Wagstaff & Wagstaff - [2021] FedCFamC2F 507

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wagstaff & Wagstaff [2021] FedCFamC2F 507

File number(s): MLC 8730 of 2016

Judgment of: DEPUTY CHIEF JUDGE MERCURI

Date of judgment: 8 December 2021

Catchwords: FAMILY LAW – application for final parenting orders – relocation application – consideration of whether there should be a change of children’s school - whether the non-resident parent ought to move closer to the primary carer – consideration of the best interests of children – consideration of what constitutes substantial and significant time – consideration of distance between the parent’s homes – final parenting orders made.

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

Cases cited:
Denham v Newsham [2020] FamCA 271

Godfrey & Sanders [2007] FamCA 102

Marriage of K & Z (1997) 22 Fam LR 382

Division: Division 2 Family Law

Date of last submission/s: 23 August 2021

Date of hearing: 16, 17 & 23 August 2021

Number of paragraphs: 217

Place: Melbourne

Counsel for the Applicant: Ms Smallwood

Counsel for the Respondent: Ms Bonney

Counsel for the Independent Children’s Lawyer: Mr Kanarev
ORDERS

MLC 8730 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS WAGSTAFF

Applicant

AND:
MR WAGSTAFF

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

DEPUTY CHIEF JUDGE MERCURI

DATE OF ORDER:

8 December 2021

THE COURT ORDERS THAT:
1.All previous orders be discharged
2.The parents have equal shared parental responsibility for the children of the marriage, namely:
(a)X born in 2011 (‘X’); and
(b)Y born in 2014 (‘Y’) (‘the children’).

3.The children live with the mother.
4.By the commencement of term 2 of 2022, the mother is to live within 20 kilometres of Town A School.
5.The children spend time and communicate with the father as follows:
(a)each alternate weekend from the conclusion of school on Thursday (or 3:30pm if a non-school day) until the commencement of school on Monday (or 9:00am if a non-school day);
(b)in the following week, from the conclusion of school on Thursday (or 3:30pm if a non-school day) until the commencement of school on Friday (or 9:00am if a non-school day);
(c)half of each of the school term holidays as agreed between the parties in writing and failing agreement, the father to have the second half in odd years and the first half in even years with changeover to occur at 5:00pm on the middle Saturday of the term holidays unless otherwise agreed between the parties in writing;
(d)half of the long summer school holidays as agreed between the parties in writing, and failing agreement, the father to have the second half in odd years and the first half in even years with changeover to occur at 5:00pm on the first Saturday of January each year unless otherwise agreed between the parties in writing;
(e)in the event that the father’s birthday does not fall on a day that the father would normally spend time with the children, the children spend time with the father from 10:00am until 4:00pm on a non-school day and from 3:30pm to 7:30pm on a school day;
(f)in the event that Father’s Day does not fall on a day that the father would normally spend time with the children, the children spend time with the father from 5:00pm on the Saturday preceding Father’s Day until 5:00pm on Father’s Day unless otherwise agreed between the parties in writing, with the mother to have make up time the following weekend;
(g)in the event that the children’s birthdays do not fall on days that the father would normally spend time with the children, for a period of not less than four hours on each of the children’s birthdays, at times to be agreed between the parties in writing and failing agreement from 3:30pm until 7:30pm if it falls on a school day or from 10:00am to 4:00pm if it falls on a non-school day; and
(h)at such other times as may be agreed between the parties in writing.

6.For the purposes of changeover, unless otherwise agreed between the parties in writing:
(a)all school changeovers are to occur at the children’s school; and
(b)for all non-school changeovers, the father is to collect the children from the mother’s residence at the commencement of time and the mother is to collect the children from the father’s residence at the conclusion of time.

7.Unless otherwise agreed between the parties, the children will remain enrolled at Town A Primary School for the duration of their primary school education.
8.In the event that the mother’s birthday does not fall on a day that the mother would normally spend time with the children, the arrangements referred to in paragraph 4 be suspended, and the children spend time with the mother for a period of not less than six hours at times to be agreed between the parties in writing at least seven days prior to the mother’s birthday, and failing agreement from 10:00am until 4:00pm.
9.In the event that Mother’s Day does not fall on a day that the mother would normally spend time with the children, the arrangements referred to in paragraph 4 be suspended, and the children spend time with the mother from 5:00pm on the Saturday preceding Mother’s Day until 5:00pm on Mother’s Day unless otherwise agreed between the parties in writing, with the father to have make up time the following weekend.
10.In the event that the children’s birthdays or the mother’s birthday does not fall on a day that the mother would normally spend with the children, the arrangements referred to in paragraph 4 of these orders be suspended and the children spend time with the mother from 10:00am until 4:00pm if a non-school day and from 3:30pm to 7:30pm if a school day, on each of the three respective birthdays.
11.The parties spend time with the children at Christmas as follows:
(a)with the mother from 12:00pm on 24 December 2021 until 3:00pm on 25 December 2021 and each alternate year thereafter;
(b)with the father from 3:00pm on 25 December 2021 until 12:00pm on 26 December 2021 and each alternate year thereafter;
(c)with the father from 12:00pm on 24 December 2022 until 3:00pm on 25 December 2022 and each alternate year thereafter;
(d)with the mother from 3:00pm on 25 December 2022 until 12:00pm on 26 December 2022 and each alternate year thereafter.

12.The parties spend time with the children for Anzac Day as follows:
(a)with the father from 5:00pm on Anzac Day Eve until 12:00pm on Anzac Day in odd numbered years;
(b)with the mother from 5:00pm on Anzac Day Eve until 12:00pm Anzac Day in even numbered years.

13.Each party must:
(a)keep the other parent informed at all times of their residential address, contact telephone number and email address and advise the other parent within 24 hours of a change to these details;
(b)keep the other parent informed at all times of the names and contact details of any treating medical or other health practitioner who treats the children or either of them and these orders authorise such practitioner/s to provide the other parent with any reasonable information about the children; and
(c)inform the other parent, as soon as practicable, of any medical condition, significant health issue or illness suffered by the children or either of them.

14.The parties, their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or the other parent’s family; and
(b)discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings, to or in the presence or hearing of the children or either of them or from permitting any other person so to do.

15.Each party keep the other informed of changes to the children’s health while the children are in their respective care and as soon as practicable, notify the other parent of any medical emergency involving the children or either of them.
16.These orders act as an authority for any treating medical practitioner and health care provider associated with the children to release and provide the other party with all information that they are lawfully able to provide about the children as requested by the party from time to time (at the requesting parent’s costs).
17.Upon the child Y reaching the age of 12 years, the parties may revisit the time spent arrangements by attending family dispute resolution with an accredited Family Dispute Resolution Practitioner (‘FDRP’) as nominated by G Counsellors (Victoria).
18.Each party be at liberty, subject to any direction to the contrary from any school at which the children attend to:
(a)attend parent/teacher interviews separately for the children or either of them;
(b)obtain copies of all school reports, school newsletters, school photographs and any other documents that parents are normally provided with; and
(c)attend any school organised events, activities or functions to which parents are ordinarily invited including but not limited to concerts, carnivals, fetes, family days

and these orders shall act as authority for same.
19.All extant parenting applications otherwise be dismissed.
20.The Independent Children’s Lawyer be discharged, subject to any appeals.

AND THE COURT NOTES THAT:
A.The parties agree that the children ought not be required to continue to travel between Town D and Town A to attend school.
B.The mother indicated that if the court did not permit her to enrol the children in a school in Town D that she would relocate to a location proximate to the children’s school. She indicated that in these circumstances it was her intention to move to within 10-15 km of the children’s primary school.
C.Neither party addressed the court on the timing of the mother’s move from Town D to a location proximate to the children’s school. In those circumstances, order 4 provides the mother with time to relocate to within 20 km of the children’s primary school by the commencement of term 2, 2022.
D.Pursuant to ss.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 the parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
E.Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 Wagstaff & Wagstaff has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION

Before the court is an application for parenting orders in relation to X born in 2011 and Y born in 2014. Sadly, these parties have been involved in litigation in this court since 2016.
As will become evident from the summary of the evidence given, the children are much loved by both parents and ultimately, both parents want what they think is best for them. It is also clear, however, that the parents have very different parenting styles and different views about how to provide what is in the children’s best interests. Each of the parties bring their own personalities and strengths to their respective roles as parents, and no doubt, also their weaknesses.
To their credit, both parents agree that the current arrangement whereby the children are required to travel extensively between their respective homes to attend school, must come to an end. The issue between them is how this is to be achieved in a way that best meets the children’s needs.
The issue before the court therefore is whether the mother ought to be permitted to remain living in the Town D area, with consequential changes required to the school the children attend and the time the children will get to spend with their father. Or, whether the mother is required to move back to the Town A area with the consequence that the children can remain at their current school and continue to spend time with the father under the current arrangements.
BACKGROUND
Final parenting orders were made in this matter on 23 May 2018 (‘May 2018 orders’), and amended by consent on 24 October 2018 (‘October 2018 orders’). Relevantly, in the judgment issued at the time of making those final orders,[1] which followed a five day hearing[2] I noted at paragraph 98:
… the parties’ capacity to find a way to work together in their parenting of the children which minimises the conflict between them to which the children may be exposed, will be key. To that end, the orders propose for both parties to complete a post-separation parenting program to assist with this.
[1] See Wagstaff & Wagstaff [2018] FCCA 927 (‘2018 judgment’).
[2] That hearing also addressed property matters.
I also noted at paragraph 108 of the 2018 judgment:
… As noted by the family consultant, the key issues, in considering the children’s best interests, are to minimise the conflict between the parents and demonstrate to the children that the parties are able to make decisions for the children which are child focussed.
Unfortunately, in this case, that aspiration did not eventuate. As stated, the parties have continued to be involved in disputation and consequential litigation since that time.
At the time the May 2018 orders were made, both parties lived in the Town A area. X was enrolled in Town A Primary School and Y went to childcare and then kindergarten in that general area. The issue of the childrens’ schooling was not specifically addressed in the initial proceedings. The father however, did raise concerns during those proceedings that the mother might seek to relocate away from the Town A area. Relevantly at paragraph 108 of the 2018 judgment, I said:
The husband has expressed concern that the mother may seek to relocate from the [Town A] area. The wife has given evidence that she has no current intention of relocating. In those circumstances, the orders to not expressly contain a limitation on the children’s residence. The orders do, however, provide for the parties to have equal shared parental responsibility for the children, which includes decisions about which schools they attend.
It is common ground that in late 2018 or early 2019, the mother sold her house in Town A, Town A (‘Town A property property’) and moved, with the children, to live with her partner, Mr F in his home in Town D. Since the mother moved to Town D, the parties now live about an hour from each other, possibly more if there is heavy traffic. At the time she moved to Town D the children were 7 and 3 respectively and Y was due to commence prep in 2020.
It is also common ground that the mother did not discuss her proposed move with the father or seek his consent prior to placing her home on the market. The father’s evidence, which I accept, is that he only became aware of the mother’s proposed move when he saw that her house was up for sale. The father, through his solicitors, made it clear to the mother that he did not consent to her move away from the Town A area and that any move would need to accommodate the May 2018 final orders (as amended).
Once the mother was settled in Town D, she sought mediation with the father to address the issue of the children’s schooling. As noted above, at the time of the mother’s move, Y had not yet commenced school.
The parties were not able to resolve the matter. The father did not consent to the mother enrolling the children in a school near her home. It was in this context that the mother brought an application to this court in August 2019 seeking an order permitting her to relocate.
It is important to note that when the mother initially commenced proceedings in this court it was her intention to relocate to Town C, which would have been even further away from the father’s home. That remained the mother’s position until she filed her case outline in these proceedings on 13 August 2021. The mother amended her position and sought orders permitting her to remain living in the Town D area with the children and to enrol the children in a school in Town D.
The mother stated that part of the reason for the change in her proposal, from a move to Town C to remaining in Town D, was the increase in property prices in Town C since first filing her application to relocate. In cross examination however, the mother also conceded that part of the reason for the change in her proposal was the observations and recommendations made by the family report writer, Dr H, which are discussed in more detail below.
Mother’s proposal
At trial, the mother’s primary proposal, therefore, was that she be permitted to live with the children in Town D, and to enrol them in a local school. In terms of time with the father, the mother proposes that the children would then spend alternate weekend time with the father, with an additional weekend each alternate month, two weeks in one of the term breaks and half of the remaining school holidays.
The mother clarified in response to a question from the Independent Children’s Lawyer that her proposal was for the children to spend the whole of the month of school holidays with the father (rather than the holidays as initially proposed as Mr F’s birthday occurs during the school holidays).[3]
[3] Court transcript dated 17 August 2021 at page 78.
Notwithstanding this primary proposal, the mother has made it clear that whilst her preference is to remain in the Town D area, she wants the children to remain living in her primary care and therefore, if her primary position is not granted by the court, she will move closer to the children’s school. In her evidence, she indicated that if she was required to move closer to the children’s school, her intention was to live within 10 to 15 km from their primary school to limit their travel time. As stated, however, her primary position is that she wishes to be permitted to enrol the children in a school close to her home in Town D, which would necessitate consequential changes to their time with the father.
The mother says that she is happy for the children to continue their established sports in the Town A area which will allow them to continue seeing their friends in that area and reduce the driving for the father when they are in his care. The mother further says that her proposal would see minimal impact on the children’s time with the father, namely a reduction of 14 days over a 12 month period. She says that this would not, in her view, negatively impact their relationship with their father.
Father’s proposal

I note that there was some confusion in the course of his evidence about exactly what the father was seeking on a final basis. However, it appears from his counsel’s final submissions that the father’s proposal at trial was that if the mother wished to remain living in Town D, the children should move into his primary care and spend regular time with the mother including during school holidays and on special occasions.
Alternatively, if the mother moved closer to the Town A area, that the children continue with the current spend time arrangements.
Independent Children’s Lawyer’s proposal
The Independent Children’s Lawyer supports the father’s proposal. However, the Independent Children’s Lawyer proposed an additional night in the father’s care, if the mother returned to the Town A area.
EVIDENCE
I do not propose to set out the parties’ evidence in full. As stated, given the procedural history to this matter, much of the factual background was either agreed or was determined in the initial set of proceedings.
Mother’s move from Town A to Town D
In her affidavit filed on 28 August 2019 (‘August 2019 affidavit’), the mother set out the difficult financial situation she was in following the making of the final orders in this matter in May 2018. She sets out her financial liabilities at the time, the difficulties she experienced in making ends meet and said that in late 2018, she was experiencing such high levels of stress that she suffered a panic attack and required hospitalisation.
The mother also stated that following the initial proceedings, she had a debt to her parents of $215,000 which she needed to repay. She says that for all these reasons, she had to sell the Town A property. The mother further gave evidence, which I accept, that after she discharged the mortgage, repaid her debt to her parents and met other expenses, as at August 2019, she had less than $90,000 remaining in her bank account.
As stated, following settlement on the Town A property, she and the children moved in with her partner, Mr F in Town D. As to the reason for this particular move the mother simply said:
The decision was largely financial and relationship based as I could not finance a household on my own and it was more practical for [Mr F] and I to live together so we could share expenses. We were spending a significant amount of time together and our relationship was solid. We decided it was time to move in together.[4]
[4] Mother’s affidavit affirmed on 23 August 2019 and filed on 28 August 2019 at paragraph 26.
The mother further stated at paragraph 28 of her August 2019 affidavit:
Initially I had hoped it would be possible for [Mr F] to rent with me in or around the [Town A] area, however, [Mr F] operates a family business which could not be relocated. The business … premises is in [Town B]. … The client base is centred in the [Region J] with homes built from [Town B] right through to [Suburb K] during this time. The business has a factory in [Suburb L] and has a network of suppliers and financial ties to the area. It would not be possible to relocate the business.
The mother further said that the move to Town D was intended to be temporary and that she and Mr F hoped to purchase a property together in Town C which had larger blocks of land and which would also allow them to accommodate the necessary machinery, equipment and trucks for Mr F’s business.
The mother also gave evidence about:
(a)the convenience of Town C to Mr F’s business;
(b)Town B was close to her parents and Mr F’s family who could assist with the care of the children;
(c)the availability in Town B of schooling and a positive community for the children; and
(d)the adverse impact on the mother and the children of the continued travel to their school/kindergarten in Town A.
In this context, as stated, the mother initially proposed that she be permitted to enrol the children in a school in Town C from the commencement of the 2020 school year. She proposed two possible options for schools, and gave evidence about the attributes of each.
Mr F also gave evidence consistent with that given by the mother that they had initially intended to buy a home in Town C but that by the time of the trial, house prices in Town C had increased and this was no longer an option for them. He confirmed that their intention is now to buy a property in Town D if permitted to remain in that area with the boys. He also conceded that the report from Dr H also played a part in their decision making not to pursue a move to Town C.
In her trial affidavit filed on 9 August 2021 (‘mother’s trial affidavit’), the mother went on to say that her decision to sell the Town A property was also related to the fact that it required significant repairs which she could not afford.[5]
[5] Mother’s affidavit affirmed on 6 August 2021 and filed on 9 August 2021 at paragraph 45.
Again, Mr F gives consistent evidence about this and says that he assisted the mother to get the Town A property ready for sale and notes a range of issues which needed to be repaired which in his view would have cost about $100,000. He states that he knew that the mother did not have the funds to make these repairs or to maintain the property and mortgage.[6]
[6] Court transcript dated 17 August 2021 at page 105.
Moreover, the mother also said that whilst the decision to move in with Mr F was initially necessitated by her seeking a stable home she could afford for herself and the children, after three months, she and Mr F knew they wished to marry and have a family together. It was in this context that she filed her application in August 2019. The mother also notes that she has now been in a relationship with Mr F for longer than her relationship with the father and that they wish to continue to live together, although if required to return to the Town A area, that may not be possible.
It was put to both the mother and Mr F that in pursuing orders permitting the children to live with the mother in Town D (and consequential changes to their school and their time with the father), the mother was in effect prioritising the needs of Mr F over those of the children. In response, the mother said:
I wouldn’t agree with that. I had to make some tough decisions as … a carer to these children … I was in such financial stress at that point in time that … I had less than $20 in my bank account on a daily basis. It’s incredibly stressful to have to worry about how you’re going to put petrol in your car and whether or not you can go down to the supermarket and buy something or when the next pay cycle is going to be and I just couldn’t see any way of sticking it out, so to speak, for the next 10 to 12 years living … in that kind of state and I don’t see how I could have been an adequate mother to the children in that state.[7]
[7] Court transcript dated 17 August 2021 at page 71.
When asked then why she could not have moved somewhere within say 10 to 15 kilometres of the children’s school, the mother said:
..that was the option available at the time. That … made sense … the short term and then a few months when we, you know, agreed that we wanted to make it permanent then I, you know, sought mediation on … that point.[8]
[8] Court transcript dated 17 August 2021 at page 72.
Mr F conceded that on a purely financial basis he could have moved in with the mother as the costs of living in Town D were similar to the mother’s mortgage costs on the Town A property.
It is common ground that if he lived with the mother in Town A, Mr F would be required to undertake significant travel to work. Mr F’s evidence which I accept, is that he operates a family business, partly from his home in Town D and partly from his father’s home in Suburb M. He also confirmed that there is a factory in Suburb L where equipment and the like are stored. In terms of the demands of travel on him, Mr F further said:
… I did spend weekends at [Ms Wagstaff’s] house in [Town A] and on Monday morning it would take me sometimes up to and over two hours to get to my place of work because of the traffic.[9]
[9] Court transcript dated 17 August 2021 at page 96.
Mr F’s evidence, which I accept, is that a lot of his work involves working on construction sites where his company is engaged in construction work. Those sites are largely on the Region J. Over the last five years, he said that he had probably been engaged on three projects which were not on the Region J. I accept that if orders were made for the mother to move back to the Town A area or within 10 to 15 kilometres of Town A; that would impact on Mr F in terms of the travel that he would be required to undertake each day.
Notwithstanding this, Mr F conceded that if he and the mother were to move to a location closer to the children’s school, whilst it might be an inconvenience, he could continue to run his business. Having said this he did express concern about the stress that the additional travel would put on him and the impact on his productivity.[10]
[10] Court transcript dated 17 August 2021 at page 97.
In this context, the following exchange then occurred:
Father’s counsel: … the way your life is set up now with [Ms Wagstaff] is that your convenience … is taking greater precedence over the boy’s convenience. What do you say about that?
[Mr F]:… they’re not my words that I would use. I think it’s a great inconvenience to both [X] and [Y] and had I known and I think had [Ms Wagstaff] known upon leaving [Town A] in April 2019 had we known that it was going to take such a long time to relocate or … get to this point in court then perhaps that would have altered our decision-making at the time.[11]
[11] Court transcript dated 17 August 2021 at page 98.
To her credit and with the benefit of hindsight, the mother acknowledged the complexity of the decision she made and said:
… We’re trying to muddle through a … messy co-parenting relationship situation and … I don’t know if I made the right decision. … I did what I thought was best at that time. School and location, I feel, are one factor of importance to children but, I mean, I want my children to grow up in,… a stable household where … they’re having a loving … relationship modelling for them … in front of them rather than a potential single mother … financially stressed and … worried all the time.
… I feel those are valid concerns and … I feel those concerns are part of … the role of a parent to … try and weigh up all … of these factors and it is tricky.[12]
[12] Court transcript dated 17 August 2021 at page 72.
Mr F gave evidence that he and the mother discussed her move to Town D for some time before she ultimately made the move. He said that Town D was chosen as the place for them to live, not as a final destination but as:
a temporary measure until we could basically work out whether all of us worked together… in a household environment and then if that was successful, then we would, … work out where it is that we were going to go and if we could, in fact relocate the children from the [Town A] Primary School …[13]
[13] Court transcript dated 17 August 2021 at page 104.
Mr F gave evidence that he also discussed the move to Town D with X when he was painting the Town A property in preparation for its sale. X mentioned that his father said the mother was selling the house. Mr F continued:
… I had to be honest with him and say well, unfortunately, the house is in a poor condition. We’re trying to do everything we can to fix it to get it ready for sale. Mum can’t afford to live here and you guys can … move in … with me and we will try to do everything we can to make it a pleasant transition.
… I honestly think he was partially excited … But he was definitely concerned to leave his friends and … I promised him that … we would still take him to come and see his friends and that he will make new friends in the new area and that I moved schools several times when I was his age and I just explained, … how that affected … I mean they are lovely boys. … I want to make it clear that … I don’t want to hurt them …[14]
[14] Court transcript dated 17 August 2021 at page 106.
I accept that Mr F is a genuine person who is doing his best to support his partner in what is a difficult situation. He gave his evidence in an open manner, including stating in glowing terms the nature of the relationship between the father and the children. When asked what he had to say about the father that was positive, Mr F, without hesitation noted:
When he picks the kids up the … happiness in his eyes when the children run to meet him … he loves his boys. Not a shadow of a doubt and … I think it would be very difficult to be in his position. I know he loves the kids. Absolutely. … I know he takes them on great camping holidays. I know the kids really love that. … he takes them to [Town N]. The kids love going to [Town N]. That’s a really positive thing. The kids love animals … I think that their father facilitates that. … I don’t know who, whether it was the psychologist … but I remember them saying and it stuck with me now for some time … when … a boy … is of a certain age … in their eyes their father can do no wrong and I try as best as I can to limit my views on the father because these kids need to have a … relationship with their father for the rest of their life and it’s not in anybody’s interests, particularly for the children, for me to diminish their father. … I’m sorry if I’m not using quite the right words but they have a very strong bond, the children and their father and I have no intention of breaking that bond.[15]
[15] Court transcript dated 17 August 2021 at page 108.
I accept that Mr F’s evidence demonstrates a significant level of insight into the children’s need to have a meaningful relationship with their father, irrespective of the personal views he may himself hold of the father. I accept that he would continue to support the children’s relationship with their father.
Notwithstanding the discussions between the mother and Mr F and Mr F and X, it is common ground that neither the mother nor Mr F discussed the mother’s move to Town D with the father before she put the former family home up for sale.
On the basis of the totality of the evidence, I find that the mother did not discuss her possible move away from Town A with the father until about July 2019 when her solicitor confirmed that the mother had in fact moved to live in Town D with Mr F. This was some three months after the mother had moved in April 2019.[16]
[16] Father’s affidavit sworn and filed on 1 November 2021 at paragraph 16.
Mother’s relationship with Mr F
The mother and Mr F have been together now for almost six years. Their evidence is that they wish to remain living together.
In summary, Mr F gives the following evidence:
(a)He and the mother have been in a relationship since October 2016 and moved in together in April 2019 when the mother moved to his home in Town D;
(b)He first met X and Y in early 2017 and their relationship has developed since then;
(c)He has supported the mother and the children in numerous ways including in trying to make the boys transition from Town A to Town D as easy as possible;
(d)He and the mother are in a committed long term relationship;
(e)The children have developed a strong connection to his family and they together with the mother’s family meet regularly at combined family events;
(f)He has provided financial support to the mother and the children where he can; and
(g)He understands the importance of the children having a meaningful relationship with their father.
Mother’s concerns about the father’s parenting
In these proceedings the mother has continued to raise concerns about the father’s parenting capacity. Many of these concerns are similar to or reflective of concerns raised in the initial proceedings.
As noted in the judgment in the 2018 proceedings, the mother had raised a number of concerns about the father’s capacity to care for the children and to contribute to their upkeep. As noted at paragraph 33(b) of the 2018 judgment:
… the wife, both in her affidavit material and during cross examination, consistently painted a picture of her husband as a man who was not contributing financially or otherwise to the family and who was not really involved in, or capable of, looking after the children.
The mother raised concerns about the safety of the father’s property and in particular the presence of asbestos at the father’s home. At paragraph 93 of the 2018 judgment, I said:
… I am also satisfied that concerns about the state of the [Suburb O] property and its suitability for the children have been adequately addressed by the father, in particular in relation to asbestos.
In her trial affidavit in these proceedings, the mother raises the following concerns:
(a)the father continues to harass and intimidate her in their communications;
(b)the father has involved the children in the legal proceedings and sought to influence their views about the move to Town D;
(c)the father lied to the family consultant with a view to influence his views and recommendations.
The mother also says that as a consequence of the father involving the children in the dispute, the views expressed by the children to the family consultant have been unduly and improperly influenced by the father and therefore ought not to be given significant weight.
Annexed to her affidavit are a series of text messages which the mother says evidences the tone of the father’s communication with her.[17] Mr F also gives evidence about his own observations of the father engaging in abusive and inappropriate communications with him and with the mother.
[17] Mother’s affidavit sworn on 6 August 2021 and filed on 9 August 2021 at Annexure -2.
The father concedes that on occasion he has used inappropriate communication with the mother. He expresses remorse for that. Moreover, he says that the mother herself has also used inappropriate language towards him.
The father denies that he has discussed the legal proceedings with the children or sought to influence their views.
Since the mother moved to Town D, the children are aware of the dispute between the parents. They are aware that the mother does not wish to live in the Town A area. They are also aware that the father wants them to remain living in and connected to the Town A area and the children are aware that their parents have not been able to resolve this dispute. The parent’s inability to reach an agreed position in relation to this dispute has resulted in them having to travel over an hour each way to school when in the mother’s care. I accept the submission made by counsel for the father that this is not a dispute from which either party could shield the children.
The mother has also raised a number of serious allegations of risk to the children in the father’s care. Relevantly, the mother raises concerns that:
(a)the father is and has been involved in drug cultivation;
(b)the father had a history of possession of firearms;
(c)the father had illegally connected the former matrimonial home to the street electricity supply;
(d)the father’s home is unsafe as evidenced by:
(i)an electrocution he suffered on his property;
(ii)the continued presence of damaged asbestos at his home;
(iii)the absence of a balustrade on his second floor balcony;
(e)the father illegally transported X to school on his motorbike and failed to provide appropriate medical care to Y following a burn suffered on a camping trip;
(f)the father has introduced the children to five women since the parties separated in 2016.
Finally, the mother has also continued to raise concerns about the father’s financial disclosure in these proceedings and indeed in the 2018 proceedings. She is also critical of the father’s failure to pay child support and both parties refer to ongoing litigation between them about child support, with each of them seeking a change of assessment. The mother is also critical of the father’s failure to contribute to the costs of the children’s extracurricular activities and that, in continuing to oppose her request to move the children to a school closer to her home, the father has forced her to incur significant travel costs associated with getting the children to their school in Town A.

The mother is also critical of the father’s organisational abilities to ensure that the children are where they need to be on time.
I do not propose to set out the mother’s evidence in relation to each of these matters in detail, however, I make the following observations.
Allegation of father cultivating marijuana
In relation to the drug cultivation issue, the mother’s evidence is that although she had this concern during the initial proceedings, she was fearful of raising this issue earlier in the context of the father’s previous family violence towards her and his history of possession of firearms.
She also says that when preparing the former matrimonial home for sale discovered a room under the former matrimonial home which she asserts the father used to grow marijuana. She says that as part of this discovery, she also discovered that:
(a)the house had been illegally connected to the power in the street in a manner which was dangerous and a fire risk;[18] and
(a)part of the heating for the house had been diverted as part of the ‘grow room’ set up resulting in inadequate heating in the former family home.[19]
[18] Mother’s affidavit sworn on 6 August 2021 and filed on 9 August 2021 at paragraph 24.
[19] Affidavit of Mr F sworn on 12 August 2021 at paragraph 19.
In addition, the mother goes on to assert that she ‘believes’ that the father is also growing marijuana at his home in Suburb O. Exhibit A contains a photo of what the mother says is a marijuana plant on the father’s balcony which she took in April or May of 2019.[20]
[20] Court transcript dated 17 August 2021 at page 84; see also mother’s tender bundle at page 352.
Mr F gives evidence which supports the mother’s allegations. He says that whilst helping to get the Town A property ready for sale, he discovered:
(a)a ‘clandestine marijuana grow room hidden beneath the home’;
(b)illegal wiring to the said grow room which were unsafe and potentially lethal;
(c)diversion of the ducted heating vents from the children’s bedrooms to the ‘grow rooms’;
(d)several concealed weapons in the garage, some of which were removed following a break in and before they could be handed to police;
(e)Nazi symbols drawn on a beer fridge and a meat freezer.[21]
[21] Affidavit of Mr F sworn on 12 August 2021 at paragraph 19; see also court book at pages 298 and 299.
The father expressly denies that he cultivated or cultivates drugs or that he built marijuana grow rooms in either the former matrimonial home or his home in Suburb O. He says that he grows various plants at his property including on his balcony but denies that any of these are marijuana plants. He maintained this evidence notwithstanding extensive cross examination on this issue.
In any event, the mother conceded that:
(a)the father has not lived in the former family home since separation in 2015;
(b)the mother has had control of that house since separation; and
(c)there were no marijuana plants or dried marijuana found at the house; and
(d)importantly, she reported this issue to the police, that she took photos of the area and showed them to the police, but that the father was not charged with any offences relating to alleged cultivation of marijuana.
To the extent that it is necessary to make any such finding in relation to this issue, the mother has not established, on the balance of probabilities, that the father is involved with growing drugs.
Moreover, I note that notwithstanding the serious concerns that the mother has raised about the father’s alleged drug use and cultivation of drugs, the mother is not currently seeking any restraints in relation to the father’s alleged drug use. And importantly, both parties agree that they should have equal shared parental responsibilities and the mother’s own case is that, even if she is permitted to remain in the Town D area, the children should spend significant time with the father.
I have, however, spent some time on this issue because it is indicative of the negative view that the mother has of the father and the ongoing lack of trust between these parties.
Safety of the father’s home
As stated, the mother continues to raise concerns about the safety of the father’s home including allegations that there is a continued presence of asbestos, a lack of balustrading on a second floor balcony and unfenced deep excavation works on the property. Exhibit B contains a series of photographs taken by the mother in April or May of 2019 of the exterior of the father’s home showing what the mother says are clear breaks in the asbestos sheeting as well as photos of the father’s balcony with no railing.
In relation to the asbestos issue, the father correctly notes that this was an issue raised and dealt with in the 2018 proceedings. Moreover, the father further states that notwithstanding the findings made in the previous proceedings, the mother has continued to make complaints to the Region P Council about the state of the father’s property and that the Shire has, notwithstanding these numerous complaints, taken no action against him.
In relation to the absence of balustrading to the balcony on the second floor of his home, the father’s evidence, which I accept, is that the Shire has inspected his property and that he has at all times complied with their direction and applicable regulations.
Electrocution incident in November 2020
The mother continues to raise concerns about the father’s parenting capacity and suitability to care for the boys although at the same time, she concedes that they should spend regular and significant time with him. When asked about this apparent inconsistency, she maintained that she does have concerns and feels compelled to raise them but at the same time, understands that the children have a positive relationship with their father and need to have him in their lives.
In her trial affidavit, the mother states that there was an incident in November 2020 where the father was electrocuted and was treated by an ambulance. The mother claims the father had told the children not to tell the mother about this incident. The mother expressed concern that this incident not only evidenced that the father’s home was unsafe, but that he tried to have the children keep this from her.
The father agrees that he did suffer an electrocution on his property in late 2020. He denies that this was due to any illegal wiring at his home. He says that the electrocution occurred due to damage caused to the power cables operated by Q Services. He said this was caused by a tree branch falling on a neighbouring property with consequential damage to the connections to his home. He said that the damage was rectified by Q Services and he received a compensation payment as a result.
The father concedes that an ambulance did attend and assess him following the electrocution incident. He clarified in cross examination that the actual incident occurred a couple of days prior to the ambulance attending his property. The father’s evidence, which I accept, is that he received an electric shock, but did not feel the need to seek medical attention at the time. A couple of days later, he was talking to the Q Services employees who were doing the rectification works, and they suggested he call an ambulance to get checked out. His evidence is therefore that the children were not present at his home either at the time the incident occurred or when the ambulance attended.
Father’s alleged failure to provide appropriate medical attention to Y
The mother also raised concerns about the father’s failure to provide appropriate medical attention to Y when he suffered a burn to his calf whilst camping at Town N and refers to Y suffering a burn whilst in the father’s care.
The father agrees that Y did suffer a burn whilst they were camping, he says that he addressed the injury appropriately and provided information to the mother through her solicitor when asked. Exhibit D is a photo of the burn on Y’s leg suffered whilst camping with the father.
Father taking X to school on his motorbike
The mother also complains about the father taking X to school on his motorbike on two occasions, one in 2018 and another on 4 December 2020. The father denies that he has transported either child in breach of road rules. Moreover, when this issue was raised with him via the mother’s solicitors, the father instructed his solicitors to respond. This response dated 25 October 2019, included an offer without admitting the need for such that the father would agree not to ride his motorbike with Y.
It is not necessary to make factual findings in relation to each of these matters although I note that I generally accept the father’s explanations for the alleged conduct. In any event, I again note that notwithstanding these serious concerns about the father’s conduct, some of it potentially illegal, the mother’s own proposal sees the children spending significant and substantial time in the father’s care.
Mother’s mental health
The mother states that her mental health has suffered as a result of the stress of having to deal with the father and also the amount of driving involved in taking the children to school and childcare in Town A. No expert evidence has been led on behalf of the mother about the impact on her of having to continue to deal with the father. I accept the mother’s evidence that she finds it difficult having to deal with the father. It is clear that the parties have very different parenting styles and that the mother takes issue with the appropriateness of the father’s care of the children.
I also accept that it is the mother’s strong preference is to be able to move on with her life, and start afresh with Mr F. On the mother’s own proposal, however, the parties will be required to continue to have equal shared parental responsibility and for the children to spend substantial time with each parent. This will require the parties to continue to interact and communicate although perhaps not to the extent that a 5/9 arrangement does.
Children’s connection to Town A and their school
One of the key issues in this case is the question of the children’s connection to their current school and to the Town A area. The children’s views have been expressed to Dr H in the family report prepared in this matter.
The mother takes issue with those views, has submitted that the children have been unduly coached and influenced by the father and therefore says that limited weight ought to be given to those views.
Moreover, the mother points to the fact that:
(a)in the period following separation, X had difficulties settling into school;
(b)Y has only been at his current school for two years; and
(c)for both children, their schooling has been interrupted for the last two years as a result of the COVID-19 pandemic during which time, the children have spent significant time engaged in remote learning.
Notwithstanding, the mother did concede in cross examination that the boys love their outdoors lives, and that she is aware that the boys want to remain at Town A Primary School.
The mother’s family is also connected to Town A Primary School as a relative teaches there and lives in Suburb R. Another relative is also an employee at Town A Primary School.
In relation to their connection to their primary school, the father said at paragraph 23 of his 25 August 2020 affidavit:
The boys have grown up in and feel a strong connection with the community and they feel safe and secure where they have grown up. They love their school, their sport, their friends and the overall community spirit. My home of 23 years, the school that the boys currently attend … their connections and involvement in the local sporting teams … provides the boys with a happy, stable and healthy lifestyle.
The mother concedes that if the court permitted her to remain in Town D with the children and change their school, the boys ‘would be upset … absolutely’.[22] But she went on to say that children are resilient; and:
these children are social and intelligent and … they will pick up bonds with other children and ,,, those bonds,,, if they’re permitted then … there’s every chance those bonds might sit alongside the existing ones they have. They might eventually become … important. We don’t know.[23]
[22] Court transcript dated 17 August 2021 at page 67.
[23] Court transcript dated 17 August 2021 at page 68.
The mother also stated that she was unhappy living in the Town A area for some time and that the fact that it was a small community added to her difficulties. I accept the mother’s evidence in this regard. Notwithstanding this, and to her credit, she appears not to have communicated these feelings, either directly or indirectly to the children and that would explain their comments to the family consultant that she liked living in Town A before her move to Town D.[24]
[24] Court transcript dated 17 August 2021 at page 69.
When asked by the Independent Children’s Lawyer how she would manage the children’s unhappiness if permitted to enrol them in a school in Town D, the mother responded:
By being a support to them. … I’ve been their primary carer … since they were both born and … I can’t impress upon you enough … how strong our …bond is. … I’m their mother and I … will do whatever I need to do for these children and I’m aware that this situation is very difficult for them in particular and I’ve sought counselling for the children for years to help support them, particularly with the tricky family dynamic that we have and I don’t necessarily think that there’s anything wrong with that. It’s par for the course for a lot of children who come from family environments like ours and I haven’t been able to obtain approval for counselling from the children’s father …[25]
[25] Court transcript dated 17 August 2021 at page 77.
Mr F conceded that the children ‘love their school … love their friends. I think it’s natural for boys of … that age … to want to stay where they are with … who they know …’ [26]
[26] Court transcript dated 17 August 2021 at page 101.
Mr F also conceded that the children would also be sad if required to remain living in Town D, to change schools and see less of their father, they would be sad about that.[27]
[27] Court transcript dated 17 August 2021 at page 102.
Impact of the mother having to return to the Town A Area
Mr F said that if the court ordered that the children ought to remain at their current school, he and the mother would have to explore living within 10 to 15 kilometres of that school. He gave further evidence that he and the mother have been looking at properties in Suburb R, where the maternal aunt lives and also in Suburb S where the maternal grandparents live as possibilities if they had to move back. Mr F gave evidence that if he and the mother lived in Suburb S, it would take him between an hour to an hour and a half to get to Suburb L and an additional 20 to 30 minutes if they lived in Suburb R.
Children’s activities
The father’s evidence, which does not appear to be disputed, is that X started doing sports on a Thursday after school, having started about a month before the trial. In relation to football, the father confirmed that both boys were involved with the Suburb T football club. X was in a team and Y was participating in football. Both boys had commitments with the football club on weekends during football season and X also had training on a Wednesday after school. The father conceded that during 2021, football was interrupted by the various lockdowns imposed by the COVID-19 situation in Victoria.
X’s conduct at school
The evidence shows that in late 2018 or early 2019, X was experiencing some behavioural difficulties at school. The mother points to this as evidence that his connection to the Town A Primary School is not as solid as the father suggests. It is of some concern that the father seemed to dispute that X did have such difficulties, or sought to minimise the extent of the difficulties that he was experiencing at that time.
In any event, having regard to the totality of the evidence, it does appear that X’s behaviour and engagement at school had improved significantly since late 2018 and early 2019 and that his teachers are now very complementary about him.
Father’s involvement in the children’s schooling
The mother is critical of the father’s lack of involvement with the children’s school. In particular, she states that the father does not and has not participated in parent teacher interviews for either child. It is put on behalf of the mother that this undermines the father’s claim regarding the children’s connection to Town A School as a key reason to deny the mother’s claim to move the children to Town D.
The father conceded that he did not generally attend formal parent teacher interviews. However, his evidence which I accept, is that he regularly spoke to the children’s teachers when he dropped them off at school or picked them up from school and that he regularly spoke to the school principal.
Unreasonably prolonging the dispute
Each party blamed the other for not bringing this dispute to an end and continuing to expose the children to excessive travel. The father blames the mother for having moved without his consent. The mother blames the father for not having agreed to the mother enrolling the children in a school closer to her home.
It is not for this court to attribute blame as between these parents.
Ultimately, this court must, having regard to the factors set out in the Family Law Act 1975 (Cth) (‘the Act’), determine what parenting orders are in the children’s best interests. Whilst this requires an assessment of past conduct to a degree, it is essentially a forward looking exercise requiring the court to have regard to what orders ought to prevail in the future.
Family report
The Court had the benefit of a family report prepared by Dr H in this matter dated 19 July 2021 (‘family report’). When the parties saw Dr H, the mother’s application was for orders permitting her to relocate to Town C, for the mother to be permitted to enrol the children in a school in the Town C area and for the children to spend weekend time and holiday time with the father.
In his report, Dr H made the following pertinent observations of the parents:
There appears no doubt that the parties have the latent capacity to work together in the children’s best interests but based upon their seeming almost mutual contempt and total distrust of one another, it appears that the children’s future best interests will be better served if their future dealings with one another are at a distance and by some form of texting or social media and then only strictly about the children’s everyday welfare.[28]
[28] Family report dated 19 July 2021 at paragraph 37.
In response to the mother’s allegation that the father had unduly sought to influence the children to express views supportive of his preferred outcome in this litigation, Dr H observed at paragraph 38:
… the writer could not elicit any clear picture of either party trying to unduly influence the children in his/her favour, but the degree of comment about the alleged disclosures made by the children to each parent makes that writer suspicious about either party’s truth about such matter and their willingness or capacity thus far to understand such a key shared parental responsibility, and then appropriately act to protect the children from their dispute.
Dr H concluded that the children had a positive relationship with each parent.
Dr H also made reference to the children’s views about their connection to their father’s home and the surrounding area. He records Y as having said:
I love the outdoors at Dad’s place because I love it here, this is where I’ve grown up and it’s just so beautiful and green … I love it when it gets misty and scary, and walking in the bush … I don’t want to move again, I never wanted to move to [Town D], but Mum never asked us what we wanted.[29]
[29] Family report dated 19 July 2021 at paragraph 40.

Y is also noted to have said that he had lots of fun at his mother’s home as well.
In relation to the mother’s proposed move to Town C, Y said ‘we don’t want that, we’ve told her that, we want Mum to move closer to our school and where Dad lives cos then we could have a week with each of them and that would be fair’.[30]
[30] Family report dated 19 July 2021 at paragraph 42.
Similarly, X said that he liked his school and teachers ‘and just loved living up in the bush because the air was so clean, people were so nice and he loved going for walks there’.[31] He also ‘volunteered in a quite emotional and emphatic manner, “I don’t want to move again, I never wanted to move in the first place, the driving takes so long and we get tired … I really don’t want to leave my school and I’d really hate that … me and Y don’t understand why Mum can’t move back closer to Dad’s and where we want to live … she and Mr F don’t have to live at Town C, that’s what they want and not what we want.”[32]
[31] Family report dated 19 July 2021 at paragraph 45.
[32] Family report dated 19 July 2021 at paragraph 45.
At paragraph 71 of his report, Dr H relevant states:
From the writer’s perspective most critical to the … overall ultimate direction of this dispute should be the children’s strong attachment to their school, to their friends, and everything about where they live, and it is the writer’s view that in everything written or stated by the mother she does not appear to have understood the vital significance of familiarity and support of place and people to the enriched personality and social-emotional development of the two children. Indeed for the children to be again compelled by the mother to a further relocation only a few years after the uncertainty of their first relocation and further way (sic) their seeming beloved school and other things could result in the children feeling betrayed and resentful of the mother.
Dr H maintained his views notwithstanding extensive cross examination by the mother’s counsel.
The mother’s amended proposal was put to Dr H, namely that:
(a)she be permitted to remain living with the children in Town D,
(b)the children be enrolled in a primary school in Town D; and
(c)they spend time with their father:
(i)on alternate weekends
(ii)an additional weekend each alternate month,
(iii)two weeks in the September school holidays; and
(iv)otherwise half of all other school holidays.
In response to that, Dr H said:
I don’t agree with it. I premised what I have said in the report on the basis that they clearly adore their school and I think that that has caused them a lot of angst. … I don’t believe it is in the children’s best interests for them to be taken from the world that they love, and to therefore have to start afresh in a new location. Now they have been there … for a certain amount of time, but they have also got the constant buffer of knowing that they’re going to their school, of all the routines, the predictability – everything that goes with good child development is vested in how well kids develop within the context of social relationships and especially the critical area of social relationships as their emotional, psychological and cognitive facilities are developing and flourishing within the school context.[33]
[33] Court transcript dated 23 August 2021 at page 55.
In response to the suggestion that the children could make new friends and adapt to a new environment, including by engaging in other extra curricula activities, Dr H said:
Why should they have their current desire to fundamentally have shared care watered down from what they currently have and what they are accustomed to, and the routine and the predictability, to satisfy what the mother thinks is best for them, and therefore what they think is best for them is being less represented. And I don’t think we can underplay how important it is for children to maintain the continuity and predictability of where they have lived. I don’t see any reason why they should have to move if their best interests are taking greater precedence than the interests that in this instance I believe are being demonstrated by the mother.[34]
[34] Court transcript dated 23 August 2021 at page 55.
It was put to Dr H that the children were 6 and 4 respectively when the mother moved to Town D and therefore, at least in relation to Y who had not yet started school, it could not have been the case that he had a connection to the school. Dr H replied:
… The real issue as far as I’m concerned is the information I was given indicated that the children loved where they lived. Even at young ages, they can love where they live. Whether or not children should be relocated, often children have to relocate. There’s no choice, for different reasons. Can children be adaptable? Yes, there’s no doubt. … Do they need to relocate? I cannot tell you one way or the other. I’m going on the basis of what I had presented to me and the information was that they did not wish to be at [Town D]. They would prefer … to be at [Town A] and to stay at [Town A].[35]
[35] Court transcript dated 23 August 2021 at page 62.
In the course of cross examination, Dr H also agreed that in situations with high conflict parents, a child’s school often takes on more importance as a safe haven, away from the parental conflict and that this was a further factor in his recommendation that they remain at their current school.
SUBMISSIONS
Independent Children’s Lawyer’s submissions
At the conclusion of proceedings, the Independent Children’s Lawyer submitted that the children should remain at their school in Town A and that the children should have one extra night with their father. That is, that the children should live with their mother and spend six nights per fortnight with their father.
This position was based on the mother’s alternative proposal, namely that if the court did not allow her to enrol the children in a school in Town D that she would move to live closer to the children’s school. It was submitted for the Independent Children’s Lawyer that the mother’s reasons for moving to Town D in the first place were unconvincing but moreover, that the mother’s proposal did not give sufficient weight to the children’s views.
It was further submitted for the Independent Children’s Lawyer that in this case, the views of the children are a significant factor that need to be taken into consideration. This is because they are both of an age and maturity where their views ought to be taken into account. Moreover, their views have been clearly expressed and consistently held.
The Independent Children’s Lawyer also relies upon the potential for a negative response from the children or either of them, if their clearly expressed views are not given due consideration. The Independent Children’s Lawyer submitted that the views expressed in Marriage of K & Z (1997) 22 Fam LR 382 (‘K & Z’) equally apply here. In that case, the Full Court said that where each of the proposals of the parties are equally valid, the views of the children may be the tipping point in how the court decides where the children live and how they spend time with each parent.
Relevantly, the Full Court said in K & Z:
7.8It is clear in this case that Graham J significantly discounted the children’s wishes because he found that they had been heavily influenced by the wife’s ‘negativity’. While that was a matter proper for his Honour to pay attention to, the overwhelming conclusions to be reached from the evidence of the counsellor … are that the children for whatever reason were sad and distressed living away from their mother.
7.9In every case concerning the best interests of children it is essential that the trial judge remain focussed entirely on the primary directive of the legislation which is ‘what is best for the child the subject matter of the litigation?’. … If both parents offer reasonable homes for a child with comparable standards of excellent child care, then the child’s level of contentment and happiness in one household as compared with that in the other must become a most significant and almost determinative factor in deciding with which parent the child should live. The court should avoid the spectre of placing or leaving a child in a situation of sadness and continued unhappiness where it is able to do so consistently [while] otherwise meeting the ‘best interests’ criteria.
The Independent Children’s Lawyer also submitted that the orders sought by the father largely met the best interests of the children in circumstances where:
(a)the mother has prioritised the interests of her relationship with Mr F over the best interests of the children; and
(b)the mother’s proposal would see the father effectively become a weekend and holiday dad.
Father’s submissions
The father submits that the orders he seeks would allow the children to continue having a meaningful relationship with both parents whilst also allowing them to spend meaningful time in the community to which they are attached.
Moreover, he says that his proposal will allow the children to continue attending the same school they have been at since they commenced school, a school which takes on particular significance in that it has provided a strong anchor point for them during the dispute between their parents. As such, the children’s school has provided the children with a level of consistency and stability. In addition, the father submits that the mother’s proposal would effectively reduce the father’s role to one of a weekend dad and that this represents a significant change from the role that the father has played in the children’s lives to date.
The father further acknowledges that there would be some additional disruption to Mr F if he and the mother were to move closer to the children’s school, however, he says that this inconvenience to Mr F is significantly outweighed by the benefits to the children.
The father urges the court to have regard to Dr H’s opinion that these children need stability, consistency and routine in their care. It is submitted that whilst the father’s proposal provides this, the mother’s do not.
Mother’s submission
It was submitted for the mother that whilst the children’s connection to their current school took on a particular significance in this case, this is in reality a relocation case. Although the mother had already moved to Town D prior to initiating these proceedings and prior to the trial, she wishes permission to allow her to remain living there as the children’s primary carer.
It is well settled that a parenting case involving relocation is just another parenting case. As recently noted by Carew J (and adopted by the Full Bench on appeal) at paragraph 25 of her decision in Denham v Newsham [2020] FamCA 271 (and the cases referred to therein):
There are no special tests that apply (to a relocation case). For instance the mother does not have to establish a compelling reason for wishing to relocate. Nor is the enquiry one that is directed to whether or not the mother should be ‘permitted’ to relocate. The best interests of the children remain paramount though not the sole consideration. Where the legitimate interests of an adult conflict with the best interests of children, the former must give way.[36]
[36] No issue was taken with this statement of principal on appeal Denham v Newsham [2021] FamCAFC 141 at paragraph 21.
Applying these principles, the court needs to balance the evidence and determine what orders best serve the welfare of the children. In doing so, it is further submitted that regard ought be had to the observations of the Honourable Justice Kay in Godfrey & Sanders [2007] FamCA 102 (‘Godfrey & Sanders’) particularly at paragraphs 33 to 36.
I also note Kay J’s apposite comments at paragraph 28 of Godfrey & Sanders:
Relocation cases are notoriously difficult. Both parties have valid claims of right. The legislation requires the Court to require the best interests of the child as the paramount consideration but what is in the best interests of the child is not a matter about which there may be universal agreement. Further, as Kirby J said in AMS v AIF at 207-208:
… a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or resident parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father so as to facilitate contact between the latter and the child. There is no such universal rule.
Kay J went on to say at paragraph 36 of his reasons in Godfrey & Sanders:
Even if the (proposed relocation) results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
It is said for the mother, that this distinction is particularly important in this case. Whilst the mother conceded that it might be optimal for the children’s relationship with their father if the parents could happily live in Town A and the children could remain at the local school, the evidence shows that the parties’ relationship is such that this is not appropriate in all of the circumstances. The mother submits that she will not be happy if she goes back to live in Town A and Dr H conceded in cross examination that if the mother is not happy that can have an impact on the welfare of the children.[37]
[37] Court transcript dated 23 August 2021 at page 79.
It is submitted that the court must weigh the advantages and disadvantage of the move on the children and in this particular case, and in doing so, the court must have regard to the fact that the children in this case have already moved homes, albeit not schools.
It is therefore submitted for the mother that she ought to be permitted to remain living in Town D and in circumstances where the evidence shows that the father is not even involved in the children’s school, there is no strong basis to support the father’s position that the children should remain in the Town A area and attending Town A Primary School.
In this case it was also put to the father that he could move closer to Town D to spend more frequent and regular time with the children, if the mother were permitted to live in Town D with the children and enrol them in a local school. Indeed the father conceded that his current partner lives in Suburb U which is closer to Town D than it is to Town A. The father stated that he was not proposing to live with his partner in Suburb U, nor did he intend to do so in the future. Moreover, the father went on to say ‘I’ve had this house for over a quarter of a century and it’s my family home. It’s the boy’s family home. … And I love where I live, and the boy’s love it ...’[38] The father said that his intention was to remain living in the Suburb O property, for the remainder of his life.[39]
[38] Court transcript dated 23 August 2021 at page 105.
[39] Court transcript dated 23 August 2021 at page 106.
The father also objected to the suggestion that he should move to be closer to the boys if they were permitted to live and go to school in Town D on the basis that there was no certainty that the mother would not try and move again in the future. He said of the mother, ‘she keeps changing her towns where she wants to live … it could change tomorrow again.’[40]
[40] Court transcript dated 23 August 2021 at page 106.
I accept that if the mother is required to move closer to the children’s school in Town A, she will be unhappy. Whilst there is no psychological evidence to show that she will suffer ‘a nervous breakdown if she has to move back into the area … her personal circumstances, … are relevant to the general picture of what (the court) should be deciding in the matter.’ [41]
[41] Court transcript dated 23 August 2021 at page 118.
In conclusion it was submitted for the mother that the court should have regard to the following factors:
(a)within reason, the primary carer is entitled to choose where they live;
(b)whether the child’s relationship with the non-resident parent is able to be maintained in a meaningful way;
(c)whether the non-resident parent might be able to move closer to the primary carer.
Furthermore, it was submitted for the mother that:
(a)although her reasons for moving do not have to be compelling or convincing, her reasons for moving were indeed compelling. She was in financial distress. Whilst the rent paid by Mr F and the mother’s mortgage are similar in quantum, that does not address the $200,000 the mother owed her parents, which she was only able to repay after selling the Town A property;
(b)this is not a case of Mr F simply getting what he wants at the expense of the children’s needs. Rather, Mr F, who came across as a genuine and generous man who has taken on the family’s financial security and who works to provide for the mother and the children; and
(c)in any event, the mother’s proposal would not substantially limit the children’s time with the father, resulting in a reduction of 14 days each year.
The mother concedes that her proposal will limit the father’s mid-week time with the children and his involvement in their schooling, however, she says that this is not significant in circumstances where he currently does not actively involve himself in their schooling in any event.
Ultimately, it was submitted for the mother that the issue for the court was whether adequate, not optimal, arrangements could be made to maintain a meaningful relationship with both parents and her primary proposal which would see her remain living in Town D and the children attending school in Town D did this.
CONSIDERATION
Both parties agree that they should retain equal shared parental responsibility.
Both parties also agree that the children should not be required to continue to undertake the arduous travel to attend school that has been required since they moved with the mother from Town A to Town D in April 2019. As stated, the parties differ, however, in how the issue of travel should be resolved.
The mother maintains that in considering her application, the court is essentially considering a ‘relocation application’ rather than an application about which school is preferable for the children to attend. I agree with this submission.
However it is to be described, this ultimately is an application for parenting orders for X and Y and in determining what orders are appropriate, the best interests of the children are the paramount, albeit not the only, consideration.
Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii)to develop a positive appreciation of that culture.
(4) …

Section 61DA(1) of the Act provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. Section 61DA(2) of the Act then sets out various situations where that presumption is rebutted. In this case, both parents and the Independent Children’s Lawyer seek orders for equal shared parental responsibility. In those circumstances, I am satisfied that an order for equal shared parental responsibility is appropriate.
Section 65DAA(1) of the Act then provides that where the court makes an order for equal shared parental responsibility, the court must consider whether it would be in the children’s best interests for them to spend equal time with each of their parents and whether such equal time is reasonably practicable. If it is, to consider making an order for the children to spend equal time with each parent.
In this case, for the reasons discussed below, and having regard to the totality of the evidence before me, I am not satisfied that it is in the best interests of these children for them to spend equal time with each parent. I note that if the mother’s proposal were granted, there would also be an impracticability about an order for equal time. However, even if the mother were to return to an area closer to the children’s primary school, having regard to the evidence given by Mr H and also the lengthy and ongoing dispute between these parties, I am not satisfied that it is in their best interests for orders to be made providing for equal time with each parent. The level of disputation between these parents would not support such orders being in the best interests of these children.
Under section 65DAA(2) of the Act the court must then consider whether it is in the best interests of the children for orders to be made providing for them to spend substantial and significant time with each parent, whether such orders would be reasonably practicable and if so, consider making such orders.
Section 6DAA(3) of the Act then sets out what constitutes substantial and significant time and relevantly includes both weekday and weekend time, days which do not fall within school holidays and orders which would allow the parent to be involved in the children’s daily routine, among other things.
One of the factors to which the court must have regard in determining the issue of reasonable practicability under both section 65DAA(2) and (3) is the distance between the parties’ homes.
BEST INTERESTS OF THE CHILD
Section 60CA of the Act relevantly provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will address the relevant considerations in order. Section 60CC(2) contains the two primary considerations which the court needs to have regard to and, importantly, where section 60CC(2)(b) is engaged, to balance.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Both parties acknowledge that the children have a meaningful relationship with each parent. It is also clear from the totality of the evidence that these children love both their parents and enjoy spending time with each of them.
As is evident from the summary of the mother’s evidence, she has a very negative view of the father and his capacity to care for the children. It is to her credit that this view has not impacted the children’s relationship with their father to date.
As stated, the father’s proposal at trial was that the current time spend arrangements remain in place if the mother lives in close proximity to the children’s school. If the mother remains living in Town D, the father’s proposal is that the children live with him and spend four nights per fortnight with the mother. If the mother were to remain living in Town D, the father’s proposal would see a significant reduction in the children’s time with the mother in circumstances where she has been their primary carer since birth. That would not in my view be in the children’s best interests.
The mother’s primary proposal to remain in Town D with the children would see a reduction in the father’s time with them. She calculates this as a reduction of 14 days over a 12 month period and says that this is not significant. Whilst on a mathematical basis this may be correct, the issue is not only in the reduction in the amount of time itself but also in the quality of the time the children spend with their father. In particular, the distance between the parties home if the mother’s proposal is granted, would see the father not being able to spend any time with the children during the week in his home or involve himself in any meaningful way in their school work and school activities whilst in his care (other than possibly on a Friday evening). The mother concedes this, but says that the father is currently not actively involved in the children’s schooling in any event, and that the activities which the children enjoy when spending time with the father are activities that they can continue to enjoy on weekends and school holidays.
The mother also says that she would continue to facilitate the children participating in their weekend sporting activities in Town A, thereby allowing them to retain their connection to the area and to the friends they have there.
The father’s case is that if the mother’s primary position were accepted by the court, the children’s relationship with him would be significantly impaired.
This consideration is finely balanced on the facts in this case. Notwithstanding her negative views of the father and his parental capacity, to her credit, the mother appears to have shielded the children from those views in large part. I also accept that Mr F acknowledges the positive and meaningful relationship the children have with their father and supports that relationship notwithstanding his own views about the father.
However, as these children get older, if the father’s involvement in their lives is limited to weekend time and holiday time, there is a potential for a significant reduction in the quality of their relationship with him. This is particularly so in circumstances where the children would commence attending school in Town D (if the mother’s proposal were granted) and over time engage in more activities in that area.
As I say, whether the mother’s primary proposal would facilitate the continuation of a meaningful relationship (not an optimal one) in the longer term is finely balanced.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Although the mother has made a number of serious allegations about the father’s capacity to care for the children, on her own proposal, the children would still spend significant time with the father and at his home in Suburb O. This is not consistent with serious concerns being raised by the mother.
As stated in the 2018 judgment, the real risk to these children arises from the ongoing conflict between these parents and not from any risks identified by the mother about the father’s property or his care for them.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
This is a significant consideration in this matter. The children have clearly expressed their views to the family consultant. I do not accept that these views are unduly influenced by the father. Dr H specifically addressed this issue. Moreover, the mother herself concedes that the children both love the Town A area and that they will be unhappy if they had to change schools.
On the totality of the evidence, I find that the children had a period of instability post separation and whilst the initial set of proceedings were on foot. The school documents clearly suggest that X was struggling in 2018 and 2019.
It is clear however, that whatever the issues were which led to the difficulties X was then experiencing, he has settled down at school. In the context of a high conflict family, school as a safe and stable place, takes on even greater significance.
The children’s views are clearly expressed. They demonstrate a connection to the Town A area and all that that entails, namely, their school, the physical beauty of the place, their friends and the paternal family. There is also a connection to members of the maternal family in the school community.
The children’s views are that they wish to remain living in the Town A area, attending their current school with both parents living within close proximity to their school. This is not a case of determining which school is preferable. The school is really an indicator of the connection that the children have to the Town A area itself.
The mother’s proposal would see a rupture from the children’s connection to the Town A area on a day to day basis and give minimal weight to the clearly articulated and expressed views of the children.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
As stated above, the children have a loving relationship with each of their parents. They also have a positive relationship with each of their parent’s partners.
Mr F’s observations of the relationship between the father and the children is particularly telling. He described a loving and close relationship.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)        to participate in making decisions about major long-term issues in relation to the child; and
(ii)       to spend time with the child; and
(iii)      to communicate with the child
On the basis of the totality of the evidence, I find that both parents have taken the opportunity to participate in long term decisions about the children and to spend time and communicate with the children.
As stated, the mother has raised a number of concerns about the father’s financial support of her and the children and the father’s lack of engagement in the children’s schooling. Notwithstanding these complaints, which I have discussed in detail earlier in these reasons, the mother does not take issue with the fact that the father has exercised time with the children in accordance with the current orders. Moreover, it is evident from the father’s participation in these proceedings, that he has and continues to seek to spend significant and substantial time with the children and be involved in their lives.
The father has opposed the mother’s move away from Town A on the very basis that if permitted it would limit his ability to engage in such decisions and his ability to spend time and communicate with the children.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The father concedes that the mother is a good mother and that the children are well looked after in her care.
The mother, as noted above, has raised a litany of complaints about the father’s approach to his parental responsibilities. On the basis of the totality of the evidence, and as noted in the 2018 judgment, both parents have taken every opportunity to exercise their parental responsibilities.
Notwithstanding the mother’s complaints about the father’s lack of financial support, it is common ground that the father attends to and provides for the children’s needs whilst they are in his care.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
If the mother’s proposal is granted, the quality of the children’s time with the father will, in my view, be significantly affected. Whilst in terms of absolute days/nights, there may not be a significant reduction in circumstances where the mother’s proposal would see the father spend 14 days less with the children each year. However, as stated above, the children’s time with the father will not include any time after school (other than Fridays), will not involve mid-week time and will not allow the father to be involved in their weekday school activities as a general rule.
On the other hand, if the mother’s primary proposal is not granted, then there will be an impact on the mother and Mr F who would need to find alternative accommodation in close proximity to Town A.
If the father’s primary proposal were granted, namely that the children move into his primary care if the mother were to remain in Town D, this would have a significant impact on the children in circumstances where the mother has been their primary carer since separation. In any event, I note that the mother has indicated that if the court does not give her permission to enrol the children in Town D, she will move to within 15 kilometres of the children’s school.
Section 60CC(3)(e) 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
As stated above, if the mother’s primary proposal is granted, given the distance between the parties, there is a practical difficulty and associated travel expense of the children spending mid-week time with their father.
It is submitted for the mother that this will not have a substantial effect on the children’s ability to maintain a relationship and direct contact with the father on a regular basis and indeed his time with the children will only be reduced by 14 days a year.
Moreover the mother has said that she would continue to take the children up to Town A on weekends, including on weekends where they are in her care to allow them to continue to engage in local sporting activities with which they are currently engaged.
That may be so, however, the quality of the time that the children spend with the father will be affected and that may substantially affect their relationship in the longer term.
If the father’s proposal were granted and the mother remained in Town D, the same practical difficulties would arise in reverse for the children to spend time with the mother.
The mother has stated that if her primary proposal is not granted she will move closer to Town A. In that event, there will be no practical difficulty or expense in the children spending time and communicating with each of their parents.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Both parents, whilst having different parenting styles, have the capacity to provide for the needs of the children including their emotional and intellectual needs.
As previously stated, the key risk to these children is the parent’s inability to stop the conflict.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
On the basis of the totality of the evidence, I find that these children are children who have grown up on the outskirts of Melbourne. They clearly love where they live. They enjoy the connections they have formed in the Town A area. So much is evident from the way in which they themselves describe the Town A area.
The children’s comments made to Dr H about Town D, a place where they have lived for about two years, does not evince the same level of connectedness. This is itself telling. I do not accept the mother’s suggestion that this evidences that the father has unduly influenced the children. Rather, I find that the children themselves simply do not have the same connection to the Town D area even though they have lived there for two years with the mother and Mr F.
These children have had a significant amount of disruption to their short lives since their parents separated. They have expressed a very clear desire to remain living in the Town A area, an area with which they have a firm attachment.
As stated, this case is not about which school the children ought to attend per se. The children’s school and the connection they express to have with it, is indicative of their views of where home is for them. Notwithstanding having lived in Town D for two years with their mother, these children still identify home as the Town A area. And their connection to their school is but a subset of their concept of what constitutes home.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor is not relevant.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
This has been discussed above.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
Both parents made allegations of family violence in the previous proceedings and findings were made about those matters.
In these proceedings, both parties allege that they have received inappropriate and offensive comments from the other. Communication is clearly poor and I find that both parties have at times engaged in inappropriate communication with the other.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i)        the nature of the order;
(ii)       the circumstances in which the order was made;
(iii)      any evidence admitted in proceedings for the order;
(iv)      any findings made by the court in, or in proceedings for, the order;
(v)       any other relevant matter
This is not a relevant issue.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Given the history of this matter and the ongoing litigation that these parties have been involved in, both in this court and elsewhere since separation, it is not clear that orders sought by either party would be likely to avoid further litigation.
However, on balance, orders which see the children remaining in the Town A area and with the current arrangements remaining in place, namely a 5/9 arrangement, will bring this dispute to an end.
I do not agree with the submission made by the Independent Children’s Lawyer that there should be an increase in time in the father’s home. The father’s evidence in relation to what he was seeking was somewhat inconsistent. At times he referred to wanting the children to live predominantly with him, then at other times he said he wanted an equal share arrangement and in closing submissions his counsel indicated that he wanted the current 2018 orders (as amended) to continue.

As stated, communication between these parties is poor. As noted by Dr H, in high conflict situations, an equal shared care arrangement is not likely to succeed. A 6/8 arrangement is almost an equal shared care arrangement and would invoke the same difficulties. The current 5/9 arrangement ought to therefore continue as it is in the children’s best interests.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
As stated a relevant consideration in this matter is the mother’s desire to move on with her life with Mr F and commence a life together with him in an area of their choosing. This is a significant factor to which the court must have, and has had regard.
I accept that it is not an insignificant thing to prevent a parent from moving to another part of the state or the country, or as in this case, to the other side of the Melbourne Metropolitan area. However, the court must balance a range of factors and ultimately must make orders having regard to the parties and the particular children before it. In this case, for the reasons set out above, and having regard to the particular children in this case, on balance, I find that the children’s best interests are met by orders which require the children to remain at their current school and in their current community in Town A and for their time with each parent to remain unchanged.
CONCLUSION
The key issue in this case is whether the children be permitted to be enrolled by the mother in a school in the Town D area or remain enrolled in Town A Primary School. Given the concession made by both parties that the children should not be required to continue undertaking the arduous travel currently involved between the parent’s homes, the effect of this determination will be either that the mother will be able to remain living in Town D, or will need to relocate to a closer proximity to Town A Primary School.
As stated in coming to a conclusion on this issue, the court must balance a range of competing considerations, noting that the best interests of the children remains the paramount consideration.
On balance, and having regard to each of the factors set out above and the totality of the evidence, I find that orders which would see the mother returning to live with the children in closer proximity to the Town A area and the current time arrangements to remain in place are in the children’s best interests. The mother indicated that if she were not permitted to enrol the children in a school in Town D, she would move to a home with them within 10 to 15 km of Town A Primary School.
In the circumstances, I make orders which provide that the children are to remain at Town A Primary School for the duration of their primary school education and that the mother is to move to a home within a 20 km radius of that school, thereby giving the mother some additional flexibility in choice of location in which to reside. Neither party addressed the court on the timing of the mother’s move from Town D to a location proximate to the children’s school. Given that it is now December, I have provided the mother with a reasonable period of time within which to move homes, and in particular that she do so by the commencement of term 2 in 2022.
For each of these reasons, I make the orders set out at the commencement of these reasons.
For completion I note that in the mother’s outline of case, she sought a series of orders dealing with the renewal of the children’s passports, overseas travel, telephone communication, facilitation of extra curricula activities, notification of school absences and that she be given first option to care for the children if the father or his immediate family is not able to do so.
No specific evidence was led in relation to these matters, nor were submissions made in support of any of these orders. It therefore appears that these orders were not pressed at trial and I therefore make no orders in relation to these matters.

I certify that the preceding two hundred and seventeen (217) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.
Deputy Associate:
Dated: 8 December 2021

File number(s):	MLC 8730 of 2016
Judgment of:	DEPUTY CHIEF JUDGE MERCURI
Date of judgment:	8 December 2021
Catchwords:	FAMILY LAW – application for final parenting orders – relocation application – consideration of whether there should be a change of children’s school - whether the non-resident parent ought to move closer to the primary carer – consideration of the best interests of children – consideration of what constitutes substantial and significant time – consideration of distance between the parent’s homes – final parenting orders made.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DA, 65DAA
Cases cited:	Denham v Newsham [2020] FamCA 271 Godfrey & Sanders [2007] FamCA 102 Marriage of K & Z (1997) 22 Fam LR 382
Division:	Division 2 Family Law
Date of last submission/s:	23 August 2021
Date of hearing:	16, 17 & 23 August 2021
Number of paragraphs:	217
Place:	Melbourne
Counsel for the Applicant:	Ms Smallwood
Counsel for the Respondent:	Ms Bonney
Counsel for the Independent Children’s Lawyer:	Mr Kanarev

MLC 8730 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS WAGSTAFF Applicant
AND:	MR WAGSTAFF Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	8 December 2021