish to return to Suburb C. In doing so, he fails to acknowledge that Z is only two years of age, and that Ms H recommended a gradual increase of time.
Benefit of the children having a relationship with their parents and other significant people
The parties each assert that it is important that the children have a relationship with the other parent and their extended family. Whilst the mother asserts that such relationships can be maintained with the children residing in either Suburb B or Suburb C, the father argues that the mother unilaterally moved to Suburb B to either limit his relationship with the children or in total disregard for same. Whilst I have called into questioned the mother’s bona fides in this respect, I am unable to make a finding at an interim hearing.
Freedom of movement
Per Kirby J in AMS v AIF (1999) 199 CLR 160:
144. Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.
145. Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modem family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.
(Footnotes omitted) (emphasis added)
In keeping with this, the authorities make it clear that the mother need not provide a compelling reason for her move. However, the mother’s reason for the move may be relevant to the best interest considerations. In this case, as already discussed, it is argued for the father that the mother moved away to limit his time and involvement with the children. This will be a matter for consideration at final hearing.
ADVANTAGE AND DISADVANTAGE OF EACH PROPOSAL
Although there is no such thing as a relocation case, authorities concerning parties who have moved a substantial distance from each other, have held that the court ought to consider the advantages and disadvantages of the children living in each of the proposed locations.
The mother’s proposal
The advantage to the children of remaining in Suburb B is that the mother would be happier as this is the location in which she clearly wishes to live and where she will be close to or living with her current partner. The children would also not have to go through yet a further change of housing (at least in the short-term noting the mother plans to move in with her new partner) and schooling.
The disadvantage in relation to the mother’s proposal is that the children would only be able to spend time with the father on alternate weekends, and potentially a midweek dinner, although it is unclear if that is sustainable given the travel time for the father. The children would also potentially miss out on the father being able to just “drop in” to the school and/or on extra-curricular activities and may miss out on attending play dates with friends if they are spending time in Suburb C with the father. The children would also not have the benefit of their grandparents living only ten or fifteen minutes away.
The father’s proposal
The advantage of the father’s proposal is that the children would be able to spend significant time with both parents. Each parent would be able to participate in formal and informal school events, extra-curricular activities and facilitate playdates, birthday parties, and the like. The children would also be residing in close proximity to both the maternal and paternal grandparents.
The disadvantage of the father’s proposal is that the mother is likely to be unhappy at having to return to live in the Suburb C area, where she says she has been ostracised due to the actions of the father on his social media. This may have a flow on effect to the children. The mother may also have difficulty acquiring rental accommodation, although, I note she was previously able to obtain rental accommodation in that area.
ANALYSIS
As set out by Austin J in Bustillo & Bustillo [2024] FedCFamC1F 556 at [26] (“Bustillo”):
In Banks v Banks (2015) FLC 93-637 at [47]–[50], the Full Court observed how a paucity of uncontested evidence means only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim disputes should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at trial. The trial is the time and place to settle factual controversies. Interim hearings ought not be used for that purpose unless circumstances are urgent and there is no alternative.
(Emphasis added)
In Morgan v Miles (2007) 38 FamLR 275 the Full Court said at [88]:
…it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing.
On this basis, it could be argued the children should stay where they are pending a final determination. However, it cannot be ignored that the mother unilaterally relocated, knowing the father did not agree and without informing him for almost a month. The father issued proceedings as soon as he could, and the matter was heard expeditiously. Through no fault of the father, the matter has taken until now for those orders to be reviewed. The court cannot condone a party taking such unilateral action. There are proper processes that should be followed and the mother ought not benefit from the system that has resulted in a five-month delay. Having said this, the best interests of the children remain the paramount consideration.
In terms of the best interests of the children, the mother does not say that the children are currently at unacceptable risk of harm in the father’s care. Indeed, the orders proposed by the mother are not consistent with any such risk.
Although the parents are in dispute about the amount of time the children have spent with the father, on any version, he has spent substantial time with them post-separation and the parties agreed in late 2024 that this would be two nights each week. Ms H reports that the children have a strong bond with each parent, and it is reported both in the CIR and the parent-teacher interviews that the girls miss their father and want to spend more time with him – more than the current arrangements allows and more than is arguably practicable given the distance between the two locations.
Nonetheless, I must consider the impact on the children of moving them back to Suburb C, particularly in circumstances where the court may, at the final hearing, ultimately permit the mother and children to live in Suburb B. In this regard it is significant that the children have spent most of their lives in the Suburb C/Suburb Q area, and only five months in Suburb B.
I also note that on the mother’s own evidence, her current living arrangement is only temporary and that she plans to move in with her current partner and his children in January 2026.[17]
[17] Mother’s affidavit at [98].
Suburb C is still very familiar to the children and the comments of the children in the CIR indicate they miss their friends and former school. X, who is now in grade five, and Y who is in grade two, have spent all of their school, prior to January this year at D School Suburb C (“D School). Indeed, the mother in her earlier affidavit stated she was reluctant to move them from D School due to the disruption they would face.[18]
[18] Mother’s affidavit filed 10 March 2025 at [97].
DETERMINATION
On balance, I find that any impact on the children of a return to Suburb C will be offset by the strong bond they have with each of their parents, their friends at D School, the community that is familiar to them in Suburb C, and the close vicinity of both the maternal and paternal families.
Whilst a move back to Suburb C will require the mother to break her current lease and find a rental property in Suburb C, this is a situation of her own making. I note she had rental accommodation in Suburb C and chose to break that lease and that her current lessor is her partner. The father has also filed evidence of a significant number of possible rental properties in the Suburb C area, which he says are available to the mother, and points out that the mother is currently paying rent at a higher rate than she was paying previously in the Suburb C area.
For all the aforementioned reasons, I propose to make the orders as sought by the father, that the children return to Suburb C by 11 July 2025, save for the orders that the children live with him in the event the mother herself does not return. The mother in her case outline puts her case on two basis either she lives with the children in Suburb B or she lives with the children in Suburb C.[19] No submissions were made that the mother would remain in Suburb B if the court ordered that the children’s residence should return to Suburb C. Accordingly, I need not consider whether she should personally be compelled to return to the Suburb C area.
OTHER DISPUTED ORDERS
[19] Case Outline of the mother filed 23 April 2025 at Part C.
Holiday time
The parties agree that the holidays should be shared on a week about basis. However, the mother seeks that until July 2026, Z return to her care for two days in each week the girls spend with the father in the holidays. The father argued that this is inconsistent with the mother’s agreement to the children spending a week with him in the forthcoming school holidays. However, the mother’s Senior Counsel explained that the order for the July holidays was intended to be read in conjunction with the mother’s proposed order for Z to return to her for two days in each holiday week. In any event, I note that Ms H recommended that any extended time be introduced gradually.[20]
[20] CIR at [62].
Accordingly, I propose to make the orders as sought by the mother, but only until further order. It is likely the parties will attend for a full family report if they are unable to finalise the matter and that this may provide further guidance going forward. As I was not addressed on the difference in the wording proposed by each of the parties or which party should have the first half of the holidays in any given year, I assume the parties do not have a preference and have made orders in accordance with the father’s proposal.
Father’s Day/ Mother’s Day
The parties agree that on Father’s and Mother’s Days that time should commence from about 3.00pm or 4.00pm on the night before the day. As the mother was not wedded to the time starting on 3.00pm or 4.00pm, I shall order it as proposed by the father, being 3.00pm in each case. In regard to the finish time and day, the mother sought the time finish on Sunday afternoon whilst the father sought it be extended to Monday morning. Given the parties will be living in close proximity, I see no reason why the children should not enjoy the additional time with the father and return on the Monday morning.
Whether time should end on Sunday at 5.00pm or 7.00pm
The parties were in dispute about the return time on weekends, with the mother proposing a 5.00pm return as she currently has to travel back to Suburb B, and the father proposing a 7.00pm return to maximise his time. As this will now only occur on one occasion , and the mother and children will still be in Suburb B, it should occur at 5.00pm to give the mother time to collect the children from the Suburb C area and travel back to Suburb B.
Section 68B restraining order
The mother seeks an order preventing the father from attending within 100 metres of her address. The father resists this on the basis that he does not know where she lives so is unable to comply with such an order. I accept the father cannot be expected to comply with a restraint if he does not know the address he is to stay away from and will not be making such an injunction.
Parental responsibility
In accordance with Bustillo, there do not appear to be any major long decisions that would require the court to determine parental responsibility on an interim basis without the testing of the evidence. Accordingly, I decline to make such orders in this regard.
Remaining Orders
Otherwise, I shall make the remaining orders that were by consent, or by consent in the alternative, including that the children will spend time with the father from the conclusion of school on Friday 4 July 2025 for a week (subject to Z’s two day return to the mother) and thereafter in accordance with order 4 of the joint minute.
For all the aforementioned reasons, I make the orders as set out at the commencement of this judgment.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 20 June 2025
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