After a mother's unilateral interstate relocation with children, how does the court determine whether the children should reside with the father or the mother?

Can a Parent Unilaterally Relocate Children Interstate, and How Does the Court Determine Their Best Interests?

Based on the authentic Australian judicial case Britz & Zakaria [2025] FedCFamC2F 151, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Federal Circuit and Family Court of Australia (Division 2)
Presiding Judge: Judge Newbrun
Cause of Action: Application for Final Parenting Orders (Relocation Dispute)
Judgment Date: 12 February 2025

Core Keywords

Keyword 1: Authentic Judgment Case
Keyword 2: Family Law
Keyword 3: Parenting Orders
Keyword 4: Relocation Dispute
Keyword 5: Best Interests of the Child
Keyword 6: Sole Parental Responsibility

Background

This case concerns the long-term parenting arrangements for four children aged nine, eight, seven, and four. Following the parents’ separation, the children initially lived with the Mother. In late 2022, the Mother unilaterally relocated with the children from Sydney to Melbourne, prompting the Father to initiate urgent legal proceedings. In February 2023, the Court made interim orders for the children to be returned to Sydney to live with the Father, an arrangement that has remained in place until this final hearing. The matter before the Court now is to make final orders determining with which parent the children will live, and how parental responsibility will be allocated.

Core Disputes and Claims

The central conflict is a classic relocation dispute. The Mother seeks orders to permit her to relocate the children’s primary residence to Melbourne, where she now lives. She proposes that the children live with her and spend substantial holiday time and some weekends with the Father. Conversely, the Father and the Independent Children’s Lawyer (ICL) both seek orders for the children to remain living in Sydney with the Father, with the Mother spending time with them during school holidays. Both parties also seek sole parental responsibility for major long-term decisions concerning the children.

Chapter 2: Origin of the Case

The Applicant (Father) and the Respondent (Mother) are both of Country K heritage and commenced their relationship in 2014. They had four children together between 2015 and 2020. The relationship was, by both accounts, fraught with conflict towards the end, culminating in their final separation in mid-2018.

Following the separation, an informal arrangement was established where the children lived primarily with the Mother, who had moved to City C, and spent regular weekend time with the Father, who remained in Suburb L. This arrangement continued for several years. The dynamic shifted dramatically in late 2022. The Mother, who had since moved to Suburb D to live with her brother, made the unilateral decision to relocate with the four children to Melbourne, citing family violence and a need for family support from her siblings who resided there.

This move severed the children’s regular, face-to-face contact with their Father. In response, the Father filed an urgent application in the Federal Circuit and Family Court of Australia, seeking the children’s immediate return to Sydney. In February 2023, the Court made interim orders that the children’s residence be returned to Sydney to live with the Father. Since that time, the children have remained in the Father’s primary care, attending school and re-establishing their lives in Sydney, while the Mother has continued to reside in Melbourne, seeing the children primarily during school holidays. This final hearing was convened to decide the permanent parenting arrangements, with the Court forced to weigh the Mother’s desire to live in Melbourne against the children’s need for stability and a meaningful relationship with both parents.

Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments:

Evidence: Affidavits of the Father, his new partner (Ms H), and his brother (Mr G). School reports, school awards, and photographs of the children participating in community and sporting events in Sydney.
Arguments: The Father argued that the children are settled and thriving in Sydney, where they have stability in their schooling, strong connections with their paternal family, and deep roots in their cultural and church communities. He denied the Mother’s allegations of family violence and asserted that her unilateral relocation was not in the children’s best interests. He raised concerns about the Mother’s capacity to facilitate his relationship with the children if they lived in Melbourne, pointing to her past actions and her evidence in court.

Respondent’s Main Evidence and Arguments:

Evidence: Affidavits of the Mother, Response to Initiating Application, Notice of Child Abuse, Family Violence or Risk.
Arguments: The Mother’s case was predicated on allegations of a history of family violence, including coercive control, verbal abuse, and physical assault by the Father, which she claimed necessitated her move to Melbourne for her safety and wellbeing. She argued she was the children’s primary carer for most of their lives and was more emotionally attuned to their needs. She contended that living in Melbourne would allow the children to be supported by her extended family and that she could better address what she perceived as their behavioural and academic issues.

Core Dispute Points:

Family Violence: Whether the Father perpetrated family violence against the Mother, and whether this justified her unilateral relocation to Melbourne.
Parental Capacity: Which parent is better able to provide for the children’s developmental, emotional, and psychological needs, particularly regarding stability and routine.
Facilitation of Relationships: Which parent would better facilitate and encourage the children’s relationship with the other parent if they were the primary carer.
Impact of Relocation: The potential harm to the children of being uprooted again versus the potential benefit of living with their Mother in a new city.

Chapter 4: Statements in Affidavits

The affidavits filed by each party painted starkly contrasting pictures of the relationship and their respective parenting capacities.

The Mother’s affidavits detailed a narrative of control and abuse. She recounted incidents where the Father allegedly went through her phone, accused her of infidelity, and became physically violent, including an alleged assault while she was pregnant. These statements were designed to frame her move to Melbourne not as a choice, but as a necessary escape to ensure her safety and that of the children.

Conversely, the Father’s affidavits systematically denied these allegations. He portrayed the Mother as prone to jealousy and insecurity. He detailed an incident in June 2019 where he confronted the Mother about her own alleged infidelity in front of both their families—an event he framed as a culturally appropriate attempt to save the marriage, but which the Mother’s counsel later argued was an act of public humiliation and control. His evidence focused on his role as a loving, engaged parent who had re-established a stable and culturally rich life for the children in Sydney since their return.

The Court was thus presented with two irreconcilable narratives. The affidavits became the primary battleground where the credibility of each parent was tested, forcing the Judge to scrutinize inconsistencies between sworn statements, subsequent actions, and oral testimony.

Chapter 5: Court Orders

Prior to the final hearing, the most critical judicial intervention was the interim orders made by Senior Judicial Registrar Malinowsky on 15 February 2023. These orders mandated the immediate return of the children from Melbourne to Sydney to live with the Father. The orders also stipulated that the children would spend time with the Mother during school holidays. This decision effectively reversed the Mother’s unilateral relocation and established a new status quo, which became a significant factor in the final determination of the children’s best interests.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The final hearing brought the conflicting affidavit evidence into the sharp focus of cross-examination. Both parties, for whom English was a second language, gave oral evidence, as did the Father’s new partner and the Court Child Expert who had prepared the Family Report.

The Mother’s credibility was tested on her allegations of family violence. When questioned, inconsistencies emerged between her sworn affidavits, her application for an intervention order in Victoria, and her oral testimony. For example, her allegation that the Father had punched her in the stomach while pregnant was notably absent from her initial police report and intervention order application, where she had only alleged a “push”. The Court also noted her failure to call key witnesses, such as her brother who was present in court, to corroborate her claims, leading to a Jones v Dunkel inference that their evidence would not have assisted her case.

A pivotal moment occurred when the Mother was questioned about how she would handle a situation where the children refused to spend court-ordered time with the Father. She stated that while she would talk to them, she would ultimately not “force” them to go against their wishes. This evidence raised a significant red flag for the Court regarding her capacity to genuinely facilitate and promote the children’s relationship with their Father.

The Father was cross-examined about the 2019 family meeting. While he maintained his actions were culturally appropriate attempts to resolve marital issues, the Court ultimately found his behaviour on that occasion to be unreasonable and likely humiliating for the Mother. However, it was viewed as an isolated incident rather than evidence of an ongoing pattern of coercive control. Overall, the Father presented as a parent who, since the children’s return, had provided a stable home and was actively engaged in their school, cultural, and community life.

The Family Report writer’s evidence was crucial. While her initial report had cautiously leaned towards the children living with the Mother, she conceded under cross-examination that her recommendation was heavily contingent on the Court making a finding of family violence. She agreed that if the Court did not find that family violence had occurred, her recommendation would change. She testified to the importance of stability for the children, stating:

It would be unsettling, I’m sure. It could be disruptive for them… Their friendships, their security of the network of people that they have around them, the safety that they feel in that school, learning that way of being educated in that school, their routines and their relationships with their family and friends and community.

This expert evidence, combined with the Court’s own assessment of the facts, underscored the significant emotional and developmental risks associated with uprooting the children once more.

Chapter 7: Final Judgment of the Court

The Court ordered that it was in the best interests of the children to remain living with the Father in Sydney. The final orders included:
1. The children live with the Father in Sydney.
2. The Father is to have sole parental responsibility for all major long-term decisions regarding the children’s welfare, including health and education, with a duty to consult the Mother.
3. The children are to spend time with the Mother during all school holiday periods (with Christmas holidays alternating between parents).
4. Detailed provisions for communication, including the use of a parenting app and regular phone contact.
5. Restraints on both parents from denigrating the other in the presence of the children.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

The jurisprudential value of this case lies in its clear reaffirmation that in a relocation dispute, the paramount consideration of a child’s best interests will override a parent’s right to freedom of movement, particularly where that parent has created the “tyranny of distance” through a unilateral move. The judgment serves as a powerful illustration of how an interim order, made to correct a unilateral relocation, can establish a new status quo that the Court will be reluctant to disturb without compelling evidence. It demonstrates that a parent’s subjective fears, if not substantiated by objective evidence, will not be enough to justify uprooting children from a stable and secure environment.

Judgment Points

The Court’s decision turned on several key findings. Firstly, it was not satisfied that the Mother’s allegations of family violence were substantiated to the requisite standard. The inconsistencies in her accounts and the lack of corroborating evidence weakened her primary justification for relocation. Secondly, the Court placed immense weight on the stability the children had achieved in the two years they had been living with their Father in Sydney. The evidence of their established school life, friendships, and cultural connections formed a compelling case against further disruption. Thirdly, the mother’s own testimony raised serious doubts about her capacity to genuinely promote the children’s relationship with their father, a core objective of the Family Law Act 1975.

Legal Basis

The judgment was fundamentally grounded in Part VII of the Family Law Act 1975 (Cth). The Court meticulously worked through the legislative pathway, starting with the paramountcy principle in section 60CA. The core of the reasoning involved a detailed evaluation of the specific factors listed in section 60CC. The Court determined that the need to protect the children from the psychological harm of instability and a fractured relationship with their father outweighed the mother’s desire to relocate.

Evidence Chain

The father’s victory was built on a solid chain of evidence demonstrating the children’s current stability. School reports, though noting some behavioural issues, were deemed satisfactory overall. Evidence of the children’s engagement in sports, church, and cultural activities painted a picture of a well-rounded life in Sydney. The evidence from the father’s new partner corroborated his claims of providing a stable and loving home. Conversely, the mother’s case, which rested heavily on her allegations of violence, crumbled due to a lack of objective evidence and the application of the Jones v Dunkel principle regarding her failure to call available witnesses.

Judicial Original Quotation

In concluding its analysis and weighing the competing proposals, the Court made a determinative finding that elegantly summarises the core reasoning:

Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view, on balance, that it will not be in the best interests of the children for relocation to be permitted. Again, particularly important factors in this context are the significant risk that the children’s day to day stability will be detrimentally affected with adverse consequences if relocation is permitted, and the significant risk of the children’s meaningful relationship with the father being diminished. In reaching this view, the Court has considered the legitimate desire and right of the mother to live where she wants, however that desire and right of the mother in this case conflicts with and must give way to the best interests of the children which is to, in particular, remain living where they now are living with the father.

This passage encapsulates the central judicial calculus: while the mother’s freedom of movement is a relevant consideration, it is not absolute. When it conflicts directly with the children’s established stability and their fundamental right to a meaningful relationship with both parents, the children’s best interests must prevail.

Analysis of the Losing Party’s Failure

The Mother’s case ultimately failed for three primary reasons:
1. Unilateral Relocation: Her initial decision to move the children to Melbourne without the Father’s consent or a court order was a high-risk strategy that immediately placed her on the back foot. It demonstrated a lack of insight into the importance of the children’s relationship with their father.
2. Failure to Substantiate Allegations: Her case for relocation was heavily reliant on proving that the move was necessary for safety. The Court’s finding that her family violence allegations were not sufficiently proven dismantled the core justification for her proposal.
3. Demonstrated Lack of Capacity to Facilitate a Relationship: Her admission that she would not “force” the children to see their father if they were resistant was fatal. It suggested to the Court that she might, consciously or unconsciously, undermine the children’s relationship with the Father, contrary to the core principles of the Act.

Reference to Comparable Authorities

Grainger & Grainger (No 3) [2024] FedCFamC1F 470: Cited for the general legal principles applicable in relocation cases.
Jones v Dunkel (1959) 101 CLR 298: Applied by the Court to draw an adverse inference from the Mother’s failure to call available witnesses (her brother and sister) who could have corroborated her story.
Tibb v Sheean (2018) 58 Fam LR 351: Referenced as authority that the Court must consider all statutory matters under section 60CC.

Implications

Unilateral Relocation is a High-Stakes Gamble: This case serves as a stark warning. Moving children interstate without the other parent’s consent or a court order is fraught with risk and can severely damage your credibility before the Court.
Evidence is Everything, Allegations are Not Enough: The Court makes decisions based on evidence, not just allegations. If your case relies on claims of family violence, you must be prepared to substantiate them with consistent testimony and, where possible, objective evidence like police reports or medical records.
The Child’s Stability is a Pillar of the Law: Once children are settled in a stable environment—with established school routines, friendships, and community ties—the Court will be extremely reluctant to order another disruptive move unless there are compelling reasons to do so.
You Must Genuinely Support the Other Parent’s Role: Family law is not about “winning” custody. The Court actively looks for the parent who is more willing and able to support the children having a meaningful relationship with the other parent. Any suggestion that you would undermine this can be fatal to your case.
A Parent’s Freedom is Not Absolute: While every adult has the right to live where they choose, this right is not absolute once you have children. Your parental responsibilities may require your personal freedom to yield to your children’s best interests.

Q&A Session

1. Why was the Father granted “sole” parental responsibility? Doesn’t the Court prefer shared responsibility?
While the law encourages shared parental responsibility, it is not automatic. In this case, the Court found there was significant distrust and a lack of effective communication between the parents, making it unworkable for them to consult and agree on major long-term issues. Given the children were living with the Father and he had been their primary carer for two years, granting him sole decision-making power was deemed to be in the children’s best interests to provide certainty and avoid ongoing conflict. The order still requires him to consult the Mother, giving her a voice but leaving the final decision with him.

2. The Father admitted to using a belt to discipline the children in the past. Why wasn’t this considered serious family violence?
The Court considered this evidence carefully. The Father admitted to the past conduct but stated it occurred a long time ago and he no longer uses physical discipline. The Mother’s own counsel conceded in submissions that this likely fell under the outdated, but previously accepted, notion of “lawful chastisement”. While modern parenting standards and the law view this very differently, the Court found it was not an ongoing risk, accepting the Father’s evidence that his disciplinary methods had changed to non-physical approaches like “timeout”. The focus was on current and future risk, which the Court determined was low.

3. If the Mother feels unsafe in Sydney, what can she do now?
The Court was not satisfied that the Mother’s subjective fears were founded on objective evidence of ongoing risk. However, the legal system provides protective measures. If the Mother were to move back to Sydney and experience any new threats or violence, she would be entitled to apply to the police for an Apprehended Violence Order (AVO) and bring the matter back before the Family Court on an urgent basis. The Court’s finding in this case is based on the evidence presented at this specific hearing; it does not prevent a party from seeking protection if new circumstances of risk arise in the future.

[Appendix: Reference for Comparable Case Judgments and Practical Guidelines]

1. Practical Positioning of This Case

Case Subtype: Family Law – Final Parenting Orders (Interstate Relocation Dispute)
Judgment Nature Definition: Final Judgment

2. Self-examination of Core Statutory Elements

① De Facto Relationships & Matrimonial Property & Parenting Matters (Family Law)

Core Test (Existence of De Facto Relationship – Section 4AA): While this case did not turn on the existence of a de facto relationship, the test is fundamental in many family law matters. The Court considers:
- Duration of the relationship: A total period of at least 2 years is the general rule, but exceptions exist.
- Nature and extent of common residence: Did the parties live together as a couple, and for how long?
- Whether a sexual relationship exists: This is a factor but not determinative on its own.
- Degree of financial dependence or interdependence: Were finances merged? Were there joint bank accounts, loans, or shared expenses?
- Ownership, use and acquisition of property: How was property acquired and owned, jointly or separately?
- Degree of mutual commitment to a shared life: Did the parties present as a committed couple to the outside world?
- The care and support of children: The existence of a child of the relationship is a significant factor.
- Reputation and public aspects of the relationship: Were they known as a couple among family and friends?
Property Settlement – The Four-Step Process: Not applicable in this parenting-only matter, but crucial for financial disputes. The process involves:
1. Identification and Valuation: Identifying and valuing all assets, liabilities, and superannuation of the parties to determine the net asset pool.
2. Assessment of Contributions: Evaluating the financial (e.g., wages, inheritances), non-financial (e.g., renovations, unpaid work in a business), and homemaker/parent contributions of each party throughout the relationship.
3. Adjustment for Future Needs (s 75(2) Factors): Adjusting the contribution-based division by considering factors like age, health, income-earning capacity, care of children under 18, and financial resources of each party.
4. Just and Equitable: Ensuring the final proposed division is fair and equitable in all the circumstances of the case.
Parenting Matters (Section 60CC of the Family Law Act 1975): This was the central legislative framework for this judgment. The Court must consider:
- Primary Considerations:
  - The benefit to the child of having a meaningful relationship with both of the child’s parents.
  - The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (Note: This factor is given greater weight than the meaningful relationship factor).
- Additional Considerations:
  - Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
  - The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child).
  - The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.
  - The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
  - The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
  - The capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs.
  - Any other fact or circumstance that the court thinks is relevant.

3. Equitable Remedies and Alternative Claims

In family law, equitable principles can arise, particularly in financial matters, but they are also relevant to parenting.

Promissory / Proprietary Estoppel: While less common in parenting disputes, a parent might argue they acted to their detriment (e.g., gave up a career, moved cities) based on a clear promise from the other parent about future parenting arrangements. If the other parent then reneges on that promise, and it would be unconscionable to allow them to do so, a court may enforce the promise. In this case, there was no such promise; the move was unilateral.
Unjust Enrichment / Constructive Trust: These remedies are almost exclusively for property matters. They can be used to recognise non-financial contributions to an asset held in one party’s sole name, arguing it would be unjust for that party to retain the full benefit. A constructive trust may be imposed to give the other party a beneficial interest.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds:
- Relocation: There is no “threshold” to apply, but a parent seeking to relocate bears the practical onus of convincing the Court that the move is in the children’s best interests.
- Parental Responsibility: The Court presumes that it is in the best interests of the child for parents to have equal shared parental responsibility. However, this presumption can be rebutted if there is evidence of family violence or if it is not in the child’s best interests (e.g., due to high conflict and inability to communicate).
Exceptional Channels (Crucial):
- Unilateral Relocation without Order: This is generally not advisable, but a Court might retrospectively approve it if it was done to escape proven, serious family violence where the children were at immediate risk. In this case, the Court was not satisfied that such a risk existed, leading to the order for the children’s return.
Suggestion: Do not unilaterally relocate children, especially interstate. It is a high-risk action that can be viewed unfavourably by the Court as it prioritises your interests over the children’s right to a relationship with the other parent. Always seek consent or apply for a court order first.

5. Guidelines for Judicial and Legal Citation

Citation Angle:
This case is a strong authority to cite in matters where:
1. A parent has unilaterally relocated, and the other parent seeks the children’s return to re-establish the status quo.
2. The Court must weigh a parent’s desire for freedom of movement against the children’s established stability and community ties.
3. A parent’s capacity to facilitate the other parent’s relationship with the children is in question, particularly where their evidence suggests they might not enforce contact orders if a child is resistant.
Citation Method:
- As Positive Support: When arguing for the children to remain in their current location, this authority reinforces the significant weight the Court gives to stability, schooling, and existing relationships.
- As a Distinguishing Reference: If an opposing party argues for relocation based on subjective fears of violence, this case can be used to distinguish the situation where those fears are not substantiated by objective evidence.
Anonymisation Rule: When citing this case, use the professional procedural titles: “In Britz & Zakaria, the Court held that the children’s best interests in maintaining their stability in Sydney outweighed the Respondent’s desire to relocate to Melbourne.”

Conclusion

The judgment in Britz & Zakaria is a sobering reminder of the Court’s unwavering focus in parenting matters: the best interests of the child are paramount. This principle is not a mere slogan; it is a rigorous legal test that requires a holistic evaluation of a child’s entire world—their safety, their relationships, their stability, and their needs. The case demonstrates that while parents have rights, those rights come with profound responsibilities.

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Federal Circuit and Family Court of Australia (Britz & Zakaria), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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