AMS v AIF [2025] FedCFamC2F 1723 | Case summary

[3]

Bielen & Kozma [2022] FedCFamC1A 221

AMS v AIF [2025] FedCFamC2F 1723 | Case summary | Zoe

[47]

The father is 41 years of age. He is a self-employed tradesperson working as a sole trader through the business F Business. The father commenced F Business in 2015.
Ms G is the father's partner. She has two children, H aged seven years and J aged five years.
The mother is 40 years of age. She is a finance professional.
The parents commenced their relationship in July 2013 and started living together in April 2014.
X was born in 2017. Y was born in 2020.
The mother worked in paid external employment until she commenced maternity leave in 2017. She then worked in F Business until June 2023 using her finance skills.
The father says the parents finally separated in October 2021. The mother says final separation occurred in December 2021. Even using the later date, the children were young, X was four years of age and Y was one year old.
The father's infidelity with Ms G contributed to the parents' separation.
Since separation, the mother has lived in the family home with the children. The father first lived in a camping bus in the driveway of the family home and thereafter in premises at various locations.
In May 2022, the father secured rental accommodation. Despite the instability in his accommodation and the circumstances surrounding the separation, the children spent time with the father, X for lengthier periods of time than Y due to the difference in their ages.
The parents participated in a mediation in 2022 and February 2023.
By October 2023, the children were spending time with the father each alternate weekend from 4.00 pm on Friday until 4.00 pm on Sunday, and each Tuesday from 4.00 pm until 6.30 pm. X had been spending consistent overnight time with the father since June 2022, and Y since April 2023.
On 6 October 2023, the mother commenced property proceedings.
In November 2023, the parents attended a further mediation. No agreement was reached in relation to the children spending more time with the father. The children continued spending time with the father as set out in paragraph 21 herein.
On 5 December 2023, the father filed his response seeking property and parenting orders.
On 22 January 2024, the matter was adjourned to an interim defended hearing on 15 April 2024.

[52]

The mother's final proposals are set out in Exhibit M18.
The mother seeks that she move with the children to Town B during the 2025/2026 summer school holidays.
The mother proposes that the children spend time and communicate with the father:
- during school terms, each alternate weekend from 5.00 pm on Friday until 4.00 pm on Sunday, longer time on Labour Day, King's Birthday and Melbourne Cup weekends if they do not coincide with the father's weekend, and a swap with the mother's weekend if a pupil free day is attached to a weekend;
- if the father elects to stay overnight in the Town B area on his weekend, time concludes at the commencement of school on Monday. If the father stays in Town B during the school week, from the conclusion of school until the commencement of school the following day for up to ten nights per term;
- if the father attends a day activity of the children during the school week and does not stay overnight, from the conclusion of school until 6.30 pm for dinner;
- during the term 1 school holidays up to 10 consecutive nights taking into account Easter arrangements, the whole of the term 2 school holidays and nine consecutive nights during the term 3 school holidays; and
- in the long summer holidays, a week about arrangement progressing to one half over consecutive nights in the 2026/2027 holiday period taking into account Christmas and the conclusion and commencement of school dates,
The mother does not want to continue living in Suburb C but nevertheless will do so if the court is of the view that the children should live there. Thus, she proffers her fall-back position of remaining in Suburb C with the children.
The court, however, must not elevate the mother's fall-back position of her remaining in Suburb C to the status of an alternative proposal. To do so requires in effect that the mother show good or compelling reasons why she wishes to relocate with the children to live in Town B.[4]
In the event the children remain living in Suburb C, the mother proposes that the children live with her and spend time with the father during school terms for five nights per fortnight from the conclusion of school on Tuesday until the commencement of school on Thursday in week one and from the conclusion of school on Friday until the commencement of school on Monday in week two until term 1 2027, and thereafter for five consecutive nights from Friday until Wednesday, half of school term holidays, and during the long summer holidays taking into account Christmas arrangements, week about until 2026/2027 and thereafter one half over consecutive nights. Time on special occasions is also proposed.
The mother's proposal in the event the father relocates to Town B is in the same terms as her proposal if the children live in Suburb C.
The father's final proposals are set out in Exhibit F5.
In the event the children are to remain living in Suburb C, the father proposes that:
- during school terms the children spend time with him until term 1 2027 for five nights a fortnight in the pattern of three nights over the weekend in week one and two consecutive nights during the week in week two, thereafter and until term 1 2028 for six consecutive nights each alternate week from Thursday to Wednesday, and thereafter on a week about basis with each parent;
- the term 1, 2 and 3 school holidays be shared equally;
- a week about arrangement during the long summer holidays taking into account Christmas; and
- time with each parent on special occasions.
The father's primary proposal is in substance the maintenance of the status quo. In considering the proposals, it is not simply a matter of comparing the relocating party's proposal against the status quo and allowing or denying the relocation. The court must consider each party's proposal on its merits.[5]
The father's fall-back proposal if the children live in Town B largely aligns with the mother's proposal at the commencement of the final hearing set out in Exhibit M2. That is not to say if the children lived in Town B, notwithstanding the travel and accommodation issues the father would not try and partake in some of the additional time proposed by the mother at the conclusion of the proceedings in Exhibit M18.
As with the mother's fall-back proposal, the father's fall-back position in the event the mother is permitted to relocate with the children to Town B should not be elevated to an alternative proposal.
Both parents provide for the children to communicate with the parent when they are not in their care by electronic means on Tuesday, Thursday and Saturday and at other times as requested by the children, whether they live in Suburb C or Town B.
The fall-back proposal of each parent is to be considered only if his or her primary proposal is not accepted and is not to be treated as if it is a primary proposal.[6]

[57]

Both parties tendered exhibits. Counsel for the father's written summary of final submissions is now marked as Exhibit F10.
I commend both Counsel for taking an approach in court which did not inflame the parents' relationship. The evidence supports that both parents acknowledge the important role the other parent has in the children's lives, that they are both competent parents, and they both want what is best for their children.
Closing submissions by both Counsel narrowed the issues that require extensive, if any, canvassing in these reasons.
The high level of conflict and number of disagreements between the parents that is evident in their affidavits were not reflected in the nature of their oral evidence wherein they were largely able to set aside their differences and negative views of the other. Of course, and unsurprisingly, their respective evidence emphasised the positives of their case. However, many reasonable and well-grounded concessions were made by them.
I have no doubt that the communications between the parents and the occasions that reflected poorly on the other parent were cherry picked by each party for the purposes of cross-examination so as to support their case and undermine the other parent's case. That is the nature of the adversarial system.
There is little utility or benefit in being overly critical of the parents or to make findings on many of the matters in contention between them including in relation to the communications passing between the parents, the telephone conversation between the mother and the children recorded by the father, the attendance at the concert, X's performance at a function, birthday party arrangements and invitations, and at what point in time the father learned of the mother's desire to relocate. I consider that such findings would not have a significant influence, if at all, on my determination. Also, findings on such issues will not auger well or be constructive for the parents' future co-parenting relationship wherever the children may live.
Ms K and Mr L gave evidence. Mr L had Ms K's report at the time of undertaking his family report. Ms K was provided with Mr L's report prior to giving her evidence.
Notwithstanding their conflicting recommendations, Ms K and Mr L express many similar opinions. I have been assisted by both of their reports and oral evidence.
The ultimate determination of whether a parent relocates with children rests with the court, not report writers. It is well established that "there is no magic in a family report" and "there should never be any suggestion that the counsellor is usurping the role of the court or that the judge is abdicating his responsibilities". Whilst family reports are important and valuable pieces of evidence, the court is required to consider and give appropriate weight to all of the evidence.53F[7]
Because I have not followed all of Mr L's recommendations or placed weight on some of his opinions does not preclude me from accepting and putting weight on other parts of his evidence.
My rejection of Mr L's recommendation should not be viewed as a criticism of him. Unlike Mr L, I have had the opportunity of observing the parents over three days, assessing all of the evidence, and applying the relevant legal principles.
The tension between the impact on the children in relation to their relationship with the father if they live in Town B and the potential benefits to the children if the mother is able to live and work where she chooses is apparent in their respective evidence.
I have read all the documents relied upon and taken all of the submissions into account. I am not required to refer to every piece of evidence relied upon by the parties, traverse every argument that is advanced or make findings in relation to all of the facts that are put in issue by them.[8]
Pursuant to section 140 of the Evidence Act 1995 (Cth) findings are made on the balance of probabilities and have regard to the nature of the subject matter of the proceedings and the gravity of the matters alleged.

[58]

The father was as insightful in his oral evidence as he was in his affidavit in relation to the impact it would have on the children if they lived in Town B. I am not of the view that his delay in responding to some questions was to buy time to contrive answers to suit his case. He was a truthful and sincere witness.
The father told the court that if the children lived in Town B, he would "make it work", "will just have to put on a brave face", would be "unhappy" and it would be "life changing".
The father began his exclusive relationship with Ms G in early 2022. They do not live together. Ms G gave credible evidence. She is supportive of the father's involvement with the children whether the children live in Town B or Suburb C.
Ms G is a qualified educator. She is presently a stay at home mother and carer for H whilst operating a small business from home. H has a diagnosis of autism spectrum disorder-level 2 and attention deficit hyperactivity disorder. He has support through a paediatrician, an aid at school and engages in programs and therapies.
Ms G's parents have a farm. For a large majority of weekends when X and Y spend time with the father, they all visit the farm to feed the horses and play outside.
The father is a father figure to H and J. He regularly spends time with them when X and Y are not spending time with him. He attends their important school events and the like. H and J presently do not spend any time with their father.
The paternal grandmother lives in Suburb C. She works on a casual basis at a business. She is very flexible with her working hours. She usually sees X and Y once a week.
The father's brother Mr P, his partner Ms O, and their children, Q aged four years and R aged two years live in Suburb C. Q will commence attending S School in 2027 and R in 2028. Mr P and Ms O are expecting their third child.
Ms O was not required to give evidence. She deposes to having a close relationship with the father, X and Y, Ms G and her children. They regularly catch up, usually once a week. Ms O says, as does the father, that H, J, X and Y are close, and since H and J joined the family, the dynamic has not drastically changed. The paternal grandmother also spends time with Mr P's family. She regularly looks after his children.
The paternal family enjoys spending Christmas and birthdays together, and also with Ms G and her parents.
The father, Ms G, the paternal grandmother, Mr P and Ms O are all able to provide assistance to the mother in her care of the children. The father said that he was available on a daily basis to do so, and "if she needs me for the kids, I'm there".
The mother messaging the father at 3.55 am to come and help her with the children, and when the children had Covid-19 whilst in the mother's care are not reflective of the father's overall attitude to assisting the mother. I accept the father's evidence of these occasions. There are times the father has been available to care for the children when the mother has declined him doing so, such as the father caring for Y while she attended X's reading class at school. It seems to me that Y would have enjoyed the extra time with the father. I am not suggesting that Y did not enjoy accompanying the mother. However, this is one of the occasions when the mother could have and should have agreed to Y staying with the father, no matter how brief she says this conversation was between her and the father.
The father is self-employed in his own business which carries out manual trades work. He also manages an online store relating to parts for his business. He has staff who are able to open and close the work premises and assist with the business' paperwork. They have already done so to support his ability to spend time with the children.
The father's work hours are extremely flexible. He has for some time now prioritised the children ahead of his work commitments. To quote Mr L, the father is "able to come and go as he pleases".
The father's supports and his flexibility in his work commitments are such that he has the ability to accommodate either a nine/five or an equal shared care parenting arrangement.
The father says that he cannot move to Town B. His business is established in Suburb C. Its customer base is in Suburb C and its surrounds, and his workshop is there. He said he has run through all the "pros and cons" but that moving to Town B was "just not going to work". I accept that evidence.
Just as it was suggested to the mother that she could commute to Town B for work if she lived in Suburb C, the same could be said of the father that if he lived in Town B, he could commute to Suburb C to work. However, I am of the view that no matter how flexible his working arrangements, there are different pressures to running his business than to being an employee, as is the mother.
I am satisfied that this is not one of those cases that qualifies as being exceptional where an order is required compelling the father to live in Town B.

[60]

The mother grew up in Town B. She undertook her tertiary qualifications in City D.
The maternal grandparents live on acreage on the outskirts of Town B, and a short distance from their dairy farm. The mother presently travels to Town B with the children during school holidays and on most weekends they are in her care during school terms. They stay with the maternal grandparents. The maternal grandparents, together or separately, regularly travel to Suburb C and stay with the mother and children.
The mother's brother Mr U, the mother's cousins, including one cousin who has two daughters of which one is Y's age and another cousin who has two sons aged 11 and nine years who play with X, live in Town B. They do "family stuff' all of the time. The mother's grandparents who are involved with X and Y, and one of her closest childhood friends live in Town B.
The mother's brother, Mr T, lives in Queensland. He has two young children. The maternal grandmother visits them about once every two months. The mother's brother, Mr N, lives in Melbourne. He has one child.
The children, the mother and the maternal grandparents have holidayed with Mr T in Queensland and spent time with Mr N in Melbourne. The maternal grandparents' home in Town B appears to be a gathering place for family functions and special occasions including at Christmas and Easter. Mr T and Mr N's families often attend.
Mr T and Mr N were not required to give evidence. Their affidavits in relation to parenting matters are limited to the agreement between the mother and the maternal grandparents in relation to the subdivision of their property.
The advantage to the mother's proposal is that if she lives in Town B, she is able to access support and assistance in caring for the children from her family more readily than if she lives in Suburb C, whether that assistance is required due to her work commitments or otherwise.
Mr L was of the view that if the mother lived in Suburb C, the ability of the maternal grandparents continuing to travel to Suburb C, the mother's ability to continue travelling to Town B and the mother having support mechanisms around Suburb C would assist her with the children.
The evidence supports that if the mother lives in Suburb C, the maternal grandparents will continue to travel to Suburb C, the mother is able to continue to travel to Town B when the children are with her on weekends and during school holidays, and she has support mechanisms in Suburb C. The father, his mother, Mr P, Ms O, and Ms G are just as available to the mother in Suburb C to provide care for the children due to her work commitments and otherwise as are the maternal grandparents and others in Town B. S School has before and after school care and school holiday programs.
Whilst the mother would prefer not to invoke the father and his supports in lieu of her supports in Town B, nonetheless, she is able to do so.

[61]

The mother has a degree in finance. Between graduating and commencing maternity leave, she worked as a finance professional with different employers in various finance roles. At the time she commenced maternity leave she was earning $110,000.00 per annum.
The mother has not worked in external employment since prior to X's birth in 2017 until she commenced remote employment with M Pty Ltd in early 2025. Prior to taking maternity leave she worked in Melbourne which was a one and a half hour train commute from Suburb C.
The mother says that since her promotion in M Pty Ltd to a senior finance role she has been enjoying the challenge, and her role is interesting and rewarding. She manages and trains a more junior staff and oversees the finance team. She still works only two days per week. However, she has found balancing the demands of being the children's primary carer and maintaining work quite challenging, and difficult to work the hours the job requires. On semi-regular occasions, she has had to work late into the night after the children are asleep. She says this will not be sustainable if she is unable to relocate.[11]
The father seeks an increase in time to an equal shared care arrangement. With a progression of the time the children spend with the father, the mother will be in a position to devote more time to her paid employment without the distraction of caring for children.
The mother's pay increased from $40.00 per hour for a working week ranging from 13 to 16 hours in her role as a finance professional to $56.00 per hour in her role in her position.[12]
The mother says that M Pty Ltd has made it clear to her that the position, while flexible, requires regular onsite work and approximately four days of work per week.
M Pty Ltd's letter dated 11 September 2025 includes:
- even though [the mother] had no recent experience before commencing work with M Pty Ltd, she was initially employed due to the trust placed in her by the founders of M Pty Ltd with whom she has a longstanding personal history. (The mother obtained her employment with M Pty Ltd through the paternal grandfather's friend who owns the business. The mother's brother, Mr U, works at M Pty Ltd);
- [the mother] has been promoted on the strength of her skills and qualifications. She has leadership potential;
- the nature of the role of senior finance professional requires [the mother's] physical presence in the Town B office on at least 3 days per week. It is not a fully remote position;
- The role of senior finance professional at M Pty Ltd requires a minimum engagement of 4 days per week and is predominately an on-site position. It is a senior, business critical role with responsibility for overseeing M Pty Ltd's financial management and contributing to financial operations. The role is responsible for the direct supervision of finance staff within the company;
- [The mother's] 'remote working' arrangement has created team management issues. There are inherent limitations in being physically distant from a junior finance team. As noted previously, [the mother] is tasked with supervising junior finance team members, which requires substantial mentoring, collaboration, face- to- face meeting and team development, which is difficult to execute effectively in a remote working environment;
- on site work by [the mother] has been undertaken during school holidays; and
- [the mother's] contributions working remotely have been valuable for the business, however, this is not a sustainable long-term solution for the business needs required for this senior position.[13]
No representative from M Pty Ltd gave evidence. I have only their letter and the mother's evidence. It might have been of assistance to the mother if they had, or if the mother had made more enquiries of M Pty Ltd in order for her to give concrete evidence in relation to some of which follows, in light of her deposing that the exact details of her new role are not yet determined, nor are the details of her role if she was unable to relocate to Town B.[14]
The mother also told the court that M Pty Ltd potentially want her four days per week and that the actual hours she would be working on site would have to be discussed. M Pty Ltd indicated to her that they will be flexible around school time, "so potentially six hours a day for those three days" and that it "will be a negotiation and discussion with the employer".[15]
M Pty Ltd has been flexible to date. The mother has already been working in her new role. There is, however, a dearth of evidence in relation to just how accommodating M Pty Ltd is able to be with the role of senior finance professional and the mother's circumstances if she lives in Suburb C, given what they consider to be her highly impressive work. There is also no evidence whether there are other roles in M Pty Ltd that do not require any or such on site work as does a finance professional, or the level of pay of other roles in M Pty Ltd, or whether her role working remotely as a finance professional is able to have its hours increased.
It was not possible to explore with M Pty Ltd what other configurations of time the mother could be on-site in Town B other than three days per week and whether these were viable options for M Pty Ltd. I raise this on this basis that the mother has already been undertaking the new role, the on-site duties have already been undertaken by the mother during school holidays, the time the children spent between the parents provided the mother with the ability to work on site in Town B for 10 days during school term holidays, one week while the children are with the father and the other week when she travels to Town B with the children. The mother has also already travelled to Town B without the children for the purpose of work. Also, the children's time with the father if they live in Suburb C will stay at five days per fortnight during school terms on either parent's proposal, and progress to seven days thereafter on the father's proposal. The mother also has the opportunity to travel to Town B to be on-site when the children are in the father's care during the school week.
If the mother travels to Town B during these times, it will be the father with whom the children spend time during the school week, not the maternal family.
If the mother lives in Suburb C and was able to retain the role of finance professional with some other configuration of on-site time in Town B, the mother would be the one travelling the six hour round trip when she is required to be on site. Unlike the children who will need to travel the six hour round trip during school terms within 48 hours each alternate weekend and within 72 hours on pupil free and public holiday weekends if they live in Town B and spend time with the father in Suburb C.
I acknowledge the difficulties with balancing work and childcare duties. I also acknowledge that it may be difficult for the maternal grandparents to travel regularly to Suburb C during the week. However, I am confident that if pressed, they would do so having regard to the maternal grandmother's evidence that she comes to Suburb C whenever she is needed and as much as she can continue to do so if the children live in Suburb C. As already canvassed, the mother does have supports located in Town B - the father, his mother, his brother, Ms O and Ms G, and before and after school care.
It will be the maternal grandparents undertaking the six hour round trip between Town B and Suburb C and not the children if they lived in Town B and spend time with the father in Suburb C.
Accordingly, I am unable to be satisfied on the available evidence that if the mother lives in Suburb C she cannot undertake the role of finance professional with M Pty Ltd or cannot continue working for M Pty Ltd in some other role.
The mother has not applied for any other jobs or made enquiries with companies in the Suburb C locale. She has only looked online for a similar role to her role with M Pty Ltd around Melbourne and says they will not provide the same flexibility as M Pty Ltd and there would be travel involved.
By the mother not applying for jobs in the Suburb C locale, one could agree with Counsel for the father's contention that the mother commenced employment with M Pty Ltd and did not look elsewhere as she believed it was a certainty that she be able to live with the children in Town B and secure her relocation. However, I do not do so. Whilst the mother is articulate and intelligent, I am of the view that she did not strategically manipulate a course of action to work with M Pty Ltd in order to make her case to relocate a fait accompli. The opportunity to work with M Pty Ltd arose because of family contacts. The mother accepted that opportunity. One could, though, express some cynicism and be of the view that the family contacts inflated the information about the new role in order to secure the mother's relocation. That may or may not be the case.
The mother's evidence in relation to obtaining work with employers other than M Pty Ltd in the Suburb C locale is limited. She says she does not consider there are comparable employment opportunities which she has obtained with M Pty Ltd or that she would be offered a comparable position with equivalent benefits and flexibility. She says this is due to her having had no recent experience.[16]
The father's evidence is also limited. He says there are plenty of job opportunities available to the mother in Suburb C.
I only have the parents' personal opinions in relation to the mother's employment prospects and conditions of employment in the Suburb C locale. I have no objective independent evidence of the availability of jobs in Suburb C, such as advertisements, to assess whose opinion is more correct. I am of the view that I would be merely hazarding a guess if I were to prefer one parent's opinion over the other. I do not consider that to be a sufficient basis to prefer the mother's evidence when determining what orders should be made that are in the children's best interests.
I also acknowledge, as contended by Counsel for the mother, that once one has been out of the paid workforce for a period of time it may be difficult to again obtain paid employment. However, the mother has sound qualifications, had a successful career prior to having children, utilised her skills in F Business and through the good will of M Pty Ltd has been able to again engage in external employment wherein she was promoted within a short period of time. If she must find alternative employment, her time with M Pty Ltd has served her well and provided a sound springboard from which to secure other employment. She now has recent experience.
M Pty Ltd's letter is a glowing character and work reference of the mother. I suggest that any potential employer of the mother who was provided with a similar reference would be impressed with its contents.
In terms of starting her own business in Town B, the mother has not "gone down that route" as she had obtained employment with M Pty Ltd. She was "not sure" what was stopping her starting her own business in Suburb C other than "contacts" but agreed there are a lot of options around doing so.[17] She also voiced a concern that she did not think her income would be as high as what she would earn with M Pty Ltd.
Accordingly, I am unable to be satisfied that the mother is unable to obtain employment with employers other than M Pty Ltd in Suburb C or its locale, or that she would be unable to earn an income commensurate to the wage as a professional with M Pty Ltd or have flexibility around her care of the children with other employers.
I am therefore unable to be satisfied that the mother will be more financially secure in Town B than in Suburb C because of employment opportunities or that there will be a benefit to the children arising therefrom only if she lives in Town B.

[62]

The mother and children presently live in the former family home in Suburb C. If she and the children are to live in Suburb C, she does not wish to retain it as part of her property entitlement.
If the mother and children live in Town B, she intends to initially live in her parents' two storey dual home which has a separate living space for them. Her parents propose to subdivide a section of their block to enable her to build a house thereon. The maternal grandmother says they are cash poor as farmers, but they can support the mother in this way.[18]
The agreement between the mother and her parents is that she would receive the land at no cost and reimburse them the value of the land at the date she received it if she were to sell it in the future. The exact value of the land is unknown at this stage. The land has not yet subdivided or gifted to the mother.
The mother has made general enquiries in relation to the costs of building on the subdivided land. She says that depending on the house it could be anywhere between $400,000.00 for a kit home excluding transport and labour to $700,000.00 for a custom built home. The time it would take to build would depend on the type of the build. At the present time, the mother has a borrowing capacity of $189,000.00.
Whilst the mother intends to initially live with her parents, she told the court that she would not like to be living with them for a very long period of time and depending on the circumstances she may also need to rent for a period of time until the build was completed.[19]
The mother told the court that from her research it would be "much more expensive" to buy a property in Suburb C than in Town B and there are houses available in Town B quite significantly cheaper at the lower end.[20] The father tendered some comparisons of property rental and sales between Town B and Suburb C.[21]
It is difficult to be satisfied from the evidence of the mother and the father of anything other than there are some similarities in rental and sales between Town B and Suburb C including under $700,000.00, the top sum the mother has quoted if she were to build a custom built home in Town B.
The mother agreed that whether she was able to buy a property in Suburb C depended on the outcome in property proceedings. Finalisation of the property proceedings may have an impact on the mother's contention that the only opportunity for the children to have stability in accommodation in one of the parent's homes is in Town B.
It may not have been circumspect for the mother to have sought to bifurcate the parenting and property proceedings. If they were dealt with together, the court would have been in a position to assess and determine with some basis whether the mother's concerns in relation to her financial security and housing were with foundation and would eventuate into reality if she lived in Suburb C. The need of the mother (and the father) to provide appropriate housing for the children is now to be assessed as a current and future consideration in the alteration of property interests.
I am unable to be satisfied that stable and secure accommodation for the children and the mother will only transpire if they live in Town B.
The advantage to the mother's primary proposal is that she has certainty in relation to her housing and in employment. However, the weight to be attached to that advantage is tempered by the lack of evidence in relation to her affordability of housing in Suburb C and her employment prospects, conditions of work and remuneration in Suburb C and local areas.
Accordingly, the bases upon which Mr L recommended that the children live with the mother in Town B are without evidentiary basis. The mother has supports available to her if she lives in Suburb C. It cannot be said that it is only if the mother lives in Town B, and not in Suburb C that she will have financial security and stable housing.
I agree with Counsel for the father that there was a lack of adequate enquiries by the mother supporting her and the children's relocation. However, I do not agree with his statement that it was "the nadir of her case".[22] Nevertheless, the lack did not assist her.
As said by the Full Court in Yarrow & Yarrow [2022] FedCFamC1A 135 at [29]:

[72]

X is in grade two at S School. He has close friendships in Suburb C with many friends. He is well liked among his peers. He excels at school. He has a variety of interests both indoor and outdoor. X knows children in Town B.
Y's health issues have now resolved. Y attends four year old kindergarten. Y had difficulties separating from the parents when transitioning into three year old kindergarten. He will commence his primary school education next year. The father contends that the continuity of his friendships in kindergarten and Y spending more time with him has provided Y with much needed continuity and stability and enabled him to thrive and build his confidence.[25] He is now doing well socially and academically. Y has continued to develop his relationships at kindergarten in Suburb C with his friends. He also has a range of interests.
Mr L records that the views and opinions expressed by X and Y are age appropriate and show the connection they have with each parent. It was clear to him that in their view, the parents should live near each other so they can go between homes. That is what they know and expect. Children of this age expect their parents to meet their needs and guide them accordingly. However, they have no understanding of finances, practical limitations or pressures.
X told Ms K that he likes to play with H and J sometimes, but sometimes not. He likes visiting J.
It appeared to Mr L that the children like Ms G but there was a comment that they have seen her for the past three years and would like a break. There was some suggestion that they find H annoying at times, and he can be physical.
The father says that X and Y express a desire to spend time with H and J. They share activities. The mother holds concerns that X and Y are exposed to inappropriate and aggressive behaviour by H based on comments the children have said to her and what she observed between the two sets of children. She is also not confident that X and Y like spending so much time with H and J.
At the time of the final hearing, being over a year since Mr L met with the children, it was the mother's understanding, again from what the children told her, that they have developed a strong attachment with Ms G, H and J, and have a strong relationship with the paternal grandmother, Mr P, Ms O and their children.[26]
The evidence of the father and Ms G is consistent in relation to their future plans as a couple. They have no plans to live together soon. Ms G is aware and mindful that if/when they do, the father wishes to have his own space, and that X and Y enjoy their own space with the father. It is not proposed that they all live in the home in which Ms G is currently residing.
Mr L was not too concerned that X and Y had not yet spent any overnight time with H and J. He said:

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I am satisfied that the father will monitor H's (and J's) behaviour toward X and Y, just as I am satisfied that the mother will monitor the conduct of the maternal grandfather.
I reject the suggestion that the father's time with X and Y will be compromised because of his involvement with Ms G, H and J. The father has a history of commitment to X and Y which has increased since the parents separated. It is understandable that during the relationship the mother, being the children's primary carer, may have been more hands on with the children than the father, he being the primary income earner and starting a new business.
Mr L asked the children about their various homes within which they spend time. The children spoke of how cool their maternal grandparents' home is with heifers, a back yard and two camping sites. X told Ms K that he likes to visit the maternal grandparents because there is a hill he can ride down on a balance bike. He likes to see the maternal grandfather at his house and watch TV with the maternal grandmother.
At the maternal grandparents' property, the children ride motorbikes, help with odd jobs, feed the animals, wrestle, go fishing and boating, swim in the pool, watch football and snuggle on the couch.[27] The mother told the court that X and Y love the lifestyle with her family in Town B, "they love riding motorbikes, camping and being able to do all the things that are available to us up there".[28]
The children go camping, four wheel driving and bike riding with the father. They spend time at Ms G's parents' farm. They do not ride motorbikes. The motorbike the family had is now in Town B.
It seems to me that the activities the children undertake with the father are not markedly different to the activities in which they engage with the maternal family in Town B. In that respect their lifestyle in Suburb C and Town B is similar.
The mother told Ms K that X had indicated a number of times he wants to live with the maternal grandparents, but he also said it would be hard for the father. The maternal grandmother told the same to the court.
That the children have expressed such a view supports that they have strong attachments with the maternal grandparents.
I agree with Counsel for the father that living with the maternal grandparents will be a very different experience for the children than spending weekends and holiday time with them.
The children are young, they are not sufficiently developmentally mature to understand what is involved in the views they have expressed, or appreciate the factors involved in the issue before the court and their longer term implications. [29] I have no doubt that the children do not understand the consequences to them if they lived in Town B, including the decrease in time they would be spending with the father, that the father would not have the same involvement at their school or extracurricular activities, and they would be some distance away from their friends.
X told Ms K that he feels happy when he sees the father. The evidence supports that X has expressed a desire to spend more time with him.
The evidence also supports that Y feels the same. He frequently asks the father, "How many sleeps until I see you?", and "How long until I see you again?".
The mother agrees that X wants more time with the father, and Y counts down the sleeps before he sees him again.
I agree with Counsel for the father that these expressions of the children are "quite impactful" in relation to the diminution of their time with the father they are going to experience if they live in Town B.
Mr L compared the children's ability to have reduced time with the father and their ability to maintain a relationship with him to children of fly in fly out parents who manage. He said the mother's proposal of daily calls to the father, the packaging of school holidays and public holidays "softens the landing" for the children.
I agree with Counsel for the father's submission that X and Y are unique children. Mr L also agrees and said, "they are unique boys, it is their situation, we are focused on their situation". Thus, there is insignificant relevance of children of fly in fly out parents to X and Y.
Although the mother proposes that the children spend more holiday time with the father than with her, and that they have electronic communication with him three times per week and at their request, I am of the view this will not ameliorate the children's sense of missing the father between alternate weekends or compensate for not spending time with him other than on weekends. I note that save for three weekends falling on public holidays and a minimal number of weekends attached to a pupil free day, the children's weekend time with the father in Suburb C will be reduced and more than six hours of that time will be spent in a car. Daily electronic communication with the father and time each week and during school holidays which is now occurring, has not been able to quell their desire to spend more time with him in his physical presence.
Ms K was of the view that the mother's proposal had the effect of the father becoming "sort of like the Santa Claus Dad, not the everyday Dad".
Ms K was of also of the view that telephone calls during the week with the father does not offer the same level of privacy of interacting with him as spending actual mid-week time. Calls are not the same as "kicking the football after school in the backyard, having a barbeque on a Wednesday night or whatever. It's not that same level of contact", and "...it's not the same thing as spending time with your parent in the same house as your parent. It's those sorts of things. It changes the quality of the relationship".
Pursuant to the mother's proposal, the father has the opportunity to spend time with the children overnight or otherwise in Town B. Ms K said that it was still not the day to day things that happen at home. The children need to have time with the father in their own space in the father's home.
It is obvious that if the father spends overnight time with the children in Town B they will be staying in rental accommodation of some description and probably at a different venue each time. Whilst at first that may appear to be fun to the children, they may soon find it disruptive, tire of living out of a suitcase and they will be contending with attending school at the same time. It would be a different experience to transitioning into the father's home where everything is familiar and they will already have some of their belongings there.
Neither the mother nor the father have told the children that the mother seeks that they live with the mother in Town B.
The mother acknowledged to Ms K as early as February 2024 that X would miss the father if he lived in Town B. She also agreed in her oral evidence that X would miss him. The maternal grandmother said X especially would miss the father, and whatever X says, Y will say.
Mr L told the court that the children's reaction if they were to move to Town B is that there will be "a sadness". He qualified such reaction saying that Town B being a familiar environment provides "a soft landing for them" He also said that the children will be worried about the father and will be making sure he's looked after because they are leaving. The legacy will be, "Well is dad okay and how does dad feel about us living that far away?".
Ms K was of the view that the children would be "very, very distressed". They enjoy spending time with the father. They would suffer a sense of loss, and they would be grieving.
In K v Z (1997) FLC 92-783, the Full Court cited with approval Wood SJ in In the Marriage of Wotherspoon and Cooper [1980] FamCA 51, wherein his Honour said, "where possible and practicable" any "order at which the court arrives should be one with which the child is contented and which will reinforce feelings of security".
Whilst views of children of X's and Y's ages are not determinative of the matter, they are nevertheless informative. In that sense, the evidence of their views, on balance, weighs in favour of the children living in Suburb C. If they live in Suburb C, they will be content and feel secure in their relationship with the father.

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The round trip between Suburb C and Town B is estimated to be around six hours in duration, a three hour trip each way. I am of the view that describing the minutiae of the children's travel requirements is necessary in order to fully appreciate the impact it will have on them and their relationship with the father.
If the children live in Town B, the father will meet the mother and children at the Town E Hotel at 5.00 pm for alternate weekend time. Time will be needed for the changeover to take place. There will be goodbye hugs and kisses with the mother, hello hugs and kisses with the father and the exchange of belongings from the mother's car to the father's car. It is unrealistic to expect that the father and the children will depart Town E at 5.00 pm. That being the case, they are unlikely to arrive at the father's home in Suburb C any earlier than 6.45 pm, even later. If there is inclement weather, or bad traffic conditions, or if they stop and have dinner or are required to stop en route for any other reason, they will arrive at the father's home later than 6.45 pm, and possibly more than an hour later if, as the mother suggests, they have dinner at Town E Hotel. It is not beyond the realms of possibility that the total journey from Town B to Suburb C may take four hours or more.
There is also the journey back to Town B from Suburb C on the Sunday with changeover taking place at 4.00 pm at Town E. The latest the father and children would be required to leave Suburb C is around 2.15 pm. I suggest that the children at every age will need time to pack up their belongings and otherwise get ready to depart. They will probably want lunch before they leave as they will not be able to have a sit down meal until after they return to Town B at around 6.30 pm, unless the mother provides them with dinner at the Town E Hotel at 4.00 pm or at some other venue between 4.00 pm and 6.30 pm. The children's ability to spend quality time with the father on a Sunday, either relaxing or engaging in some other activity or spending time with the paternal family, Ms G, H and J or their Suburb C friends is limited.
The father, X, Y, Ms G, H and J have a pub dinner together on the children's overnight time with the father on Tuesday. Other people often attend.
The mother suggests Town E Hotel as a changeover location so that the children will still be able to have a pub meal with the father and provide an opportunity for them to have quality one on one time to catch up before completing the rest of the drive to Suburb C. Whilst that is a commendable proposal, it does not take into account that the pub meal on a Tuesday in Suburb C is an opportunity for the children to interact with other significant people with whom they have a relationship. The father does not foresee this event ceasing as the children get older and have homework. They are out for an hour and a half, he sees families there all the time and "everyone needs to eat".
Mr L agreed that if the children live in Town B, they will be limited in the time they have with the father, and that the father would have to split some of his time with the children so that the paternal family, Ms G and her family could also spend time with them given their relationships. Again, it seems to me that is a lot to fit in on alternate weekends from late evening on a Friday to mid-afternoon on a Sunday. If the children play sport or engage in any other extracurricular on a Saturday which is not based in Suburb C, that activity will also have to be factored into weekend plans.
It can be argued that the lost time of X and Y interacting with significant people in their lives in Suburb C on alternate weekends could be made up during school holiday periods. However, school holiday periods are generally between two to three months apart. It can also be argued that the same could apply to the children's relationships in Town B if they live in Suburb C. I accept that I must look further than comparing the status quo with the proposals, however, the time the children have spent in Town B has already enabled them to have forged strong relationships with people of significance to them in Town B, to the extent they have expressed a view that they wish to live with the maternal grandparents. There is no evidence to support that if the children live in Suburb C those relationships will not be maintained to the same degree. However, I am of the view that notwithstanding the children have strong attachments to significant people in their lives in Suburb C, the current strength of those relationships will not be maintained.
Mr L said that "it's not ideal" for the children to travel for three hours at the end of a school week and it is not ideal time the children and father spend together, but that children have to accommodate the change when parents live geographically distant. He said it would be manageable but suspected that when they got older the children might get sick of it.
Mr L agreed that the preparatory year at school is a very intense year for a child, they get tired and attending school is a big change for little children. He said the travel between Town B and Suburb C during the holidays would be okay but during the school term it would be tiring for them. The mother accepted they may be tired and that it may be a difficult first six months for Y when he commences school. She acknowledged that she had concerns that Y might find the transition to school difficult said, "He does know a couple of people in Town B so that will help".[30] However, Y will not have any of his kindergarten friends commencing at the same school as he will be attending.
Mr L agreed that big adjustments for X would be the change in the size of his school and his friendships in Town B.
Ms K said that travelling roughly six hours each alternate weekend would be "onerous" on the children, that they would manage, but that they are two separate things. She said that "when you get to teenagers, if they feel it's onerous, they're not hopping in the car". She was of the view that six hours was "quite a journey" for the children and makes the flexibility of the father spending time with them in a way that would be "much, much more difficult".
If I accede to the mother's proposal, at the commencement of the school year in 2026, the children will be living in a different home in a different geographical location, they will be contending with and adjusting to a change of core friendship groups, X will be attending a new school, Y will be commencing school, they will have to undertake significant travel to spend time with the father, contend with such time being reduced, and manage their "sadness", "distress", and "grief". That is a lot to ask of children of X and Y's ages all at the same time.
The children have been travelling to Town B with the mother on the majority of the alternate weekends the children are in her care. On Friday, she collects them from school and travels straight to Town B. On Sunday, they arrive at Suburb C at around 6.00 pm. She makes the drive interesting - they play I Spy, play on their tablets, and she prepares Bento boxes so that they can snack in the car. The mother says that the travel is not burdensome on the children, and they are accustomed to the travel.
Ms K queried whether there was any other evidence in relation to how the children handled such travel other than from the mother's perspective. She said, "...you can play on your iPad for so long and it becomes - you can stop and have a bit of a run around and get back in. But in the end being in a car for a long time for young children and teenagers can be quite boring. And that's the problem".
The mother agreed that the children were cantankerous on some occasions. I am of the view that as they get older, they would rather spend every second Friday evening and Sunday afternoon in some other way.
Counsel for the mother put to the father that he has never complained that the children were suffering from travelling with the mother to and from Town B with the regularity they did. The father insightfully said he cannot stop them from travelling and it was not right to dictate where they can and can't go. I suggest that if he did so, the mother would not have tolerated his complaint given her comment to the court, "I feel like I should be able to make plans for the kids when they are in my care",[31] when giving evidence why she did not agree to the children spending the Sunday night on the long weekend in June when the children were already spending time with the father that weekend.
Conversely, there is some basis in the message the mother sent to the father of "you don't get extra time just because you want it". The father should not expect that every time he asks for more time that the mother should agree.
I acknowledge that if the mother and children live in Suburb C and the mother continues travelling with the children to Town B on the weekends they are in her care, the children will still be undertaking a six hour round trip on the weekend. The children may resist or may not be able to travel to Town B so frequently on weekends for the same reasons the children may resist travelling to Suburb C each alternate weekend if they live in Town B, namely, to attend birthday parties, other social engagements and sleepovers with friends and partake in team sport or other extracurricular activities.
However, it will be the choice of the mother and/or the children whether they travel to Town B and not an imperative to ensure that court orders are complied with. Conversely there will be a breach of court orders if they do not travel from Town B to Suburb C.
As noted already, if the children live in Town B and spend time with the father in Suburb C, the children will be travelling the three or more hours round trip twice within 48 hours each alternate weekend and within 72 hours on the few occasions of pupil free and public holiday weekends during all school terms. I suggest that is a lot of inconvenient and burdensome travel for adults let alone children.
I consider it important to put oneself in the position of how the children will feel having to travel three or more hours each alternate weekend on a Friday and three or more hours on a Sunday within either a 48 hour or 72 hour timeframe until they turn 18 years of age because of court orders requiring them to do so.
Mr L and Ms K are both of the view that the nature of the children's relationship with one or both of the parents would be adversely impacted if they were forced to continue going to Suburb C if they did not want to go.
Ms K said that developmentally, by the time the children get to adolescence they are not going to want to be in the car and will want to spend their weekends with their friends. Ms K agreed that there was motivation on the children's part to travel to spend time with the father, however, that was okay when they are younger, but it is more difficult for them as they get older, particularly by mid-high school. The alternative is "no sport".
Mr L was of the view that the potential of the children resenting the father if they missed spending time with their "mates" was not an issue at their ages but there will be disappointment around missing birthday parties and sleepovers. He said:

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Ms K's view of the mother's proposal for school holiday time was that the children won't be seeing their friends in Town B "at all". I qualify that with "not very often". I consider the same applies to the alternate weekends and the long public holiday and pupil free day weekends. Whilst the mother's proposal for the school holiday time and long weekends is commendable, it does not give due regard to the children strengthening and maintaining their friendships in Town B or engaging with them in the many things that children do with friends during school holidays and on weekends.
I am able to make orders which provide for the children spending less time with the father during school holidays and long weekends than those proposed by the mother. That may solve the friendship groups in Town B problem but will then create another - less time with the father and an impact on the development of the children during their latency period and thereafter and their relationship with him overall.
The father gave evidence and sets out at paragraphs 93 to 96 of his affidavit in relation to his participation in the children's school life, medical care and extracurricular activities. All these occasions and events in which he has been involved are no doubt significant to the children. There will be more significant events and occasions in the future.
In accordance with the mother's proposal, the father has the ability to travel to Town B during the school week and stay overnight with them or collect them from school on a Friday and spend his weekend time in Town B and take them to school on a Monday morning. If he does not travel to Town B, the children will be deprived of the father's involvement in their school routines and other significant events. Whilst it is commendable that the father says he will make it work if the children live in Town B, there is much to be said of his evidence that it is unrealistic to expect him to take a six hour round trip to be present at an event that may only take an hour.
Mr L agreed that the engagement of a parent in school activities (and I add extracurricular activities and other occasions) shows children the support a parent is providing and that it would be more difficult for the father to attend such events if the children lived in Town B.
If the father does not attend a school activity or some other occasion to which parents may or have to attend, the children are likely to be disappointed. Given the distance the father will be required to travel he may need to prioritise attending one child's activities over the other. Therein lies the possibility of the children resenting the father for not taking an interest or not showing support for them, or for preferring one child over the other, or for the children resenting the mother, she being the instigator of them living in Town B.
There is substance in the father's fear that he will be resented by the children as one of those parents who is forcing them to visit him and not let them enjoy time with their friends or engage in other activities in the community in which they primarily live.[32]
Ms K agreed that the father would work very hard to ensure that the children continued coming to spend time with him when they were for example 14 and 16 years of age but said that "...By the time they're in year nine, they're not going to get in that car, and nobody is going to be able to make them".
I take into account that year nine is some years hence, but I also take into account that it will be a progression of resistance over a period of time to not getting into the car at all by the time they are in year nine. Total resistance is unlikely to occur overnight. Accordingly, there will be times before year nine that the children will travel to Suburb C and other times they will not. Y will be in year nine several years after X. Y may enjoy going to Suburb C without X to spend time with the father. The alternative may be that Y will see X not going and insist on following X's lead so that he too can spend time with his friends, engage in sport or other extracurricular activities without interruption, and stop travelling more than six hours every second weekend.
When commenting on whether it's either no sport or missing every second weekend of sport Ms K was of the view that missing every second week of a game would only be a short term thing as the children would not be happy doing that if they are into being part of a team. When they become adolescents and they want to be with the team, they don't want to go somewhere else. They are going to totally give up sport, or they are not going to go to one parent's home.
I consider that neither of these outcomes is in the children's best interests.
It was put to Ms K that children start resisting spending time with each parent because of other activities even when the parents are living together. She said that the situation was different depending on whether the parents live near each other or far apart. When the parents live far apart, the children are not going to want to get in the car. They are put in the situation of choosing not to spend time with the father or going to live with him.
Mr L suggested to the mother that at times some adolescents choose to relocate to live with the other parent. The mother accepted that the boys or either of them may well wish to do so in time and again she would manage this at that time.
Mr L was of the view that it would be a disadvantage to the children if they had to travel to Suburb C and miss playing football with their teammates and thought this was likely to be an issue for the children as they got older. The mother assured Mr L that she would seek to manage this as best she could given the circumstances at the time.
Managing these possibilities are able to be avoided if the children remain living in Suburb C. They will be able to play their team sport every weekend and have both their mother and father involved. The mother's proposal does not provide longer term certainty in the children's care arrangements or reduce the possibility of further parenting litigation if the mother does not agree to changing the parenting arrangements. Mr L was of the view that the mother would not uproot the children from Town B unless it was child led. However, I suspect that it may prove difficult for the mother to distinguish whether the children's wish to live with the father is their true wish or their wish is father led.
The mother's research in sourcing sports in Town B that are played during the week or in a wider geographical area in which the children can participate is commendable. However, both of those options have disadvantages to the children.
The mother proposes to register the children in V Sports Club, the halfway point between Suburb C and Town B. Mr L's response was guarded when answering whether that would be a good way of resolving how the children participate in extracurricular activities if they were to live Town B. Mr L said:

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He was also of the view that it would be "overwhelming" for the children if they travelled an hour for training, trained, and then had to travel back to Town B for an hour. He was "not sure that's the best idea". I note that if they did so, in addition to that travel they would be travelling each alternate week between Suburb C and Town B and travelling to wherever the matches are played on the weekend.
The mother has sourced a football league where training for the football team is around 10 minutes from Town B. The evidence is unclear whether this is the venue for training for V Sports Club. In any event, the league in which that teams plays its games is the City D region. Ms K noted that games will be in Town W, Town Z and everywhere in that area. All of these venues require significant travel from either Suburb C, Town B or both.
The mother's sourcing of activities which have game times during the week in Town B avoids the children not being able to participate in every game. However, if the children want the father's involvement in that training and those games, or if the training is 10 minutes from Town B, or the father wishes to attend, he will be required to travel the six hour round trip to Town B.
There is the potential that X and Y will play different sports. They will certainly be in different age groups even if they engage in the same sport. It is the training commitments and game times of two children each week which the father will have to factor in. If the father does not attend, again the children may become upset and think that the father is not supporting them. They may also again, resent the mother.
Counsel for the mother suggested to Ms K that much of the difficulties with sport, resistance to travelling to Suburb C and a change of residence was all just speculation in a way that is too farfetched. However, Ms K had based her views on her having seen so many adolescent boys. Mr L was also of the view that such could transpire.
I refer to Grella & Jamieson [2017] FamCAFC 21 where the Full Court said at [18]:

[82]

I am of the view that issues such as the children wishing to live with the father, whether they resent the mother or the father or idealise the father are possibilities and speculative in as much as they may or may not eventuate.
However, against the background of their lives to date, I am also of the view that X and Y forming friendship groups in Town B and engaging in sport and/or other extracurricular activities are certainties. As time goes by, missing playing sport and engaging with friends, and the burden of long distance travel, while still speculative, X and Y more probably than not will resist spending time with the father in Suburb C. The consequence of that is they will not be spending time with the father and fully reaping, if at all, the benefits they gain from their relationship with him.
The father proposes that Y attend S School with X if they live in Suburb C. The mother proposes they attend Town B School if they live in Town B.
Town B School will be a very different school environment for X than he has already experienced at S School. The student population at Town B School is much smaller than it is at S School. X will not be with his friends. Y will be commencing his primary school education without any of his kindergarten friends, with such friendships the father believes has assisted Y build up his confidence. Y will not have that support if he attends Town B School.
It is readily apparent that S School has an overall wider range of educational and other programs and can offer more to students than Town B School. However, there is nothing to suggest that Town B School is not prima facie satisfactory for either of the children's educational needs.[33] Accordingly, I place little weight in my determination on the difference between S School and Town B School as highlighted in court. However, the difference does form part the aggregate factors in assessing what orders should be made that are in the best interests of the children.
It is four years hence for X and seven years hence for Y until they start their secondary education. The parents will have joint decision-making for education. What is evident is that there is a range of secondary education institutions available to the children whether they live in Town B or Suburb C. The mother agrees that there are more options available to the children if they live in Suburb C.
There was some focus on the different overall environments between Town B and Suburb C, such as population and recreational facilities. Bluntly, if the children live in Town B they would have to adapt to those differences. I am confident that both parents would continue exposing the children to a broad range of experiences to further their development wherever the children live.
Ms K's evidence in relation to the latency period is of considerable significance. X and Y are in their latency period. The following exchange took place between Counsel for the father and Ms K:

[90]

It is not in dispute that both parents have the capacity to provide for the children's day to day developmental, psychological, emotional and cultural needs. I qualify that only to the extent of the positive role the father has in the children's latency periods and thereafter, which cannot be fulfilled only by the mother.
Ms K was of the view that the children present with close attachments to the parents, both parents present with good quality parenting skills, and the children presented as well cared for and meeting their developmental milestones. Mr L did not suggest otherwise, nor did the parents.
The mother, however, described the father's parenting to Ms K as fun but without boundaries and rules. If that is correct and if I accede to the mother's proposal, the father will continue being the "Santa Claus Dad". The mother will probably remain critical of the father's parenting style.
Of particular significance is the ability of the moving parent to facilitate and promote the children's relationship with the non-moving parent.
On the basis of the mother's past conduct, the father fears the mother will not promote or facilitate his relationship with the children. It was submitted that the tyranny of distance would only make matters worse.
Counsel for the father put several occasions to the mother when she was reluctant to provide the father with more time with the children including when she interpreted court orders to her advantage so as not to increase time, or as heard in the recorded telephone message say things to the children about the father which could send messages to them that he was not acting in their best interests.
Mr L was of the view that the mother presented as lacking in vitriol toward the father, there was an overriding sadness about the situation she found herself in, there was a clarity about wanting to secure future arrangements that she thought would be best for her and the children, and that she was facilitative of the children's relationship with the father.
To the mother's credit, whilst she knew of the father's infidelity with Ms G, she nonetheless facilitated time between the children immediately after the separation and has continued to do so. She did not seek to relocate with the children at an earlier point in time on the basis that she wanted to ensure the children had established their relationship with the father.
Whilst the father complains that the mother was restrictive in the time the children spent with him there was a lot going on that time. Y had the demands of a young child such as breast feeding and sleep routines, X was still young, the father had unstable accommodation, and the parents now had to navigate the care of their children as separated parents. There was, and still is, the uncertainty of their property entitlements. In all of those circumstances, I am of the view that the parents managed very well to ensure that the children maintained and enhanced their relationship with the father.
The fact that the children are so closely attached to the father and enjoy their time with him supports that the mother has not pursued an intentional course of conduct to undermine their relationship.
However, there are clearly times when the mother could have readily agreed to one or both of the children spending more time with the father, such as letting Y stay with the father instead of Y accompanying her to X's reading class at school or letting the father take X to buy football boots. That said, she has also offered and provided additional time.
Several times during her evidence the mother made comments such as "with the benefit of hindsight" she would have behaved differently in relation to her past poor judgment in not agreeing to the father spending additional time with the children. I am satisfied that the occasions and matters highlighted by Counsel for the father during his cross-examination of the mother were not borne of deliberate or mal intent on the mother's part to curtail or restrict the children's time with the father, but rather momentary lapses of insight into what would have been best for the children given all that was going on at the time.
I say the same about the father's less than desirable behaviour and communications with the mother. No doubt his inappropriate conduct and communications were borne of frustration over what he perceived to be his limited time with the children and all else that was going on at that time.
There is no love lost between the maternal grandfather and the father and Ms G. That is not surprising. Nevertheless, the maternal grandfather's conduct toward them has been inappropriate. The mother agrees that she has been required to speak with him about his negative attitude toward the father and Ms G.
Mr L had faith in the mother intervening if the maternal grandfather continued to cause problems in this regard. I agree. I am confident the mother will monitor that situation.
No doubt, whether the children live in Town B or Suburb C, the maternal grandfather's attitude will remain a concern to the father. The maternal grandfather needs to understand that is not in the children's best interests to undermine their relationship with the father and as much as it may pain him, he must hide his dislike from the children. He clearly has the capacity to do so given he facilitated a telephone conversation between the children and the father when the final hearing was proceeding, such call taking place in the absence of the mother.
The father communicates daily with the children when they are not in his care. He has noticed though that there is a consistent pattern of the children being reluctant to communicate and engage with him when the mother is present or when they are with the maternal grandparents.
Mr L was of the view that this may be occurring because some children do not like the idea that things might happen when mum and dad come in close proximity to each other. His observations of the mother was that she did not operate to intentionally hinder the calls and that she wanted the children to have a relationship with the father. My observations of the mother are the same.
I am satisfied that if the children live in Town B with the mother, she will promote and facilitate the children's time with the father and their relationship just as the father will not undermine the children's relationship with the mother.
I am also satisfied that each parent will promote and facilitate the children's relationship with the other parent if the children live in Suburb C.

[92]

There is a benefit to the children of being able to have a relationship with each parent and the significant people in their lives who are located in Suburb C and Town B. It is safe for the children to continue their relationships with all of these adults and children.
The critical issue in this consideration is the effect on the children's ability to reap and enjoy the benefits to them from their relationship with the father if they live in Town B.
In Rochford & Fitzhugh [2019] FamCAFC 218, the Full Court discounted the view that the only way a "meaningful" relationship can be maintained is if parents live in geographical proximity. The Full Court observed a long-distance relationship can nevertheless be a meaningful one and "whilst not optimal for the purpose of maintaining a meaningful relationship, might in light of the practicalities, nonetheless be adequate for that purpose".[34]
The Full Court in Rochford was referring to a section 60CC(2) consideration prior to its present iteration. I consider that the Full Court's observations in Rochford in relation to a "meaningful" relationship is equally applicable to a "close and nurturing" relationship.[35]
The children already have a close and nurturing relationship with the paternal family, Ms G and her family. There will be a reduction in the time the children will be able to spend with them if the children live in Town B. I am of the view that the mother's proposal is not adequate for the purpose of the children maintaining a close and nurturing relationship with them.
The mother's proposal is optimal in relation to the children's relationship with the maternal family. The children already have close attachments to them. There is nothing to suggest that those relationships will diminish in quality if the children remain living in Suburb C. The children will still be able to travel to Town B while they are in the mother's care. They will still have the ability to spend time with the maternal uncles and their families in Melbourne, Queensland and at the maternal grandparents' home in Town B.
I am satisfied that the children's relationship with the mother will be maintained and develop to the same extent whether they live in Town B or Suburb C, including whether the time they spend with her in Suburb C is nine or seven nights per fortnight during school terms.
I am, however, also satisfied that the mother's proposal is not adequate to maintain and develop a close and nurturing relationship between the children and the father, or for them to reap the benefits they derive from their relationship with him. In this respect, I refer to and repeat the benefits of the children's relationship with the father during their latency periods, the positives to their development of having a good male role model, the protective factors associated with them having secure attachments with both parents and the adverse impacts if there is a loss of attachment with the father.
If the children live in Town B there will be a decrease in their time with him overall and specifically during school terms. This will affect how often and in what structures they physically interact with him and the parenting he is able to provide to them in order to experience the benefits of their relationship and protect them from any adverse impacts that may occur during their move through adolescence and/or in their adulthood.
If the children live in Town B this will restrict the children's relationship with the father. The quantity of time to be spent between them and the quality of their relationship are inextricably linked in this matter.[36]
The Explanatory Memorandum to the Family Law Amendment Bill 2023 at [46] provides in relation to section 60CC(2)(e):

[112]

I have referred explicitly to some of the advantages and disadvantages of the parents' proposals. Other advantages and disadvantages are inherent in my reasons.
I have taken into account my assessment of all of the section 60CC considerations, the parents' primary proposals and the advantages and disadvantages of those proposals. I have also had regard to the totality of the evidence in relation to the reasons why the mother wishes to move to Town B.
I am satisfied that it is in the children's best interests to live in Suburb C
As the children will be living in Suburb C, I must now consider which of the father's primary proposal or the mother's fall back proposal is in the children's best interests.
Counsel for the mother submitted that the inability of the parents to work around the minutiae of day to day co-parenting contraindicates the children living in an equal shared care arrangement.
The good quality of communication between the parents and their coparenting relationship was relied on by the mother to advance her case for the children to live in Town B. That level of quality, however, was downgraded by her when it came to assessing the practicalities and viability of an equal shared care arrangement.
Mr L said in relation to the difference between the children spending five days or seven days with the father if the children live in Suburb C was that "it probably comes down to cooperation, no matter how many days...". He agreed that the parents would have to cooperate wherever the children may live.
Ms K's concern in relation to the father's proposal of time progressing from five nights to seven nights per fortnight was also how well the parents communicate. If they are able to at least have an amicable level of communication, then the spend time arrangements could go forward as proposed by the father. She also said that the children will pick up if there is a lot of animosity between the parents but, if the parents can get along, that is great and will provide a normal experience for the children. She referenced examples of problems occurring in shared parenting that were coincidentally canvassed in the parents' oral evidence.
Ms K saw no other factor contraindicating against an equal shared care arrangement other than the quality of communication and the coparenting relationship. The mother voiced no other reason during the hearing in relation to why time should not progress to an equal shared care arrangement. Mr L referred to one other factor as canvassed in paragraphs 331 and 332 of these reasons.
The mother reported to Ms K that she found communication with the father as strained, saying that "if he is happy, communication is good...but if he wants extra time with the children, he can become a bit nasty, difficult to communicate with. He likes things to be his way. He manipulates me. He forces me".
The mother identified to Mr L that communication with the father "is complex with a tendency to become nasty" if he does not get what he wants. She has found that he can manipulate/force her to agree.
However, in my view, the evidence supports that the father has been forced to agree with the mother at times. Examples include, the father having to change his concert arrangements so that the children could attend the birthday party, the mother not letting the father buy X's football boots and taking Y to X's reading class instead of him spending time with the father.
The father reported to Ms K that there were occasional "hiccups" and miscommunication, however, communication is generally fine if final arrangements for the children are not discussed. The father also suggested to Mr L that there have been "occasional hiccups re communication". He otherwise considered that things had worked reasonably well.
There have been strained communications between the parents which have impacted on their coparenting relationship. There have also been, as emphasised and described by Counsel for the mother, many "fluid" communications.
There are many instances when the parents have coparented and communicated successfully, amicably, and reached agreements such as when X and Y each had to attend hospital, arranging for the children to see the pet dog when he was unwell, and attendances at birthday parties notwithstanding at times there have been difficulties.
It is difficult to cavil with Ms K's view that most parents have mild disputes whether or not they are in the same house. Mr L was of the same view when he told the court, "...parents argue. We know that. Whether they're separated or not, they have differences of opinion...".
I agree with Counsel for the father's submission that the difficulties and disagreements in co-parenting that the parents have experienced to date "are not earth shattering, compared to some of the fights that we see in this court".
Disagreements have occurred in the ten/four parenting arrangement that was in existence up to the final hearing. Since 24 September 2025, the children have been cared for in a nine/five arrangement.
I fail to see how final parenting orders concluding at a nine/five arrangement is the cure all or solution to removing the difficulties in relation to communicating about the minutiae of parenting. It is incredulous to suggest that disagreements will not occur in the future in a nine/five arrangement. The disagreements will be of a similar nature whether there is a nine/five arrangement or a seven/seven arrangement. Lest it be forgotten, parents in intact relationships wherein they and the children live together all of the time have parenting disagreements.
Furthermore, there is an overall optimism to communication and coparenting improving between the parents.
Mr L met with the parents together in July 2024 to provide them with the opportunity to put forward their views to each other on relocation or staying in Suburb C. Both used this time well and spoke of the issues in a respectful manner. Mr L gained the impression that they need assistance with such a decision but had a framework of goodwill between them that should resurface in time.
The mother indicated to Mr L in July 2024 that although the father and her are "butting heads at the moment" she expects things will get better between them as time progresses.
Mr L repeated in his oral evidence that the mother was hopeful things between the father and her would calm down once decisions were made. He also said that he felt the mother was open to working with the father. The mother told the court that when she told Mr L she did not consider she and the father have a positive co-parenting relationship, it was very relevant at that time and that it has improved.[39]
Ms K noted in her report that as property and financial issues were involved, parental communication and attitudes towards each other will likely remain unchanged until these issues are resolved. Mr L noted in his report that the live issue regarding property and financial matters appears to be causing "significant angst".
I acknowledge the overlay of property proceedings will likely continue to cause friction between the parents until they are finalised. However, this has little influence on my determination. That likely friction will exist whether there is a nine/five arrangement or a progression to an equal shared care arrangement, noting that equal shared care will not commence until more than two years from now.
Both parents seek that joint decision-making in relation to major long-term issues for the children continues. The parents themselves, therefore, are optimistic and confident that they will be able to consult with each other and reach decisions in relation to major long-term decisions.[40] Whilst there may be more decisions to be made in relation to the children's day to day care, I do not see why there would or should be any difference in the parents' confidence or optimism applying to day to day issues.
I am satisfied that the parents communication and coparenting relationship will be conducive to managing the minutiae of day to day parenting issues that will arise between them whether there is a nine/five or equal shared care parenting arrangement.
The conclusion of this proceeding and the orders I make will provide the parents with more certainty, specificity, and clarity in relation to the children's living and spend time arrangements, such having historically been a constant source of irritation and tension between them that should in and of itself reduce the disputes between them in relation to the children's care arrangements.
Mr L said in his report of the father's proposal that the children transition to an equal time arrangement when Y commences school, that the father has not considered the relationship the boys are used to having with the mother. The concept of equal time may be challenging for them. Mr L did not voice that concern in his oral evidence.
However, a year and a half has passed since Mr L saw the family, the children's attachment to their father has strengthened and the father's proposal seeks a slow progression to an equal shared care arrangement.
I refer again to my view that an equal shared care arrangement gives the best recognition to the Explanatory Memorandum at [46]. An equal shared care arrangement enhances the ability of both parents to engage in the children's lives as comprehensively as the other. Having regard to the close and nurturing relationships X and Y have with each parent, I consider that to provide the opportunity to the children to experience their parents being equally involved in their lives is in their best interests.
Taking into account all of the above I am satisfied that it is in the children's best interests if their time with the father progresses to an equal shared care arrangement.
I raised the concept of equal shared care commencing from term 1 in 2027.
Mr L was of the view that if the progression to an equal shared care arrangement fast tracked to term 1 2027, X would help Y out if he were struggling. Ms K said X would manage better than Y, and that time is needed for Y to move through and settle into the latency period.
In light of that evidence, orders are made in accordance with the father's proposal for the children's time with him to progress to an equal shared care arrangement as at term 1 in 2028.
The order for joint decision-making is made.
Where changeovers do not occur at school, the mother proposes they occur at the residence of the parent who is commencing time, and if she is spending time at Town B over the holiday period, they take place at the Town E Hotel unless otherwise agreed between the parents. The father proposes they occur at KFC Suburb C unless otherwise agreed between the parents.
The longer periods of time the children spend with the father and as the children get older, will no doubt mean that more of the children's belongings will need to travel between the homes. I suspect this will become cumbersome if the children and their belongings need to be shifted from one car to another in a public place. Only one such changeover will be required for each school term holiday. Over the long summer holidays there will be more occasions if and until time occurs in equal block periods. I do not see why the children should have their time with the father revolve around the mother's holiday plans on each and every occasion the mother spends her holidays in Town B, particularly on Boxing Day. To again quote the mother, "I feel like I should be able to make plans for the kids when they are in my care".[41]
Accordingly, where changeovers do not occur at school they shall occur at the primary residence of the parent who is commencing time, or otherwise as agreed between the parents. I would hope, though, that the father would on some occasions agree to meet the mother halfway between Suburb C and Town B such as at the Town E Hotel, if his own plans permitted him to do so.
I do not make the order sought by the mother in relation to the children's attendance at S School or a secondary school in the Suburb C region. There is no disagreement in relation to S School. It is premature to make orders in relation to the children's secondary education. Given the evidence in relation to secondary schools, the school chosen by the parents may not be in the Suburb C region. In any event, an order for joint decision-making will be in place. Both parents want what is best for the children thus they should not have difficulty reaching an agreement.
For the avoidance of doubt, I make the orders proposed by the father in relation to the birthdays of the parents, the children and their half/step siblings, and the ability for partners, stepfamilies and grandparents to attend the children's significant events. There seems to be no reason these orders should not be made in light of the relationships the children have with all of these people.
Again, for the avoidance of doubt, the order the mother seeks in relation to the allocation of tickets to the children's significant events is made.
Neither the mother nor father seek orders in their proposals if the children live in Suburb C in relation to the Easter period, however they do so if the children live in Town B. I do not propose to craft an order for the Easter period. The parents will no doubt be sensitive to the children spending some or the whole of the Easter period on an equitable basis over the years if they decide to factor in the Easter period in the term 1 school holiday period.
The agreed ancillary and consequential orders are made. The agreed restraints are made. The restraints sought by the father which are not included in the mother's proposal are not made. No submissions were made in relation thereto. I am also of the view that they are not necessary.
Orders are made as set out.

AMS v AIF

At a glance

Court

Decision date

Source

Judgment (148 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (2)