Gwerder & Perrie
[2025] FedCFamC1F 56
•5 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gwerder & Perrie [2025] FedCFamC1F 56
File number(s): BRC 15456 of 2024 Judgment of: HOWARD J Date of judgment: 5 February 2025 Catchwords: FAMILY LAW – PARENTING – interim application - international relocation - where the mother seeks to relocate the child’s residence to New Zealand for nine months – where the father opposes that application – where the child is currently spending overnight time with the father – where the final orders sought by the mother include permission to relocate the residence of the subject child to New Zealand - where the mother’s interim application for relocation is dismissed Legislation: Family Law Act 1975 (Cth) Cases cited: Davin & Kerrane [2023] FedCFamC1F 853
Gaize & Gaize [2020] FCCA 296
Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 5 February 2025 Place: Brisbane Counsel for the Applicant: Ms Lyons Solicitor for the Applicant: Anthony Black Family Law Counsel for the Respondent: Mr Coker Solicitor for the Respondent: Damien Greer Lawyers Solicitor for the Independent Children's Lawyer: Norman & Kingston ORDERS
BRC 15456 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GWERDER
Applicant
AND: MR PERRIE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
5 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Mother’s Application in a Proceeding filed 7 November 2024 be dismissed.
2.Pursuant to s 114Q of the Family Law Act 1975 (Cth) the Applicant Mother be granted leave to provide a copy of this Order and the Judgement delivered today to B University in New Zealand.
3.Upon seven (7) days’ notice, the Independent Children’s Lawyer is at liberty to contact the chambers of the Honourable Justice Howard ( by way of email to (…@...) and request the matter be relisted for mention.
Trial Directions
4.These proceedings be set down for final hearing for not more than two (2) days commencing at 10.00am on 10 November 2025 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane before the Honourable Justice Howard.
5.In the event a party or a party’s lawyer fails to comply with an obligation imposed by these Orders (or any part of these Orders) then at the final hearing commencing on
10 November 2025 the Court shall consider:(a)making a costs order against a non-complying party; and/or
(b)proceeding with the matter on that day as an undefended hearing.
6.The parties and their legal representatives shall personally attend Court for the final hearing commencing on 10 November 2025.
7.The Applicant pay any hearing fee or seek a waiver of the fee no later than 4.00pm on 13 October 2025.
8.Each party shall file and serve on each other party no later than 4.00pm on 13 October 2025.
(a)one (1) consolidated Affidavit of evidence in chief of that party;
(b)a Financial Statement; and
(c)one (1) Affidavit of each witness intended to be relied upon at the trial.
9.Any Affidavit filed in accordance with the preceding Order shall:
(a)have any annexures which the deponent may refer to in the Affidavit attached to the Affidavit;
(b)contain an index of any attached annexures; and
(c)be paginated from the commencement of the Affidavit through to the end of the attached annexures.
10.In the event that documents are annexed to an affidavit, attention is drawn to r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
11.Each party shall file and serve on each other party no later than 4.00pm on 27 October 2025, a Case Outline setting out:
(a)a precise minute of the final orders sought;
(b)a relevant chronology;
(c)a schedule of the asserted assets and liabilities;
(d)a list of the issues which each party asserts that the Court needs to determine at the trial; and
(e)a list of Affidavits and Applications and/or Responses intended to be relied upon at trial. This order is subject to the orders contained in paragraphs
5(a) and 5(c)8(a) and 8(c) herein.
12.No party shall be entitled to rely upon any affidavit not filed in accordance with these orders without the leave of the Court.
13.Should either party wish to raise any objections to evidence – such party shall file and serve a “Notice of Objections to Evidence” (containing a list of objections) at least fourteen (14) days prior to the commencement of the final hearing.
14.In the event that a party wishes to cross examine the family report writer/single expert at the Final Hearing, that party shall provide written notice to the family report writer/single expert of such intention as soon as reasonably practicable, but by no later than 4.00pm on 13 October 2025.
15.Should either party wish to request the provision of an interpreter by the Court – such party shall contact the Court via email (…@...) as soon as reasonably practicable, but by no later than 4.00pm on 13 October 2025.
16.The parties must be prepared to make oral submissions to the Court at the conclusion of the evidence at the final hearing.
THE COURT NOTES THAT:
A.That s 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to communicate to the public an account of family law proceedings which identifies a party to the proceedings, or a person who is, or alleged to be, in any other way concerned in the matter to which the proceedings relate, unless specifically authorised by the Court.
B.That penalties may apply under section 114Q of Family Law Act 1975 (Cth) to the communication of any material contained in this report other than for use in connection with the proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOWARD J
These reasons were delivered ex tempore on 5 February 2025 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The matter before the Court relates to one child, X. X was born 2020. She is the child of the parties in this case, the Applicant mother Ms Gwerder, and Mr Perrie. The parents commenced living together in or around late 2005, then married some eight years later in 2013. After they married the parties lived together for a further 10 years before separating on a final basis in July 2023. I am told the parents are not yet divorced and I note that they have apparently resolved their property settlement issues by means of a binding financial agreement in July 2024.
The mother currently lives at Suburb D in Brisbane. The father lives nearby at Suburb E. X lives primarily with the mother and spends time with her father on the following basis. In week 1 she spends overnight Tuesday with her father and also overnight Friday. In week 2 X spends overnight Tuesday with the father and overnight Saturday. My attention has not been drawn to any significant risk issues. As far as I can ascertain there are no allegations of family violence.
The interim application that is being pursued by the mother is for permission to relocate the residence of the child to New Zealand for approximately a nine-month period for the mother to complete a course at B University in City C. The mother seeks the Court’s permission to relocate the residence of the child between February and November 2025 for the purpose of the mother completing a course.
The mother migrated to this country with her parents, both of whom have passed away. The mother’s final application is for a permanent relocation to New Zealand. The mother was born in New Zealand and came to Australia when the mother was about eight years old and has lived here for approximately 30 years or more.
The mother has, the Court has been told and I am willing to accept it, a brother called Mr G in Queensland but she has no relationship with him. She has a brother called Mr F, a half-sibling in New Zealand but she has no relationship with him. She has a brother called Mr H in City J with whom she does have a relationship. She has another brother called Mr K. I understand that the last two are also half-brothers, Mr H and Mr K. Mr K is a brother who lives in New Zealand and I understand that she does have a relationship with him. Mr K lives on the North Island of New Zealand.
The mother has other family members, including an aunt and uncle, and they are living in or around City O. The mother’s ultimate application is to relocate the residence of the child to City O. I apprehend, from what I have been told thus far, and what I can glean from the evidence, that one of the primary reasons for the mother’s desire to return permanently to New Zealand is to have the support of her extended family. The mother also has a desire to return to her country of birth.
The father has re-partnered and lives quite close to the mother now, in the suburb of Suburb E, which he says he chose because it was close to where young X lives. The father would like to have the child attend L School at Suburb M when X is ready for school, which I am told will be the beginning of 2026. The father, I apprehend, will be seeking, over time, to increase his time with the child, although, at this stage, he does not seek any increase in time, pending the obtaining of the family report. I was informed of this fact by Mr Coker of Counsel, who appears for the father.
The father opposes the interim relocation. The father opposes the final relocation. Ms Lyons of Counsel appeared on behalf of the mother and drew the Court’s attention to the university course that has been offered to the mother. The mother already has two degrees. She has not worked in either of those fields for some time. The mother has developed skills in the creative sector. She has been doing this for the past decade. The mother has told the Court that her income is $50,000 per annum.
The father works in the health care sector and I am told that his income is approximately $75,000 per annum. Counsel can inform the Court if the figures are not correct.
The mother says that if she completes the course at B University, there is a significant opportunity she will become qualified in the creative sector. I am told by the mother that there is no equivalent course in Australia. The mother was offered a place in the course – which was originally scheduled to commence at the beginning of 2024. The father initially said, “Okay,” but then thought better of it and said, “No, look, I don’t think that’s a good idea.” The mother then deferred that course. There is no further evidence as such as to whether the mother could defer again, although, from the bar table, the Court was informed that today the mother rang the admissions section of the university and, at this stage, she was told that she would have to apply again. Of course, that is in the absence of any court order or request from the Court, by way of a notation, for instance.
The Court is able to accommodate a final hearing in November this year (2025) for two days, and those dates have been given to the parties. Those dates in November are 10 and 11 November 2025.
The Court is required to consider the proposals of the parties as at the date of the interim hearing. A relocation case, whether interim or final, has to be determined – as all parenting cases do – in accordance with the legislation laid down in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The Court has been told that the mother cannot do the course externally from Australia. There is a reference in Annexure 1 to the mother’s affidavit – that mentions studying a B University qualification from overseas. I am not sure whether that is just a general form that may be included with every offer that goes out at the university. It may be the case that with this particular course itis not possible to do it externally from Australia.
Even if it is the case that that offer cannot be deferred again until after the trial, there is nothing, of course, stopping the mother from applying again and submitting, if she needs to, a further portfolio. She has obviously developed significant expertise in that field after 10 years of work.
I am concerned about this case for a number of reasons. One of the matters the Court is required to consider in Part VII of the Act is the nature of the relationship between the parents and the children. Whilst it appears that it is a good relationship between the mother and the child and it is said to be so between the child and the father, there is no expert evidence. They trialled, for instance, two nights overnight with Dad, but it did not go well and they needed to reduce it to one night overnight. That would indicate to the Court that the child, at this point in time, is not mature enough or resilient enough to spend that time (two nights in a row) with the father. The relationship – that is, the bond between the child and the father – at this point in time, does not appear to be strong enough to withstand two nights overnight. That would give me concern that the relationship could be maintained with the mother living in New Zealand this year. The mother proposed coming back on three separate occasions for seven nights at a time, but it is unclear as to what time the child would spend with the father during those seven day stretches.
The case is altogether different to the matter of Gaize & Gaize [2020] FCCA 296, which I decided when I was a Judge of the Federal Circuit Court of Australia in 2020. In that case the mother needed to go to Sydney for one year. But the mother in that case was not going to stay in Sydney. She only needed to go for one year for a course, then the mother was coming home – she was coming back to Brisbane. It was a case involving a specialist doctor, a paediatrician, who needed to go to Sydney to complete her training because that was the only place in the country where she was offered a position in the specialist program. There was, in that case, furthermore, a significant difference to the present case because the mother in that case had the help of a sister, and the sister was agreeing to bring the little ones – there were two of them – back every second weekend. So, every second weekend the children were spending time with their father in Brisbane.
In this case that is not possible. That is certainly not what is proposed. The mother is talking about once at the end of each term. That is when the holidays are on for the course. Apart from that, there is a hope (from the mother’s side) that the father might be able to go over sometimes, and then after that, they are relying on FaceTime and electronic communications.
Mr Kingston is the Independent Children’s Lawyer, and he has made a very good point when he says that, in the absence of a family report, we just do not know what the situation is in the relationship between the child and the father and we do not know whether it will withstand this sort of upheaval for the course of this year.
I am mindful of the fact that it is the mother’s ultimate goal to obtain a final order permitting the relocation of the child’s residence to New Zealand. In some respects, it is almost a pre‑empting of the outcome or looking to get something of a head start, so far as the final hearing is concerned. I am aware that in the second decision to which I was referred (a decision of Justice Schonell in Davin & Kerrane [2023] FedCFamC1F 853) the mother had wanted to go to the United Kingdom, and the Judge let her go early, but in that case there were significant other facts that make it distinguishable from here. The mother’s health was compromised in Australia, and she would be better supported in the United Kingdom. It is not clear from what I read in that case how long she had been in Australia. The mother in this case has been in Australia for 30 years, at least.
Pursuant to section 69ZL of the Family Law Act 1975 (Cth), these reasons are being given in the short form. I am required to consider Part VII, and I have considered Part VII. The little one is too young to have offered any views or wishes, and we do not have a family report anyway. It is quite difficult to examine in any detail the nature of the relationship between children and the child and their parents, but my impressions are, and it is apparent from the evidence, that, at this point in time, the bond between the mother and the child is much stronger than the bond between the child and the father.
I am aware that it will be a disappointment to the mother that she cannot take up the course in City C this year. I am hopeful for her sake that if she is successful at the final hearing, that she will be offered the course again, and if she is unsuccessful at the final hearing, that hopefully there will be a course available in Australia for her. If the mother’s proposal had been, “Can I go to New Zealand and do this course? It will help me no end, but I will come back, and I am not pursuing a final relocation to New Zealand,” it would have been more in line with the case of Gaize & Gaize [2020] FCCA 296. I would have been more inclined to give it favourable consideration.
This situation is very different. The mother wants to go to New Zealand, she wants to do the course there this year, and she wants to stay after the trial. That is her plan, which she is perfectly entitled to pursue. It may well be that the best interests of the child lead to that conclusion at the end of a relocation trial. At this stage I have not had the benefit of cross‑examination, and I am not in a position to make findings. I do not have any expert evidence. In that respect – indeed in many respects – the Court is hamstrung as to the extent of findings that can be made at this stage.
I have considered the necessary sections of Part VII of the Act. I do not need to specifically refer to each relevant section. I am not going to alter the current parenting orders. Mr Kingston has informed the Court that, I think by agreement between the parents, Ms N is going to prepare a Family Report.
The application for interim relocation is dismissed. The current parenting orders will remain in place pending the trial. Trial directions will issue.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 12 March 2025
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