AMS v AIF

1. Paragraphs 23 to 25 of the Orders made 17 February 2025 be discharged.
2. As of the date of these Orders, X born in 2023 ("X") be permitted to leave the Commonwealth of Australia, AND IT IS DIRECTED that the Australian Federal Police remove the name of the child from the Family Law Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.

1. The parties shall retain parental responsibility and shall make joint decisions in relation to all major long-term decisions as defined by section 4(1) of the Family Law Act 1975 (Cth) in relation to X including (but not limited to) decisions regarding X's:

(a) education, both current and future;

(b) religious and cultural upbringing;

(c) health; and

(d) names.

1. X spend time with each party at all times as agreed between the parties in writing and failing agreement as per these Orders.
2. X live with the Mother.

1. X communicate with the Father via Facetime call at 5.00pm each Monday, Wednesday and Friday (when X is not already in the Father's care) for up to 15 minutes with the Mother to initiate the call to the Father and afford X privacy during the call.
2. From the date of these orders, X spend time with the Father during NSW gazetted school terms as follows:

(a) the third weekend and ninth weekends in City B:

(i) from 3.30pm to 6.30pm Friday;

(ii) from 3.30 pm Friday until 5:00pm Sunday.

(b) the sixth weekend in City C:

(i) from 3.30pm to 6.30pm Friday;

(ii) from 3.30 pm Friday until 5.00pm Sunday.

1. Upon X commencing school, X's time in order 7 herein occur with the Father:

(a) when in City B from 7.00pm Friday to 4.00pm Sunday (2 nights); and

(b) when in City C, from 3.30pm Friday to 5.00pm Sunday (2 nights).

1. During school term holidays (whether or not X has commenced school) X spend time with the father:

(a) In 2026, in the week commencing on the middle Saturday of the holidays:

(i) from 9.00am Saturday to 5 pm Tuesday (3 nights); and

(ii) from 9.00am Wednesday to 5 pm Saturday (3 nights).

(b) In 2027, from 9.00am on the middle Saturday to 5 pm Thursday (5 nights);

(c) In 2028 from 9.00am on the middle Saturday until 5 pm on the following Saturday (7 nights).

1. X spend time with the father as follows in City B:

(a) In 2025/2026:

(i) from 9.00am 24 December 2025 to 5.00pm on 26 December 2025 (2 nights);

(ii) from 9.00 am on 27 December 2025 to 5.00 pm on 29 December 2025 (2 nights);

(iii) from 9.00 am on 30 December 2025 to 5.00 pm on 1 January 2026 (2 nights);

(iv) from 9.00 am on 17 January 2026 to 5.00 pm on 19 January 2026 (2 nights); and

(v) from 9.00 am on 20 January 2026 to 5.00 pm on 22 January 2026 (2 nights).

(b) In 2026/2027:

(i) from 6.00 pm on 26 December 2026 to 5.00 pm on 31 December 2026 (5 nights);

(ii) from 9.00 am on 2 January 2027 to 5.00 pm on 7 January 2027 (5 nights); and

(iii) from 9.00 am on 21 January 2027 to 5.00 pm on 26 January 2027 (5 nights).

(c) In 2027/2028 and each alternate year, on a week about basis, commencing from 9.00 am on 24 December 2024, with X to be returned to the mother two days prior to the commencement of school.

(d) In 2028/2029, and each alternate year for week about commencing from 6.00 pm on 26 December 2028, with X to be returned to the mother's care two days prior to the commencement of school.

1. On the Mother's Day weekend the father's time pursuant to these orders be suspended and occur on the following weekend.
2. On the Father's Day weekend the father spend time with X, if he is not otherwise spending time with her pursuant to these orders, in lieu of the nearest weekend.

1. At Christmas, Easter and on the parties' birthdays, and X's birthday, the parent who has the care of X, facilitate X calling the other parent at 5.00 pm with such calls to be up to thirty minutes.

1. In City C, unless otherwise agreed, changeover occur at X's daycare/ kindergarten/school on daycare/kindergarten/school days or otherwise at the father's accommodation in the City C region at the commencement of time and at a location nominated by the father in the vicinity of the City C airport at the conclusion of time.
2. In City B, unless otherwise agreed, changeover occur in each case at the Father's residence.

1. The parties pay for their own airfares to/from NSW and City B and any hire car costs, but share the costs of X's economy airfares equally and shall reimburse the other regarding same within seven (7) days if paid for by the other at first instance.

1. Each party be at liberty to travel overseas with X during X's time with either of them provided:

(a) the travelling party provides the other with 60 days' notice of such intended travel dates and country of travel;

(b) the travelling party provides the other no less than 30 days' prior to travel:

(i) a detailed itinerary of the proposed travel, including details of departure and return dates, each destination, flight numbers, methods of travel, where X will be staying, copies of documents sufficient to demonstrate that X and the travelling party each have a paid return ticket; and

(ii) copies of certificates of travel insurance which include medical cover for X and the travelling party, and which cover X and the travelling party for each relevant destination and duration of travel.

1. If requested by one parent ("the requesting parent"), each party must ensure that X has a valid Australian Passport and to ensure that this occurs, among other things:

(a) the requesting parent must give the completed application to the other parent;

(b) the other parent must sign and return the application to the requesting parent within 14 days of receiving it;

(c) the requesting parent must immediately lodge the completed passport application;

(d) the Mother is to hold X's passport when she is not travelling overseas with the Father; and

(e) the Mother must give the passport to the Father at least seven (7) days prior to any overseas travel with him and X or within seven days of a request being made by the Father if required for the purpose of visas and the like with X;

(f) the Father must return X's passport to the Mother within seven (7) days of their return to Australia.

(a) keep the other advised at all times of their current residential address and mobile telephone numbers;

(b) advise the other immediately in the event that either a child suffers any serious illness or injury including details as to any medical practitioner, hospital or medical practice attended, including illness injury or other which may impact her capacity to travel in accordance with these orders;

(c) authorise any medical practitioner, allied health professional, hospital or medical practice upon or at which either a child may attend from time to time, to communicate with the other party in respect to a child's medical condition and/or requirements, and provide any documents and reports as requested by the other parent;

(d) authorise all schools at which X may attend from time to time, to:

(i) provide the other, at the expense of the other, copies of all school reports, school notices and newsletters, school photographs and examples of school work in relation to X;

(ii) communicate with the other, in writing, email, text or telephone in the event of an emergency, in respect to X's progress at school, and inform each other of any emergency, remedial or correctional treatment required by either child as soon as is practicable; and

(iii) permit the other to attend all school functions to which parents are normally invited, subject to any school policy in relation thereto.

1. Each party and the maternal and paternal grandparents, and maternal and paternal aunts and uncles are entitled to attend all school and extra-curricular activities involving X, including:

(a) sporting fixtures;

(b) extra-curricular activities that allow for parental attendance;

(c) pre-school and school functions and events that allow for parent attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews and canteen duties.

1. Each party be at liberty to authorise any person to undertake pick up/drop off for X at X's daycare/school and/or extra-curricular activity provider as nominated by the parent with the care of X that day, including but not limited to X's grandparents/step-grandparents and the other parent shall not unduly obstruct same or remove that nominated person from such authorised list (noting a copy of these Orders may be provided to the daycare/school and/or extra-curricular provider).
2. The parties shall advise each other in writing no later than seven (7) days prior to their intended departure date(s) of relevant travel details including flight details.
3. Within 48 hours of time occurring pursuant to these Orders the parties will advise each other of their accommodation (for the purpose of changeover) as well as the arrival and departure times of their flights.
4. Without admitting necessity of this Order, each party be restrained from using illicit substances and/or drinking alcohol to excess whilst X is in that parent's care.
5. Each party be permitted to provide a copy of these Orders to X's daycare/kinder/school(s), and any medical practitioner and/or allied heath practitioner(s) that may assist X from time to time.
6. The father shall provide to the mother a certificate of completion for his Parenting After Separation Course within seven (7) days of completion.
7. In the event:

(a) the Father elects to reside within 100 kilometers of the City C region or the Mother's residence; or

(b) the Mother elects to reside within 100 kilometers of the City B region or the Father's residence;

(c) the parties thereafter forthwith (with four weeks of relocation) participate in mediation to negotiate/discuss child arrangements and failing agreement each party shall thereafter have liberty to apply regarding parenting orders for X.

1. Nothing in these orders is intended to restrain any of the extended maternal or paternal families from spending time with X, when she is spending time with the applicable party.
2. All extant applications be otherwise dismissed.
3. Pursuant to s 65DA(2) and s 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is a parenting matter concerning the one child, X, born in 2023 ("X") who is two years of age.
2. X currently lives with the respondent mother, Ms Ashbourne ("the mother"), in the City C area in New South Wales.
3. The applicant father, Mr Minnings ("the father"), resides in the City B region in Victoria, where the parties and X lived until the mother unilaterally relocated with X in September 2024.
4. The father seeks that X and the mother return to live in the City B region, and that he build up his time with X progressively until she is spending five nights per fortnight in his care during school terms, as well as block time on the holidays.
5. The mother resists the application to return to the City B region. She proposes X remain living with her in the City C area, and that X spend time with the father each month in City C as well as additional time in City B on 4 occasions each year. Otherwise, the mother proposes a very slow progression of time through to when X is 14 years of age.
6. The parties agree that they should have shared decision making for X.

1. The mother grew up in the City C area of New South Wales but left home when she was 13 years of age. She says this was due to neglect. Thereafter the mother lived in an informal foster care arrangement.
2. In her teenage years, the mother suffered from poor mental health, including depression, anxiety, and episodes of self-harm.
3. The father grew up in the City B area of Victoria and has never moved from the region.
4. The parties met after the mother became a student living in Suburb D, an outer suburb of City B.
5. The parties commenced their relationship in 2019, began cohabiting in December 2019, and married in 2022.
6. X was born in 2023.
7. The parties separated in March 2024, when the father admitted to having a sexual encounter with his brother's wife's sister, Ms F ("Ms F"). Ms F ordinarily resides in G State within the United States of America ("the USA") but had been visiting Australia.
8. Ms F became pregnant with the father's child, E ("E"), who was born in the USA in 2024.
9. The father has now re-partnered with Ms F, who remains living in the USA with E. Ms F also has a child from a former relationship, H, who I understand is aged four years old. H currently lives in a shared care arrangement between Ms F and her former partner, Mr J ("Mr J").
10. After separation, the mother and X moved to rental accommodation in City B. The father remained in the former home at K Street, Suburb L until it was sold in July 2024.
11. The parties have not had a property settlement, but I understand that about $154,400 dollars is held on trust pending resolution of their property matter. There is no current financial application before the court.
12. After separation, the father spent regular time with X, each Monday and Thursday afternoon as well as daytime each alternate weekend, although the parties were in dispute about how much time was age appropriate.
13. The mother's evidence is that at about the time of separation she had another episode of self-harm, and that she continued to struggle with her mental health thereafter given the circumstances of the separation.
14. In late March until April 2024, the mother spent time with her sister, Ms M ("Ms M") in City C, NSW. At that time, she discussed with her sister the possibility of moving back to the City C area.
15. On 10 July 2024, the mother instructed solicitors to write to the father proposing she be able to move to the City C area. The father's solicitors responded on 19 July 2024, making it clear he did not agree. The father's solicitors sent a further letter on 8 August 2024, reiterating that he was not agreeable to X moving to New South Wales.
16. Between 27 to 31 August 2024, the mother and X spent time with Ms M on holiday in Town N, NSW.
17. On 13 September 2024, the mother unilaterally moved back to Suburb O in the City C area with X, where the maternal grandfather, Mr Ashbourne ("the maternal grandfather") has a farm. The mother did not inform the father of this move until 17 September 2024.
18. On 26 September 2024 the father filed his initiating application in this court for the mother to return X to live in the City B area.
19. On 4 November 2024 interim orders were made by Senior Judicial Registrar Crocker, by consent, for a family report to be conducted, and otherwise for the mother and X to continue to reside in City C pending an interim defended hearing.
20. On 17 February 2025 following an interim defended hearing, Her Honour Judge Stewart, as she then was, made orders that the mother be permitted to remain in the City C area until the final hearing. The interim orders provided for time arrangements to occur, alternating between City C and City B, such that X currently spends time with her father every fortnight as well as by way of FaceTime.

1. The matter was conducted in person during the City B circuit, save for the family report writer, Ms P ("Ms P"), and Ms M, both of whom appeared via Webex. Submissions were also completed on a later date via Webex, due to time constraints at the City B circuit.

1. The applicant father relied upon:
   • his amended initiating application for final orders filed 29 July 2025;
   • his case outline filed 1 August 2025;
   • his trial affidavit filed 8 July 2025;
   • his affidavit in reply filed 22 July 2025;
   • the affidavit of Mrs Minnings ("the paternal grandmother") filed 8 July 2025;
   • the affidavit of Mr Minnings snr, the paternal grandfather, filed 16 June 2025;
   • the family report of Ms P dated 2 July 2025;
   • the psychological assessment of the father by Mr Q ("Mr Q") filed 14 May 2025;
   • the psychological assessment of the mother by Mr Q filed 14 May 2025; and
   • the family report of Ms R ("Ms R") filed 25 January 2025.
2. The mother relied upon:
   • her amended response to initiating application filed 16 July 2025;
   • her case outline filed 4 August 2025;
   • her trial affidavit filed 8 July 2025;
   • the affidavit of Mr Ashbourne filed 8 July 2025;
   • the affidavit of Ms M filed 9 July 2025;
   • the family report of Ms P dated 2 July 2025;
   • the psychological assessment of the father by Mr Q filed 14 May 2025;
   • the psychological assessment of the mother by Mr Q filed 14 May 2025; and
   • the family report of Ms R filed 25 January 2025.
3. The parties also relied upon a number of exhibits that were tendered during the course of the trial:
   • M1 - the father's 2023 tax return;
   • M2 - text messages exchanged between the mother and father (undated);
   • M3 - letter from S Centre re: X's progress;
   • M4 - the father's travel money bank statements;
   • M5 - letter dated 10 July 2025 sent by the mother's solicitors;
   • M6 - text messages between the parties dated 19 and 22 July 2024;
   • M7 - childcare assessment report re: X's progress;
   • M8 - childcare attendance record;
   • M9 - text messages exchanged between the parties (undated);
   • M10 - text message dated 10 April 2024 from the father's brother;
   • M11 - text message dated 14 May 2024 between the parties;
   • M12 - text message on 9 June 2024 between the parties;
   • M13 - text message on 5 July 2024 between the parties;
   • M14 - text message on 28 June 2024 between the parties;
   • M15 - text messages of 'July 2024' between the parties;
   • M16 - text messages on 26 July 2024 between the parties;
   • M17 - text message on 18 July 2024 between the parties;
   • M18 - text message on 13 April 2024 between the parties;
   • M19 - text message between Mr J and the mother dated 5 August 2025;
   • M20 - text message exchange between maternal grandmother and mother dated June 2025;
   • M21 - text message exchange between maternal grandmother and mother dated July 2025;
   • M22 - letter from mother's general practitioner re: a mental health care plan;
   • F1 - airfare document of flight between New South Wales and Victoria;
   • F2 - bundle of text messages concerning offers of time to care for X between March and September 2024;
   • J1 - proposed orders in the event X were to live in City B; and
   • J2 - proposed orders in the event X were to live in City T/City C.
4. The parties' counsel also provided two aide memoires' as follows:
   • AM1 - the mother's proposal dated 7 August 2025; and
   • AM2 - the father's alternate proposal dated 7 August 2025.

1. Despite each party giving hearsay evidence about what was allegedly said by Ms F and Mr J, neither of Ms F's family were on affidavit or called to give evidence from the USA.
2. Each of the parties' witnesses were cross examined along with Ms P.
3. The reports of Ms R and Mr Q were tendered by consent, and neither expert was required for cross examination at the final hearing.
4. In terms of the parties' credit, it was my impression that each party gave evidence in a manner that they hoped presented them in the best possible light, and that their witnesses also gave evidence which favoured their particular family member. However, I did not form the view that any witness was deliberately trying to mislead the court.
5. I note further that relationships, such as between the mother and the paternal grandmother, that had been amicable and even supportive prior to the separation, have now broken down. I do not wish to jeopardise any possibility that these could now be repaired for X's sake by making credit findings about any particular family members. It is neither desirable nor necessary in this matter. X is clearly loved and adored, without exception, by each of the family members who gave evidence.

1. Pursuant to section 60CA of the Family Law Act 1975 (Cth) ("the Act"), the best interests of a child are the paramount consideration for the court when making a parenting order. This includes cases which are commonly referred to as "relocation cases".
2. Various authorities including AMS v AIF [1999] HCA 26 ("AMS v AIF"), A & A: Relocation Approach [2000] FamCA 751; and U v U [2002] HCA 36 ("U v U") have discussed the matters to be taken into consideration in relocation matters including:

(a) The best interests of the children are the paramount, but not the sole consideration;

(b) The question of whether there should be a relocation cannot be treated as a separate issue to the best interests of the child;

(c) Neither party bears an onus to establish that an order permitting or restraining relocation is in the children's best interests;

(d) The person seeking to move does not need to provide compelling reasons for the relocation sought; and

(e) The court must weigh the advantages and disadvantages of the competing proposals.

1. Furthermore the court must at all times be mindful of a person's right to freedom of movement. I note the observations of the Full Court in Adamson & Adamson [2014] FamCAFC 232 ("Adamson") at [66]:

These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child's best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.

1. Section 60CC(2) of the Act specifies six matters which must be considered in determining what is in the child's best interests. These include:

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i) the child; and

(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

(b) any views expressed by the child;

(c) the developmental, psychological, emotional and cultural needs of the child;

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;

(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;

(f) anything else that is relevant to the particular circumstances of the child.

1. The court must also consider, under section 60CC(2A) of the Act, as follows:

(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and

(b) any family violence order that currently or has previously applied to a child, or a member of the child's family.

1. Section 60CG of the Act also requires a court to ensure that the order that is made does not expose a person to an unacceptable risk of family violence, and is consistent with any family violence order.

Any risks to X and the ability of the parents to meet her needs

1. Neither party sought to argue that X was at an unacceptable risk in the other party's care. Indeed, such a finding would not be consistent with either party's case. Nor did the parties seriously argue that there were issues around the ability of the other party to meet X's day to day needs. X is meeting her milestones, and was described by Ms P as a "polite, attentive and responsive child and displayed no concerning behavioural or emotional regulation difficulties ... X displayed language and cognitive skills that were well developed for her age."[1]
2. The parties also agreed that X would benefit from spending regular time with each parent. As Ms P noted, "it is the writer's opinion that [X] in this developmental stage benefits from input from both parents as this will likely nurture [X]'s sense of belonging."[2] The parties were, however, in dispute about what was developmentally appropriate for X, now and into the future. In this respect Ms P's evidence was clear and to my mind unremarkable. At age two, X would benefit from frequent periods of time with her father, ideally face to face.
3. In terms of a progression, Ms P was of the view that X, who has been having one overnight since early this year, could perhaps progress to two overnights in six to twelve months, and thereafter overnights could be added in similar increments, with block time in school holidays increasing in a similar progression.
4. Notwithstanding this evidence, the mother did not ultimately propose an additional overnight until X turns three in 2026 and no further overnights until X starts school. She does not propose block time in school holidays until X starts school, and only then blocks of four nights. On her proposal, X would not spend blocks of seven nights in school holidays until she turns eight years old, blocks of 14 nights until she is ten years old and blocks of 21 nights until she is 14 years old.

1. The father relies upon Ms R's concerns about a relocation disrupting his "emerging bond" with X and "interrupting any securing or consolidation of her relationship with the father," however, that assessment with Ms R occurred when X was 20 months of age. Since that time, she has had had regular time with her father, and it would appear has been able to consolidate her relationship with him.
2. Ms P observed X to have a positive bond with each parent. I note the father asserts that past disruptions to the time had a negative impact on X, however, she was significantly younger. The evidence was that X now communicates well through video calls. I note Ms P observed that children these days are far more used to screentime, which is their everyday experience, and it is not unusual for children to experience relationships both online and in person. However, I accept this is no substitution for spending time in person and that such calls are likely to be relatively short given her age.

Mother's ability to support a relationship between the father and X

1. It was argued for the father that the mother's proposal demonstrates that she not only failed to recognise the evidence of the expert witness, but that she would not support a relationship between the father and X if she were permitted to remain in the City C area.
2. The father's case is that the mother limited his time after separation, and only complied with the interim orders for time because to do otherwise would jeopardise her case. He says the mother was bitter about his new relationship and new baby, and that she moved to City C to thwart his ongoing relationship with X.
3. As was noted by Ms P in the family report:

Withholding children from spending time with a parent raises concerns about the ability and willingness of the retaining parent to promote and encourage the relationship between the children and the other parent. Such actions may also result in children developing attachment issues, present with concerning behaviours, develop anxiety or depression or other maladaptive coping responses and/or develop a stronger relationship with one parent over the other parent impacting on identity formation.[3]

1. The father relies upon the opinion of Ms R, in particular at [51] of her report, that:

...it appears that [Ms Ashbourne]'s emotional state overwhelms her sense of stability and invites the most negative portrayal of the father, clearly seeking to elevate her wish to relocate, above and beyond the needs of the child to have a relationship with her father. On this basis, relocation should not be supported.

1. However, I note the interviews for Ms R's report took place in December 2024, when the mother had just moved to the City C area following what the mother says was a significant deterioration in her mental health. Her assessment also involved interviewing the parties together, at a time when the parties were in a "highly mistrusting and hostile relationship."[4]
2. In my opinion it would be entirely understandable if the mother was hurt and bitter towards the father after separation. She had just found out the father of her not yet 12-month-old had not only been unfaithful but had fathered another child, and was now in a relationship with that person, who he was also financially supporting. As a result, it appears the mother did a number of things that did not reflect well on her as a parent. Key examples of this included, stopping the arrangement that allowed for the paternal grandmother to collect X from childcare, blocking the paternal grandmother as a contact, failing to put the father on X's childcare intake form in City C, as well as, proposing a change of X's surname.[5] It is also likely in my view that the mother did disparage the father in front of X (as described by the paternal grandmother). However, the totality of the evidence, does not support the conclusion that the mother moved to City C to hinder the relationship between X and the father.
3. To begin with, despite being in a fragile emotional state, the mother facilitated regular time between the father and X. The communication between the parties following separation shows the mother offering regular shorter visits which were age appropriate. Nonetheless, the father was dissatisfied with this as he believed he should be having longer periods, and that the mother was unnecessarily restricting his time. In early 2024, when X was just 12 months of age, the father sought overnight time with X. The texts show that in mid-2024, when X was still only about 14 months old, the mother offered the father time "before or after her nap."[6] The father responded with "I'll have her all day today or I will be taking you to court."[7] Then in mid-2024, after the father had spent a day with X, he insisted on spending the whole of the following day with her. The mother suggested another full day would be too much for X at that age and proposed a half day instead. The father responded as follows:

you don't get to put restrictions on my parenting time with my daughter on my weekend. Ill pick her up at 7.30 tomorrow morning.[8]

1. On 19 July 2024, the father kept X in his care for an additional two and a half hours which resulted in the mother calling the police and failing to make X available the following Thursday.
2. In my view, the time proposed by the mother and the concerns she raises in the text communication, were reasonable given X's age and stage of development. The father's failure to recognise same reflects poor insight into such a young child's needs and the impact on the mother of failing to confirm when he would return X to her care. Comments made by the father, such as "I'll see you in court,"[9] were entirely unhelpful.
3. The father was also extremely reluctant to acknowledge efforts on the mother's part to facilitate his relationship with X, such as texting him with information and photos of X. The father also sought to argue that the mother had failed to provide him with make-up time, however, it came to light during the evidence that on one of the two occasions alleged by the father, the mother had proposed make up time occur when she was in Victoria with X for the trial, instead of an additional visit and flight. The fact that the father was not satisfied by this proposal also does not reflect well on him.
4. Furthermore, the mother did not immediately seek to relocate to City C but attempted to make things work in the City B area for six months post-separation, despite her desire to move. The mother said during cross-examination, after spending three weeks at Easter time in 2024 with her sister, Ms M, the easiest thing to do would have been to stay in New South Wales, but she pushed herself to come back as she knew it was in X's best interests. Ms M confirmed in her evidence the mother's state of mind at this time, and their conversations about the mother not coping in City B. The mother's evidence was that her mental health progressively deteriorated over that time. The mother says her mental health became worse when she had a falling out with the paternal grandmother. Until that time, the paternal grandmother had been one of the mother's main supports in the City B area. The mother says that she became increasingly unable to cope and was in need of family support. The mother's evidence is that she commenced seeing her psychologist on 8 March 2024 and had nine sessions. The mother says she also increased her dosage of her anti-depressant for a period of time, but despite this her anxiety worsened and her mental health deteriorated. She reported to Ms P that "she was not eating or sleeping" and her "level of attentiveness to [X] was less," that she felt like she was 'losing reality" and felt "crazy and unhinged."[10]
5. The father does not acknowledge that the mother's mental health was deteriorating over this time, but says if it was, it may have been because she ceased attending upon her psychologist from 31 May 2024 to 21 August 2024. However, having seen the mother be cross-examined I accept her evidence about the deterioration in her mental health. It also seems likely, in my view, the mother would have been reluctant to reveal to the father the extent of her mental health issues, given lawyers were involved at that time.
6. The mother gave oral evidence that she ought not have unilaterally relocated, but she was struggling and "did the wrong thing." Having heard her give evidence, I also accept that to be the truth. I also accept that she does not continue to harbour resentment towards the father. The mother described the father as a good father, and that he and X love each other and have a great bond. It was argued for the father that the court should be concerned about X being exposed to ongoing negativity about the father in the mother's household, either by denigrating him or failing to talk about him at all. However, if this has been the case, it does not appear to have impacted on X to date. She has been living with the mother and the maternal grandfather since September 2024 and continues to have a strong and loving connection to the father.
7. In terms of the slow progression of time proposed by the mother, I note that X is still only two years of age and has only been having overnights for a relatively short period of time, and that there is little or no trust between the parties. In such circumstances, it is not surprising the mother may struggle to foresee a time when X would cope with larger block periods of time with the father.

1. The authorities are clear that the mother is not required to provide a compelling reason for wishing to relocate.[11] She has a right under the constitution to freedom of movement. However, a party's motivation for moving, and the circumstances they are moving to, are still relevant in determining a child's best interests. In this case, the mother's two prime motivations for moving were the emotional and practical support provided by her family, and the financial benefits flowing from same. The father does not accept that the mother has the level of support that she asserts.
2. In regard to the maternal grandmother, who resides in the City C region, the mother conceded she had a fraught relationship with her mother, who was neither on affidavit nor available to give evidence. It appears that the maternal grandmother has only visited the mother in City B on two occasions. It would not be possible to conclude on the evidence that the maternal grandmother provides the mother with any consistent and reliable support, either in a practical or emotional sense.
3. The maternal grandfather did give evidence; however, it is evident that he is a farmer whose vocation means his ability to provide practical support to the mother is limited to overnights and early mornings. He also does not appear to have a suitable vehicle in which to transport X. Nonetheless, I accept, having heard his evidence, that he provides significant emotional support to the mother, as well as providing her with self-contained rent-free accommodation on his farm.
4. In relation to the mother's sister, Ms M, although she currently lives about 37 minutes away from the farm where the mother resides, she gave evidence she intends to build a property on the farm. Counsel for the father argued that this was little more than a "thought bubble," however, having heard Ms M's evidence (including that she has been in contact with the local council and an architect) I accept that she has commenced the process, albeit that this may be some years away. Although the maternal grandfather was seemingly unaware of these actions, I accept Ms M's evidence on the subject. I also accept that although Ms M and her wife, Ms U, work full-time and have young children who require their attention, that she provides valuable emotional support to the mother.
5. The father otherwise argues that the maternal family could travel to visit the mother in City B. However, historically, this has not been a regular occurrence and I accept the maternal grandfather's evidence about his inability to leave the farm for extended periods.
6. Nonetheless, the father argues that the mother can still receive support from her family without needing to live in the City C area, as she has done in the past. In this regard, he has proposed orders providing for the mother to have additional time to travel to visit her family in City C, either on her own or with X.
7. The father also argues that the mother has other supports in City B, by way of friends, and his family. The father points out the mother has lived in the City B area since 2016, and that she was involved in mother's groups after X was born. The mother says that the people described as friends are more like associates, and the one couple she did consider to be friends and with whom she had been able to stay with, are looking to move to Town V, some 98 kilometres, or one and a half hours by car from City B.
8. In terms of the support provided by the paternal family, it is not in dispute they have provided regular care of X as well as financial and practical support to the mother, such as collecting the mother from the airport. In this regard there can be no question that the paternal family played an active and supportive role in X's life when she was in City B, and have continued to do so whilst she has been in City C. I also accept the father has a degree of flexibility in his own employment which enables him to start his regular work hours whilst still at home, and to continue to work on the train as part of his workday. He is also able to tailor his meetings around his care arrangements of X. However, his ability to provide ongoing support is in question given he will either be travelling to visit Ms F and E in the USA, or they will be living with him in City B. In regard to the paternal grandmother, although the relationship between the mother and paternal grandmother has now fractured, it is possible that with the passage of time, this could be repaired.

1. The mother says that she would not be able to afford to live in City B if she were made to return. The mother's evidence is that she currently works 24 hours per week which enables her to care for X. She says she can support herself on this part-time income because she has rent free and bill free accommodation at her father's farm. Although the maternal grandfather has lent the mother money, which he does not expect to be repaid, I accept his oral evidence that the mother has now "emptied the piggy bank."
2. The father argues that the mother is a health care worker and that indeed this is her true "passion." The father says that with his practical assistance, and that of his family, the mother could return to that work at W Centre in City B and could increase her hours of work. The mother conceded that W Centre always need health care workers, and that she may be able to pick up penalty shifts on weekends when X is in the father's care to make extra money. She also accepted that the father's family could help her, and unlike the maternal grandfather, they had cars and baby seats and the physical availability to do so. I accept that with the father's help, and that of his family, the mother could in theory work full-time (or at least increase her current hours) as a health care worker. I also accept that this may provide her with sufficient income to rent a property in City B, and to otherwise meet her day-to-day expenses.
3. However, the mother's ability to work full-time and parent X are untested, even with the additional assistance provided by the father and his family. There is a potential, therefore, that a full-time load may affect the mother's mental health given her vulnerabilities.

1. In U v U at [176] Hayne J stated as follows:

... it must not be assumed that one parent (the father) cannot move and that the mother

must, in every case, subordinate her ambitions and wishes, not to the needs of the

child, but to the wishes of the father to pursue his life in a place of his choosing.

(Emphasis in original)

1. The father advised Ms P that he would consider moving to City C if Ms F is unable to relocate to Australia. The father's evidence is that Ms F would want to live near her sister in City B. However, although the father gave oral evidence that Ms F now intends to move to Australia, Ms F herself was not on affidavit and did not give evidence to support these assertions. There is also no evidence of the likelihood of Ms F being permitted to migrate to Australia nor how long this could take. I note also that the father and Ms F have never lived together in the same country for any length of time, so in that sense, their relationship is untested. Given the significance of Ms F to the father's ability to move or not move to City C, it left a substantial void in the evidence.

• The father could spend regular time with X, and this time could progress to five nights per fortnight during school terms;
• The father would be able to have regular involvement with X's daycare, kindergarten and school as well as her extracurricular activities;
• X could spend regular time with the extended paternal family;
• X could spend regular time with E, her half-brother, if Ms F moves to City B;
• X would not be required to travel on a regular basis, reducing the impact of any travel on her; and
• The parties would be spared the cost of flights and accommodation.

• X would have to move home and to a new childcare;
• The mother would not have the in person support of her father and sister, who she relies on for emotional support;
• It is likely the mother would have to increase her work hours to financially support herself in City B; and
• The mother would be very unhappy which may lead to a deterioration in her mental health.

• The mother would have the daily emotional support of her father, and in due course, her sister;
• The mother would be able to continue to work part-time and care for X;
• X would spend more frequent face to face time with her maternal family, including her grandparents, her aunt, and cousins;
• X would not have to go through another move from her home and childcare; and
• The extended paternal family have a greater capacity to travel to NSW than the maternal family have to travel to Victoria.

• X would be unable to spend frequent in person time with the father, and this would not be able to progress to five nights per fortnight during school terms;
• X would be unable to spend frequent in person time with the extended paternal family or E if he moves with Ms F to City B;
• Some of X's time is likely going to be spent in Airbnb's or hotels rather than in a home environment;
• The father would be limited in his ability to spend time with X at her school, and to attend X's after school activities and assist with excursion, play dates, and other regular activities ordinarily performed by a parent;
• The parties would have to pay for the costs of travel and accommodation to facilitate X spending time with the father. (Whilst this may be mitigated by the father having some access to discount flights, these are limited, and he is unlikely to be comfortable staying at the farm); and
• X would have to fly on a frequent basis to spend time with her father. There is a risk the travel may be unsustainable, or X will resist travelling as she gets older, and wishes to spend time with friends and to participate in extracurricular activities.

1. This is a finely balanced case. These are two good parents, who clearly love X dearly. X has an excellent relationship with each of her parents, and, as noted by Ms P:

Positive relationships between children and their parents promotes positive connection and leads to healthy social, emotional and cognitive development and can function as a buffer for children and adolescents when they are feeling overwhelmed. Further, children are more likely to develop positive relationships with other people and establish secure bonds and friendships.[12]

The primary issue is the mother's desire to now live in the City C area. As set out in Adamson, although the best interests of the child are paramount, they should only defer to a parties' right to freedom of movement "where those interests would be so adversely affected as to justify such interference".[13] Having taken into consideration each of the factors under section 60CC of the Act, it is my view that those interests are best served by X remaining in City C. In coming to this conclusion, I note the observations of Kent J in Heath v Hemming (No 2) [2011] FamCA 749 at [101]:

In some cases, the determination of "best interests" may well mean that one party's choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child's "best interests" being served by Orders which do not give one parent "optimal" arrangements or outcomes.

1. X has had a number of significant changes in her life. I note Ms P's observations that "[X] currently has a clear structure and routine adopted by the mother, which includes regular attendance to childcare and involvement in recreational and social activities. Clear structures and routines can provide children with a greater sense of safety and stability".[14] Despite this the father expressed the view that moving house is not "a big deal" for a child. He argued that X has not attended her current child care centre on the same days each week. Nonetheless, she would be familiar with the centre, as well as with most of the staff and children who attend. She had been in New South Wales for eleven months at the time of the trial, is well settled, and thriving. Reports from X's childcare centre report X is:

increasing confidence in her environment and actively seeks comfort and reassurance from familiar educations, highlighting the secure relationships she has formed.[15]

1. Whilst the father argues that X previously had such stability of care at her former childcare centre and could return to same, she has not attended there for some twelve months, which is a very significant period in a two-year-old child's life. Leaving aside that X is unlikely to have much memory of same, she has gone through significant developmental changes and formed various attachments since that time.
2. The mother, who is X's undisputed primary carer, continues to have mental vulnerabilities. Mr Q assessed the mother's mental health about a year after separation, and after the mother had been living in the City C region for about seven months. He noted in his report at [56] - [57]:

[Ms Ashbourne]'s presentation suggest underlying emotional instability with stress-related symptom flares tied to difficult or challenging life events. This pattern appears to be long-standing.

With respect to considering this presentation and possible parenting difficulties, [Ms Ashbourne] potentially could observe inconsistent emotional availability, difficulty managing her own reactions under pressure, and challenges maintain routines or setting boundaries. The impact of prolonged emotional distress may lead to reduced patience, increased irritability, and difficulty providing consistent support or regulation for the child. Ongoing stress and past trauma could also affect her ability to model coping skills or maintain stable relationships, potentially leading to emotional insecurity or behavioural issues in the child. [16]

(Emphasis added)

1. The father argues that Mr Q's report indicates the mother continues to experience mental health problems, despite being in what she urges the court to find is a supportive environment. However, it is not possible to say what impact these proceedings have simultaneously had on the mother's state of mind. What is not in dispute is that her issues are long standing. and wherever she lives she remains vulnerable to episodes of mental ill health.
2. In staying in City C, the mother will be able to continue to work part-time which is appropriate given X's age. It is unclear if she would be able to work part-time and be able to support herself in City B given, when she lived there in the past, her rental was covered by a lump sum rental payment released to her for that purpose. Even if the mother were able to afford it, doing so would likely place her under greater financial strain than she currently experiences living rent free on her father's farm. She may otherwise have to eat into any capital released to her in future from the funds in trust, which is neither desirable nor sustainable. The mother will be able to continue to work part-time, thus limiting her stress and any impact on her mental health. Ms P notes "parental mental health issues can have a significant impact on children's wellbeing and development, potentially leading to increased risk of emotional behaviour and developmental problems".[17] The mother also presented as being genuine in her desires to be available to X through part-time work, and that she hoped to be able to save to provide her with a roof over her head, through living with the maternal grandfather.
3. In regard to X's time with the father, overnight time has been occurring since earlier this year and has been progressing well. Given that X is now two and a half years of age, it should immediately increase to two overnights. Rather than a ten-week cycle as proposed by the father, the visits will be based on the New South Wales school terms, with specific provision for the holidays. This will enable certainty for the parties without having a rotating calendar, and will provide consistency leading into X's school years.
4. In regard to term time, I propose to order three visits each term, with X travelling twice to City B, and in between one visit in City C. This is roughly every three weeks which is only slightly less frequent than the current fortnightly arrangement. X is also now older and has been able to consolidate her relationship with her father, which is a positive and loving one. Face to face time will be supplemented with video calls. The mother proposed calls occur at 5.00pm, and the father proposed 5.30 pm. As X will primarily be in the mother's care and she is the most familiar with her routine, calls shall be at 5.00 pm, with the mother to initiate the call for 15 minutes.
5. I propose to order the father's time in school holidays occur in the second week of each term holiday to provide optimal spacing between X's visits. In most school terms, this should mean a maximum of three weeks between visits for X. In keeping with the evidence of Ms P, time in holidays will gradually increase. For the 2026 long summer X will spend two nights with her father, one night with her mother, and two further nights with the father in each block. In the 2026 term holidays this will increase to three nights, at the end of that year the blocks will increase to five nights, and from the long summer holidays in 2027/2028 the time will be week about in each holiday. All time in the long summer holidays will commence from the applicable Christmas time so as to avoid additional flights. When week about commences, X will be returned to the mother two days prior to the start of the new school year so her mother can ensure she is prepared and ready for school.
6. Otherwise, I do not propose to order longer periods at this time. X is still only two years of age, and it is not known how she will cope with longer periods away from the care of the other parent. This will have to be arranged by agreement.
7. Whilst the mother cannot envisage a quicker regime, those orders are supported by Ms P, and, clearly in X's best interests as they provide for a progressive build-up of time which is age appropriate. They also enable the father to maximise his time with X during school holidays, and for X to spend extended time with the paternal family, and E, if he is in Australia with the father. Whilst X is still being breastfed, it was conceded this was not out of necessity for nutrition but was for comfort. In any event, she is able to spend overnights with the father at present without the need for same. I note there are no restraints on the extended family members spending time with X when she is spending time with the applicable party.
8. I do not propose to order that the parents can attend special occasions, such as Christmas, when X is not in their care. She ought to be able to enjoy her time with each of her parents uninterrupted. I note the mother was keen to be able to see X if she is spending Christmas with the father. X will be returned to the mother's care for a night this year, on 26 December 2025. X will therefore be aged four by the time she is to again spend Christmas with the father. By then, the mother is likely to be much more comfortable with the arrangement, and X will be old enough to enjoy a Christmas celebration with the mother a few days before the event.
9. Weekends should be swapped so that X can spend Father's Day in City B and Mother's Day in City C. Otherwise, I do not propose to make specific orders for special occasions, given the distance between the parties. Whilst there is no evidence that X's frequent illnesses are connected to her travel, travel in and of itself is likely to be tiring for a young child. I note Ms P recommended an arrangement which involved less travel. Easter is problematic as it often falls in the school holidays and X's birthday is also around that time, which could result in multiple change overs. In any event I am not going to order that X must travel on her birthday. Otherwise, X can have FaceTime with the parents on these occasions.
10. In terms of X being able to travel unaccompanied, she is only two years of age. It is not known whether she will be able to cope with travelling alone even when she is legally able to do so. Accordingly, I propose to order that X travel unaccompanied only when both parties agree. Given the costs of travel, I presume that by the time she is older, each party will be keen for her to travel on her own as soon as she is emotionally ready to do so.
11. Changeovers should occur in City C, with the father collecting X from school or childcare, and the mother collecting X at the conclusion of the father's time with X. I accept the father's argument this should occur at the airport or car hire location to enable the father to maximise his time with X. This should take priority over the mother's desire to ensure her meals and bedtime are sorted, given it only occurs every three weeks or so. In City B, changeover should be at the father's residence, given he will be otherwise doing the bulk of the travel.
12. The father says he has enrolled in a parenting after separation course. I will make the order that he provide proof of completion to the mother within seven days of completion of that course.
13. The father did not press his proposed order that the mother continue to attend upon her counsellor. Leaving aside the power of the court to make such an order (and the utility of same), the mother has always been proactive in relation to her mental health, and there would be no reason to order her to do so. Indeed, the father acknowledges this in his case outline.
14. The remainder of the orders, including the order for shared responsibility for decision making, will be made by consent.
15. For all of these reasons I make the orders as set out at the commencement of this judgment.

I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins.

[1] The family report of Ms P dated 2 July 2025 ("the family report") at [61].

[5] I note in this regard that the father initially agreed to the change of X's surname. I am unable to find on the evidence that the mother has continued to push this process as ongoing emails from births, deaths and marriages could be provided as follow up emails from the initial process.

[11] Morgan & Miles [2007] FamCA 1230 at [80].

[15] See X's mid-year assessment from the Y Early Learning Centre.

[16] Mr Q's report filed 14 May 2025 at [56] and [57].