Rose & Frazer
[2025] FedCFamC2F 848
•20 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rose & Frazer [2025] FedCFamC2F 848
File number(s): SYC 9980 of 2024 Judgment of: JUDGE TAGLIERI Date of judgment: 20 June 2025 Catchwords: FAMILY LAW – Review of decision – review of orders made by a Senior Judicial Registrar for the mother to return the child to reside in the Sydney area – where the mother relocated with the child with the consent of the father for a period – where the father did not consent to the relocation on a permanent basis – review dismissed Legislation: Family Law Act 1975 (Cth) pt VII, ss 60CC(2), 60CC(2)(a), 60CC (2A), 60CC(2A)(a), 60CC (3)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 252
Federal Circuit and Family Court (Family Law) Rules 2021(Cth) ch 14 pt 14.3, sch 4 cl 2, rr 14.05, 14.07
Cases cited: Goode & Goode [2006] FamCA 1346
Marvel & Marvel [2010] FamCAFC 101
MRR & GR [2010] HCA 4
Division: Division 2 Family Law Number of paragraphs: 52 Date of hearing: 28 May 2025 Place: Hobart Counsel for the Applicant: Ms Shea Solicitor for the Applicant: Unified Lawyers Counsel for the Respondent: Mr Todd Solicitor for the Respondent: Shelly Legal ORDERS
SYC 9980 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ROSE
Applicant
AND: MS FRAZER
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
20 JUNE 2025
THE COURT ORDERS THAT:
1.The Application for Review filed 23 April 2025 and the Amended Application for Review filed 27 May 2025 are dismissed.
2.The Stay order made 13 May 2025 is discharged.
3.The time for compliance with order 1 made 9 April 2025 is extended to 20 September 2025.
4.The father contribute 50% of the bond payable by the mother upon her securing a rental property in Sydney on condition the mother provide a copy of a document from the relevant real estate agent identifying the bond payable.
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 Taglieri
These are parenting proceedings between Mr Rose (“the father”) and Ms Frazer (“the mother”) concerning their child X born in 2020 (“the child”). They came before me on 28 May 2025 (“the review hearing”) for hearing of an Application for Review filed by the mother on 23 April 2025 and amended on 27 May 2025 (“the review application”).
The review application seeks review of interim orders made after a defended interim hearing on 9 April 2025 (“the interim hearing”) by a Senior Judicial Registrar (“SJR”), restricted to Orders 1, 5 and 6. Those orders provide that:
1.No later than 4:00pm on 9 June 2025, the mother cause the child, [X], born [in] 2020 (“the child”) to relocate to live and remain living within 50 km of the father’s place of residence at [Suburb B], New South Wales.
[…]
5.Commencing from 9 June 2025, for a period of two (2) months the child shall spend time with the father:
a.Each alternate weekend from 9:00am on Saturday to 5:00pm on Sunday;
b.Each Wednesday from the conclusion of school (or if a non-school day from 3:00pm) to 7:00pm.
6.Commencing from 8 August 2025 and pending further order, the child shall spend time with the father:
a.Each alternate weekend from the conclusion of school or daycare (or if a non-school day from 3:00pm) on Friday to 5:00pm on Sunday;
b.Each Wednesday from the conclusion of school (or if a non-school day from 3:00pm) to 7:00pm.
In their place, the mother seeks interim orders:
1.That the child, [X], born [in] 2020 (“[X]”) live with the Mother.
2.That [X] continue to reside in [Town C].
On 13 May 2025, Order 1 of the Orders made on 9 April 2025 was stayed by consent. The Court noted that the father’s consent was without prejudice to his review application and was not a concession that the time for the mother to relocate the child’s residence to within 50km of Suburb B should be extended.
The interim orders for the child to spend time with the father remained in force.[1]
LEGAL PRINCIPLES
[1] Orders 5 and 6 of the Orders made 9 April 2025.
Applications for Review
The order subject to the review was an interim parenting order made by a Senior Judicial Registrar pursuant to delegated powers,[2] and is subject to judicial review.[3]
[2] Section 254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and in Schedule 4, Clause 2 of the Rules, by adoption.
[3] Rule 14.05 of the Rules.
Applications for Review are governed by Part 14.3 of Chapter 14 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) (“the Rules”).
The procedure for the review is governed by Rule 14.07 and I exercise the same power the Senior Judicial Registrar exercised on the interim hearing. I am to determine the interim issues de novo.
Interim parenting orders
The Court is required to apply the provisions of Part VII the Family Law Act 1975 (Cth) (“the Act”) and the pathway described in Goode & Goode [2006] FamCA 1346 and MRR & GR [2010] HCA 4. These principles remain “good law” despite the simplified statutory provisions that apply since amendments which commenced 6 May 2024. The ultimate issue remains what orders are in or promote the best interests of a child with a focus on the child’s safety and well-being.
The considerations in s 60CC(2), (2A) and (3) of the Act, are to be applied to the untested evidence relied upon by the parties, where arrangements that promote safety are important and allegations of family violence and abuse including historical ones, remain relevant to what orders should be made.[4]
[4] Sections 60CC(2)(a) and 60CC(2A)(a) of the Act.
Necessarily, because the evidence in dispute is untested, the Court relies on what is not in dispute or unchallenged evidence, and its impressions formed by the nature and detail of the evidence relied upon by each party.[5]
[5] Marvel & Marvel [2010] FamCAFC 101.
THE REVIEW HEARING
Both the father and the mother were represented by counsel at the review hearing on 28 May 2025.
The mother relied on her review application and on her case summary filed 27 May 2025. She also tendered the following documents into evidence:
·Her affidavit filed 21 March 2025 at [1]-[70], marked as Exhibit A1;
·The affidavit of Ms D filed 22 May 2025 attaching an unsworn affidavit of the mother dated 21 May 2025 on which the mother relied at [35]-[36] and [52]-[122],[6] marked as Exhibit A2. An affirmed copy of the mother’s affidavit was subsequently filed on 27 May 2025; and
·Her Financial Statement filed 21 March 2025, marked as Exhibit A3.
[6]
The father relied on his case outline filed 27 May 2025 and tendered the following documents into evidence:
·His affidavit filed 14 March 2025, marked as Exhibit R1;
·His affidavit filed 12 May 2025, marked as Exhibit R2;
·His Financial Statement filed 28 March 2025, marked as Exhibit R3;
·His Tender Bundle at pages 2 to 23, marked as Exhibit R4; and
·An affidavit of the mother filed 27 May 2025 at Annexures A and B, marked as Exhibit R5.
THE PARTIES’ CONTENTIONS
Mother’s case
It was submitted that there was no triage of risk required in the review because the other interim orders,[7] including a restraint on the use of cannabis, protected the child.
[7] Order 10(c) of the Orders made 9 April 2025 which restrains both parties from the use of illicit substances.
Further, counsel submitted that this was not a case of unauthorised relocation and that the uncontroversial evidence is that the father agreed to the mother and child living in Town C for a six-month trial.
It was submitted that the review should be allowed because the child was settled and stable in Town C, where she has now lived for over 12 months. Further, fortnightly weekend time between the child and father could be facilitated with time occurring in Sydney and Town C each once per month, but the Wednesday evening time ordered by the SJR was impractical due to the distance between the parties’ residences.
Counsel for the mother also invites the Court to adversely view the father’s position because he did not issue proceedings until December 2024 and notably he does not posit a case other than the child living with the mother and forcing the mother to relocate to particular areas, which amounts to a coercive order restricting the mother’s freedom of movement when there are no compelling reasons for doing so.
Instead, counsel for the mother submitted that there were compelling reasons for the mother and child to remain in Town C, because the mother earns income from a business there, has accommodation, and the child is settled and that there are Kindergarten places available for her in 2026. In contrast, the father has not adduced any evidence of there being a placement for the child in Sydney, only that she is on a waiting list.
In conclusion, counsel for the mother submitted that a cautious approach is required which entails maintaining the current status quo, requiring discharge of Orders 1, 5 and 6 of the interim orders made 9 April 2025.
Father’s case
Counsel for the father submitted that this was one of the rare cases where a coercive order was required for the mother to live with the child in a particular location. That is because the mother had been asserting that the father was an unacceptable risk and so ceased the child’s agreed time with the father, but then suddenly changed her position during the interim hearing for no logical reason.
The mother’s attitude to ceasing time was said not to bode well for her capacity to support the child’s relationship with the father. In addition, the mother has arranged counselling for the child through a Victims Support Scheme and there is concern about what the child and that service are told about the father and about the child’s experiences.
Counsel submitted that the mother’s proposal would have the child travelling between Town C and Sydney every four weeks to spend time with the father on an indefinite basis, in circumstances where the mother already raises concerns in respect of the impact of that travel on the child. In addition, the parties would indefinitely bear the expenses of petrol and accommodation to facilitate the time. The father’s submission is that both the burden of travel on the child and the associated expenses to the parties would be alleviated if the child lives in Sydney.
It was also submitted that there was no benefit to remaining in Town C as the child had not been enrolled at school and the mother’s earnings are insufficient for her to support herself. Further, the child and mother have no family support in Town C and the mother lives there as her lifestyle choice, but there is little benefit to the child.
In effect, I was invited to treat with suspicion the claim about the mother’s mental health deteriorating if required to return to Sydney, because this was a “new feature” of the mother’s case and there was no psychological evidence supporting the mother’s claims.
EVALUATION
Based on uncontroversial or agreed facts, the Court finds as follows:
(a)The parties commenced their relationship in 2018 and began cohabiting in 2019. They lived together in Sydney for about five years;
(b)The child was born in 2020 and her early years and connections are based in Sydney;
(c)The parties separated in October 2023 when they were living in Suburb B, Sydney in New South Wales;
(d)In March 2024, the mother and child moved to Town C in New South Wales after securing accommodation and having had discussion with the father. The father agreed to a six-month trial with the benefit of receiving legal advice;[8]
[8] Affidavit of the mother filed 27 May 2025 at Annexure A; affidavit of the father filed 14 March 2025 at [11]-[15].
(e)At the time of the move to Town C, the child was three years old;
(f)The trial move to Town C was subject to agreement that the father spend a minimum of three nights per fortnight with the child, alternating between Sydney and Town C;[9]
(g)The child has been living in Town C since March 2024, attends playgroup in Town C, and has friends there;[10]
(h)The mother has established a business in Town C, but there is dispute about the financial performance of the business and her income;[11]
(i)During the relationship, the parents agreed that the child would be educated at an alternative religious school;[12]
(j)The mother did not seek that the father’s time with the child be supervised initially and raised no risk issues until May 2024;[13]
(k)The mother required the father’s time to be supervised from June 2024;[14]
(l)Both parents admit having had and having some mental health difficulties and despite this, they work and seek medical or psychological support;[15]
(m)The travel time between Sydney and Town C is about six hours by car;
(n)The father has used cannabis to manage symptoms of anxiety and depression, which was known to the mother when she agreed to the father spending time with the child after the move to Town C and did not require supervision of the child’s time with the father;[16] and
(o)There are no family violence orders between the parties and no offences suggesting either parent has been violent or threatening towards the other.
[9] Affidavit of the mother filed 21 March 2025 at Annexure A; affidavit of the father filed 14 March 2025 at [11] and [16].
[10] Affidavit of the mother filed 21 March 2025 at [14]; affidavit of the father filed 14 March 2025 at [29]; affidavit of the mother filed 27 May 2025 at [100].
[11] Affidavit of the mother filed 21 March 2025 at [21]; affidavit of the father filed 14 March 2025 at [67]-[68]; affidavit of the mother filed 27 May 2025 at [87]-[88].
[12] Affidavit of the mother filed 21 March 2025 at [10]; affidavit of the father filed 14 March 2025 at Annexure A.
[13] Affidavit of the father filed 14 March 2025 at Annexure A; affidavit of the father filed 14 March 2025 at [19].
[14] Affidavit of the mother filed 21 March 2025 at [38] and Annexure D; affidavit of the father filed 14 March 2025 at [21].
[15] Affidavit of the mother filed 21 March 2025 at [21] and [32]-[33]; affidavit of the father filed 14 March 2025 at [48] and [57]-[58]; affidavit of the mother filed 27 May 2025 at [109]-[113].
[16] Affidavit of the mother filed 21 March 2025 at [47]-[48]; affidavit of the father filed 14 March 2025 at [50]-[51] and Annexure D.
The mother asserts that it is the best interests of the child that she remains living in Town C in the interim where there is a status quo. She also asserts that the father delayed in bringing these proceedings, which I do not accept that to be the case.
The status quo which counsel for the mother claimed had been established in Town C has arisen by the mother extending an agreed six-month trial period, the father’s agreement to which was on condition that the child spend a minimum of three nights a fortnight with him.
It is plain that the father only ever agreed to a trial of six months on the basis that the mother would facilitate time between the child and him on a fortnightly basis, and the mother initially did so between about March and May 2024.
I accept that, on 6 May 2024, the father expressly advised that he did not agree to the child living in Town C permanently,[17] and it was only from around this time that the mother raised allegations of risk due to the father’s cannabis use or implied that the child’s bedwetting was due to the father’s conduct.
[17] Affidavit of the father filed 14 March 2025 at Annexure B.
The chronology of events demonstrates that the mother had no concerns for the child about safety or welfare in the father’s care initially, and so the concerns she then raised between June and November 2024 are approached with reservation and caution.
I accept that the mother limited the child’s time with the father between June and November 2024 and insisted on such time being supervised based on asserted risk related to the father’s cannabis use. However, the mother was aware of the father’s historical use of cannabis when she initially struck the agreement with the father about the trial move in March 2024 and did not limit the father’s time until May 2024.
The mother has since abandoned claims that the father poses risk to the child and that his time should be supervised. This is consistent with the position initially adopted by her, namely that she would facilitate regular fortnightly time between the father and child without the need for supervision.
This gives the impression that there was no reasonable or justifiable basis for imposing conditions on the child’s time with the father after June 2024. I agree that this causes considerable concern about the mother’s ability to support and promote the child’s relationship with the father, particularly if the parties reside some six hours apart.
Further, the numerous communications and discussions between the parties in the latter half of 2024 indicate that the mother did not abide by the agreement she had reached with the father. She stated that this was in part due to her difficulty with travel impacting her ability to make the child available.
I accept that the father did not issue proceedings immediately after the mother began limiting his time, but the communications before the Court demonstrate that he was seeking to resolve the dispute via lawyers and mediation rather than litigation, an approach which is to be encouraged. Further, the delay of about five months between filing his application and the interim hearing occurring is due to the administrative listing priorities within the Court and was not of his doing.
I do not accept the submission that the father unreasonably delayed in bringing the application or that the delay has necessarily created a status quo that is in the child’s best interests.
The benefit of the respective proposals
The mother’s proposal hinges on the assumption that the child’s best interests are served by living in Town C, where stability and status quo has developed. However, the evidence the mother has adduced is largely directed towards her preferences of lifestyle and work, given that she no longer relies on a contention that the child is at risk in the father’s care. Further, in my view, there is no clear status quo of benefit to the child in Town C.
To the extent that the mother relies on mental health issues as a reason for her and the child remaining in Town C, it is notable that both parties admit they have historically experienced difficulties and require and access supports. While the mother attributes her difficulties to the father, he denies the allegations she makes and the evidence is currently untested. I do not ignore that the mother makes allegations that the father engaged in family violence towards her, however, I also acknowledge and give weight to the fact that the father denies the allegations, the mother has facilitated time and at that this interim stage there is no collateral corroborative evidence before the Court.
The expectation that the child should travel for six hours each way once or twice each month to spend time with the father, either now or in the future, is not reasonable. It burdens the child, particularly due to tiredness as she will commence new routines and school in the foreseeable future.
The parties resided in Sydney as a couple for five years and it can be inferred that the mother has friends and contacts in Sydney, similar to those she has formed in a short time in Town C. Further, there is evidence that the child also has friends and connections in the Sydney area. This has not been disputed by the mother.
There are alternative religious schools in Sydney and the child is on a waiting list for same, while she is not yet enrolled in the school in Town C which the mother proposes she attend. The child had previously been enrolled in daycare in Sydney, which the mother did not dispute.
The mother has been the child’s primary carer. This is not disputed by the father. However, the father and the paternal family have also been significantly involved in her care.
The paternal extended family, who have had a relationship with the child, live in Sydney. The mother does not have family supports in Town C.
The mother’s business has only relatively recently been established and produces modest income. That income is exceeded by the mother’s regular expenses, raising doubt about the long-term viability of self-employment.
Although the mother claims that she can have more secure and affordable accommodation in Town C, the evidence overall does not persuasively support this. In particular, the rental property in which the mother has lived is for sale. She currently pays $450 per week in rent and, on her evidence, could pay $350 per week in a granny flat which will be considerably smaller than the current accommodation. In contrast, the rental properties in the Sydney area identified by the mother and father illustrate that there are likely to be affordable accommodation available in the Sydney metropolitan suburbs, including with bonds below $3,000.[18]
[18] Affidavit of the mother filed 27 May 2025 at [54]; Exhibit R4 at pages 7-15.
In the longer term, the cost of suitable accommodation for the child and father once per month in Town C is likely to become prohibitive and cause difficulty for significant time between the child and father to occur.
In circumstances where the mother has failed to comply with the initial agreement she struck with the father and where there are real concerns about whether the mother has capacity to facilitate time with the father if the parties live at distance, I agree that the orders made by the SJR were and are the interim orders which serve the child’s best interests. That is particularly the case at this interim stage as without expert evidence it would be wrong to attribute the child’s bedwetting to the father’s use of cannabis or interactions with the child.
Expert evidence is also required to assess the mother’s capacity to support a regular and meaningful relationship with the father should the parties reside substantially apart. Allowing the review would, due to the effluxion before the proceedings are finalised, create a new status quo without a fulsome evaluation of the child’s best interests.
The father’s proposal does require a coercive order that the mother and child return to the Sydney area. This power is to be used sparingly, but as the mother has failed to abide by the condition of the agreed trial of her and the child residing in Town C and there is no clear and persuasive preferable status quo in Town C for the child, the orders made by the SJR are not ones that I am persuaded to discharge.
Despite arriving at the conclusion at [50] of these reasons, due to the effluxion of time, Orders 1 and 2 made by the SJR’s orders may require variation to be effective. The timeframe for the mother to return with the child needs to be addressed. Further, the order for payment of $2,000 towards the cost of relocation back to Sydney may require some reconsideration. I will hear the parties about these issues and may make additional orders.
CONCLUSION
The Application for Review filed 23 April 2025 will be dismissed and the Court reserves making further orders in aid of the mother’s required relocation back to Sydney.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 20 June 2025
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