Zeelen & Zeelen
[2025] FedCFamC1F 179
•20 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zeelen & Zeelen [2025] FedCFamC1F 179
File number(s): CAC 1960 of 2024 Judgment of: GILL J Date of judgment: 20 March 2025 Catchwords: FAMILY LAW – PARENTING – INTERIM APPLICATION – Where previous final orders have been made – Where the father seeks to relocate the elder child’s residence to Country B – Where the father’s new wife has relocated to Country B – Where it is agreed the younger child will remain living in Australia with the mother – Where the elder child has spent almost no time with the mother in over a year – Found there has been a significant change of circumstances and circumstances which necessitate reopening proceedings – Father permitted to relocate the elder child to Country B on an interim basis Legislation: Family Law Act 1975 – ss 60B, 60CA, 60CC, 60CG, 65DAAA Cases cited: Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Morgan & Miles (2007) FLC 93-34; [2007] FamCA 1230
North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 61; [1996] HCA 2
Radecki & Radecki [2024] FedCFamC1A 246
Rice and Asplund (1979) FLC 90-725; [1979] FamCA 80
Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100
SS v AH [2010] FamCAFC 13
Taylor and Barker (2007) FLC 93-345; [2007] FamCA 1246
U v U (2002) 211 CLR 238; [2002] HCA 36
Division: Division 1 First Instance Number of paragraphs: 69 Date of hearing: 11 March 2025 Place: Heard in Canberra, delivered in Sydney Solicitor for the Applicant: Ms Aurora, Mazengarb Family Lawyers Counsel for the Respondent: Ms Geraghty Solicitor for the Respondent: Gabbedy Milson Lee Solicitor for the Independent Children's Lawyer: Ms Dillon-Smith, Dillon-Smith Lawyers ORDERS
CAC 1960 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ZEELEN
Applicant
AND: MS ZEELEN
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
20 MARCH 2025
THE COURT ORDERS THAT:
1.The final parenting orders may be reconsidered.
2.The final parenting orders of 4 November 2020 are discharged.
UNTIL FURTHER ORDER
3.The parties have equal shared parental responsibility for the child, Y, born 2013.
4.Y shall live with the mother.
5.The father have sole parental responsibility for the child, X, born 2010.
6.X shall live with the father and the father shall be permitted to relocate X’s residence to Country B on an interim basis pending further order.
7.X may spend time with the mother.
8.Y shall spend time with the father as agreed between the parties in writing and failing such agreement:
(a)For the first half of each school holiday period in even numbered years; and
(b)For the second half of each school holiday period in odd numbered years; and
9.For the purposes of the above order, and subject to written agreement between the parties to the contrary, Y’s time with the father may take place in Country B in which case the arrangements for that time shall be as follows:
(a)For travel in the first half of the holiday periods Y shall depart Australia no earlier than the first day of the school holiday period and return to Australia no later than the Saturday closest to the midpoint of the holiday period;
(b)For travel in the second half of the holiday periods Y shall depart Australia no earlier than the Saturday closest to the midpoint of the holiday period and return to Australia no later than the last Saturday of the school holiday period;
(c)In the event that Y is travelling unaccompanied the mother shall cause Y to attend at the City D airport for the relevant flight;
(d)In the event that Y is travelling with the father, handover shall occur at the City D airport.
10.The father shall bear the full responsibility for the costs of Y’s travel to and from Country B, such that in the event that there is a shortfall between the funds provided by the employer for that purpose such shortfall shall be met by the father.
11.Y shall spend such other time with the father in Australia as agreed between the parties in writing, but failing agreement, on the father giving to the mother 4 weeks written notice, during a period of one week in each school term, with such time to be:
(a)From after school until 9pm on a school day;
(b)From 9am – 9pm on a non-school day;
(c)In the event that Y is not at school for a handover that such take place at the mother’s home
12.In the event that X travels to Australia to spend time with the mother the father shall bear the full responsibility for the costs of X’s travel to and from Country B, such that in the event that there is a shortfall between the funds provided by the employer for that purpose such shortfall shall be met by the father.
Family therapy
13.The parties shall attend and shall cause Y and X to attend family therapy with a family therapy practitioner as agreed by the parties, with the cost of such to be shared equally between the parties.
14.Attendances with a family therapist pursuant to the above order may be by electronic means.
Communication between the children and between the children and the parents
15.Each parent shall facilitate X and Y having electronic communication with the parent they are not then with and with each other in accordance with X’s and Y’s wishes.
16.Each parent shall facilitate the other parent electronically communicating with the child in the first parent’s care at all reasonable times.
Information sharing
17.The father shall share all information relevant to long term decision making for X with the mother in a prompt manner.
18.In the event either of the children sustain any medical problem, injury, illness, medical emergency or hospitalisation whilst in the care of either parent, the parent in whose care the child is in shall immediately notify the other parent where possible, and in any event, as soon as practicable, with the other parent to be advised of the name of the treating doctor, hospital and medical contact number and nature of the problem.
19.The parents shall both authorise any medical practitioner engaged for the children to communicate with the other parent.
20.That each parent shall inform the other and keep them informed within 48-hours of any change to their residential address, postal address, email addresses, landline and mobile telephone numbers and those of the children.
21.The mother and father shall direct and authorise any School to provide copies of all reports, the usual notices and invitations received by parents, school photo ordering forms to the other and shall not restrain the other’s access to such information.
Passports
22.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth), X and Y shall be:
(a)Permitted to have an Australian Travel Document (Passport); and
(b)Permitted to travel internationally.
(c)The father shall retain possession of all of X’s passports and release these to the mother as needed for the purposes of X’s travel including but not limited to any Country E passport, Australian Passport and Country F Passport.
(d)The mother shall retain possession all of Y’s passports and release these to the father as needed for the purposes of Y’s travel including but not limited to any Country E passport and Australian Passport.
Family report
23.The Family Report interviews listed on 25 March 2025 are vacated and new interviews be listed to occur on 18 July 2025 in-person in City D.
24.The parents are required to attend the Family Report interviews and to cause the children to attend the Family Report interviews in person as directed by the Family Report writer.
IT IS NOTED THAT:
A.Order 9 of the orders made 23 January 2025 remains in force regarding preparation of a Family Report.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under Zeelen & Zeelen, a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
The applicant father, Mr Zeelen, born in 1985, and the respondent mother, Ms Zeelen, born in 1975, commenced a relationship in or around early 2005, married, and were divorced in early 2022. There are two children of the relationship.
The applicant father has since re-partnered with Ms G and was married to her in late 2024. Ms G has a child as a result of a former relationship named H. H is not the subject of these proceedings.
These proceedings involve the children, Y, born 2013 (aged 11) and X, born 2010 (aged 14). Both children were originally part of a week about arrangement with equal care between the parents. This was the subject of final consent orders entered into by the parties on 4 November 2020.
Despite such orders, since late September 2023, X has lived primarily with the father.
Both Ms G and the father work for a government agency. The proceedings (and interim proceedings) occur in the context of Ms G securing an overseas posting in City J, Country B. As a result of this posting, the father intends to relocate with X to City J for the period of the posting, being up to four years. Ms G and H have already relocated to City J, having been there since late 2024. The contest relates to whether X should be permitted to relocate with the father to Country B, the appropriate arrangements for Y and what parenting orders should be made if that relocation is granted or otherwise refused.
MATERIAL RELIED UPON
The mother relied upon the following documents:
(1)Affidavit of Ms Zeelen filed 4 March 2025;
(2)Financial statement filed 4 March 2025; and
(3)Case outline document filed 29 November 2024.
The father relied upon the following documents:
(1)Affidavit of Mr Zeelen filed on 6 March 2025;
(2)Affidavit of Ms G filed on 5 March 2025;
(3)Affidavit of Mr K filed on 5 March 2025;
(4)Affidavit of Ms L filed on 5 March 2025;
(5)Financial statement of Mr Zeelen filed on 6 March 2025;
(6)Initiating Application filed on 14 October 2024;
(7)Notice of Child Abuse, Family Violence or Risk filed on 14 October 2024;
(8)Child Impact Report of Mr N dated 20 December 2024; and
(9)Case Outline of Mr Zeelen filed on 10 March 2025.
The Independent Children’s Lawyer (“ICL”) relied upon the following documents:
(1)Child Impact Report of Mr N filed on 2 December 2024; and
(2)Case Outline of the Independent Children’s Lawyer filed on 10 March 2025.
ORDERS SOUGHT
The mother provided a minute of orders sought in her outline of case document filed 29 November 2024. She seeks that X be restrained from relocating and travelling to Country B; that the final consent terms entered on 4 November 2020 continue, save for order 2, which stipulates that X live in a shared care week-about arrangement; and that the parties and children attend upon an agreed family therapist for the purpose of discussing the relationship between X and the mother, with the costs of such therapy equally shared between the parties.
The father’s orders sought were contained in his outline of case document filed on 10 March 2025. In summary, he seeks that the final consent orders of 4 November 2020 be discharged; that he have decision-making responsibility for X; that he be permitted to relocate X to City J from December 2024 to December 2028; that X spend time with the mother in accordance with his wishes; that if X wants to spend time with the mother, such time occur in City D and the costs associated with X’s travel be met solely by the mother; that Y live with mother and spend time with the father during the school holiday terms one, two, three, and five weeks of the term four holiday in City J; that handover occur at the airport and that the children travel as unaccompanied minors; that upon return to Australia the parties will share decision-making for Y and Y will live in a week-about arrangement; that the mother be restrained from relocating Y outside of Region M; that in the event the above interim orders are not made, he be permitted to relocate X to Region O and Y spend time with him every second weekend; and that he be permitted to enrol X in homeschooling.
During submissions, the father conceded that he was willing to meet any travel expenses which were not covered by employer allowances.
The ICL’s interim orders sought were provided in a case outline filed 10 March 2025. The ICL is seeking that in the interim, the father be permitted to relocate X to Country B and that X live with the father; that Y live with the mother in Region M; that Y travel to Country B for the first week of each short school holiday and that X travel to Australia returning with Y for the second week where he will spend time with the mother in Region M (although in final submissions the ICL expressed uncertainty about the court being able to make orders for X to attend Australia); that the father facilitate facetime communication between the mother, X and Y no less than twice each week; that the parties attend family therapy; that the mother enrol Y in counselling with a suitably qualified psychologist; that the father cover the costs of all overseas travel; that a family report be prepared; and that the matter be listed for final hearing.
The precise orders sought by the parties are annexed to this judgment.
PRINCIPLES WHERE THERE ARE FINAL PARENTING ORDERS
The first issue to be dealt with arises as a result of there being final orders already in place at the time of the current application. Relevant to such a situation, in the recent case of Radecki & Radecki [2024] FedCFamC1A 246 (“Radecki”) the Full Court explained the operation of s 65DAAA of the Family Law Act 1975 (“the Act”), as the codification of what was referred to under the common law as the rule in Rice & Asplund.
That rule, often described as a manifestation of the best interests principle, recognised, as described by Austin and Williams JJ that, although parenting orders “are never unequivocally final”,[1] to avoid the heavy burden and potential harm that is carried by parties and children in the rehearing of a matter, the prima facie demonstration of a material change in circumstances was required. Even where that was demonstrated it was then necessary to determine whether, in all of the circumstances of the case, it was in a child’s best interests to permit reconsideration.
[1] Radecki at [36].
In extracting those principles from the long line of authority that followed Rice & Asplund, Austin and Williams JJ, and in a separate judgment Carew J, identified that, following the enactment of s 65DAAA the obligation remains on a trial judge considering an application to reconsider final orders to firstly determine, on a prima facie basis, whether there has been a significant change of circumstances since the making of the previous orders.
The Full Court determined that, in the absence of a positive prima facie determination of significant change, s 65DAAA leaves no scope for reconsideration of final parenting orders.
As described by the High Court in North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 235 “prima facie” ordinarily means “[a]t first sight; on the face of it; as appears at first sight without investigation.” In particular, when the issue is dealt with as a threshold question, this involves, as Carew J helpfully described, the court taking the case of applicant “at its highest”.[2] In other words, the court is to consider whether, if the applicant’s case was accepted, it would prove a significant change of circumstances.
[2] Radecki at [116].
In summary, two matters relevant to this case emerge as to the application of s 65DAAA:
(a)A necessary prerequisite to reconsideration is for the applicant to establish, on a prima facie basis, a significant change in circumstances. Without such there is no capacity to reconsider the final orders;
(b)The test for reconsideration under s 65DAAA is a manifestation of the best interests principle. It is the consideration of best interests in all the circumstances that determines whether reconsideration should be refused or permitted.
In this case, despite the position of the mother that there should be little change from the current final orders, it was uncontroversial that there has been a wholesale breakdown of the orders governing the parenting arrangements for X. X has, despite orders being in place for equal time, spent almost no time with the mother well in excess of a year. He is highly resistant to spending time with the mother. Further, his living circumstances with the father are also subject to significant change, given the proposed move to City J. These changes in turn impact upon Y. These circumstances both constitute a significant change of circumstances, and circumstances that necessitate the reconsideration of the parenting arrangements as in the best interests of the children.
PRINCIPLES IN INTERIM PARENTING PROCEEDINGS
The paramount consideration in determining what parenting order should be made is, pursuant to s 60CA of the Act, the best interests of each child. Those best interests are to be determined on consideration of the matters set out at s 60CC of the Act, in the legislative context of the objects and principles set out in s 60B of the Act, and pursuant to s 60CG, in a manner that does not expose a person to an unacceptable risk of family violence. Further, where applicable, s 65DAAA sets out a reasoning pathway to be followed.
Given the interim nature of the proceedings, there are significant limits that are imposed upon the manner of dealing with the s 60CC considerations in determining best interests. Such limitations were identified by the Full Court in cases such as Salah & Salah, where it was observed that “[i]t is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial.”[3] Reflecting the earlier case of Goode & Goode, it was accepted that the court in interim proceedings should not be drawn into:
…issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute...[4]
[3] Salah & Salah (2016) FLC 93-713 at [37].
[4] Goode & Goode (2006) FLC 93-286 at [68].
Importantly, however, it was accepted, as identified in Eaby & Speelman, that such an approach “does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.”[5]
[5] Eaby & Speelman (2015) FLC 93-654 at [18].
That is, the court, despite the limitations on testing the evidence, and the inability to make concrete findings, is still required to give consideration to issues raised, such as those of risk and, as SS v AH identified:
…weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.[6]
[6] SS v AH [2010] FamCAFC 13 at [100].
In this case a key issue is that of the potential international relocation of X.
Whilst there is no separate category of relocation cases, cases involving a proposal that a party will move with a child pose hard questions with difficult consequences. Where, as here, the proposed move is internationally, those consequences become even more stark. Often a move will be of great personal importance to the party who wishes to move. Often the moving party will be the parent who has the primary care of the child. Often a move will result in fundamental changes in the way in which a left behind parent may be involved in a child’s life.
The preferred approach is not to deal with the relocation as a discrete issue but, where possible, “as just one of the proposals for the child’s future living arrangements”.[7]
[7] Taylor and Barker (2007) FLC 93-345 at [53].
A useful summary of the approach to relocation is set out by Boland J in Morgan & Miles (2007) FLC 93-34:
80. It follows from my exposition of the legislation, that earlier core principles:
– that the child's best interests remain the paramount but not sole consideration;
– that a parent wishing to move does not need to demonstrate “compelling” reasons;
– that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child's best interests; and
– the child's best interests must be weighed and balanced with the “right” of the proposed relocating parent's freedom of movement, remain valid.
Particular focus needs to be given to the significance of, and consideration of the parties’ proposals. In U v U Gummow and Callinan JJ observed:
[80] We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. .. But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s68F [now s60CC] and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child's best interests.
[81] It is to that overarching issue that the primary judge applied his mind. In doing so he did not overlook the appellant's entirely reasonable desire, to return to...[8]
[8] U v U (2002) 211 CLR 238 at [80] – [81] (“U v U”).
In the end, as in any parenting case, relocation cases call for examination of the s 60CC considerations, albeit in the context of the particular issues that are thrown up by relocation, and in particular, international relocation.
THE KEY CIRCUMSTANCES IN THIS CASE
The parties and children found initial success in a shared care arrangement following separation, that resulted in consent orders on 4 November 2020 that provided for the then week about arrangement. At that stage the parties were living under the one roof, a circumstance that continued until about mid-2021 when the former family home was sold.
From about this time the equal time arrangements for X started to break down. There is contentious and confused evidence as to how this deterioration progressed, and as to what fuelled it, each party laying the blame primarily at the feet of the other. Those disputes are unable to be resolved within this interim component of the proceedings. However, the mother concedes that from about July 2023 X’s time with her decreased from week about to each second weekend. From mid-2024, X commenced to spend time with the mother at his choosing, resulting in sporadic and at best highly limited time with the mother. The parties both observed a deterioration in X’s school results, and school attendances, increasing such that by semester 2 2024 X missed 37 whole days of school and 31 partial days, and by semester 1 2025 X ceased attending school at all, at which time he was in the sole care of the father.
By this time it was X who determined whether he spent time with the mother and whether he attended school, with little information provided by the father, in whose primary care X lives, as to the basis for such extreme responses on the part of X, nor as to the steps taken by him to persuade X to act otherwise.
Both parents accuse each other of defaults in their parenting. The father complains that the mother did not take reasonable steps to encourage her own relationship with X, whilst the mother claims the father did not support X’s relationship with her. Again, the extent of any lack of parenting capacity on the part of each of the parents in respect of these is unable to be determined as a part of these interim proceedings.
Y continued in the week about arrangement.
In the absence of concrete arrangements for the father to take an international posting, in mid‑2024 the mother and father discussed the potential for X to attend such a posting with the father. That discussion, or tentative position, did not encompass Y also moving for such a posting. It was also not a position that crystallised into an agreement.
Unbeknownst to the mother, Ms G applied for a posting in mid-2024, being a posting that the parties appeared to agree occurred at a much faster pace than expected, resulting in her relocation in late 2024 to City J with H.
During that period the parties were unable to come to an agreement about relocation. The mother complains that the father did not inform her of developments in a timely manner, whilst the father complained that the mother declined to engage in mediation about the matter until mid November due to study commitments. X spent very little time with the mother during this period.
In late 2024 interim orders were made to progress applications for the children’s passports, and then to permit the children to travel to Country B with the father during the holiday period. Oddly, as part of this travel the father, H and X travelled business class, while Y, the youngest, was relegated to economy. Given what eventuated in the Child Impact Report, that identified Y’s concerns that the father does not care for her in the manner in which he cares for X (particularly it might seem in his application for relocation being limited to X), it is difficult to conceive of this travel arrangement being undertaken with any understanding of Y’s emotional sensitivity. Absent explanation it was not suggestive of attuned parental capacity on the part of the father.
That Child Impact Report, which noted the uncontroversial matter that X has been diagnosed with ADHD, observed:
[X] impressed as a resolute young person who was firm in his views of what would be in his best interest. [X] spoke clearly regarding his worries, specifically that he did not believe that remaining in [City D] would benefit him and that he was “terrified” the Court would make an order that did not align with his views. [X] spoke candidly regarding his concerns should he remain in Australia, and they namely revolved around living long term with [Ms Zeelen]
Contrary to the submissions put for the father that X is “mature”, nothing in the Child Impact Report should be taken to suggest that X is mature in his engagement in interpersonal relationships, nor of his understanding of the ramifications of relocation. Whilst it was uncontroversial that it was X’s strong wish to move to Country B with the father, and to attend school there, and not to attend his school in Australia, nor to live with the mother, his reasons for, and expectations in respect of a move did not demonstrate anything more than a superficial understanding, and provided little by way of cogent reasoning.
The strength of X’s view was further reflected in the Child Impact Report:
[X] stated that he would like the Court to allow him to relocate to [City J] with [Mr Zeelen] and he would like the freedom to determine when he would like to spend time and communicate with [Ms Zeelen]. [X] spoke of feeling pressured and did not feel that having to spend time with [Ms Zeelen] would be positive. [X] reflected that should the Court decide he had to spend time with [Ms Zeelen] he would refuse.
In respect of the relationship between Y and X, Y was identified to report significant difficulties in interacting with X:
[Y] reported worries that her brother [X] physically punches and kicks her and threatens to hurt her. [Y] went on to explain that [X] has broken her things and films her when she cries and threatens to send the recording of her crying to her friends. [Mr Zeelen] reported that in the past [X] had experienced an episode of significant emotional dysregulation that included attempting to stab [Y] and [Mr Zeelen] with a kitchen knife and resulted in [Mr Zeelen] locking himself and [Y] into a room and calling emergency services. [Mr Zeelen] acknowledged that at times he has had to physically intervene between [X] and [Y]. [Ms Zeelen reported that [X] can become angry however did not report that [X] becomes physically aggressive.
Given what was uncontroversial, it can be concluded that, in a context where the parties have been unable to cause X to spend any significant time with the mother, nor even to attend school, that an order preventing the relocation offers no realistic outcome, and no good support for X. It carries with it the prospect of a hardened attitude against the mother, as the prospect that he will blame the mother for thwarting his wishes looms large.
The best support for X, give his current trenchant views, is with his father in Country B. In this moment this reflects X’s best interests as he will not tolerate any other outcome. It is also the result that best fosters the potential for an ongoing relationship between X and the mother.
Whilst there can be little confidence that X’s schooling will improve, at least there is a glimmer of hope given the currently positive views that X expresses toward schooling in Country B.
It should be noted that there is no guarantee that life in Country B will meet X’s expectations, nor that schooling there will be more acceptable to him than the school he refuses now to attend in City D. However, at this point it is the best option for X to receive parental support.
This calls for interim orders for X to relocate with the father to Country B.
As noted above, there is no contest that Y will remain living with the mother. The father proposes that Y will spend time with him for all of the school holiday periods each year, save for a single week with the mother. He proposes that he will travel to City D once each term to spend a week, with Y spending daytime but not overnight periods with him, so as not to disrupt her usual arrangements.
The father says that this will maximise Y’s time with him, and X and Y’s time together. He notes that this would result in a minimal reduction in the number of days that Y spends with him from the 26 weeks per year that she currently has.
The mother’s position is that if X relocates the school holidays for each of the children should be shared equally between the parents in a manner that would allow for X and Y to spend the whole holidays together.
Despite the father’s focus on limiting the change to Y in the number of days that she spends with him, his proposal is one of substantial change, instituting longer blocks with him and blocks away from the mother who will then be functioning as Y’s primary carer. It is also a proposal that would deprive Y of almost all of her school holiday time with the mother.
Whilst the midterm proposals form a creative and useful regular period of time with Y, and involvement in her life, the spending of almost the whole of the school holiday periods with the father should not be accepted as in Y’s best interest, particularly given the difficulties that she has recounted in X’s aggression toward her. The orders should provide for Y to spend half of her school holiday time with the father, along with the mid-term periods.
The mother proposed that X travel to Australia for half of the school holiday periods. Such an arrangement, if successful, would provide a reasonable basis to foster an ongoing relationship between X and the mother. However, given the current state of the relationship between the mother and X, it cannot be expected that such orders would be able to be complied with by the father in the face of anticipated resistance by X. The history of the deteriorating relationship between X and the mother over a period of years means that such orders cannot be realistically expected to be complied with.
The best outcome can, at present, only come from X determining that he will spend time with the mother. However, the frequency and duration of such cannot be predicted, nor can it be locked into orders. Orders for X to travel to Australia to spend time with the mother should not be made, not because X should not spend time with the mother, but due to the inability to structure orders that impose a clear obligation and that could be complied with. However, given the father’s concession as to meeting the cost of arrangements for the children to travel, orders should be made to facilitate the potential of X spending time in Australia with the mother, in which case the father will bear the responsibility for the shortfall of any such travel from the support that his agency provides.
The mother also sought family therapy, which as a consequence of the relocation would at best be online. The author of the Child Impact Report commented:
A family therapist with access to this report may be of benefit to the children as they would be an impartial person who may offer a safe space to explore their relationship with [Ms Zeelen] and how they could be supported to explore how they would like this relationship to look or ways this could be encouraged.
Given that recommendation, to ameliorate the consequences of separation from the mother and deterioration of that relationship, it is appropriate to make orders for the family therapy to take place, the father having identified a family therapist.
The cost of that family therapy, as an aspect of the relocation, will be met jointly. Although the mother’s financial statement reflected a small excess of income over expenditure, her income can only be thought of as minimal. She however accepted that she should meet half of the costs of the family therapy in her proposed orders. The father’s income exceeds the mother’s by a factor of 3. Although at present he asserts a gross shortfall of income against expenses, on the making of these orders he will relocate to Country B under financial circumstances that, while unclear, enable him to assure the court that he can meet shortfall in travel expenses from employer allowances. He will also resume sharing a household with his wife, a matter not factored into his current financial statement.
Each child should be at liberty to contact the parent that they are not with, or their sibling, by electronic means without restriction, in order to ameliorate the separation from the other parent.
Decision making responsibility for the children faces a poor coparenting relationship. The parties do not exhibit the capacity to engage in joint decision making, a position that may be expected to be exacerbated by the distance between one parent from each child given the relocation. Whilst they are of a common view that they should jointly hold decision making responsibility for Y, they differ in respect of X, with the mother seeking to share the responsibility, the father to hold it solely.
In X’s case, the gulf between the parties, the difficulties between X and the mother, and the fact that X will be remote from the mother and in the sole care of the father indicate that the father should bear sole parental responsibility, with an obligation to share information about long term issues, especially schooling and health issues.
As for travel expenses, the father accepted that he would meet any shortfall between employer allowances and the costs of travel.
There remains an issue of therapy for Y. Y appears to have previously had a positive therapeutic relationship with a psychologist, which the mother says she cannot currently meet the expense of. Whilst the father suggests that his work-based EAP could provide a psychologist for Y, there is no indication that this would be suitable for Y. This presents an impasse as a head of power to enable an obligation to place the responsibility for the payment for therapy for Y has not been identified.
CONCLUSION
Orders will be made permitting X to relocate with the father to Country B in the interim, with the father to exercise sole parental responsibility for X, but with the obligation to share health and educational and long term decision-making information with the mother.
Y will live with the mother, with equally held parental responsibility.
Orders will provide for Y to spend half school holidays with the father along with a mid term period, and for the parents to facilitate electronic communication between each child and the parent they are not with, and with their sibling, along with orders to support family therapy.
Although the father sought that the mother be restrained from relocating Y to outside of Region M, no submissions were advanced as to why this was appropriate or necessary, nor was it apparent why it was an order that should be made.
An order will be made for the current family report interviews to be vacated and relisted at a later date. Given the nature of the relationship issues, it will be necessary that the children and parents attend in person. It is anticipated that the interviews will occur during X’s school holiday period.
The proceedings will otherwise be prepared for, as best as can be facilitated, a prompt final hearing.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 20 March 2025
APPLICANT FATHER’S ORDERS SOUGHT
(1)That Final Orders made on 4 November 2020 be discharged from 18 December 2024.
(2)That the Father have decision making of the child, X born 2010 including but not limited to education, health and passports.
(3)That the Father be permitted to relocate X to City J, Country B from December 2024 to December 2028.
(4)That X spend time with the Mother in accordance with his wishes.
(5)That in the event X intends to spend time with the Mother, such time occur in City D where such costs associated with the travel be borne by the Mother solely.
(6)That parties have joint decision making of the child Y born 2013.
(7)That Y live with the Mother.
(8)That commencing in 2025, the Father spend time with Y as follows:
(a)During the whole of the Region M school holidays for terms 1, 2 and 3 and for the first 5 weeks in Term 4 in odd numbered years in City J with such costs of the travel, visa and passports be borne by the Father solely and then the last week with the Mother.
(b)During the whole of the Region M school holidays for terms 1, 2 and 3 and for the last 5 weeks in Term 4 in even numbered years in City J with such costs of the travel, visa and passports be borne by the Father solely and then the first week with the Mother.
(c)That handovers occur at the airport of the destination the child is to arrive with the child to travel as an unaccompanied minor.
(d)Pursuant to Section 65Y(1)(c)(ii) of the Act, the Father and the Mother shall be permitted to remove the Children from the Commonwealth of Australia during any period the Children are living with them on the following conditions:
(e)The travelling Party shall notify (in writing by email) from the other Party at least 2 months’ prior to the intended departure date, of their intention to travel overseas with the Child (the Travel);
(f)The travelling Party shall meet all expenses associated with the Travel and shall purchase a comprehensive travel insurance policy for the Child, to cover the duration the Child is overseas;
(g)Not less than 2 months prior to the proposed Travel, the travelling Party shall provide the other Party with a copy of return plane / travel tickets and an itinerary of the Travel (with the itinerary to include overseas phone numbers, flight details and hotel / accommodation details) and a copy of the travel insurance policy for the Child;
(h)Not less than 30 days prior to the overseas Travel, the non-travelling Party shall sign and return to the travelling Party all necessary visa applications, if so required;
(i)Not less than 14 days prior to the overseas Travel, the travelling Party shall provide the other Party with the addresses of where the Child will be staying, together with a contact phone number and email address on which the travelling Party and the Child can be reached; and
(j)The travelling Party shall facilitate video calls via FaceTime or similar between the non-travelling Party and the Children, on 1 occasion per week.
(9)Pursuant to Section 11(1)(b) of the Australian Passports Act 2005 (Cth), X and Y shall be:
(a)Permitted to have an Australian Travel Document (Passport); and
(b)Permitted to travel internationally.
(c)The Father shall retain possession of all of X’s passports including but not limited to Country E passport, Australian Passport and Country F Passport.
(d)The Mother shall retain possession all of Y’s passport and release this to the Father upon his request but no later than 7 days including but not limited to Country E passport and Australian Passport.
(10)That upon the Father returning to Australia the following shall occur:
(a)That parties have joint decision making of the long-term decisions for Y.
(b)That unless otherwise agreed between the parties in writing, the parties spend time with Y on a week about arrangement, with the first week with the Father and the second week with the Mother commencing on the first Monday after school (or 3:00pm if the Monday is a non-school day) the Father returns to Australia, and the Mother commencing her time the following Monday after school (or 3:00pm if the Monday is a non-school day).
(c)That in the event of a long weekend that includes a Monday, then time shall be extended to 5:00pm on Monday.
(d)That unless otherwise agreed in writing, and where changeover does not occur at Y’s school, changeover will occur with the parent who is to spend time with Y collecting her from the residence of the other parent.
(e)The parent with the care of Y will ensure that she is at liberty to call and speak with the other parent at any reasonable time requested by her.
(f)That during school holiday periods for Term 1, 2 and 3, the parties spend time with Y in accordance with the arrangements outlined in 18(b) above.
(g)That during Term 4 school holiday periods, Y spend the first half of the school holidays with the Father an the second half of the school holidays in even numbered years, and in first half of the school holidays with the Mother and the second half of the school holidays with the Father in odd numbered years.
(h)Such other time as may be agreed between the parties in writing
(i)In the event the school holidays consist of an uneven number of days, the parent who has care of Y for the second half of the school holidays will have care of Y for an additional day at the end of the school holidays.
(11)That the Mother be restrained from relocating Y outside of Region M.
(12)That the Mother shall not unreasonably withhold any consent for vaccinations required and as necessary for Y to travel.
(13)That in the event interim orders are not made in accordance with these Orders or the least to permit the Father to travel to City J with Y, then the matter be listed on an urgent basis for a final hearing.
(14)That in the event interim orders are not made in accordance with the Orders Sought by the Father, then X live with the Father in Region O.
(15)That in the event the Father and X are permitted to reside in Region O and not City J, then Y live with the Mother and spend time with the Father every second weekend.
(16)That that Father be permitted to enrol X into homeschooling, in the absence of the Mother’s consent.
(17)That the Father and X be permitted to attend family report interviews remotely.
RESPONDENT MOTHER’S ORDERS SOUGHT
(1)That X is restrained from relocating and travelling to Country B.
(2)That the Final Consent Orders made on 4 November 2020 be continued save for Order 2 of the Final Orders where the child live on a week-about arrangement with each parent commencing Friday after school to the conclusion of school on the following Friday.
(3)That the parties and the children attend upon an agreed Family Therapist for the purpose of discussing the relationship between X and the Mother and the parties shall contribute equally towards the cost of the Family Therapy sessions.
THE INDEPENDENT CHILDREN’S LAWYER’S ORDERS SOUGHT
(1)In the interim the Father shall be permitted to relocate to the Country B with X born 2010.
(2)X shall live with the father.
(3)Y born 2013 shall live with the mother in Region M.
(4)In each term holidays Y shall travel to Country B for the first week and X shall travel to Australia returning with Y in the second week where he shall spend time with the mother in Region M.
(5)The Father shall facilitate face time communication between the mother and X and Y and X not less than twice each week.
(6)The mother and father are to appropriately supervise Y’s time with X to ensure she is not subject to any aggressive or threatening behaviour form X.
(7)The parties shall attend Family Therapy, and the mother shall make sure that she participates with Y as recommended by the family therapist and the father shall ensure that himself and X participates as recommended by the Family therapist.
(8)The mother shall forthwith take all steps necessary to engage Y in counselling with a suitably qualified psychologist and she shall ensure that Y attends any appointments set by the psychologist.
(9)The father shall cover the cost of all overseas travel.
(10)The parents shall notify each other in the event of any serious medical illness suffered by either of the children.
Communication and notification
(11)The parents shall communicate by way of an agreed parenting App and if no agreement by way of Talking parents.
(12)Bothe parents shall take all steps necessary to download the App within 7 days of these orders.
(13)In the event either of the Children sustain any medical problem, injury, illness, medical emergency or hospitalisation whilst in the care of either Party, the Party in whose care the Children are in shall immediately notify the other Party where possible, and in any event, as soon as practicable, with the other Party to be advised of the name of the treating doctor, hospital and medical contact number and nature of the problem.
(14)The parents shall both authorise any medical practitioner engaged for the Children to communicate with the other parent.
(15)That each Party shall inform the other and keep them informed within 48-hours of any change to their residential address, postal address, email addresses, landline and mobile telephone numbers and those of the Children.
(16)The Mother and Father shall direct and authorise any School to provide copies of all reports, the usual notices and invitations received by parents, school photo ordering forms to the other and shall not restrain the other’s access to such information.
(17)During any period, the Children are living with / spending time with each Party, each Party shall:
17.1. Respect the privacy of the other Party and not question the Children about the personal life of the other Party; and
17.2. Speak of the other Party respectfully.
Injunctions
(18)Pursuant to Section 68B of the Act, the Parties are both hereby restrained by injunction from:
18.1. Communicating through the children about arrangements for time or travel.
18.2. Discussing any aspect of these proceedings with the children except to explain to them the arrangements set out in these orders; and
18.3. Showing either of the Children correspondence or the court documents about matters in dispute between them, including any that has been prepared on their behalf by their lawyer, and/or sent to, and/or received by one another's lawyers, including allowing the children to engage in the behaviour with each other as described above; and
18.4. Speaking or communicating in a manner that is insulting, belittling, rebuking or denigrating of each other or each other’s family members, or allowing any other person to do so in the hearing or presence of the Children.
(19)A Family Report be prepared.
(20)The matter shall be listed for Final hearing.
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