BALBI & BALBI

[2012] FamCA 683

FAMILY COURT OF AUSTRALIA

BALBI & BALBI [2012] FamCA 683

FAMILY LAW – CHILDREN – Relocation – where the subject children had a meaningful relationship with both parents – allocation of equal shared parental responsibility – the children to live with the mother – the mother be permitted to relocate to New Zealand – orders providing for substantial and significant time with the father– alternative orders providing for substantial and significant time with the father if he intends to relocate to New Zealand –  where the father had not seen the children for nearly a year after the parties separation and since the mother’s return to New Zealand - where the father initiated Hague Proceedings in New Zealand and the result of those proceedings was to compel the mother and children to relocate back to Australia – where the mother suffered severe psychological distress and social isolation before leaving Australia – where the eldest child presented a close alignment with his mother’s psychological symptoms - where the mother had a strong relationship with her extended Pacific Islander family in New Zealand and had no real support network outside of the father and his relatives in Australia – Where the children enjoy the benefit of relatives of the Pacific Islands and European descent - Where the father’s parents continued to reside in New Zealand- where the parties spent the majority of their relationship in New Zealand – where children have positive relationships with the maternal grandparents and extended Pacific Islander family - where the children had a positive relationship with the father’s current partner and her daughter

FAMILY LAW – CHILDREN – Best Interests of the Child - Additional Considerations – Practical expense and difficulty of parenting proposals -  where the expense of travel between New Zealand and Australia may represent an obstacle to spending time with the father - orders for the parties to share costs of travel - where the parties have very limited financial resources - where the father had a years worth of over due child support to pay back to the child support agency in New Zealand – where the mother had been unable to secure regular employment after returning to Australia and where she had received little financial support from the father – where the mother has no assets and her only income is a weekly government allowance

Family Law Act 1975 (Cth) s 60CC

Taylor & Barker (2007) FLC 93-345

APPLICANT: Mr Balbi

RESPONDENT: Ms Balbi

INDEPENDENT CHILDREN’S LAWYER: Jennifer Blundell & Associates

FILE NUMBER: NCC 1731 of 2011

DATE DELIVERED: 17 August 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 9, 10, 11, 12 and 13 July 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Burns

SOLICITOR FOR THE RESPONDENT: J J Lees & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Davies

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Jennifer Blundell & Associates

Orders

1. That the parties have equal shared parental responsibility for the children L born … April 2003 and T born … November 2007 (“the children”).

2. That the children shall live with the mother.

3. That for as long as the mother remains in the Central Coast Region the father shall spend time with the children:

   3.1in each alternate week from Wednesday after school until Sunday evening at 6.00 pm;

   3.2from after school on Wednesday after school until before school the following morning in each other week.

4. That the mother be permitted to change the children’s place of residence to New Zealand.

5. After the mother has relocated to New Zealand the father shall spend time with the children as follows:

   5.1In the event that the father also relocates to New Zealand:

   5.1.1from after school Wednesday to 6.00 pm Sunday each alternate week;

   5.1.2from after school on Wednesday until before school the following morning in each other week;

   5.1.3for one-half of all school holiday periods, being the first half of each term holiday in each even numbered year, and the second half of each term holiday period in each odd numbered year;

   5.1.4for one-half of the Christmas school holiday period, being the first half in each even numbered year, and the second half in each odd numbered year, commencing from the first day of the holiday period for the first half and from the mid-point day in the second half of the holiday period, ensuring that the children are returned to the home of the mother two nights before the commencement of the new school year;

   5.1.5on Father’s Day, if the children are not already spending time with him, from 6.00 pm on the Saturday preceding the day, until return to school on Monday morning;

   5.1.6time to be suspended if the children are with their father on Mother’s Day, from 6.00 pm on the Saturday evening preceding the day to the conclusion of that period;

   5.1.7at such other special times including the birthdays of the children and each of the parents and other family occasions as may be agreed between the parties.

   5.2In the event that the father remains living in Australia:

   5.2.1for the whole of two of the school term holiday periods, and failing agreement, the first and third term holiday period;

   5.2.2for four weeks in the Christmas school holiday period, being the first four weeks of the period in even numbered years (to include Christmas Day), to commence in December 2012 and the second four weeks of the period in odd numbered years.

6. To facilitate the children’s time with the father, the costs of the children’s travel between the parent’s residences in New Zealand and Australia shall be equally shared between the parents as follows:

   6.1the air travel costs of the children shall be shared equally between the parties as agreed but failing agreement, the father shall book and pay for the children’s first one way trip from New Zealand to Australia after the date of these orders and each forward trip thereafter, and the mother shall book and pay for the first return trip from Australia to New Zealand after the date of these orders and each return trip thereafter, with such costs to include the costs of any ticket for them to accompany the children on the flight or any additional costs of the children travelling on the flight as unaccompanied children;  and

   6.2bookings to be confirmed three months prior to travel.

7. Each party is to notify the other as soon as is practicable on the happening of any of the following to the children:

   7.1any medical problems or illnesses suffered by the children while in their care;

   7.2any medication that has been prescribed for the children;

   7.3any social, school or religious functions which the children are to attend;

   7.4being involved in an accident;  and

   7.5any other matter relevant to the children’s welfare.

8. Each of the parties will be entitled to obtain directly from any education, health, welfare or other professional attended by the children, copies of any reports, notices or other verbal or written advise affecting the health and welfare of the children and for this purpose:

   8.1each of the parties will immediately notify the other of the names and contact details of the relevant health, welfare or other professional and keep the other party so informed;

   8.2each of the parties will do all acts and things and sign all documents as may be necessary from time to time to allow the other party to exercise their entitlements under clause 8 of these orders.

9. The parties shall keep each other informed of changes to their landline and mobile telephone contact numbers, addresses and email addresses and advise the other parent of any changes to same within 14 days of such change occurring.

10. Neither party will denigrate the other party, their family or their friends to or in the presence or hearing of the child or children and will use their best endeavours to ensure that no one else does so and will remove the child or children from any environment when such denigration is occurring.

11. That within 7 days of the date of these Orders and within 7 days of the date of any subsequent enrolment in any Australian or New Zealand school/preschool/before and after school care, the mother shall do all acts and things necessary including the provision of all authorities necessary to enable the father to communicate with the children’s school/preschool/before and after school care and the father may request all information and copies of documents from such school/preschool/before and after school care as he may request in relation to the children.

12. The parents shall both be entitled to attend all events involving the children, whether those events fall on a week day or a weekend including;

    12.1sporting activities and fixtures;

    12.2extra curricular activities, including but not limited to religious activities that allow for parental attendance;

    12.3school functions and events that allow for parental attendance but not limited to concerts, assemblies, sports days, parent and teacher interviews, canteen duties and social functions

    and the parent who has the children in their care on the day of such activity will be responsible for their day to day care at such event and the children’s transportation to and from that event.

13. That within seven days of the date of these orders, and within seven days of the date of any subsequent enrolment in any Australian or New Zealand school or pre-school or before and after school care, the mother shall do all acts and things necessary including the provision of all authorities necessary to enable the father to communicate with the children’s school or pre-school or before and after school care and the father may request all information and copies of documents from such school or pre-school or before and after school care as he may request in relation to the children.

14. The parents shall both be entitled to attend all events involving the children, whether those events fall on a weekday or a weekend including:

    14.1sporting activities and fixtures;

    14.2extra curricular activities, including but not limited to religious activities, that allow for parental attendance;

    14.3school functions and events that allow for parental attendance but not limited to concerts, assemblies, sports days, parent and teacher interviews, canteen duties and social function,

    and the parent who has the children in their care on the day of such activity will be responsible for their day to day care at such event and the children’s transportation to and from that event.

15. The children and the father are to have the following communication:

    15.1

    by telephone, as agreed but failing agreement, each Monday and Thursday between Australian Eastern Standard time 6.00 pm and

    
    

    7.00 pm and:

    15.1.1for that purpose the father is to telephone the children on the Monday and the mother is to have her phone charged and switched on and is to answer the phone when it rings between the agreed or specified time and shall hand the phone to the children to facilitate the communication with the father, and the mother shall ensure that the children have privacy during the telephone call and are left undisturbed during the communication with the father; and

    15.1.2the mother is to telephone the father on the Thursday and the father is to have his phone charged and switched on and is to answer the phone during the agreed or specified time when it rings during the specified time and shall accept the call from the mother to communicate with the children, and the mother shall ensure that the children have privacy during the telephone call and are left undisturbed during the communication with the father;  and

    15.2By Skype communication (“Skype call”) as agreed but failing agreement as follows:

    15.2.1each Sunday between Australian Eastern Standard time 5.00 pm and 6.00 pm;

    15.2.2the mother shall ensure that the children are available and present to receive a Skype call from the father at the agreed or specified time;

    15.2.3the mother shall ensure that the children have privacy during the Skype call and are left undisturbed in a room unoccupied by any other person other than the children during the communication with the father;

    15.2.4the father shall make such a call at the agreed or specified time and if the father is unavailable to make the Skype call at the agreed or specified time then he shall initiate communication with the mother in advance to make an alternate arrangement for a Skype call to the children within 3 days;

    15.2.5in the event that the children are unavailable to take the scheduled Skype call from the father then the mother shall initiate communication with the father in advance to make an alternate arrangement for a Skype call to take place between the children and the father within 3 days;  and

    15.2.6in the event that either party have technical problems which prevent the facilitation of a Skype call at the agreed or specified times, then the parent experiencing those difficulties must immediately telephone the other parent to inform them and shall forthwith facilitate telephone communication between the children and the father in lieu of the Skype call.

    15.3At liberty by email and by post:

    15.3.1for such purposes the mother shall encourage and facilitate the children sending letters, cards and other items and to send emails to the father as they wish, and in particular for special occasions such as birthdays and Christmas;  and

    15.3.2the mother shall accept all post mail addressed to the children from the father and allow the children to open any mail or packages from the father within privacy and shall ensure that the letters, cards, gifts and any other items sent to the children by the father shall remain in the possession of the children and not be discarded by the mother or any member of her family.

    15.4For the purposes of the parents’ communication with one another about matters concerning the children, their welfare and the arrangements for them to spend time with the father, the parties shall communicate using the following methods:

    15.4.1by telephone;  and/or

    15.4.2by SMS text message;  and

    15.4.3any other agreed method;  and

    15.4.4each parent shall answer or respond to messages or requests from the other parent to have a discussion about the children in a timely manner.

    15.5Each of the parents shall use their best endeavours to be polite and civil to one another at those times that they communicate or come into contact with each other in relation to the children, where they are communicating in relation to a child’s matter or if they are both attending a function where the children are present.

    15.6The parents shall communicate with one another in a polite and civil manner.

    15.7Each party is restrained from allowing either of the children to travel overseas to any destination other than Australia or New Zealand without first obtaining the father’s written consent and for that purpose the parent proposing to travel must give the other parent 90 days notice of their intention to travel with the children overseas, together with an itinerary of the intended travel including dates of forward and return travel and accommodation and contact details.

16. If the mother intends to relocate with the children to New Zealand:

    16.1the mother shall provide the Registrar of the Family Court of Australia at Newcastle within 21 days notice of her intention to relocate to New Zealand;  and

    16.2On notice of the mother’s intention to relocate the children to New Zealand the Registrar of the Family Court of Australia at Newcastle shall forthwith provide to the Secretary of Justice, the Ministry of Justice, New Zealand:

    16.2.1a certified copy of these Orders;  and

    16.2.2a statement that the Orders are currently enforceable in Australia;  and

    16.2.3a written statement tending to show that the mother and/or both of the children is present in New Zealand or is proceeding to New Zealand, or is about to proceed to New Zealand;

    16.2.4The Court notes that orders made under 16 of these orders is intended to effect the process for registration of overseas parenting orders in New Zealand where either parent may seek to enforce, vary or discharge an order under the relevant law in New Zealand pursuant to s 81 and s 82 of the Care of Children Act 2004 New Zealand.

17. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Balbi & Balbi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC1731 of 2011

Mr Balbi

Applicant

And

Ms Balbi

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction  

1. These proceedings are concerned with the competing applications by the parents of two children, L aged nine years and T aged four years.  The parties agree that they should have equal shared parental responsibility for their children.  On the face of the documents there was a contest over residence.  However, at the commencement of proceedings the father conceded that the children should live with their mother.  The dispute is over whether the children should remain with both parents in Australia or whether the mother should be allowed to relocate with the children to be with her extended family in New Zealand.

2. Presently both parents and the children live in their respective homes on the Central Coast of New South Wales.

Background and history of proceedings

1. The applicant father was born in New Zealand.  He is 42.  The father’s mother lives in New Zealand, but was born in Europe.

2. The respondent mother was born in the Pacific Islands and moved to New Zealand as a young child.  She is a citizen of her home country in the Pacific Islands, New Zealand and Australia.  She is 44.

3. The parties met in New Zealand in 1996 and began living together soon after.  They married in Auckland in 2001.  The children were born in New Zealand in 2003 and 2007.  The mother is one of eight children.  Her parents and siblings, together with their families all lived close to each other in New Zealand and were all closely associated with each other. 

4. Although the father was the main income earner in the marriage, both parties had paid employment and were also involved in the care of the children.

5. The children’s maternal grandmother assisted the parties by providing care for them whenever she was needed.  The father says there was a period of about 10 months when he stayed at home with the children while their mother worked fulltime.

6. The parties moved to live in Australia in April 2009.  Each gives different reasons for the decision to leave New Zealand and live in Australia.  The father says:

   ·the couple had visited the Central Coast of New South Wales before their marriage and had discussed the possibility of moving there in the future;

   ·that the father’s sister lived on the Central Coast;

   ·that the mother had lived in the Newcastle area when she was younger and had lived in Australia for a significant period prior to their relationship 

7. The mother on the other hand says:

   ·that there had been a falling out between the father and her family;

   ·that the father held the view that the mother spent too much time with her family and that they were always interfering;

   ·that there had been difficulties in the marriage in previous years; and

   ·that the mother was willing to attempt a new start in Australia. 

1. I accept the evidence of both parties on this point.  That evidence is not inconsistent.

2. The parties sold their home in New Zealand and arrived in Australia in April 2009 staying at the home of the father’s sister on the Central Coast until they found a rental property of their own.  The parties agree that the father worked very hard working up to 12 hours each day fulltime.  This represented a difficulty for the mother, who in the absence of the father throughout the day: “missed the help and support of [her] family back home in New Zealand”[1].

   [1]  Affidavit of mother sworn filed 18 August 2011, par 13

3. By April 2010, after 12 months in Australia, the mother was unwell.  She had a range of symptoms including nausea, vomiting, headaches, pain and right sided weakness. 

4. In July 2010 the mother spent time in hospital.  The mother was advised that she may have an ulcer or had perhaps suffered a stroke.  Extensive testing was carried out which excluded any physiological cause of the mother’s symptoms.

5. On 14 July 2010 the final report of a CT scan was as follows:

   Normal non-contrast study of brain.  No cause for a gradual cause of headache or right arm and leg weakness could be identified.

6. On 15 July 2010 the final report of an MRI brain scan excludes a range of stated possibilities and says this:

   Several T2/FLAIR hyper intensities are seen in the frontoparietal deep white matter bilaterally.  These lesions are not associated with restricted diffusion and although non-specific in nature may represent chronic ischemic change due to small vessel disease[2].

   [2]  Exhibit ‘17’, flag 7

7. The medical records indicate the mother was treated according to stroke protocol.

8. On 19 July 2010 the medical notes, in addition to the reference to possible small vessel disease, say this:

   Patient currently has a strong element of domestic stress/anxiety contributing to symptoms.

9. This is a significant matter and the central basis for the recommendation by the family consultant that the mother be permitted to relocate to New Zealand with the children.  I am unable to draw conclusions from the material produced by the hospital in response to a subpoena, as to the final diagnosis or prognosis for the mother.  There was no evidence from a treating medical practitioner.  In her oral evidence the mother referred to attendance on a psychologist in New Zealand and ongoing attendance to date on an Australian psychologist.  There was no evidence from any treating psychologist at all. 

10. I am unable to determine what medical and/or psychological condition the mother suffers from if any, and have no information before me as to the likely recurrence of past symptoms and illness.  The mother reported to the Family Consultant that she was diagnosed with “Conversion Disorder”[3].  The Family Consultant did not see any document which supported this diagnosis.  I have no reason to doubt that the mother told the Family Consultant of such a diagnosis.  I do not doubt that the mother was told something which has given rise to her belief.  However there is no medical evidence before me.  The Family Consultant considered that the symptoms described were consistent with a Conversion Disorder, but of course could not come to her own independent diagnosis.

    [3]  Family Report November 2011, par 9

11. The evidence is that the mother has, for the last two years been well, has not been in hospital and has learnt satisfactory techniques of managing her own emotional state through attendance on a psychologist.  The lack of medical evidence was unsatisfactory.

12. In any event, the mother returned to New Zealand at the end of July 2010 in order to recover.  Within a few days the parties had a distressing telephone conversation.  The mother believed that she had been rejected by the father and that their marriage was now over.  She said that the father told her he no longer loved her and that the marriage would not continue.  The father says that such a conversation did take place.  However, he stated that there had been many such conversations in the past where such things had been said in anger, but neither party considered that the relationship had broken down. 

13. The mother was admitted to hospital in New Zealand in August 2010 distressed and unable to care for her children.  There is no medical evidence before me as to the mother’s treatment or referral in New Zealand.

14. The mother resolved to remain in New Zealand with the children and told this to the father.  The mother says that her health improved and that she and the children began to get on with their lives.  I accept that the mother regarded the marriage as over and that therefore the experiment of living in Australia had failed.  I also accept that from the father’s point of view the mother should have returned to Australia once she had recovered her health, whether the marriage was over or not.

15. The father commenced proceedings pursuant to the Hague Convention for the return of the children. 

16. On 28 January 2011 there was an order for return of the children to Australia.  An appeal by the mother against that decision was made and dismissed on 29 June 2011.  Accordingly the children, together with the mother, returned to Australia on 16 July 2011. 

17. On 12 July 2011 the father filed an Initiating Application in this Court.  The mother later filed her Response on 18 August 2011.  The orders contained within those applications now form the basis of these proceedings.

18. In the 12 months since their return there has been considerable animosity between the parties, which was reflected over the five days of the hearing before me. 

Child Support

1. The father says that he was advised not to pay child support to avoid being found to have acquiesced in the retention of the children by the mother in New Zealand.  Whether or not he was so advised, the father did not pay child support for the year that the children were in New Zealand.  He now owes a debt to the New Zealand government for the financial support that was provided by way of child support by the New Zealand government.  The consequence of that is that very little has been paid on a weekly basis for the support of the children. 

2. The mother’s only income is a Centrelink benefit.  She is reluctant to look for employment, partly because of her hope that she may be able to return to New Zealand, and also because of a lack of a support network to assist her with the care of the children at times when she is working.

3. The father did not provide any assistance to the mother on her return to Australia.  He communicated to the mother the offer of his sister that the mother and the children stay with her.  The mother was antagonised about being brought back and distressed over the breakdown of the marriage.  It was understandable that she did not wish to live with the father’s sister in those circumstances.

4. The father had retained the mother’s car and also had access to the majority of the family’s modest assets and savings. 

5. The mother’s family paid for her to live in a hotel for a period immediately after her return, but when they were unable to continue that level of support, the mother and children moved into a refuge.  Subsequently, the mother found rental accommodation which she furnished through the assistance of a charity and friends.  I accept her evidence that she was humiliated by her desperate financial position, having been used to a reasonably comfortable lifestyle and an ability to provide for all of the needs of the children.

Effect of relocation to Australia on the children

1. The parties blame each other for the painful events of the past 12 months in Australia.  What is significant is the impact on the children, especially L.  L had been asked by his mother in New Zealand if he would like to return to Australia.  She had said to him words to the effect:  “I want to stay here in New Zealand, but if you want to go back to Australia that’s fine.”  Unsurprisingly, after a day’s reflection, L decided that he too wanted to remain in New Zealand. 

2. Subsequently, as a result of the Hague proceedings, L was returned to Australia.  He had missed his father and expressed as much to the Independent Children’s Lawyer who interviewed him for the Hague proceedings.  The notes of that interview are contained in a ‘Memorandum of Counsel for the Child’ (“the memorandum”)[4].

   [4]  Exhibit ‘13’

3. In the section of the report headed ‘Views of L aged eight years and four weeks’, it was indicated that he had recently seen his father who had come to New Zealand during the Easter holidays: 

   We talked also about his mum and dad not living together any more and that because of that a Judge was helping them decide where they would live.  He talked with me about what he would say to his mum and dad about how to sort this out.  [L] said: ‘mum and dad should stay in the same place then they wouldn’t have to ring each other’.

   He thought that would be good ‘because then they wouldn’t use a lot of money to pay for phone calls and plane trips’...

4. The memorandum then explains how L was required to list the good and bad things about living in Australia and New Zealand, something which the Independent Children’s Lawyer indicates he was more than happy to do:

   [Ultimately,] [L] said he couldn’t decide where he would put his feelings ‘because New Zealand and Australia are just both my favourite places.  I just can’t tell.’

5. The wishes of L as set out in the memorandum suggested that L wanted to be close to both his parents.

6. However, following his relocation to Australia L began to experience considerable distress.  In particular he suffered from stomach pains and symptoms consistent with his mother’s at the time.  Indeed, there was evidence from the Family Consultant suggesting that L had a strong alignment with his mother’s emotional feelings[5]. 

   [5] Family Report November 2011, par 23

7. After an incident in the father’s home where L broke a plate and became disproportionately upset, the parents agreed to arrange counselling for L.  He has formed a good relationship with his counsellor Mr C, has enjoyed talking to him and wishes to continue.

8. Both children were overjoyed to see their father on their return at the end of July 2011.  This is a tribute both to their mother’s ability to promote the relationship and to reassure them when they were in New Zealand without their father.  It is also attributable to the strength of the attachment between the children and their father.

Best Interests of the Child - s 60CC

1. I note that this case involves issues of relocation.  The Family Law Act 1975 (Cth) (“the Act”) provides no direct guidance in relation to this issue. However, it has been well established that any proposals for relocation are to be treated the same as any other, with the best interests of the child being the paramount consideration (see Taylor & Barker (2007) FLC 93-345 at [51], [61]-[62]).

2. In determining whether it is in the children’s best interests to change residence with the mother to New Zealand, I now consider the factors set out in s 60CC of the Act.

Section 60CC(2)(a) & (b) The benefit to the children of having a meaningful relationship with both of their parents and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

1. Each of these children has a meaningful relationship with both parents.  Until July 2010, when the mother returned to New Zealand with the children, both parents had provided a high standard of care for the children and revealed a responsible attitude to parenthood. 

2. Over the past two years each of them has lost perspective.  They  have focused more on achieving their own desired outcomes rather than how the breakdown of their relationship and the dispute over the country of residence has impacted on their children.  In particular, I consider that the father could have done more to assist financially when the mother returned to Australia. 

3. However, I take the view that the parents have not had the opportunity to come to terms with the end of their marriage in fraught circumstances arising from the Hague Convention proceedings and their inability to resolve the issue of where the children should live. 

4. I do not consider there is a need to protect the children from physical or psychological harm through exposure to abuse, neglect or family violence.  There is an enormous benefit to the children of having day to day, face to face relationship with each of their parents.  The parties agree that the children should live with their mother and that she should provide the majority of their care.  However, the time that they spend with their father on alternate weekends, during term time and during holidays, is essential to their emotional development and happiness. 

5. There is an obvious benefit that both parents recognise that having the entire family all living in the one country would be the best way to foster and continue the meaningful relationship that the children already have with each of their parents.

Additional considerations

Section 60CC(3)(a) – The views of the children

1. I have referred to L’s views.  He is not sufficiently mature to understand the full extent of the dispute between his parents.  He knows that he would like to live primarily with his mother “I do want to live with mum”[6].  He is assessed by the Family Consultant as an intelligent, articulate child with an active imagination and a good sense of humour and appeared to be on track with regards to achieving his developmental milestones.

   [6]  Family Report November 2011, par 65.

2. Likewise T was assessed as a friendly outgoing child who separated easily from her mother and family to be interviewed.  She was very chatty although her train of thought was hard to follow at times.  Overall she appeared to be on track with regards to her developmental milestones.  T at not quite four, does not appear to have any comprehension of her parent’s dispute.  She may not understand that they have permanently separated.

Section 60CC(3)(b) - The nature of the relationship of the children with each of their parents and other persons

1. Each of the children has a good relationship with each parent and with each other.  The children enjoy a close affectionate relationship with their grandparents, aunts and uncles and cousins in New Zealand.   The children have also had a close and affectionate relationship with their paternal grandmother and step-father in New Zealand, but that relationship has been somewhat neglected for the last two years.

2. The children do have a good relationship with the father’s partner Ms S and her mother Ms L.  T has developed a friendship with Ms S’s daughter N, aged seven.  T shares a bedroom with N.  Unsurprisingly, given the age difference, L reported finding N as “annoying”. 

3. Recently, L has been asking for more time with his father, including more time just between himself and his father.  He does not want his father’s attention distracted by other members of the father’s household.  This is not an adverse reflection on them, but an indication of L’s personal needs.

Section 60CC(3)(c) – The willingness and ability of parents to facilitate relationships

1. Each of the parents has shown a willingness and ability to encourage a close and continuing relationship between each child and the other parent. 

1. The mother has been a little cautious in allowing additional time between the children and their father.  She offered a few additional hours between L and his father which the father rejected.  The father’s reason for rejecting the time was that he did not want to create divisions between the children by excluding T from additional time.  This is to the credit of the father.  There is no doubt on the evidence that T does not want to be left out of special time with her father.

Section 60CC(3)(d) – likely effect of any change of circumstances

1. This is an important consideration.  If the children were to remain living in Australia, they would have the benefit of having a relationship with both of their parents in close proximity.  They would lose the regular contact with their extended maternal family and extended paternal family in New Zealand.

2. In the event that the children are living in New Zealand with their mother and their father does not return to live in New Zealand, there is likely to be an adverse effect in their circumstances by that loss.  I accept the submission of the father that telephone calls and Skype calls fall well short of physical contact, a hug and a kiss and the chance to have face to face conversation. 

3. The children’s relationship with the father was not damaged by the period in New Zealand between July 2010 and July 2011, despite only seeing him for a short time in New Zealand during those 12 months.  However, there is no doubt as years go by that it will be more difficult for the children to include their father in the day to day events, achievements and problems of their growing up if he is in another country.

Section 60CC(3)(e) - Practical difficulty and expense of children spending time and communicating with a parent

1. This too is a most significant matter.  The mother did not include any information in her application as to the practicalities and costs of travel between Australia and New Zealand.  She presently has Centrelink income and no assets. 

2. Each party put forward some travel plans.  The father provided some information about the cost of travel, the mother none.  The significant matter is how the parties would afford the travel. 

3. Before submissions began on the final day of this hearing, the mother sought and was granted leave to tender a download from the internet with limited information relating to fares for the children to travel at different times of the year.  The lateness and inadequacy of this information is a reflection of the mother’s statement in the witness box that she had not turned her mind to how she would fund the travel between Australia and New Zealand that she proposed.

4. The father has had regular work, but has not been able to accumulate any savings.  He is in debt to the New Zealand Government and also pays Australian child support.  He is hopeful of obtaining fulltime work in Australia, but there was no evidence of any definite offer. 

5. There is a very real possibility that the parties will simply not be able to afford the amount of travel that is contemplated by the orders that each of them seeks.  That will be a significant disadvantage to the children.  The cost of travel may be more than a practical difficulty, but an obstacle to the children maintaining personal relationships and direct contact with their father.

Section 60CC(3)(f) - Capacity of each of the children’s parents to provide for the needs of the children, including emotional and intellectual needs

1. Both parents have provided both emotional support, care and financial support for the children in the past.  The maternal family, especially the maternal grandmother, has also provided significant loving care whilst the parents were working. 

2. Both parents are concerned about the children’s education.  L, despite the change in schools, does well and enjoys school.  He has made friends.  T is due to start school in 2013.

Section 60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of their parents

1. The children are a nine year old boy and a four year old girl.  On their mother’s side they have a Samoan cultural heritage.  Their mother was born in Samoa, their maternal grandparents speak Samoan as their first language.  They are part of a culture which places great emphasis and importance on family connection and support. 

2. They are also New Zealanders by birth, as are each of their parents.  Until 2009, the children lived in New Zealand with their family and are citizens. 

3. Through their father the children have a connection with Europe.  Their paternal grandmother was born there and there is evidence that the paternal grandmother, about to retire, is hopeful of being able to travel with the father and the children to Europe.  If the children did get that opportunity, it would be a great benefit to them to establish contact with their European family and European heritage. 

Section 60CC(3)(i) The attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents

1. These are both loving and responsible parents whose behaviour over the last two years since the breakdown of their marriage has not been characteristic of their behaviour in the past and in my view does not predict their behaviour in the future.

   Section 60CC(3)(l) Whether it would be preferable to make the order that would be lease likely to lead to the institution of future proceedings in relation to the children

2. In this matter, the circumstances which gave rise to the mother becoming ill and distressed was probably social isolation.  She is capable of finding work in Australia and has a work history in New Zealand before and after the birth of the children.  However, it is the lack of her social support which troubles her.  She is reluctant to work if she does not have close trusted family members to support her when the children are sick or when her hours at work conflict with the children’s hours at school.  Before and after school care services are available, but this is not how the parties have operated in the past and the mother is clearly uneasy about leaving her children with anyone other than family members.

3. There will be a financial benefit to the children if both their parents can work and provide for their needs, and if both their parents are emotionally as strong as possible.  The possibility that social isolation would lead to the mother again being sick and unable to cope exists.  The mother has made every effort to address these difficulties and is presently seeing a psychologist.  However, I accept that the loving support of her family was probably the biggest factor in her feeling well enough to return to work and to the care of her children in New Zealand in August 2010.

Section 60CC(3)(m) Any other fact or circumstance that the Court thinks is relevant

In this case the father could return to New Zealand.  He does have a relationship with Ms S to consider.  He presently lives with her in a shared household with her mother and a family friend Ms V.  Ms S was cross-examined and said she would be willing to consider living in New Zealand if the father decided to go there. 

72.

1. I accept that the father wishes to remain in Australia.  He considers his work prospects here are better and he prefers the cultural environment for his own reasons.  He has made a commitment to a new relationship.  However, he is a New Zealand citizen.  His mother and step-father live in New Zealand in the same city where he lived until 2009.  He is a loving and sensitive father who knows that his children will manage if they only see him in holidays, but will do best if they can see him regularly through the school term and assist them with their day to day needs.

2. I have taken into account the short time that the family lived in Australia before the marriage broke down in the circumstances I have described and there is no impediment to the father returning to New Zealand if he chooses.  If he does not, there are orders in place for the children and the father to travel to maximise the meaningful relationship between them.

I certify that the preceding seventy four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 17 August 2012

Associate: 

Date:  17 August 2012