Talsma & Kaplon - [2022] FedCFamC2F 1402

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Talsma & Kaplon [2022] FedCFamC2F 1402

File number(s): DGC 3381 of 2021

Judgment of: JUDGE BOYMAL

Date of judgment: 20 October 2022

Catchwords: FAMILY LAW – Parenting – where mother wishes to relocate from Melbourne to City B – where father seeks equal shared care – children’s paternal Country G heritage – mother’s employment with a government agency of significance to her – mother’s supports in City B – children to live with the mother in City B

Legislation:
Evidence Act 1995 (Cth) s 140

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

Cases cited:
Adamson & Adamson [2014] FamCAFC 232

AMS v AIF; AIF v AMS (1999) FLC 92-852

AMS v AIF (1999) 199 CLR 160

Franklyn & Franklyn [2019] FamCAFC 256

Godfrey v Sanders [2007] FamCA 102

Gusta & Gusta [2020] FamCAFC 228

H & H [2005] FamCA 805

Hendy & Penningh [2018] FamCAFC 257

Jurchenko & Foster [2014] FamCAFC 127

Kaule & Brown [2015] FAmCA 480

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

MRR & GR (2010) 240 CLR 461

Rochford & Fitzhugh [2019] FamCAFC 218

Sampson & Hartnett (No. 10) [2007] FamCA 1365

Sayer & Radcliffe and Anor [2012] FamCAFC 209

U v U (2002) 211 CLR 238

Wagstaff & Wagstaff [2022] FedCFamC1A 119

Wendland & Wendland [2017] FamCAFC 244

Division: Division 2 Family Law

Number of paragraphs: 321

Date of hearing: 18 & 19 August 2022

Place: Dandenong

Counsel for the Applicant: Mr Witchurch

Solicitor for the Applicant: Pentana Stanton Lawyers

Counsel for the Respondent: Mr Stanley

Solicitor for the Respondent: Farrar Gesini Dunn

Counsel for the Independent Children's Lawyer: Mr Korke

Solicitor for the Independent Children's Lawyer: Victoria Legal Aid
ORDERS

DGC 3381 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR TALSMA

Applicant

AND:
MS KAPLON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BOYMAL

DATE OF ORDER:

20 OCTOBER 2022

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The parents have equal shared parental responsibility for the children X born in 2016 and Y born in 2017.
3.The children live with the mother.
4.The mother be at liberty to relocate to City B or surrounding suburbs with the children.
5.The children spend time and communicate with the father as follows:
During school terms
(a)In the event that school terms are 10 weeks or less:
(i)For one weekend in Melbourne from 9:00 am on Saturday until 5:00 pm on Sunday (or 5:00 pm on Monday in the event that Monday is a public holiday or non-school day) to be agreed between the parents in writing and failing agreement on the third weekend of each school term;
(ii)For two weekends in City B from the conclusion of school (or 9:00 am if a non-school day) on Friday until the commencement of school on Monday (or commencement of school on Tuesday in the event that Monday is a public holiday or non-school day) to be agreed between the parents in writing and failing agreement:
A.on the sixth weekend of each school term;
B.on a weekend at the father's election;

with the father to provide the mother with no less than 14 days’ notice of his intention to travel to City B to spend time with the children;

(b)In the event that school terms are more than 10 weeks:
(i)For two weekends in Melbourne from 9:00 am on Saturday until 5:00 pm on Sunday (or 5:00 pm on Monday in the event that Monday is a public holiday or non-school day) to be agreed between the parents in writing and failing agreement:
A.on the third weekend of each school term;
B.on the ninth weekend of each school term;

(ii)For one weekend in City B from the conclusion of school (or 9:00 am if a non-school day) on Friday until the commencement of school Monday (or the commencement of school on Tuesday in the event that Monday is a public holiday or non-school day) to be agreed between the parents in writing and failing agreement on the sixth weekend of each school term with the father to provide the mother with no less than 14 days’ notice of his intention to travel to City B to spend time with the children;

During school holidays:
(c)For nine nights of the term school holidays as agreed between the parents in writing, and failing agreement from 1:00 pm on the first Saturday to 1:00 pm on the second Monday in even numbered years, and from 1:00 pm on the second Friday to 1:00 pm on the last Sunday in odd-numbered years; and
(d)For half of the long summer holidays each year as agreed between the parents in writing and failing agreement:
(i)The first two weeks in even-numbered years;
(ii)The second two weeks in odd-numbered years;
(iii)The fifth week in even-numbered years;
(iv)The sixth week in odd-numbered years;

and the holidays shall be deemed to commence at 1:00 pm on the first Saturday and to conclude at 1:00 pm on the last Sunday and changeover shall take place at 1:00 pm on Sundays;
(e)Via telephone, video call or other electronic means twice weekly on dates and times to be agreed between the parents in writing and failing agreement on a weekday the children are not participating in extra-curricular activities, on Sundays between 6:00 pm to 6:30 pm and at all other reasonable times as requested by the father and/or children, with the father to place the call to a device nominated by the mother and the mother shall ensure that the children have access to a fully charged and working telephone, computer or tablet, and that they are available to take the call; and
(f)At any other times as agreed between the parents in writing from time to time including if the father gives the mother at least seven days’ notice of his intention to travel to City B that the children spend time with him during the period he is in City B.

6.When the children are in the care of the father, the mother be at liberty to communicate with them via telephone, video call or other electronic means twice weekly on dates and times to be agreed between the parties and failing agreement on Wednesdays and Sundays between 6:00 pm to 6:30 pm and at all other reasonable times as requested by the mother and/or the children with the mother to place the call to a device nominated by the father and the father shall ensure that the children have access to a fully charged and working telephone, computer or tablet and that they are available to take the call.

Costs of the children’s travel
7.The mother shall be responsible for meeting the costs of the children flying to and from Melbourne to spend time with the father pursuant to Order 5 of these Orders.

Special occasions
8.Whichever parent does not have care of the children at the following times they be permitted to communicate with children on the following additional days at such times as may be agreed between the parents and failing agreement between 6:00 pm to 6:30 pm:
(a)On each of the children’s birthdays;
(b)On that parent’s birthday;
(c)On Mother’s Day or Father’s Day (as applicable to that parent);
(d)On Good Friday and Easter Sunday;
(e)On Christmas Eve, Christmas Day and Boxing Day; and
(f)On New Year’s Eve and New Year’s Day;

9.In the event the parents are in the same state or territory during the Christmas period, the children spend time with the each parent for at least four hours on days and at times as agreed between the parents in writing and failing agreement from 4.00 pm to 8.00 pm on Christmas Eve with the father and from 10:00 am to 2:00 pm on Christmas Day with the mother.
10.In the event the father gives the mother at least 7 days’ notice of his intention to travel to City B, he shall spend time with the children during such period he is in City B.

Changeovers
11.For the purposes of changeover, unless otherwise agreed between the parents in writing:
(a)Until the children are legally old enough to travel on their own as unaccompanied minors or in the event the mother or an agent nominated by the mother is able to accompany the children to Melbourne:
(i)At the commencement of the children’s time with the father, the mother or her an agent deliver the children to the father’s residence;
(ii)At the conclusion of the children’s time with the father, the father deliver the children to the airport in Melbourne or the mother’s rental accommodation if she or her nominee remain in Melbourne;

(b)Once the children are legally old enough to travel on their own as unaccompanied minors and in the event the mother or an agent nominated by the mother is unable to accompany the children to Melbourne:
(i)At the commencement of the children’s time with the father, the mother deliver the children to City B Airport and the children be accompanied by a flight attendant on a direct flight to Melbourne and the father to collect the children from the airport in Melbourne;
(ii)At the conclusion of the children’s time with the father, the father deliver the children to the airport in Melbourne, the children are to be accompanied by a flight attendant on a direct flight to City B and the mother to collect the children from City B Airport;

(c)In the event the father spends time with the children in City B or surrounding suburbs:
(i)At the commencement of the children’s time with the father, changeover that does not take place at the children’s school, shall take place at the father’s rental accommodation;
(ii)At the conclusion of the children’s time with the father, changeover that does not take place at the children’s school, shall take place at the mother’s residence;

Ancillary orders
12.The mother be restrained from changing the children’s primary place of residence from City B or surrounding suburbs without the written consent of the father.
13.Each parent shall keep the other advised of their current residential address, email address and phone number and notify the other parent in writing of any respective changes to them within 24 hours of such change taking effect.
14.Each parent shall:
(a)Immediately notify the other of any medical emergency, serious illness or injury experienced by the children requiring medical treatment or hospitalisation while they are in their respective care and immediately authorise the other parent to speak with any treating health practitioners;
(b)Forthwith notify the other of any medical, dental, or other health practitioner with whom the children are scheduled to consult or have consulted and authorise the other parent to make all reasonable enquiries of such practitioner(s) in respect of matters concerning the children’s health;
(c)Ensure the other is kept informed as soon as is reasonably practicable of any medication prescribed for the children;
(d)Shall follow all reasonable recommendations given to them by treating professionals and ensure the children’s medical needs are attended to in a timely manner;
(e)Forthwith provide the other with copies of any reports or records provided to them respectively by medical, dental, or other health professional attended by the children;
(f)Shall be entitled to obtain any information regarding the children from any medical, dental or other allied health professional; and
(g)Be and are hereby authorised to provide a copy of these orders to any medical, dental, or other health professional attended by the children.

15.Each parent be at liberty to:
(a)Attend all school and extra-curricular activities and events to which parents are ordinarily invited or to which parents ordinarily attend, including parent/teacher interviews, information nights, parents’ association meeting and activities, sports days and events, concerts, plays, presentation, recitals, curriculum presentation and excursions;
(b)Receive copies of all notices, letters, invitations, school reports, photographs, newsletters and other like documents ordinarily given to parents from the children’s schools at their own expense;
(c)Liaise with any medical, education or other professionals involved with the children and obtain all information and documents ordinarily made available to parents; and
(d)Provide a copy of these orders to any kindergarten, school and/or provider of childcare, extracurricular activities or sporting activities attended by the children.

16.Each parent shall:
(a)Facilitate the children participating in any extra-curricular activities in which the children are currently enrolled which take place during the time they spend with the children;
(b)Be restrained by injunction from enrolling the children in any extracurricular activity that occurs during the time that the children spend with the other parent, without the written consent of that parent;
(c)Be at liberty to enrol the children in any extracurricular activity that falls only during the time the children spend with them, without needing to obtain the prior consent of the other parent; and
(d)Ensure that, if they do agree to the children attending an extracurricular activity organised by the other parent during the time the children spend with them, the children continue to attend that activity during the time the children are with them.

17.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out herein and these particulars are included in these orders.

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

The parents of X aged six years and Y aged four years are unable to agree on where their children shall live. The children presently live in the primary care of the mother in a surrounding suburb of Melbourne (“Melbourne”). The father and mother live in close proximity to each other. The mother seeks to relocate with the children from Melbourne to City B or surrounding suburbs (“City B”). The father seeks that the children remain living in Melbourne and their time with him progress to an equal shared care arrangement.
The surrounding suburbs of City B refers to Suburb C, Suburb D or Suburb E. They are in New South Wales. The mother intends to live in one of those suburbs with the children.
For the following reasons orders are made providing for the children to live with the mother in City B.
BACKGROUND
The father is aged 35 years and is employed as a professional. The mother is aged 41 years and is a public servant with a government agency.
The father was born in Country G and the mother was born in Australia. The father lived in City H, Country G and the mother lived in Suburb C, New South Wales. They met in 2012 in the United Kingdom and engaged in a long-distance relationship. In 2013 they commenced living together in the mother’s townhouse in Suburb C. The mother was working for the government in City B at the time.
In 2014 the parents relocated to Melbourne. The parents disagree on the reasons for the move. The father says it was to get away from the toxic environment of the mother’s family and his inability to find work in City B in his field. The mother says the move was to make the father happy living with her in Australia as the father had told her that their relationship would not survive if they stayed in City B.
The mother transferred her employment with the government to Melbourne.
X was born in 2016. Y was born in 2017.
On 25 May 2020 the parents separated and lived separately under the same roof. The father vacated the family home in or around late 2020. After the parents physically separated the children lived with the mother and spent time with the father.
The parents created parenting plans in June 2020 and January 2021.
In 2020, the father re-partnered with Ms J. They commenced living together in 2022.
On 27 April 2021 final property orders were made by consent.
On 25 June and 5 July 2021 the parents attended mediations to enter into a new parenting plan but they were unable to resolve the matter.
The father filed his Initiating Application on 25 August 2021 seeking more extensive time with the children. The mother filed her Response on 29 November 2021 which included a relocation application to City B. The catalyst for her seeking to relocate was her receipt of a job interview for a position in City B with the government.
The operative parenting arrangements for the children are pursuant to orders made by consent on 7 December 2021. These orders provide for the children to live with the mother and spend time with the father on five nights per fortnight during school terms, during school holidays and on special occasions as follows:
(a)During school terms in week one from Wednesday until Friday, and in week two from Thursday until Sunday;
(b)In the event that the mother is rostered to work the hours of 2.00 pm to 10.00 pm Tuesday to Friday and 8.00 am to 4.00 pm on Saturday as part of her 12-week rotation then the children spend time with the father from Tuesday until Saturday;
(c)By telephone, video call or other electronic means each Tuesday;
(d)For one half of each school term holidays;
(e)On Father’s Day and on the children’s birthdays; and
(f)At all other times as agreed between the parties in writing from time to time.
THE PROPOSALS
After the hearing all parties forwarded to chambers a precise minute of the orders they seek covering three scenarios:
(a)In the event the mother lives with the children in City B;
(b)In the event the mother lives with the children in Melbourne; and
(c)In the event the mother lives with the children in City B and the father relocates to City B.
All parties agree that whether the children live in Melbourne or City B the parents shall have equal shared parental responsibility for the children.
In the event the mother lives with the children in City B
The mother
The mother seeks in summary that:
(a)The mother be permitted to relocate to City B with the children;
(b)The children live with the mother;
(c)The children spend time and communicate with the father during school terms of 10 weeks or less for one weekend in Melbourne (from Saturday until Sunday/Monday) and for two weekends in City B (from Friday until Monday/Tuesday), and during school terms of 10 weeks or more for two weekends in Melbourne (from Saturday until Sunday/Monday) and for one weekend in City B (from the conclusion of school from Friday until Monday/Tuesday);
(d)For half of the short-term school holidays with a default provision;
(e)For half of the long summer holidays each year as agreed and failing agreement the first two weeks and the fifth week in even-numbered years, the second two weeks and the sixth week in odd-numbered years;
(f)Telephone, video call or other electronic communication with the father twice weekly and at all other reasonable times as requested by the father and/or children;
(g)At any other times as agreed between the parents in writing from time to time;
(h)Whichever parent does not have care of the children at the relevant times be permitted to communicate with them on specified special occasion days;
(i)In the event the parents are in the same state or territory during the Christmas period, the children spend time with the other parent for four hours on Christmas Day with such times to be agreed and failing agreement from 10:00 am to 2:00 pm; and
(j)The mother be responsible for meeting the costs of the children flying to and from Melbourne to spend time with the father pursuant to the arrangements she proposes for delivery of the children to the father and their return to her.

The Independent Children’s Lawyer adopts the mother’s proposal.
The father
The father’s fall-back position if the mother and children live in City B adopts the mother’s proposal save for the following:
(a)The children spend nine nights with him during each of the short term school holiday periods;
(b)The children spend four weeks with him during the long summer school holiday period as agreed and failing agreement for two periods of two week blocks;
(a)In the event the parents are in the same state or territory during the Christmas period, the children spend time with the other parent for at least four hours at days and times to be agreed and failing agreement from 4.00 pm to 8.00 pm on Christmas Eve with the father and from 10.00 am to 2.00 pm on Christmas Day with the mother;
(b)In the event the father gives the mother at least seven days’ notice of his intention to travel to City B that the children spend time with him during the period he is in City B; and
(c)Orders providing for interstate and international travel with the children.
In the event the mother lives with the children in Melbourne
The mother
The mother will not move to City B if the children are required to stay in Melbourne. Her fall-back proposal if she remains in Melbourne is largely in accordance with the current care arrangements pursuant to the 7 December 2021 orders.
The mother seeks that:
(a)The children live with her;
(b)The children spend time and communicate with the father:
(i)during school terms for five nights per fortnight from Wednesday until Friday in week one and from Thursday until Sunday in week two;
(ii)for one half of the short term school holiday periods;
(iii)during the long summer school holiday period in a pattern that provides for the children to spend time with the father from the conclusion of school until 12.00 pm Christmas Day, the same number of days with the mother from 12.00 pm Christmas Day and thereafter equally with each of the parents;
(iv)on special occasions including Father’s Day and the children’s birthdays;
(v)in the event that the mother is rostered on to work the hours of 2.00 pm to 10.00 pm Tuesday to Friday and 8.00 am to 4.00 pm on Saturday as part of her 12-week rotation then the children spend time with the father from Tuesday until Saturday; and
(vi)by telephone, video call or other electronic communication each Tuesday and all reasonable times.
The mother is not adverse to the children living in an equal shared care arrangement in due course.
The father
The father seeks that the children’s time with him progress to an equal shared care arrangement by the start of Term 1 in 2023.
He seeks that:
(a)The mother be restrained from relocating the children's current primary residence further than 15 kilometres from the children’s school, without first obtaining the written consent from the father or an order of the Court;
(b)The children live with the mother in the Melbourne Metropolitan area;
(c)The children spend time with the father during school terms:
(i)commencing forthwith for six nights per fortnight from Wednesday until Friday in week one and from Thursday until Monday in week two;
(ii)commencing in Term one in 2023 for seven nights per fortnight from Tuesday until Friday in week one and from Thursday until Monday in week two;
(d)For one half of each of the term and long school holiday periods;
(e)On special occasion days including Christmas, Father’s Day and the children’s birthdays;
(f)In the event that the mother is rostered on to work the hours of 2.00 pm to 10.00 pm Tuesday to Friday and 8.00 am to 4.00 pm on Saturday as part of her 12-week rotation then the children spend time with the father from Tuesday until Saturday;
(g)Orders providing for interstate and international travel with the children;
(h)X remain enrolled at K School and Y attend at K School as from Term one 2023; and
(i)That if either parent is unable to care for the children during the designated time, the other parent will be the first option to care for the children.
The Independent Children’s Lawyer
The Independent Children’s Lawyer supports the living arrangements of the children progressing to an equal shared care arrangement during school terms save that her time frame differs from the father’s proposal. The Independent Children’s Lawyer also proposes different arrangements for the long summer school holiday period.
The Independent Children’s Lawyer seeks that:
(a)The existing school term arrangements continue until 1 January 2023 and that the children spend time with each parent during the long summer school holiday period on a week about basis;
(b)From 1 January 2023 the children spend time with the father during school terms for six nights per fortnight namely from Tuesday until Friday in week one and from Thursday until Sunday in week two and on a week about basis with each parent during the long summer school holiday; and
(c)From 1 January 2024 the children spend time with the father during school terms for seven nights per fortnight from Monday until the following Monday.
In the event the mother lives in City B with the children and the father also relocates
The mother
The mother’s ideal and preferred position is that the father also live in City B. She is of the view that both parents living in City B is “the best solution for the children”.[1] She proposes the same orders she seeks in the event the children and her remain living in Melbourne. The order that both parents seek if the mother works a 2.00 pm until 10.00 pm weekday and 8.00 am until 4.00 pm roster will no longer be required. Again the mother is not adverse to the children living in an equal shared care arrangement in due course.
[1] Transcript 18 August 2022, p.20.
The father
In the event the father does decide to relocate to City B he proposes the same living arrangements he seeks in the event the children and the mother remain living in Melbourne, that is, the progression to an equal shared care arrangement commencing at term one in 2023.
The Independent Children’s Lawyer
The Independent Children’s Lawyer supports the mother’s proposal until the father relocates to City B. Upon the father’s relocation, the Independent Children’s Lawyer seeks orders in the same terms as the father seeks if the mother and children remain living in Melbourne, that is, a progression to an equal shared care arrangement, save that the Independent Children’s Lawyer seeks that the equal shared care arrangement commences at 1 January 2024.
The nature of the proposals generally
The father’s case in support of the mother and children remaining in Melbourne mainly focussed on the benefits and advantages to the children of maintaining the status quo of both parents living in Melbourne. The children have a meaningful relationship with both parents, they have a relationship with Ms J, relationships with friends and with the extended maternal family. Their contact with the father enables them to improve their Country G language and be immersed in their Country G heritage and culture. X is doing well at school. The spend time arrangements are working well.
The father’s proposal does maintain the status quo of the parents living in Melbourne and sharing the care of the children on a regular basis save that time with the father is to progress to an equal shared care arrangement.
The mother’s primary position is to live with the children in City B. Her fall-back position of remaining in Melbourne with the children is the maintenance of the status quo with the spend time arrangements as is currently in place continuing.
When considering the competing proposals of the parents it is not simply a matter of comparing the mother’s proposal against the status quo and allowing or denying relocation. The Court must consider each party's proposal on its merits.[2]
[2] Sayer & Radcliffe and Anor [2012] FamCAFC 209.
Further the Court must also not elevate the mother’s fall-back position of remaining in Melbourne to the status of an alternative proposal. To do so requires in effect that she show good or compelling reasons to relocate. Such an approach “stacks the cards” unfairly against her.[3]
[3] Jurchenko & Foster [2014] FamCAFC 127 at [100] adopting Kirby J’s reasons in U v U (2002) 211 CLR 238 at [144].
Likewise the father’s adoption of the proposal of the mother in the event the children live in City B and he lives in Melbourne should not be elevated to an alternative proposal.
The focus of the Court in these proceedings is whether it is in the children’s best interests to live with the mother in City B and spend time with the father in accordance with her spend time proposal or whether the children live in Melbourne with each of the parents in accordance with his proposal.
THE HEARING
The Court was assisted by an Independent Children’s Lawyer. All parties were represented by Counsel.
The father filed an Outline of Case on 16 August 2022. He relies upon his Amended Initiating Application and Affidavit both filed on 4 August 2022 and the Affidavit of Ms J filed 4 August 2022.
The mother filed an Outline of Case on 16 August 2022. She relies upon her Amended Response and Affidavit both filed on 21 July 2022 and her affidavit filed on 11 August 2022. She also relies on the Affidavit of her father, Mr L filed on 21 July 2022 and the Affidavit of Ms M filed on 21 July 2022.
The Independent Children’s Lawyer filed an Outline of Case on 15 August 2022.
All parties rely on the family report by Ms N.
The Court is not required to refer to every piece of evidence relied upon by the parties, traverse every argument that is advanced or make findings in relation to all of the facts that are put in issue by them. I have read all of the documents relied upon and taken all of the evidence and submissions into account. Findings are made on the balance of probabilities and have regard to the nature of the subject matter of the proceedings and the gravity of the matters alleged.[4] My observations of the demeanour of the parents have assisted my assessment of the evidence.
[4] Evidence Act 1995 (Cth) s 140.
THE FAMILY REPORT
Ms N was engaged on a private basis by the parties to undertake the family report. Her report is dated 31 March 2022. She interviewed the family and conducted observation sessions on 10 March 2022. Ms N was not required for cross-examination.
Ms N did not express a preferred recommendation as to whether the children should live in City B or remain living in Melbourne. Ms N’s recommendations are:
(a)The parents have equal shared parental responsibility;
(b)Should the Court permit the relocation the children spend time with the father no less than three times in each school term, for nine days during each term holiday, four non‑consecutive weeks during the long summer holidays, and twice weekly by phone or video calls;
(c)Should the Court not permit relocation the children spend increased time with the father by an additional night at the commencement of the 2022/2023 long summer holidays and that when the children spend at least two nights away from one parent, they have phone or video calls with that parent on at least one occasion;
(d)Under either arrangement that additional spend time occur as agreed between the parents; and
(e)In the event that the parents remain living in the same city the parents attend upon a series of co-parenting mediation sessions or a parenting coordinator for the purposes of reaching agreement on any further changes to the children’s live and spend time arrangements from mid-2023 and any additional parenting and children’s matters and that such a mediator be provided a copy of the Family Report.
Ms N observes at paragraph 74 that “[t]he dispute in this matter is not about creating distance and limiting spend time due concerns (sic) of inadequate parenting, - the dispute is regarding [Ms Kaplon’s] desire to relocate because of a lifestyle choice”.
Ms N observes at [76]:
[Ms Kaplon] paints a very appealing picture of what a life in [City B] would be like for [X] and [Y]. They will have their maternal family and [Ms Kaplon]’s friends living close by. It is easy to appreciate that [Ms Kaplon] seeks an improved work-life balance. The role she hopes to commence in at the [government agency] would require more sociable hours and she therefore considers she will be more available to [X] and [Y].
Ms N further observes at [78]:
[Mr Talsma]’s opposition to the relocation, not to oversimplify, is from the basis that Melbourne is where he, [Ms Kaplon] and the children are currently established. [X] and [Y] have grown up so far in the [Region O] area where they and the parents have supports and connections. He has no desire to relocate and said that opportunities for himself and [Ms J] are extremely limited in [City B]. [Ms J]’s life is also established in Melbourne
THE MOTHER
The mother was a candid, confident and articulate witness. Notwithstanding that description, and the mettle she displayed whilst giving her evidence, she showed visible signs of distress during the proceedings. Her evidence was compelling. Her answers were actively cautious so as to not criticise or embarrass the father. She was extremely mindful of not adversely affecting the high level of communication and the co-operative parenting relationship the parents have achieved. She genuinely portrayed the father and Ms J to the Court in a positive light.
It appears that the mother may still feel aggrieved by the breakdown of the relationship being instigated by the father. She has not, however, stood in the way of the children having a meaningful relationship with the father and has not been resistant to the children developing their Country G culture and heritage.
I have no doubt that if the mother did not truly believe that relocating to City B with the children is what is best for them, she would not be pursuing her application.
The mother is an analytical thinker and a problem-solver. She has deeply considered the impact on the children that a relocation would entail. She has also taken into account the effect of the move on the father. She has considered strategies to ameliorate those adverse impacts if the father remains in Melbourne and also how she could make it easier for the father and Ms J to relocate to City B.
Since the parents physically separated the children have lived in the primary care of the mother. She was also the primary carer of the children during the relationship. Y attends childcare and will commence school in 2023. X commenced his primary school education this year.
Counsel for the father challenged the mother in terms of her insight as to the importance of the father to the children on the basis of her evidence that she did “the heavy lifting”[5] of the care of the children during the relationship and has continued to do so since separation. The mother was adamant that her evidence in this regard was not to put forward a case that the father did not take and is still not taking enough responsibility. She gave evidence to the effect that the care of the children by each parent was influenced by their leave and work commitments. She noted that she had taken 12 months leave after the births of the children. The parents separated when X was four years and two months of age and Y was aged two years and seven months. Clearly the mother was their primary carer given the length of time she did not work during the relationship. The mother at no point during her evidence sought to minimise the role the father has played in the children’s lives to date or the role he should play in the future.
[5] Transcript 18 August 2022, p.18.
The mother is insightful and attuned to the children’s needs, as is the father. However on the totality of the evidence, I am of the view that she is more emotionally attuned and has greater insight into the emotional and practical needs of the children which has no doubt eventuated because of her being the primary carer of X and Y.
The mother’s commitment to the welfare of the children which includes the maintenance and development of the children’s relationship with the father and the fostering of their Country G heritage is extensive and expansive. She has even considered forsaking her career in the government and resigning as an option to create a work/life balance for her and the children in Melbourne notwithstanding her passionate desire to remain employed as a community worker.
The mother has plainly considered at great lengths any move to City B. She told the Court:
And since the demise of the relationship I’ve done my best to try to find ways to make it work and, you know, such a – such a big decision is not something that was made – like, I feel like you’re insinuating that it was made at the drop of a hat or on a whim, and it wasn’t. It’s something I gave a lot of thought to and I – I spoke with people and I sought counsel from friends that I trust.[6]
[6] Transcript 18 August 2022, p.17.
The mother’s present circumstances
The mother has not re-partnered. The mother lives in a house owned by her. She proposes to sell that property and purchase a home in City B. She would like to relocate during the 2022/2023 long summer holidays so that the children are settled in order to start the 2023 school year in City B. She is confident that any personal matters in Melbourne that may still require her attention after she moves can be dealt with remotely.
The mother has no family in Melbourne. She says she has a limited friendship group. She is employed in a sensitive and intense area of her agency. She wishes to progress her career in the agency. She wants a better work/life balance and to be the best mother possible to the children.
The mother describes her current situation as exhausting, lonely and taxing. She feels isolated in Melbourne. She is worn down by the length of the duration of her door to door commute to and from work which is approximately 90 minutes each way. There are school, childcare, extra-curricular commitments and medical appointments the children are required to attend. She describes herself as being “spread so thin because I want to be the best mum for the children.”[7]
[7] Ibid, p.14.
The mother told the Court:
But being down here by myself I – I don’t have that support. I have friends that are at arm’s length. But, as you can potentially imagine, it’s – they’re not the sorts of friendships where I can be myself. I would be mortified if my friends down here saw me like this. With [Ms M] and my dad, my brother, my other girlfriends and cousins, they’ve known me for long enough that I can – it’s – it’s a genuine support. I don’t have to put up a front and pretend that everything’s sunshine and rainbows. My work is incredibly important to me and – and I want to do the very best for that as well. I’m incredibly torn in relation to trying to find a balance between them both and do right by myself.[8]
[8] Ibid, p.14.
The mother has been engaged with the government since 2001. She has developed expertise in many areas of her agency. Her current workload is very intense. This has resulted in her being under considerable pressure and often needing to complete additional work from home in the evenings after the children are in bed. She often works 12-hour days. She is finding it difficult achieving a work/life balance with all the competing priorities she currently has.
The father concedes that the mother is under stress and pressure arising from her work.
Being a public servant is part of the mother’s identity. She has always wanted to be in her role, it is part of who she is. She takes pride in knowing that she is someone people can come to in time of need and that she can help make a difference. She is proud of her achievements thus far and the challenges that await her. The mother’s father, mother and uncle were all working for the government. The mother decided to start working for the government at 19 years of age, after her mother died.

The mother has shown an unwavering commitment and built a successful career within the agency. Her experience over the years she has been with the agency has provided her with a unique variety of skills and experience. She has an excellent reputation within the agency and her personality, skill set, competency and talent make her in demand within that organisation.
In 2008 the mother attained a promotion while living in Suburb C. She transferred to this same position in Melbourne.
The mother’s workplace agreement had provided for her to work a four day week adding up to 35 hours per week. She has recently had to amend her flexible workplace agreement due to the nature of her work which has increased her hours to 40 hours per week.
She stays at home on Mondays but attends to work on that day and catches up on home duties. Y stays home with her on Mondays. However as she is running several projects, it is not very practical for her to work from home.
The mother’s current role requires her to travel overseas from Country P to Australia. The mother was selected for her role due to her specific skill set acquired throughout her career with the government. In 2022 the mother travelled to Country P for 7 days for work. The children stayed with the father and Ms J. The mother indicated during the hearing that she would again be required to travel to Country P for work in late 2022.
Every 12 weeks the mother is rostered to work from 2.00 pm to 10.00 pm Tuesday to Friday and from 8.00 am to 4.00 pm on the Saturday. The children stay with the father during these weeks.
The mother manages her work around the children and their needs.
On the days the children are not with her she usually arrives at work between 7.00 am and 7.30 am and leaves work between 5.30 pm and 6.00 pm in order to make up her hours and keep up with her workload.
The mother describes a typical weekday when the children are in her care when she is not working from home as the children rising at 6.30 am and leaving home at 7.10 am. X is delivered to before school care then Y at day care. At 7.50 am she catches the train into the Melbourne CBD and arrives at work at 8.30 am. She leaves work at 4.00 pm, travels by train for 45 minutes and collects Y from day care and X from school. At 6.00 pm they eat dinner together. The children are then bathed and read to and are usually asleep by 7.30 pm. Thereafter that the mother makes the children their lunches, attends to household chores and her work.
The mother says that the day is long and tiring for her. No doubt it is the same for X and Y given the routine the mother has described. The mother told the Court:
And in regards to those commutes as well, it’s not just about me and the commute. It’s the time that the children need to be at before and after school care and day care as well. In order for me to get a – a certain amount of work done at work – and those days are cut short because of the – the drop-off and pickup which I then either make up of an evening or, on the days when I don’t have the children, so I’m averaging maybe 12-hour working days and the commute either side of that.[9]
[9] Transcript 18 August 2022, p.66.
X and Y attend sports lessons on Saturday and Sunday mornings. The children attend play dates. The mother is proactively involved in these and all of the children’s activities. X has a keen interest in participating in sports and hobbies. Y wishes to start music lessons. In her present employment the children’s extra-curricular activities need to occur on a weekend for the mother to maintain her involvement.
Any extra time the mother wishes to take off work in order to attend events of the children must be made up.
The mother told the Court that she has given:
considerable thought to the situation and I feel like the – these long days that – for – for the boys as well – I mean, it’s – it’s not sustainable. It’s not something that I want for them. I would like them to be able to go and play at friends’ houses after school or do extracurricular activities on weekdays instead of trying to cram everything into chaotic weekends.[10]
[10] Transcript 18 August 2022, p.46.
The mother is entitled to six weeks annual leave. She intends to return to full time work when Y commences school. She will then be entitled to an additional four days leave per year.
The mother’s proposed employment in City B
The catalyst for the mother seeking to relocate to City B was the offer of employment in the government in City B made to her in 2021. She advised the father at the first opportunity of her securing an interview of her desire to move.
The mother sees that a move to City B will provide her with professional advantages, career opportunities and overall happiness, fulfilment and satisfaction in pursuing her career. Her career and work will not come at the expense of her being the best mother possible to the children. Neither will her care of the children impact on her career. She will have family friendly working hours and a work/life balance. She told the Court:
I think by – adjusting my lifestyle enables me to be an even better mum for the children. It’s – I mean, being a – a working parent, there are really sort of two sides to you and – and by simplifying the lifestyle and the – the day-to-day stresses and things like that will – will free me up to be able to do more with the children. I mean, at the moment, it’s – it would be quite difficult, for example, during the week extracurricular activities.[11]
[11] Ibid, p.43-44.
In 2021 the mother was offered another role in the government in City B to commence in mid‑2022. The Court was unable to accommodate a hearing date before then. The mother accordingly declined the offer.
The agency strongly encouraged her to reapply in the next round when the new expressions of interest came out. The mother, if able to relocate with the children intends to again apply for the role. She told the Court that:
the job advertisement obtains a number of candidates for a pool, which they work through through attrition of other staff members, and then they will readvertise the same position. For example, it was readvertised a month or two ago as well, so they’re – it’s a repetitive job advertisement.
…
the [agency] actually showed a significant amount of flexibility based on my personal situation in the proceedings before the court and were willing to – to push it back – push the start date – start date back and be quite accommodating. And I imagine that that would be the same again. The information that I was provided is because I was a strong candidate and they felt I would be an asset to [new staff].[12]
[12] Transcript 18 August 2022, p.62.
The mother topped the interview in 2021 and was told she would be an asset to the position. She is confident that she will obtain the role. The mother explained that judging by the pattern of recruitment, she may expect that the role will be available to her in early 2023.
If the mother is successful in obtaining the role she will be training, instructing and mentoring new staff. Her work hours at the agency will typically be 8.00 am to 4.00 pm Monday to Friday with no requirement to undertake shift work or travel overseas. She will be able to work family friendly hours.
The mother has already been offered employment with another department in the agency headquarters in City B. It is not a formal offer but a “one-for-one swap” where the person occupying the position in City B will relocate to and take the mother’s position in Melbourne and the mother will take that person’s position in City B. The mother has conditionally accepted this “swap” pending the Court’s decision. The agency are aware that a court decision is pending. The person with whom the mother will “swap” is prepared to come to Melbourne whenever the mother is able to go to City B.
If the promotion does not come through before the 2022/2023 long school holiday period then the mother will accept the “swap” position, and continue to apply for a role within the agency. Her loyalty and respect for the agency are admirable. She will not leave her department to join the new department until she ‘pays her dues’. She told the Court “with regards to my reputation within the [agency], I wouldn’t want to be seen to be abusing the – the opportunity that they’ve given me and the flexibility that they’ve shown me, so I would look to at least pay my dues, for want of a better term.”[13]
[13] Ibid, p.63.
The move to City B will potentially be funded by the government if the move is on the basis of the new role. She is likely to be eligible for her household and personal effects being transported to City B, travel allowance and rental assistance. If she relocates on the basis of the “swap” she will not receive financial assistance from the government.
If the mother works on a full time basis her salary will remain the same whether she works in City B or Melbourne. However in City B she will have a better opportunity to undertake overtime shifts or in general duties to bolster her income. She would have the assistance of her family and friends to care for the children if she decided to do so.
The national headquarters of the agency is located in City B. The diversity of roles offered within City B Headquarters far exceeds those offered in the Melbourne Headquarters. The mother is more likely to obtain higher duties in City B resulting in a higher income. She is confident given her experience in City B she will likely be successful in applying for positions and higher duties in City B.
Any opportunities in Melbourne for acting in higher duties are competitive. She has not yet been provided with the opportunity to perform higher duties. The mother has not been in the Melbourne region long enough to be considered for a promotion.
When the children are older and self-sufficient the mother will consider returning to a role and progress her career to attaining a higher position. She does not wish to progress further as the roles tend more towards management and she prefers a leadership role and to still be “on the tools”. She says that in City B she will be able to build up towards achieving a senior position which has been her goal since starting but that remaining in Melbourne is unlikely to give her the same opportunities for promotion.
Travel times in City B for the children and the mother will be significantly less than they currently are in Melbourne. The travel time for commuting between work, home, school and appointments will be shorter as they are all in close proximity to each other. The mother will be able to drive to work rather than catch public transport.
The school at which the mother hopes the children will attend, Q School, is in close proximity to both the agency and Headquarters, some 1 kilometre away. X enjoys attending before and after school care which the mother proposes to continue utilising once or twice per week.
The mother’s preference is to live in Suburb C, the suburb where her father lives. Suburb C, is approximately 15 kilometres away from Q School and approximately two minutes away from Suburb C School which the children will attend if they are unsuccessful in attending Q School.
The father says that there is no certainty that the mother will be successful in obtaining employment or secure promotions in City B. Counsel for the father contends that the mother does not have a job offer in City B, the offer to her last year at the agency has passed, one cannot say that she will again be successful, obtaining that position is not “absolute” and that there is no actual swap planned, only a potential for it occurring.
In Hendy & Penningh [2018] FamCAFC 257 the Full Court at [46] said as follows:
It is difficult to understand why, in this case, the mother’s evidence concerning her future career prospects and employment was dismissed as no more than a belief. After all, she had a track record of securing work in her field in various states and spoke with the voice of experience as to her suitability for several projects then underway in City K.
The mother is in demand because of her unique quality skill set and her personality. She topped the interview in 2021 and she has the alternative of the “swap”. She has been invited to apply for jobs by other staff members of the agency. In my view, it is difficult to understand why the mother’s view of her future career prospects and employment in City B should not be accepted.
I find having assessed the mother’s evidence in relation to her employment prospects with the agency in City B and having regard to her demeanour and attitude that the mother will obtain employment in the agency in City B in either a similar role or in one of the diverse roles in the agency Headquarters that are not available in Melbourne.
It is unlikely the mother would be willing to forsake her career in the government on a whim and only on a desire of returning home. It is also my view that she would not move the children if she did not genuinely believe her employment in City B with the agency was attainable and that the children’s future in City B was secure and stable.
The mother’s employment with the government in City B is more conducive to her role as primary caregiver to two young children than her employment with the government in Melbourne. It would also be more conducive even if time in Melbourne progressed to an equal shared care arrangement. The mother and children’s routine during the days she has the children in her care will not change from what it is now and all extra-curricular activities and play dates will still have to occur on the weekends. She will continue to have a lack of support from family and friends. There will in practical terms be no change to her work/life balance or her personal circumstances if she stays in Melbourne whether she remains the children’s primary carer or if time progresses to an equal shared care arrangement.
The mother’s supports in City B
The mother was born and grew up in City B. In Melbourne the mother has no family. She contends that relocating to City B will provide familial connection for the children and foster their relationship with their extended maternal family including their cousins. There is no doubt that these aspects will occur if the children live in City B.
The father says that the mother and children can maintain their bond with the maternal family by using school holiday time to travel with the children to City B or that her father and aunt can travel to Melbourne. I accept that proposition. The issue though which the father queries is whether her family members are able to provide her with support in City B.
The mother contends that her family and friends are able to create a “village” in which to raise the children which is missing in Melbourne. She will be able to continue working and pursuing her career in an organisation in which she is passionate about with less competing work/life stressors as she will have the support of her family and friends to assist with the care of the children.
Ms N reports that the father appeared to appreciate the benefits to the mother being closer to her family and long term friends who live in City B. However the father considered that they have developed relationships in the area in which they presently live which are a good support network that should not be underestimated.
The mother’s family in City B is as follows:
(a)Her father who lives in Suburb C. The distance between Suburb C and City B is approximately a 20 minute drive away;
(b)Her aunt who the children call “Granny” and her uncle live in City B. The aunt is like a mother figure to the mother. The distance between Suburb C and where the aunt and uncle live is approximately a 30 minute drive. The aunt is retired and is willing and able to collect the children from school for the mother. The aunt lives approximately a 20 minute drive from Q School. The father is sceptical of the aunt’s availability to provide the mother with support as she has grandchildren of her own, I am confident that if the aunt is unavailable at any given time then the mother can call on other members of her family or her friends;
(c)Her brother Mr R, his wife and their four children. They live a few kilometres and a short drive from Suburb C;
(d)Her cousins Ms S and Mr T and their three children who live in Suburb C. Their children attend the Suburb C School and U School and Ms S works closeby;
(e)Her cousins Ms V and Mr W and their two children;
(f)Her cousins Ms Z and Mr AA and their two children; and
(g)Her cousin Ms BB.
The mother deposes to the enjoyable time the children experienced when they visited City B over the 2020/2021, 2021/2022 Christmas/New Year periods and the first and second term school holidays in 2022 socialising with her family and her friends. The children wanted to stay longer and displayed affection to the maternal family members.
Mr L
Mr L is the maternal grandfather. He is 74 years of age. He worked with the government. He was required for cross-examination. He presented as an honest, genuine and upfront witness. Like his daughter, he was a compelling witness.
Mr L is retired and describes his grandchildren as his life since his wife passed away. He lives in Suburb C in a four bedroom home. Until the mother secures independent accommodation for the children and her they will live with her father. His home is around 20 minutes from Q School and only a couple of minutes from the Suburb C School. Mr L has a small property in Town CC of some 200 acres which he attends once a fortnight.
If the mother does not live in Suburb C but rather Suburb D or Suburb E he will still be in close proximity to them, Suburb C being around 10 minutes away from Suburb D and Suburb E.
He says that he is ready, willing and able to care for Y and X if the mother requires him to do so. He is available to transport the children to and from their school, sporting activities and extracurricular activities if the mother needs assistance. He is also able to take care of the children if she has work commitments. The children call him “Grandpa”. It is clear that the children have a very close relationship with Mr L.
The father asserts that Mr L’s home is a negative environment and that is the reason why in 2019 the family did not stay at his home and instead stayed at the home of some friends. I accept the mother’s evidence that the reason why they went to their friend’s home was to house sit and take care of their pets whilst they were away for a holiday.
The father describes Mr L’s home as unclean and not maintained. I do not accept that assertion. He has a cleaner once a fortnight supplied by the government and I doubt whether Mr R or the mother would consider leaving the children in a house that is so unkempt so as to be a danger to the children.
The father asserts that Mr L is unable to physically look after the children given his age and medical conditions and that he lives a “sedentary life”. However Mr L attends physiotherapy, has regular medical examinations, regularly walks his dog and conducts work on his property in Town CC. He takes medication to manage his depression which is caused by the events he encountered in his line of work and the death of his wife. The mother does not share the father’s concerns about her father’s age and ability to care for X and Y. She notes that her brother regularly leaves his children aged five, four and two in the care of the maternal grandfather.
Mr L generally sees Mr R’s children a couple of times per week. He has undertaken collections from school and taken a grandchild to extra-curricular activities. He often has the children in his home and participates in activities with them.

Since the mother moved to Melbourne, Mr L has visited the children on average three or four times a year. He has cared for X and Y when he has been in Melbourne. During the relationship the family went to City B between five and 10 occasions.
The father asserts that the mother has a highly conflictual relationship with Mr R and his wife and that every visit to City B has been stressful for the family and a source of tension at family gatherings. The mother asserts that her relationship with Mr R and his wife has strengthened since she separated from the father. She further asserts that a significant portion of the conflict between her and Mr R occurred when she was suffering from post-natal depression. It is common ground that the mother suffered from post-natal depression after the births of both of the children. The father admits that he did not understand the mother’s symptoms of postnatal depression. I infer from that admission that there may have been some difficulties. It is therefore likely that the mother’s assertion is correct.
The father asserts that the mother’s family dynamics are “fluid and are not always positive”.[14] The mother says that like any family they have minor arguments or disagreements but will resolve their conflict and issues in a timely manner. I accept her evidence.
[14] Annexure “N-2” to Ms N’s Affidavit filed 7 April 2022 at [77].
I had the opportunity of observing Mr L in person as he physically attended the hearing to give his evidence. I could see no difficulties with his physical condition that would impede his care of the children. He was a delight to hear giving evidence and would no doubt be an engaging conversationalist with the children as well as being able to entertain and care for them on a physical basis.
Mr R was also physically present in the Court during the trial, he also having travelled from City B. The father asserts the mother’s relationship with Mr R has been fabricated for the purpose of the trial. I accept the mother’s denial of that assertion. The mother and Mr R displayed a friendly and close relationship, sitting close and comfortably with each other in the courtroom.
Notwithstanding the unflattering criticisms the father makes of Mr L, Mr L sincerely told the Court “if [the father] wanted to fly up there for a weekend, a long weekend, and then I would even spot the air fare for it.”[15] He would also let the father use his car when he was in City B. If the father relocates he has also offered to assist him with the care of the children.
[15] Transcript 18 August 2022, p.78.
Ms N says at [77] of her report:
If permitted to relocate, [X] and [Y] may settle well into a new house, school and kinder in [City B] and no doubt they would enjoy time with their cousins and maternal grandfather. Although, [Mr Talsma] asserts the maternal family dynamics are fluid and not always positive. If that were true (emphasis added), it may be that less emphasis should be placed on the benefits of [X] and [Y]’s engagement and/or dependence on the maternal family as supports. Particularly given the loss of associated paternal family connections, primarily their relationship with their father who is more important to them than their cousins.
I do not cavil with the view that the children’s relationship with the father is more important than their relationship with their cousins. However given the above evidence in relation to the maternal family dynamics, I am of the view that the mother and children’s support and dependence on them in City B is not undermined by the father’s assertion. I find that the maternal family is available to support the mother and the children. I find that their desire to do so is sincere.
The mother’s friends in City B include:
(a)Ms EE and Mr FF and their three children. The father together with the mother nominated Ms EE and Mr FF in their wills as guardians of the children should something happen to them;
(b)Ms EE’s mother;
(c)Ms M and her daughter Ms GG. They live some 15 minutes away from Suburb C;
(d)the maternal grandmother’s best friend;
(e)Ms HH with whom she has been friends since she was 14 years of age and her husband and their four children;
(f)Ms HH’s mother;
(g)Ms JJ with whom she has been friends since she was 16 years of age;
(h)A long-time friend through work; and
(i)A number of other work friends.
The mother asserts that whilst she has made friends in Melbourne who live in her local area through the children’s child care that her friendships in City B are much stronger and better established. Her chosen emergency contacts for the children were made out of necessity as there was no-one else she could nominate in close proximity of the children. The mother is almost an hour away from the children on workdays during the week.
The mother does not feel comfortable asking her friends in Melbourne to assist with the care of the children as she does with her extended family and friends in City B. Her extended family would be ready, willing and able to assist her at short notice whereas her friends in Melbourne may have work commitments or be unable to assist. She said that she had no friends in Melbourne to assist with the care of the children when she attended the family report interviews. Her father travelled to Melbourne to assist. The mother gave insightful answers as to why she did not want to rely on childcare and after school care facilities on that day.
The mother does not have the ability to converse with the parents at X’s school unlike the father who delivers X to school at the time school commences and collects him at the time school concludes. The father is in the position of enabling X to have play dates during the week. The mother is not. It is not surprising therefore that the father says the parents friendship groups in the local area are strong and should not be underestimated. The mother has not however had the ability to forge and strengthen those supports to the same degree as the father. I note also what the mother told the Court at paragraph 61 of these reasons. I accept that it would be difficult for the mother to share her vulnerabilities and difficulties with anyone but family and very close friends.
Ms M
Ms M is a close personal friend of the mother. They met through work approximately 11 years ago. She is a public servant. She has a 16 year old daughter. Ms M was required for cross‑examination. She also travelled from City B and gave her evidence in person.
The mother and the children visit Ms M on each occasion they travel to City B. She has come to Melbourne on numerous occasions to visit them. The mother has Ms M’s full support in City B. Her home is in close proximity to the suburbs in which the mother has nominated to live and the children’s schools.
I agree with Counsel for the mother’s description that Ms M’s evidence “had the warmth of a long-term best friend.”[16]
[16] Transcript 19 August 2022, p.173.
I am left in no doubt that Ms M would wholeheartedly support the mother with the children if she lived in City B. I am confident that the mother’s other friends would do likewise.
Plainly in City B the mother has a significant network of family and friends upon whom she can display her vulnerability when she needs support, and upon whom she can trust and depend, which she does not have in Melbourne. That in my view is an invaluable asset to a working single primary carer of two children, at whatever the age the children may be.
THE FATHER
The father is devoted to the children and displays genuine concern for his ongoing relationship with them. The quality of his physical and emotional care of the children are beyond dispute.
Unlike the mother, the father appeared to concentrate more on his lifestyle and was self-focused rather than the quality of the children’s lifestyle when in the care of the mother. His evidence at times lacked the emotional insight, realistic expectations and practicality that the mother displayed.
I have taken into account that English is the father’s second language and that he may have a different capacity than the mother in getting “a really fulsome narrative across”[17] as was contended by Counsel for the father.
[17] Transcript 19 August 2022, p.167.
The father was not as gracious toward the mother as the mother was toward him. I found his responses to the mother’s effort to place pieces of Country G as a significant part of the décor in her home as dismissive.
The mother offered to assist the father financially with his move to City B with the payment of his relocation expenses and the provision of a deposit for a home in City B. It is unfortunate that the father viewed the mother’s offer as an attempt “to buy me or to bribe me to agree to the proposal.”[18] As noted already, the mother is analytical and a problem solver and had the foresight to consider how to alleviate the financial pressures on the father to make the transition to City B easier for him.
[18] Ibid, p.114.
The father asserted that given the age of the mother (and of the grandfather), the children’s “very active life” will be “drastically” reduced in City B.[19] This assertion is unnecessarily unflattering and critical. The mother is only 42 years of age, she has maintained her fitness and is actively engaged with the children in all of their physical activities. Lest it be forgotten, the nature of her employment.
[19] Father’s Affidavit filed 4 August 2022, paragraph 48.
The father made an application to change the Child Support Assessment the day after orders were made on 7 December 2021, this resulted in the assessment being reduced to no payment being required by him to the mother. His answers in relation to this were prevaricating. It is unfortunate that he has not been more proactive in initiating the repayment of the children’s expenses which the mother paid on his behalf such as the cost of doctor’s appointments and childcare costs when the children are in his care. Counsel for the mother noted that the application to vary was made in circumstances where the father had received $80,000.00 pursuant to the final property orders made by consent on 27 April 2021.
The father’s evidence had the general tenor of one where he and Ms J are at liberty to relocate and exercise their freedom of movement to live and work where they choose in order to improve or positively progress their circumstances. He gave little countenance or regard to the mother’s ability to do the same. The father moved from Country G to be pursue his relationship with the mother, the father (and mother) moved to Melbourne with a very strong motive for doing so being the improvement of the father’s employment opportunities in his chosen field. Ms J moved from Sydney to pursue her relationship with the father. The mother insightfully told the Court “lives change; circumstances change”.[20]
[20] Transcript 18 August 2022, p.36.
The father does not consider that it is in the children’s best interests to share a long distance father-son relationship. He describes specific routines and “precious moments”[21] with his children such as cuddling in bed, having breakfast together, playing at the park, cooking together and teaching them new skills. He says that his physical face to face interaction, his ability to be physically involved in all aspects of their lives including special occasions, weekend sports and school activities will be adversely impacted. There will be a detrimental impact on the children’s connection with their Country G culture and heritage and the parents’ decision to raise the children as bilingual. The father fears that all of these factors have the consequence of a substantial diminution of his deep connection and meaningful relationship with the children.
[21] Father’s Affidavit filed 4 August 2022, paragraph 32.
The father emphasises that the children only know Melbourne as their home, they have developed close bonds, they attend many play dates, picnics and activities with their friends, X is thriving at a school, and the current spend time arrangements are working well. He says that a move to City B would separate them from everything they know.
The father’s present circumstances
The father is now an Australian citizen. He and Ms J currently live in rental accommodation. They intend to purchase a home together within the next six to 12 months.
The father’s family live in Country G. The children have telephone contact with the paternal grandfather during the times they spend with the father. The father has only minimal contact with his mother. He has regular contact with his sister.
The father has held three different work positions since moving to Melbourne. Since 2022, the father has been working in a management position in sales. The father was responsible for relocating their headquarters from Brisbane to Victoria. At the time of the trial he was the only manager. He has hired two employees commencing later this year.
The business’s office is in Suburb LL. There is another office in Suburb MM. The distances and time involved from the father’s home to these destinations are less than what the wife must travel between her home and work.
The father can work from home. Sometimes he travels within Victoria looking for customers.
The father’s workplace arrangements are very flexible and promotes working from home. He delivers and collects X at the commencement and conclusion of his school day and he collects Y from child care before 4.00 pm. He very rarely uses before or after school care. The children’s routine with the father during the week is markedly different than that with their mother.
I am the view that it makes no difference in terms of the children’s overall circumstances (or that of the mother) because of the nature of the changeover arrangement that it is only on some days the children have early delivery or late collection to school and child care on one occasion on a school day when they are in the care of the mother.
Plainly the father is more readily able than the mother to connect with the children’s educators on a frequent basis. He is also more readily able to connect with other parents at the institutions at which the children attend and forge more intimate supports with them than can the mother. He is able to engage the children in extracurricular activities and play dates during the week. It is clear that his work/life balance is superior to that of the mother.
Ms J
Ms J was required for cross-examination. She was a candid witness. Her evidence though gave attention or concern in relation to the mother’s stretched and strained circumstances in which she cares for the children.
Ms J and the father met through work in 2019 and commenced a relationship in 2020. Ms J was living in Sydney at the time and relocated to Melbourne in 2021 to progress the relationship between the father and her. Ms J’s family live in Sydney. Her parents have come to Melbourne and have met the children. She has developed friendships in Melbourne. Her friends from Sydney visit Melbourne and “have become part of our life and routine down here in Melbourne”.[22]
[22] Ms J’s Affidavit filed 4 August 2022, paragraph 15.
Prior to living with the father, Ms J was usually present when the children spent time with him. Since living with the father she has remained very involved in all aspects of the children’s lives. She immerses herself where possible in the children’s Country G heritage and culture. She engages in and supports Country G related activities.
Ms J is a sales worker. She works in the Melbourne CBD. She works full-time. Her hours are flexible depending on the week and how many days the children stay with the father and her. She can take time off work to look after the children.
It is not in dispute that Ms J and the children share a close bond. She describes her relationship with the father as a “special one and a large part of it is our blended family.”[23] I accept Ms J’s evidence that the life of the father and her with the children in Melbourne is “happy, fulfilling, balanced and bursting with love”.[24]
[23] Ibid, paragraph 9.
[24] Ibid, paragraph 13.
Ms J and the mother have a positive, honest, supporting and trusting relationship. The mother recognises and accepts Ms J’s role and involvement in the children’s lives.
Ms J supports the father in obtaining equal shared care. She also relies on the maintenance of the status quo when she refers to the opportunities she and the father can offer the children in Melbourne and “for the children to remain in the life that they know”.[25]
[25] Ms J’s Affidavit filed 4 August 2022, paragraph 25.
Ms J is concerned if the children live in City B and the father lives in Melbourne it “would mean our family life would be destroyed as we know it in Melbourne. Our routine would not be maintained and our relationship greatly diminished.”[26] She says that she “cannot imagine a life or world with the children being in City B and the surrounds. I cannot fathom how this would be in their best interest and I hold deep concerns on the impact, toll and life changing effect this would have on their lives.”[27]
[26] Ibid, paragraph 12.
[27] Ibid, paragraph 23.
Ms J is also concerned in relation to the adverse effects a move to City B will have on her:
(a)She has no family or friends in City B;
(b)She will have to resign from her current employment. Her role is Melbourne-based and cannot be done remotely; and
(c)Relocating to City B would affect her emotionally, mentally and financially and would cause her undue stress and strain and this will impact on her ability to best support the children.
Ms J says that the father would do anything for the children as they are his number one priority. The father became emotional during this line of questioning.
Ms J said that should the Court permit the relocation and the father decided to also relocate, she would move with the father to City B.
The father moving to City B
As noted the mother’s preferred position if the children live with her in City B is that the father also relocate.
The father does not want to relocate to City B. The father says there are many impediments and disadvantages to him moving there. He says:
(a)The Country G community is almost non-existent in City B and it would be incredibly difficult for him and the children to maintain a connection to Country G culture;
(b)He has no family in City B and socially he does not know anyone. He would have “zero” support;
(c)He would be in a hostile environment as he asserts that the mother’s family has cut all ties with him post separation. I note though that Mr L says the lack of communication between them was not intended to be indicative of cutting all ties;
(d)Moving to a new city from Country G to City B was incredibly hard and stressful and the prospect of having to do so again is “very scary and distressing”;[28]
[28] Father’s Affidavit filed 4 August 2022, paragraph 69.
(e)He would feel lonely and isolated;
(f)Being under great emotional and financial stress will affect his ability to parent the children;
(g)He will have to resign from his current employment as he cannot work from home all of the time;
(h)Being a part of a business is very important to him. Since his arrival in Melbourne he has worked very hard to restart his career from zero and to reach the level of pay and conditions he has today;
(i)A move to City B would be very detrimental to his career as City B is not the central work hub and therefore the opportunities of work for him in City B will be very limited;
(j)He will likely have to take a pay cut and may not have flexible work arrangements to suit the children’s routine;
(k)The move to City B would have a “massive financial impact”[29] as he would have to finance the cost of the move and periods of unemployment. He has no financial support in Australia other than his full-time wage;
(l)Ms J would have to resign from her current role and it is highly likely she will struggle to find a new role in City B;
(m)The median house price in City B is now higher than in Melbourne and it will be difficult for them to purchase a property in City B; and
(n)Rental accommodation costs are also higher in City B than in Melbourne and he will be paying more than what he is paying at the present time. There is also a low vacancy rate of rental property available in City B.
[29] Ibid, paragraph 74.

City B is familiar to the children as are the maternal family, Ms M and the maternal grandfather’s home. The children have had positive experiences in City B. The Court does not have to take a leap of faith that the children will assimilate into City B environment, more so in the circumstance that the mother has lived there and she is very familiar with the nature of the area and what it has to offer.
The mother readily acknowledges that the children would need to adjust from being separated from the father and not seeing him as frequently. The mother acknowledges that the children will initially miss their friends. The mother described herself as a “realist”. She has thought of strategies to assist the children such as the further use of the count-down calendar and the children and her meeting the father half way for them to spend time together in addition to time particularised in the orders.
I have already canvassed the effect on the meaningful relationship between the children and the father if the children live in City B. The children’s relationship with Ms J will also be affected.
Ms N says at [75] in her report that:
The regular and meaningful time spent with both parents appears to work well to ameliorate the negative impacts of the parents’ separation. Children of separated parents with whom they share regular and meaningful relationships experience better outcomes than children who do not.
The mother’s proposal provides for the children seeing the father, and Ms J, each year during school terms at least between four and eight times in Melbourne and four and eight times in City B depending on the length of school terms, but in either case no less than 12 times each year. It also provides for time during each of the four school holiday periods. The children will be having physical face to face contact for no less than around every three weeks. They will be having frequent and regular electronic communication with the father (and Ms J). The mother says that she will facilitate communications with the paternal family in Country G.
The children will be able to see the father, whilst not as frequently as if they remained living in Melbourne, without too long a break between the times they do see him and have consistent regular electronic communication with him. I consider that such spend time proposals provide for the children sharing a regular and meaningful relationship with the father which should ameliorate the concerns of Ms N.
Ms N says at [80] in her report:
[X] and [Y] are both of an age where they require their significant care givers to be regularly and consistently present to maintain a quality relationship. Children of [X] and [Y]’s respective ages are more concrete in their thinking and particularly so with regards to time. Their focus is on the ‘here and now’ – and a relationship with an absent caregiver may weaken and at worse be forgotten.
The spend time proposals of the mother and the mother’s commitment are such that the relationship between the father and the children should not “weaken” or “be forgotten”. The children’s relationship with the father is well-established, secure and positive.
Counsel for the father suggested to the mother that to disrupt the children’s lives in Melbourne would be risky. The mother told the Court:
It’s risky but with – with it being so heavily considered by myself and the – the attention that I pay to their emotional and physical and – and psychological needs, I’m – I’m very attuned to the needs of the children and it would be a matter of supporting them – them through it and, as I say, encouraging that resilience and making it an adventure and – and – and changing the mindset to it all. It doesn’t have to be a shocking, horrific, detrimental event in their life. It could be the commencement of a – a new and exciting chapter where, yes, things have changed but it – it will find its level and, hopefully, [Mr Talsma] and I will be able to work together to continue to do the best for the children.[53]
[53] Transcript 18 August 2022, p.45.
Ms N says at [79] of her report “A house move for any child imposes upon them stress, and a move that creates a very substantial distance between a child and significant attachment figure will compound that stress. This will be the experience of even the most resilient child.”
When put to the mother, the mother said the following:
I agree that a move for – for any person, child or adult, can be a – a stressful situation. But again the responsibility falls down to [Mr Talsma] and I to guide and support the children through that and assist with their – their perspective on how they – they see it. If it’s sold to them as a terrible tragedy, well, then they will – they will pick up on that.[54]
[54] Ibid, p.55.
Ms N has confidence in the mother assisting the children’s transition to living in City B. She said:
[The mother] demonstrates planning and consideration of the boys’ life in [City B] and how their educational needs will be met. Such planning and forethought would assist [X] and [Y] with setting some expectations and adjusting with more ease to aspects of a relocation if so permitted. .[55]
[55] Annexure “N-2” to Ms N’s Affidavit filed 7 April 2022 at [76].
I share that confidence. I consider that the reality is the children’s move to City B will not be as bleak as what the father predicts. Both parents are devoted to the children and I am confident that neither will undermine the Court’s determination and that they will both for the sake of the children support the move with enthusiasm, no matter how difficult that may be for the father.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parents presently reside within a close distance of each other and the children’s educational institutions. There is neither expense nor geographic practical difficulty to either parent associated with the children spending time with the father either on an equal shared care or substantial and significant time basis if the children remain in Melbourne.
It is “reasonably practicable” in all other respects from the father’s perspective if the children live in an equal shared care or substantial and significant time basis with him in Melbourne.
The “reasonable practicality” of the mother living in Melbourne is also an important consideration.
In MRR & GR (2010) 240 CLR 461 the High Court observed that when assessing reasonable practicality the Court must consider the reality of the situation of the parents and child and make a practical assessment whether equal time, or substantial and significant time, is reasonably practicable. The Court is obliged to consider the circumstances of the parties, more particularly those of the primary carer.
In Adamson & Adamson [2014] FamCAFC 232 the Full Court in relation to considering the reality of the situation said at [70]
[i]f it were otherwise, it would follow axiomatically that Courts exercising jurisdiction under Part VII of the Act would not only likely prevent any proposed relocation of any parent in cases where that issue arises; but the Court would routinely order restraints or injunctions interfering with the parental rights to which we have referred so that “reasonable practicability” (by requiring parents to live proximate to each other) was achieved and maintained.
If the mother remains living in Melbourne the circumstances in relation to her care of the children will not change, irrespective of whether the children live in an equal shared care arrangement or spend substantial and significant time with the father. The father says that the children spending more time with him would allow the mother more time to herself and help with her workload. I reiterate, that any further time with the children does not assist the mother or alleviate her stressors when the children are in her care.
The reality for the mother is that the stresses and pressures that she now experiences will continue. I expand on these matters at paragraph 307-310 of these reasons. I consider that taking all those matters into account that it is not reasonably practicable having regard to the reality of the mother’s circumstances in Melbourne that the Court should craft orders enabling the children to spend equal time or substantial and significant time with the father in Melbourne.
Plainly, it is not reasonably practicable for the children to be in an equal shared care arrangement if the mother and children live in City B and the father lives in Melbourne given the distance between the two locations.
I consider that the mother’s spend time proposal whether or not the father lives in City B, satisfies the criterion of the children spending substantial and significant time with him.[56] It provides for days that do and do not fall on the weekends and holidays, special occasions of the children and the father and in the children’s daily routines, more so with the flexibility with weekend time in City B and Melbourne the mother will afford to the father.
[56] Family Law Act1975 (Cth), s 65DAA(3).
The children’s relocation to City B will require additional expenses to both parents if the father does not also relocate. Pursuant to her proposal the mother will bear the cost of the children’s return flights between City B and Melbourne and the cost of her flights and accommodation in Melbourne if she chooses to stay for the duration of the children’s time with the father. The mother has investigated the cost of flights which with some forward planning can be purchased for as little as $69.00 one way.
I am confident that the mother will maintain that financial responsibility given her commitment to the children maintaining a relationship with the father. The mother and her father have offered the father the use of their cars.
The father will have the costs of his travel to City B and his accommodation costs whilst there. He describes them as “seriously expensive”.[57] He has the same ability to access inexpensive fares and join flight rewards programs as the mother. The father has no Child Support Assessment liability. He is in a dual income relationship. The best that I can glean is that his income is $84,776.00.[58] The Court does not know Ms J’s income or how much of the $80,000.00 the father received by way of the property settlement he still has at his disposal. He will have ancillary costs of the care and entertainment of the children whilst he is in City B. Those ancillary costs are already being met by the father when the children are in his care in Melbourne.
[57] Father’s Affidavit filed 4 August 2022, paragraph 41.
[58] Annexure “T-04” to the Father’s Affidavit filed 4 August 2022.
The father acknowledges that travelling to City B will provide him with the opportunity to spend time in the “children’s world”. He says that although his workplace is flexible travelling to City B eight times a year will seriously affect his work and personal life. Weekend time in City B will be limited as he says he does not have the flexibility to fly to City B on Friday and return on Monday.
However, the father’s evidence is that he can mostly work from home. Counsel for the mother suggested to the father that if he can work from home then he could also work from another venue, that is, a hotel room. I note that he now has the flexibility to deliver and collect X from school at school hours. He may have to adapt the nature of his flexibility taking into account the change in the family’s living arrangements.
The father says that weekend time on the Saturday and Sunday in Melbourne will be truncated given the travelling required to be undertaken by the children. However if weekend time can as often as possible be aligned to when public holidays or pupil free days are adjacent to the weekend then the time will not be so truncated. There is also the possibility that flights from City B to Melbourne at are a convenient time on a Friday so as to allow the children to travel on that day.
The children are familiar with travel between City B and Melbourne. The mother deposes that it is a short drive from Suburb C to the City B airport. The flight is under two hours between City B and Melbourne. The drive to the father’s home is under an hour. The total travel time for the children to spend time with the father in Melbourne is approximately under three hours. They will have their mother accompanying them for the foreseeable future.
I note that added to the travel time should be the time the children will be required to be at the airport prior to the departure flight, which is generally one hour. There will also be around the same time of travel for their return to City B. I do not consider that such travel is too onerous for the children. Given the number of times a school term they will be required to travel.
In all of the circumstances I am of the view that the spend time arrangements proposed by the mother with which the father in the main agrees are affordable, practical and attainable.
The mother’s school term proposal provides for the children to spend eight nights with the father. The father seeks nine nights. I accede to the father’s proposal. On that basis, during a two week term school holiday period the children will still be spending seven nights in City B. In my view that is sufficient for them to maintain and enjoy their friendships in City B and spend leisure time with the mother.
The father seeks four weeks with the children in the long summer holiday period. The mother seeks that he spend half and sets out a default position which particularises time for a long summer holiday period of a six-week duration.
The father has four weeks leave a year. Given the constraints of his leave entitlements and that he will have had the children in his care for just shy of four weeks during term holidays I am of the view that it is in the children’s best interests to be with their friendship groups in City B and spend leisure time with the mother and her family rather than being placed in school holiday programs in Melbourne. I accede to the mother’s proposal.
I see no reason why the Christmas period time should be restricted to four hours to occur only on Christmas Day if both parents are in the same state as the mother proposes. I accede to the father’s order for Christmas period arrangements.
The further order sought by the father for the children to spend additional time with him in City B upon giving the mother seven days’ notice. Such an order is not contrary to the mother’s view that the children should spend meaningful time with father and that she will be flexible.
Any other fact or circumstance that the Court thinks is relevant
Although the child’s best interests is the paramount consideration the Court must also consider the right of parties to choose where they would like to live and the circumstances of the parties.[59]
[59] See U v U (2002) 211 CLR 238 at [82].
In AMS v AIF (1999) 199 CLR 160, Kirby J observed at [145] that:
One of the objects of modern 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. The paramount consideration of the child’s best interests must be weighed and balanced against that right.
In the context of compelling a parent to reside other than in their place of choice, Kirby J said in U v U (2002) 211 CLR 238 at [142]-[143]:
It will be she, not the husband, who will usually be confined, in effect, in her personal movements, emotional environment, employment opportunities and chances of remarriage, repartnering and reparenting. Effectively, as here, it is she who will be controlled by Court orders that require her to live, and make the most of her life, in physical proximity to the husband's whereabouts. In this way, inconvenience to the husband is minimised. But the effect on the wife may be profound.
As has been noted by this Court and Courts in other jurisdictions, significant effects on the mother's emotional, residential, economic, employment and personal life have an inevitable impact on the happiness and best interests of the child.
In U v U, Kirby J also observed at [146]:
Courts, exercising such discretions, should not ignore the disproportionate burden typically cast upon women by their being effectively immobilised as the custodial/residence parent.
The mother holds a deep desire to relocate. It is highly likely that the mother will harbour some bitterness toward the father if she is unable to relocate with the children. She will remain unhappy. As much as she will attempt to conceal those feelings they may nevertheless inevitably be transmitted to the children in a way likely to affect their best interests. This may have an impact on the positive co-parenting relationship the parents have attained.
The mother’s hope and optimism in returning to City B will be lost. I note her distraught presentation at times during the hearing. Her concern as to how she can sustain her life in Melbourne in the future is genuine. She can foresee a more positive life for herself and the children if they are able to move.
She will be the primary carer of the children for an indeterminate period of time. She will be confined to living in a place in which she does not wish with minimal support from family and friendship. She will be required to maintain a level of income to continue primarily financially providing for the children. Her work/life balance will not change as she will continue working in her agency having investigated the financial ramifications of being employed otherwise notwithstanding that part of her identity is being a public servant.
The mother has been resilient to date. She should not be penalised for showing such fortitude. Even an equal shared care arrangement in Melbourne does not alter how she must manage her time with the children. She and the children will have the same daily routines. The mother must cram the children’s activities around her work which has limited flexibility. She will still feel taxed, isolated and she will have limited supports. It is not unreasonable to suspect that she will be not be able to sustain her resilience particularly with the loss of hope of a return to City B with the children.
The father on the other hand has a work/life balance, the support of Ms J and other supports upon whom he feels comfortable to rely. The mother does not have those positive aspects in her life at the present time. The father has exercised his right to a freedom of movement on two occasions and Ms J on one.
The authorities are clear that the wife’s right to choose where she lives and works should only be interfered with if the children’s best interests are so adversely affected so as to justify that interference and then the interference is legitimate only to the extent that is necessary to avoid such adverse effects.[60]
[60] U v U (2002) 211 CLR 238 at [262], Adamson & Adamson [2014] FamCAFC 232
Having regard to my assessment of all of the section 60CC considerations and the Objects in the Act I consider that the children living with the mother in City B does not so adversely affect their best interests so as to mitigate against a relocation and the mother’s ability to exercise her freedom of movement and live and work where she chooses.
CONCLUSION

For all of the forgoing reasons I am satisfied that a relocation to City B with the mother is in X and Y’s best interests.
The children’s relationship with the father will be maintained, whilst not optimal will be nevertheless be meaningful. Their Country G heritage will be developed.
The mother's rights of freedom of movement and to live and work where she chooses has been weighed against any adverse impact on the children's relationship with the father. The mother has a proven facilitative positive attitude to the relationship between the children and the father and she will continue to be facilitative. The Court is not required to take a leap of faith in that regard. The advantages and disadvantages of the proposals are implicit in these reasons.
A relocation dispute is one of the most highly emotionally charged matters for parents. In any relocation case one of the parents will be disappointed by the Court’s determination. In this matter it is the father. However, it is imperative from the children’s perspective that both parents support their move to City B.
X and Y from all accounts are delightful children. I am comforted by the fact that they have parents who are deeply devoted to their welfare. It behoves the mother to excel in her responsibility to facilitate face-to-face and electronic communication time with the father and to keep him appraised and involved in all matters both of a long-term and day-to-day nature in relation to the children’s care, welfare and development. It also behoves her to provide him with as much access as is possible personally, via communication and by documentation, to all educational institutions, clubs and community activities in which the children may engage, and all medical and allied health professionals upon whom they attend.
It behoves the father to endeavour to visit the children in City B as much as possible, in the event he decides not to relocate there, in order to provide the children the enjoyment of having him participate in their day-to-day life in City B including school and extra-curricular activities.
If the father decides to move to City B, and as the mother will be the primary carer, orders are made in accordance with the mother’s proposal.
The orders the father seeks in relation to international travel with the children were not canvassed during the hearing. Accordingly I do not make those orders. The order sought by the father in relation to interstate travel are superfluous given the children will regularly be travelling interstate. Accordingly that order is not made.

I certify that the preceding three hundred and twenty-one (321) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Boymal.
Associate:
Dated: 20 October 2022

File number(s):	DGC 3381 of 2021
Judgment of:	JUDGE BOYMAL
Date of judgment:	20 October 2022
Catchwords:	FAMILY LAW – Parenting – where mother wishes to relocate from Melbourne to City B – where father seeks equal shared care – children’s paternal Country G heritage – mother’s employment with a government agency of significance to her – mother’s supports in City B – children to live with the mother in City B
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA
Cases cited:	Adamson & Adamson [2014] FamCAFC 232 AMS v AIF; AIF v AMS (1999) FLC 92-852 AMS v AIF (1999) 199 CLR 160 Franklyn & Franklyn [2019] FamCAFC 256 Godfrey v Sanders [2007] FamCA 102 Gusta & Gusta [2020] FamCAFC 228 H & H [2005] FamCA 805 Hendy & Penningh [2018] FamCAFC 257 Jurchenko & Foster [2014] FamCAFC 127 Kaule & Brown [2015] FAmCA 480 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 MRR & GR (2010) 240 CLR 461 Rochford & Fitzhugh [2019] FamCAFC 218 Sampson & Hartnett (No. 10) [2007] FamCA 1365 Sayer & Radcliffe and Anor [2012] FamCAFC 209 U v U (2002) 211 CLR 238 Wagstaff & Wagstaff [2022] FedCFamC1A 119 Wendland & Wendland [2017] FamCAFC 244
Division:	Division 2 Family Law
Number of paragraphs:	321
Date of hearing:	18 & 19 August 2022
Place:	Dandenong
Counsel for the Applicant:	Mr Witchurch
Solicitor for the Applicant:	Pentana Stanton Lawyers
Counsel for the Respondent:	Mr Stanley
Solicitor for the Respondent:	Farrar Gesini Dunn
Counsel for the Independent Children's Lawyer:	Mr Korke
Solicitor for the Independent Children's Lawyer:	Victoria Legal Aid

DGC 3381 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR TALSMA Applicant
AND:	MS KAPLON Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE BOYMAL
DATE OF ORDER:	20 OCTOBER 2022