Kadivar and Kadivar

FAMILY COURT OF AUSTRALIA

KADIVAR & KADIVAR

[2016] FamCA 739

FAMILY LAW – CHILDREN – International relocation – Best interests - Whether the mother should be permitted to relocate with the children to New Zealand – Where the mother has a history of depression and anxiety – Whether the mother’s continued presence in Australia would have an adverse impact on her parenting ability – Where the father carries on a business in Australia – Where there would be difficulties maintaining a relationship between the father and the children should they be permitted to leave with the mother– Where the parties agree to equal shared parental responsibility – Where the father ordered to spend substantial and significant time with the children.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Kadivar

RESPONDENT:

Mr Kadivar

INDEPENDENT CHILDREN’S LAWYER:

Mr Grainger

FILE NUMBER:

BRC

5293

2015

DATE DELIVERED:

2 September 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

29 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Minnery

SOLICITOR FOR THE APPLICANT:

Slater Gordon

COUNSEL FOR THE RESPONDENT:

Mr Andrew

SOLICITOR FOR THE RESPONDENT:

Wrightway Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Christie

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

Parental responsibility

That Ms Kadivar (“the mother”) and Mr Kadivar (“the father”) have equal shared parental responsibility for major long term issues as that term is defined in s 4(1) of the Family Law Act 1975 (Cth) (as amended) (“the Act”) in relation to Z born … 2009 and Y born … 2014 ("the children").
That the mother and father consult with each other about major long term decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a) They shall inform the other parent about the decision to be made;
(b)They shall consult with each other in relation to the decision to be made;
(c) They shall make a genuine effort to come to a joint decision;
(d)If the parties are unable to reach an agreement in relation to a major long term issue affecting the children then the parties shall engage in mediation through the family dispute resolution centre or another appropriately approved dispute resolution provider.

Time with parents

That the children live with the mother.
That the child Z spend time with the father during school term at all such times as may be agreed and failing agreement, as follows:
(a) From after school Wednesday (commencing 7 September 2016) until commencement of school Thursday in each week; and
(b) From after school Friday (commencing 9 September 2016) until commencement of school Monday (or Tuesday if Monday is a public holiday) in each alternate week.
That the child Y spend time with the father during school term at all such times as may be agreed and failing agreement, as follows:
(a)       From (and including) 7 September 2016 until 10 December 2016:
(i)From 3.00 pm until 6.30 pm on Wednesday in each week; and
(ii)From 3.00 pm until 6.30 pm on each alternate Friday (commencing 9 September 2016); and
(iii)From 10.00 am Saturday (commencing 10 September 2016) until 4.00 pm on Sunday in each alternate week.
(b)       From 10 December 2016 until 10 December 2018:
(i)From 3.00 pm until 6.30 pm on Wednesday in each week; and
(ii)From 3.00 pm Friday until 4.00pm on Sunday in each alternate week.
(c)       From 10 December 2018:
(i)From 3.00 pm (or after school once Y commences school) Wednesday until 9.00 am (or commencement of school once Y commences school) Thursday in each week; and
(ii)From 3.00 pm Friday (or after school once Y commences school) until 9.00 am (or commencement of school Monday (or Tuesday if Monday is a public holiday) once Y commences school) in each alternate week.

Special Days

If the children are not already spending time with the father on any of the children's birthdays, then the children will spend time with the father on the relevant child's birthday as follows:
(a) On a school day from after school or 3.00 pm until 6.00 pm;
(b) On a non-school day from 9.00 am until 12.00 pm;
lf the children are not already spending time with the mother on any of the children's birthdays, then the children will spend time with the mother on the relevant child's birthday as follows:
(a) On a school day from after school or 3.00 pm until 6.00 pm;
(b) On a non-school day from 9.00 am until 12.00 pm.
If the children are not already spending time with the father on the father’s birthday, then the children will spend time with the father on the father’s birthday as follows:
(a) On a school day from after school or 3.00pm until 6.00pm;
(b) On a non-school day from 9.00am until 3.00pm.
If the children are not already spending time with the mother on the mother’s birthday, then the children will spend time with the mother on the mother’s birthday as follows:
(a) On a school day from after school or 3.00 pm until 6.00 pm;
(b) On a non-school day from 9.00 am until 3.00 pm.
If the children are not already spending time with the father on Fathers’ Day, then the children shall spend time with the father on Fathers’ Day from 9.00 am until 5.00 pm.
If the children are not already spending time with the mother on Mothers’ Day, then the children shall spend time with the mother on Mothers’ day from 9.00 am until 5.00 pm.

School Holidays, Christmas, Easter and Persian New Year

Subject to paragraphs (13), (15) and (16) of this Order, that the children spend time with their parents for school holiday periods as follows:
(a) For the first half of all Queensland Government gazetted school holiday periods in even numbered years with the father and in odd numbered years with the mother; and
(b) For the second half of all Queensland Government gazetted school holiday periods in odd numbered years with the father and in even numbered years with the mother.
That until the Easter holidays in 2019 the child Y will continue to spend time with the father during his half of the school holidays as agreed and failing agreement as provided in paragraph (5) of this Order.
For the purpose of this Order, the school holiday time shall commence:
(a)       When a parent's time falls in the first half of the holidays, from after school or 3.00pm on the day the school term finishes and shall conclude at 5.00pm on the day calculated to be half of the school holidays;
(b)       When a parent's time falls in the second half of the holidays, from 5.00pm on the day calculated to represent half of the school holidays and shall conclude at the commencement of school or 8.30am on the day the school term recommences;
(c)       The school holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 8.30am on the day the child/children return to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights then the parent who spends time with the child/children in the first half of the school holiday period shall retain the additional night.
In even numbered years the children shall spend time with the father from 11.00 am Christmas Eve until 11.00 am Christmas Day and with the mother from 11.00 am Christmas Day until 11.00 am Boxing Day.
In odd numbered years the children shall spend time with the mother from 11.00 am on Christmas Eve until 11.00 am on Christmas Day and with the father from 11.00 am on Christmas Day until 11.00 am on Boxing Day.
In even numbered years the children shall spend time with the father from 5.00 pm on Thursday before Good Friday until 5.00 pm on Easter Saturday and with the mother from 5.00 pm Easter Saturday until 5.00 pm Easter Monday.
In odd numbered years the children shall spend time with the mother from 5.00 pm on Thursday before Good Friday until 5.00 pm on Easter Saturday and with the father from 5.00 pm Easter Saturday until 5.00 pm Easter Monday.
In the event the Easter period falls on 21 March, being the Persian New Year, the children shall spend time with the father as follows:
(a)       On a school day from after school or 3.00 pm until 6.00 pm;
(b)       On a non-school day from 9.00 am until 5.00 pm; and
(c)       The Mother shall forgo her time with the children.
If the children are not already spending time with the father on 21 March, being the Persian New Year, then the children will spend time with the father on the Persian New Year as follows:
(a) On a school day from after school or 3.00 pm until 6.00 pm;
(b) On a non-school day from 9.00 am until 5.00 pm.

Changeover

That if the child Z is attending school at the commencement of the time she is to spend with the father, the father shall collect her from school and if she is attending school at the conclusion of the time she is to spend with the father, the father shall return her to school but otherwise the father shall collect Z from the mother’s residence (or such other place as is agreed) at the commencement of the time she is to spend with the father and the mother shall collect Z from the father’s residence (or such other place as is agreed) at the conclusion of the time she is to spend with the father.
That if the child Y is attending daycare/kindergarten/school at the commencement of the time she is to spend with the father, the father shall collect her from daycare/kindergarten/school and if she is attending daycare/kindergarten/school at the conclusion of the time she is to spend with the father, the father shall return her to daycare/kindergarten/school but otherwise the father shall collect Y from the mother’s residence (or such other place as is agreed) at the commencement of the time she is to spend with the father and the mother shall collect Y from the father’s residence (or such other place as is agreed) at the conclusion of the time she is to spend with the father.

Communication

That each party keep the other informed of their contact details, including their residential and postal addresses, land line telephone numbers, mobile telephone numbers and email addresses and notify the other in writing of any changes in these details within seven (7) days of any such change.
That each party be at liberty to communicate with the children by telephone, email, letter, internet typing chat or internet video chat while the children are living with or spending time with the other parent at all reasonable times but on no more than three occasions each week.

Possession of the children’s passports

That the mother retain the children’s passports save when the father is travelling overseas with the children.

International travel

Subject to paragraph (29) of this Order, that the mother and the father are each permitted to travel with the children outside of the Commonwealth of Australia during periods of time when the children are living with or spending time with such parent pursuant to this Order and the following shall apply in respect of such travel:
(a) The parent intending to travel overseas with the children shall give to the other parent at least thirty (30) days’ notice in writing of their intention to travel internationally with the children including providing that parent with a detailed itinerary, the dates and times of the intended travel and a contact telephone number or numbers for that parent to communicate with the children by telephone during the international travel;
(b) Upon receipt of such notice in writing from the father, the mother shall deliver the children’s passports to the father no later than seven (7) days prior to the scheduled departure date.
That upon returning the children to the Commonwealth of Australia, the father shall forthwith return the children’s passports to the mother.
That upon the parent providing to the other parent the said notice in writing referred to in this Order, that parent shall be permitted to remove the children from the Commonwealth of Australia for the purpose of such international travel.
That the mother and the father are each restrained and an injunction hereby issues restraining either of them from travelling with the children internationally (unless agreed in writing) to any of the following destinations:
(a) Any country that has a current travel advice warning issued by the Australian Department of Foreign Affairs and Trade Smart Traveller website (or equivalent Australia Government travel warning) of “exercise a high degree of caution”, “do not travel”, “reconsider your need to travel” or similar warnings;
(b) Any country that is not a signatory to the Hague Convention on the Civil Aspects of Child Abduction.
That each parent shall return the children to the Commonwealth of Australia at the conclusion of such international travel.

Miscellaneous

The mother’s application to relocate with the children to New Zealand is dismissed.
That this Order is sufficient authority for any doctor, hospital, counsellor and/or health professional by its appropriate officer to provide to both parents any information that they may require concerning the children at the cost of the requesting parent.
That this Order is sufficient authority for the children's daycare/kindergarten/school to provide both parents with copies of all school reports, school photographs (at the requesting parent’s expense) and/or any other document regarding the academic progress and/or achievements of the children and notification of events such as parent-teacher meetings, sports days, concerts and any extracurricular events/activities attended by the children and both parents will be at liberty to attend any such events.
That each parent notify the other as soon as practicable of any matter relating to the health or wellbeing of the children which requires the attention of a medical practitioner or health professional (save for common coughs and colds, minor abrasions and similarly trivial medical issues) and provide to the other parent the name and telephone contact details of the medical practitioner or health professional.
That the parties keep each other informed of any significant matters relating to any treatment or medication administered to the children.
It is requested that the Independent Children’s Lawyer advise the parties of an appropriate parenting course to attend in order to assist them in improving their communication and to assist them in understanding the impact of their behaviour on the children and the other parent.
That the mother and the father each attend a parenting course as soon as practicable to assist them in improving their communication and to assist them in understanding the impact of their behaviour on the children and the other parent.
That the appointment of the Independent Children’s Lawyer be discharged after paragraph (36) of this Order has been satisfied.
That any outstanding applications be dismissed and removed from the list of cases awaiting finalisation.
Pursuant to section 65DA(2) and section 62B, 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.

NOTATION

Although this Order provides for changeovers to occur on occasions between the mother and father it is not intended to preclude either the mother or the father from having another adult known to the other parent and children from attending changeovers in their stead.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5293 of 2015

Ms Kadivar

Applicant

And

Mr Kadivar

Respondent

REASONS FOR JUDGMENT

This is an application for a parenting Order. The parties are Ms Kadivar (“the mother”) and Mr Kadivar (“the father”). The proceedings concern their two children, Z (“the older child”) born in 2009 and Y (“the younger child”) born in 2014.
The mother’s proposed Order includes relocation with the children to New Zealand.

Summary of relevant background facts

The parties married in 2009 and separated on 9 February 2015.
The mother was born in New Zealand in 1984. The mother left New Zealand in 2006 at age twenty-one to work for an international airline in City Q in the Middle East. The mother’s extended family live in New Zealand although since the mother moved to Australia in 2008 they have been frequent visitors to Australia and the mother and children have been frequent visitors to New Zealand. The mother holds dual Australian and New Zealand citizenship.
The parties met in 2007 while working and living in City Q. The father moved to Australia in November 2007 to further his business and investment prospects with the mother following in February 2008. Cohabitation commenced upon the mother’s arrival in Australia. The mother worked for X Airlines, a charter company, until the older child’s birth.
The mother re-commenced employment with the international airline after the older child’s birth and remains employed as a customer service officer, although currently on unpaid maternity leave until December 2016.
The father was born in Country P in 1972. He and his family moved to City Q when the father was ten years old. The father moved to the United States of America in 2001 where he remained until 2005 when he returned to Country P as his father was ill. After his father’s death he returned to City Q to work. The father’s brother and one of his sisters now live in Australia. The father has another sister and his mother still living in Country P. The father holds dual Australian and Country P citizenship. He is self-employed and operates a sales business. He employs one other person in his business on a casual basis.
It is common ground that the mother has been the primary carer of the children.
It is also common ground that the mother has a history of depression and anxiety.
The mother’s father was diagnosed with cancer on 6 April 2016 and sadly passed away in mid-2016. The mother and children travelled to New Zealand for the period 4 May to 11 May 2016 to spend time with him. They travelled to New Zealand again in June 2016 to spend further time with him but unfortunately he died while the mother and children were travelling. They remained in New Zealand until 8 July 2016. The limited time the mother was able to spend with her father in the period leading up to his death is understandably a source of great angst for the mother and has been a source of conflict between the parties.
The children live with the mother in Suburb A, Brisbane in a home owned by the mother’s mother. The father also lives in Suburb A, in a home he shares with his sister, Ms L, and her sixteen year old daughter, D. His sister is living in Australia on a guardian visa dependent upon her daughter continuing her education. Ms L and her daughter moved to Australia in January 2016.
Currently, the children spend time with the father on Monday and Tuesday afternoons with changeovers at the mother’s home and until recently the father spent time each Thursday with the children at the mother’s home. In addition, Z spends time with the father one night each week from 4.00 pm Friday to 4.00 pm Saturday and Y joins Z from 12.00 pm to 4.00 pm Saturday. The mother is critical of the father’s frequent late attendance for the commencement of time and inconsistent return time of the children. The father is critical of the mother’s inflexibility in this regard. It has been a source of tension.

The older child suffers from night blindness and short sightedness and undergoes speech therapy. She wears glasses. She is in grade one at B State School, Suburb A. The mother contends that the older child is struggling at school and performing poorly. The 2016 first semester report for the older child indicates that Z’s achievement in English and mathematics is ‘developing’; that her achievement in science, geography, physical activity and the arts is ‘sound’ and that her achievement in health and physical education, music, technology and behaviour is ‘high’.
The mother receives and has received significant financial and emotional support from her family in New Zealand.
The parties entered into final property settlement Orders in November 2015 which provided inter alia for the mother to receive $196,834 cash from the sale of the former matrimonial home and for the father to receive $8,000. The father retained inter alia the sales business operated during the marriage. From the proceeds the mother returned a gift to her mother of $100,000 and the balance was used for legal expenses. She has incurred legal fees of $120,000 to date.
A Temporary Protection Order was made in favour of the mother in May 2015. The mother withdrew her application upon the father providing an undertaking to be of good behaviour and not commit an act of domestic violence. The undertaking expires on 23 September 2016.

Proposals of the parties

The mother proposes to relocate with the children to City C, New Zealand to live with her mother in a six bedroom home within a short drive of most of her large extended family. The mother proposes to transfer her employment to City C and work only day shifts given the absence of night shifts in City C. She contends that the same position in Brisbane will require her to work nights and irregular hours. The mother contends that she will have significant practical and financial assistance in New Zealand. [this is discussed in detail further on in the judgment]
The mother proposes that the father spend time with the children in New Zealand on two weekends during school term from Friday to Sunday and for that purpose offers him free accommodation staying with her maternal aunt. The mother is currently able to assist in the provision of greatly reduced air travel because of her employment. In addition, the mother proposes to bring the children to Australia for half of each gazetted school holiday to spend time with the father and that he communicate with the children via Skype on three occasions each week. The mother opposes the father travelling with the children outside Australia.
The father proposes that the children continue to live with the mother in Brisbane and that until 9 December 2016 he spend alternate weekends from Friday to Monday with the older child and alternate Wednesdays overnight and thereafter gradually increasing until she spends six nights each fortnight with him (or he might have intended week about). He proposes that the younger child spend gradually increasing time with him until she spends the same time with him as the older child by 9 December 2018. The father proposes that each party be able to travel with the children to countries that are a signatory to the Hague Convention on the Civil Aspects of Child Abduction.
Both parties seek an order for equal shared parental responsibility.

How parenting applications are determined

Part VII of the Family Law Act 1975 (Cth) (as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.[1]
[1]Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637
The Court is not required to make findings of fact on every factual dispute raised by the parties.[2]
[2]Baghti & Baghti [2015] FamCAFC 71
Section 60B(1) provides that the objects of the Act are to ensure that the best interests of children are met by:
a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)Parents should agree about the future parenting of their children;
e)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting Order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CG imposes a statutory imperative to ensure that a parenting Order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
Section 4AB of the Act defines family violence as meaning violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful. Examples of such behaviour and how a child is exposed to such behaviour are set out therein.
Section 61DA provides that when making a parenting Order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an Order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an Order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.
Although I may not specifically discuss in these reasons each subparagraph of each section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[3]
[3]Banks & Banks (2015) FLC 93-637

Significant issues

The parties conducted their cases with a focus on two main issues:
a)The impact on the mother’s mental health should she remain in Australia with the children; and
b)The impact on the children’s relationship with the father should they relocate to New Zealand.

Mother’s case

The mother contends that a move to New Zealand will improve her financial circumstances. She will have rent free accommodation with her mother in a six bedroom home “while she obtains employment”. The mother appears confident of being able to transfer her employment with the international airline to City C, although no application has yet been made and there is no evidence of a position being available. The mother has made enquiries about an alternate position with R Airlines in City C but there is no evidence that the mother has been successful with an application for a possible position.
The mother states that her working hours in New Zealand would be more child friendly than shift work in Brisbane which would involve a three day on/three day off working roster with three potential shifts being 4.00 am to 10.00 am; 5.00 pm to 4.00 am and 4.00 pm to 10.00 pm. It was as a result of the unfriendly work hours that the mother changed her employment to part time in or about 2012. There is no evidence that a return to part time employment is not still available to the mother.
The mother has not looked for work with any other airline or indeed for any other position than the one in which she is currently employed. I note that she previously worked for another airline at the Brisbane Airport.
While the mother’s preference, if she were to relocate, is to remain in the airline industry for at least the next few years so that she could benefit from and arrange travel for the father and children at a discounted rate, if she is unable to obtain employment she would consider commencing study in teaching or nursing. She would propose obtaining part time work in another industry or engage in clerical or administrative work so that she can support herself and the children while studying. There is no evidence that those options would not also be available to the mother if she remained in Brisbane.
The mother is currently in receipt of Centrelink benefits of $1200 per fortnight and $424 per fortnight from the father by way of child support. Her fortnightly expenses are $1564 including $800 per fortnight rent to her mother. It is not clear why, in those circumstances, the mother elected to return a gift of $100,000 to her mother when there is no evidence of it being requested by her mother and where she says her mother now lends her money if she has a shortfall.
The mother and father currently have frequent contact because of the arrangements in relation to the children’s time with the father. Until recently the children’s time with the father often occurred at the mother’s residence. This cannot have been easy. The mother complains of the father’s failure to engage with her during such times and at changeovers. She contends that her interactions with the father make her feel worthless, anxious and that she is not a good parent. The father’s refusal to communicate and the mother’s perception of the father’s treatment of her is one of the reasons the mother proffers for her decision to amend her Application to seek to relocate with the children to New Zealand. I note the mother has sought assistance from her treating psychologist, Ms G, in remaining calm and polite in her interactions with the father and to avoid becoming angry.
The mother expresses a ‘concern’ about how she will cope with her interactions with the father in the absence of a support network; how she can interact with the father without a third party being present and ‘whether’ her anxiety will continue to worsen as a result of her interactions with the father and how this ‘may’ affect her ability to adequately parent and care for the children. I note the mother has taken to calling a member of her family on Facetime when changeovers occur to provide her with some moral support.
The mother was first diagnosed with depression not long after the older child’s birth in 2010. The mother says that she felt isolated and alone in her marriage and that her support networks were far away. She sought treatment and was prescribed anti-depressants. The mother states that she took the medication for six months and has taken medication on and off since that time and has also sought professional help on and off. She states that she feels that her condition was triggered by the way she felt in the relationship and how she felt unsupported by the father and his attitude towards her.
In 2011 the mother left the home with a knife and left a note for the child Z. The father called the police and the mother states that she was calm and unharmed when she voluntarily returned home but the father insisted the police take her to hospital. The mother states that although the hospital noted her to be distressed she left the hospital at about 3:00 am and returned home in a taxi. The mother consulted a psychologist for a period thereafter.
In the twelve months prior to the younger child’s birth in late 2014 the mother was not taking any medication but became increasingly anxious in the second trimester of her pregnancy. The mother attributes her anxiety to the father’s lack of support and his unpleasant comments to her including about her mothering capability. The mother commenced to consult with Ms G in 2014 and states that she was prescribed anti-anxiety medication which she has continued to take. The mother describes having “spouts of depression” but that it is her anxiety that causes her to feel “exhausted and is the root to me feeling low and in a ‘depressed’ manner”.
The mother says that she has been attempting to protect the children from her anxiety and depression by taking her medication and seeking out professional assistance to gain practical tips for “dealing with [the father] and his behaviour however the ongoing contact with [the father] and his conduct towards me following separation has made it extremely difficult for me”.
There is no evidence from the mother that she has failed in her attempts to protect the children or that her parenting capacity has diminished in any respect even with her feelings of exhaustion.
The mother has friends living in Suburb A, Brisbane with whom she says she could stay when visiting Brisbane four times per year should she and the children relocate to New Zealand. The mother also lived with friends for a number of months earlier in the year while waiting for the home in which she now lives to be completed. The mother mixes with parents of children from the older child’s school but I accept that her relationship with friends is not the same as the close and supportive relationship she has with members of her family.
The mother proposes to “provide assistance in (sic) [the father] in obtaining accommodation while he is in New Zealand if required” and “to contribute and pay for mine and the children’s flights from New Zealand and to Australia during the school holidays, so long as I am in employment and my financial situation permits me to do so. If I continue with my role at [the international airline] or another airline I am also able to arrange staff “fare rates”, where I can purchase fares which are 10% of the original price (plus tax).”
What is apparent from the mother’s evidence is that the capacity of the mother to assist in the provision of accommodation and airfares is conditional on numerous matters beyond her control.
The mother seeks to restrict the father travelling overseas with the children on the basis of a concern that the father might take them to Country P and keep the children. The evidentiary basis for such a concern is limited. The mother asserts that the father has significant financial and family ties to Country P and that the majority of his family continue to reside in Country P and have significant assets there. The father disputes these assertions.
In relation to the time the children should spend with the father if the children remain in Australia the mother says that in her view the younger child “will not tolerate long periods of overnight time away from me until she is at least 2 years old.”
The mother contends that the father told her that one of the reasons he would be unable to travel to New Zealand and spend significant time with the children if they relocated is “due to the constraints of his work and family commitments”. The mother says that during the marriage she observed the father “often having to work on weekends”.
The mother is concerned about the father’s willingness or capacity to prioritise his commitment to the children over work or other activities and she holds the view that he is heavily reliant upon his sister and brother to assist in the care of the children. The mother points to the numerous occasions the father is late or inconsistent in the times he returns the children.
The father and the father’s sister deny that the father had not personally cared for the children during the time they spend with him. He states that he is able to be flexible with his work hours and has given up any social life in order to prioritise his time with the children. He contends that the mother should be flexible with commencement and conclusion times.
I accept the father has spent his time personally caring for the children. Each parent should be at liberty within reason to rely on family members to assist in caring for the children from time to time. It does appear that the father’s work commitments make it difficult from time to time to adhere strictly to times and while occasionally it may be reasonable for him to expect the mother to be flexible it is unreasonable for him to expect this flexibility consistently.

Dr J, psychologist

Dr J is not a single expert as described in the affidavit but a psychologist retained by the mother to provide a report for the purposes of these proceedings. She was asked to address the following:
a)Whether in your opinion the mother suffers from any mental illness;
b)If so, the nature of such condition, its duration and severity, and prognosis;
c)Recommendation on what treatment (if any) the mother ought to be having;
d)The effect on the condition of the mother’s life in the future and her capacity to perform lifestyle functions such as:
i)caring for herself;
ii)caring for her children;
iii)undertaking house work and similar functions; and
iv)being able to obtain employment and earn an income.
should the application for relocation be refused and the children required to stay in Brisbane, and in the alternative, if the application is successful and she and the children are able to relocate.
e)Any opinion as to how the mother can best be managed in the future and whether where she lives is likely to have an impact on her treatment and capacity to treat her illness;
f)What impact an order which does not provide for the children to relocate with her, may have on the mother;
g)Any other matter considered relevant.
Dr J conducted an interview with the mother on 27 July 2016. Dr J does not really answer the question posed in paragraph 55 a) above, namely, whether in her opinion, the mother suffers from any mental illness. At its highest Dr J states – “it seems evident that [the mother] was and continues to suffer with depression and anxiety”. Although it might appear that Dr J agrees that the mother suffers from depression and anxiety she does not set out in her report that it is her diagnosis of same, nor what matters she has taken into account if it were her intention to provide a diagnosis.
Dr J notes “it also seems evident that her conflicted relationship with [the father] as she describes, contributes to her experiences of same [depression and anxiety]”.

Dr J opines that the mother:
1.5 … most likely could continue to attend upon an appropriate mental health practitioner in Australia as a means of remaining reasonably stable and functional however, the co-parenting relationship with [the father] as she describes, will continue to in effect pose a significant challenge to her full recovery, as will being isolated from her family in New Zealand. Research clearly indicates that predictors for improved recovery and sustainable recovery from depression and anxiety include, effective individually focused therapy (for example, cognitive behavioural therapy), family focused therapy, medication and a strong supportive network.
There is no suggestion the mother could not be treated with individually focused therapy (as she has undergone with Ms G), family focused therapy, and medication (as she continues to take).
Dr J further opines:
1.5.1… it is reasonable to predict that her capacity to care for herself and her children would be enhanced under circumstances where she has access to a supportive network of family and friends … If [the mother’s] application is refused, therefore, it is likely that her current mental health status would remain similar or perhaps decline due to the ongoing pervasiveness of being cut off from her familial network and support structures.…
…
1.5.3 Overall and in summary, it is my assessment that [the mother] would benefit mentally, emotional (sic) and financially if she was able to relocate to New Zealand. This in turn, would most likely improve her parental capacity and thereby afford the children a higher functioning and supportive primary caregiving context …
There is no suggestion in this case that the mother will be cut off from family support. The mother’s concern is that visits from her family may be less frequent. Comments about any financial benefits to the mother exceeds Dr J’s professional role.
It is not, of course, in issue that the mother does have a history of depression and anxiety.

Ms G, psychologist

Ms G is the mother’s treating psychologist. She declined to provide a report but with the consent of the father and the Independent Children’s Lawyer, a letter addressed to the Independent Children’s Lawyer, dated 28 August 2016 was tendered and became exhibit 4.
Exhibit 4 states that the mother was referred to Ms G on 17 December 2014 for treatment for postnatal depression and anxiety under a mental health plan. Ms G saw the mother under that plan on 22 December 2014, 4 February 2015, 2 March 2015, 9 March 2015, 5 August 2015 and 27 November 2015. The mother was given a new health plan on 3 February 2016 and saw Ms G on 5 February 2016, 21 March 2016 and 22 July 2016.
With reference to exhibit 4 I note Ms G has recorded the following:
[The mother] did not schedule many appointments ahead of time. She rang when she thought she needed to see me. Sometimes she rang in crisis.
…
When I saw [the mother] in early February this year, she looked noticeably stressed and unwell. [The mother] looked quite haggard and presented as quite hopeless and defeated. She reported that she had just returned from a visit to New Zealand and found it hard to leave her family behind and had become depressed and anxious following what she called an “unfounded breach”. Apparently there was a difficult changeover between [the mother] and [the father]. As part of my intervention, I used Acceptance and Commitment Therapy (ACT) to help her focus on her values of wanting to be a good mum to help retain her integrity and hope in the face of her difficult divorce.
…
When I saw [the mother] in March 2016 her mood was much improved compared to her earlier appointment in February. She reported that her parents had been over and had bought her a house. She had been house sharing with friends for the previous 6 months, which she found stressful. She had also been using some of the strategies I had suggested.
When I saw [the mother] 4 months later, on 22/07/16, I was shocked to hear her father had been diagnosed with cancer and died 3 months later. Understandably she was grieving deeply at this time and told me that in spite of her grief she wanted to pursue the current court case because her father had encouraged her. On the 22/07/16, [the mother] was still distressed by the fact that she didn’t make it home to New Zealand to say her final goodbye to her father.
…
I started to bulk bill her psychological counselling fees in November 2015.
…
If [the mother] has difficulty accessing family support in the future I would expect that it would be a risk factor for her mental health.
[The mother] has mentioned having friends in Brisbane. This is a protective factor. However I have developed the impression that her family are her primary support network.
[The mother] has been able to use her psychology sessions with me. She has been able to use the therapeutic relationship, respond to the psychoeducation and implement strategies I’ve suggested. She does have personal strengths and does have some resilience. However, I have also seen her struggle with hopelessness when her stress levels have escalated in response to her difficult divorce proceedings.
… While grief [in relation to the loss of her father] is generally a normal but difficult process, [the mother’s] grieving could be harder to process if she becomes isolated from her family while grieving. It is possible her grieving could become another risk for relapse…
If [the mother] does not have the opportunity to return to live close to her family in New Zealand I expect that it will increase her stress levels and in turn adversely affect her mood. I would expect that she would then require psychological assistance to prevent relapse.
I cannot predict exactly how serious the risk to her mental health would be as it would depend on how many other risk and protective factors existed at the same time.
Ms G was cross-examined about the consultation on 22 July 2016 and have the following further evidence by reference to her notes:
Going to trial re: international relocation in August. Her mum said to just let it go. Her sister said to just let it go. Her father told her not to – the notes were about that she was getting a lot of advice from different family members and she was under a lot of stress in terms of people in her family grieving and that being unexpected and calling them as witnesses was putting a lot of stress on them so she was worried about the stress she was causing to other people and I guess had some doubts as to whether or not she should continue but then she remembered that her dad encouraged her and told her not to give up on it.

Father’s case

The father opposes the mother’s proposed relocation with the children to New Zealand because of the detrimental impact that it will have on his relationship with the children. He says that his meaningful relationship with both children is still developing, particularly with the younger child.
He points to the fact that the mother has not sought employment in Australia that would be more conducive to her caring for the children and contends that he and/or his sister are ready, willing and able to care for the children at times other than strictly provided for in any Order if that assisted the mother in returning to employment. He states that he has forfeited any social life in order to prioritise his relationship with the children.
The father contends that the mother “belatedly suggested that her “depression” may improve if she had the assistance of her family by relocation to New Zealand”.
The father says that he has moved to Suburb A where the mother lives and that the distance between the two homes is a five minute walk. The father says that he has modified his work hours to accommodate his time with the children and employs a casual manager to be present at his business premises in his absence.
The father says that he has attended all bar one medical appointment with Dr S, the older child’s treating practitioner. He also says that he has taken the child to her speech therapy lessons. Neither of these statements are in issue although the wife contends the father’s involvement has occurred only as a result of her insistence.
The father states that his sister and the mother share common interests and could be good friends. Both the mother and the father’s sister have expressed a willingness to communicate.
The younger child has stayed overnight with the father on four occasions. The father describes her as happy in his home environment and that she plays and is well settled. The father states that he was actively involved in the older child’s upbringing although this is disputed by the wife.
The father states that his attendance at the mother’s home on Thursdays recently ceased by mutual agreement and describes that the arrangement was difficult for both of them. He says that he was anxious when he attended her home as he felt if he said anything untoward the mother would “explore the Domestic Violence situation again.”
The father states that because he is self-employed he would be unable to travel frequently to see the children in New Zealand and that his time with them would likely be limited to holiday time. I note however his preparedness during oral evidence to travel to New Zealand on the two weekends per term as proposed by the mother. The father also points to the fact that while the mother proposes to bring the children to Australia to spend time with him during each holiday period, she has not explained how she would be able to take off at least six weeks per year to facilitate that proposal.
The father notes that while the older child would be able to communicate with him by telephone and other electronic means, the younger child would not. He also points to the fact that he would be unable to be involved in their schooling or other activities.
The father explains that he would experience financial problems in moving to New Zealand, given that his business has a commercial tenancy agreement for three years. He pays $2750 per month in rent and the lease has more than two and a half years remaining. He explains that his loans for stock are approximately $390,000 and to sell the stock he would lose at least 40 per cent and that he would have no capacity to repay his lenders should he cease trading. It is not immediately apparent why he would lose 40 per cent if the sale of stock occurred in an orderly way, rather than as a fire sale. In any event the father said that he would not have the funds to recommence a business in New Zealand.
While accepting that the mother may suffer from depression the father states that the mother has always been a good mother and has good parenting skills.
As to the current arrangements the father describes collecting the older child from her school at 3.30 pm on a Friday and then travelling the short distance to the mother’s home at midday Saturday to collect the younger child before her being returned to her mother at 4.00 pm when the mother collects both children from his home.
He describes the Friday routine as including reading, board games and cooking. He puts the older child to bed on Friday night with the story and then sings a song to her in his first language. On Saturdays he describes that the older child and he usually walk to the park and often have a picnic at the local playground. After collecting the younger child at midday they usually stay home on Saturday afternoons to play games. The father’s niece, D, is also involved in the Saturday afternoon play as is his sister. He describes the younger child as being very comfortable eating food at his home, which is prepared by either himself or his sister.
The father states that only his mother and one sister remain in Country P and his sister proposes to migrate to Australia. His mother owns a home in Country P but otherwise her investments are tied up in the loan she made to him of $400,000. I note also that the father and his family lived in City Q for many years from the time the father was ten years old and apart from a period in 2005 when he returned to Country P while his father was ill, the father has not lived in Country P since he was a child. He lived in the United States of America from 2001 to 2005 and in City Q from 2006 until 2008 and has lived in Australia since then. He is an Australian citizen with a business in Australia and commercial responsibility for a lease. The father says he has no reason to return to Country P and proposes that either parent be able to travel in the future to Hague Convention countries.

Family reports

There have been two family reports prepared in this matter. The first by Ms F, family consultant, and the second updated report, by Ms E.
Ms F conducted interviews on 12 October 2015 and observed that the children were very happy to see their father and did not appear stressed when her parents were in the same room together. She was happy to give her father a big hug and kiss. Upon seeing her father, the younger child stood up and had a big smile on her face and was happy for him to pick her up and hug her. When he put her back on the floor the child immediately put her arms up indicating that she wanted him to pick her up again. The older child sat next to her father while he was nursing the younger child and he managed to juggle the needs of both children.
It was Ms F’s opinion that the older child’s relationship with her father could remain reasonably intact if she were to move to New Zealand, as long as she was availed of the opportunity to maintain regular communication with him every week and spend time with him as much is possible.
However, the same could not be said, in her view, for the younger child given her young age and her less developed cognitive skills. She opined:
50. … It is anticipated that the significant relationship [the younger child] has managed to develop with her father would diminish over time, should her cognitive memory not be prompted on a regular basis. This is the reason that parents are encouraged to institute short regular time with the non-resident parent each week for young children after to (sic) separation. It is anticipated that [the younger child’s] relationship with her father could falter should her regular time with him be prematurely interrupted.
51. It is anticipated that after the age of two years, [the younger child] will be more able to remember and recognise her father from photographs and her verbal skills will also enable her to maintain an on-going relationship with him, even from a distance.…
52. Given her young age, it is anticipated that [the younger child] will not tolerate long periods of overnight time away from her mother until she reaches the approximate age of three years (generally when children begin to understand and appreciate the concept of time, patterns and predictability).… It is assessed that it will be developmentally more appropriate for [the younger child] to spend day time with her father until it least she is 2 ½ years of age.
53. Should the mother remain living in Brisbane with the children, it is recommended that [the father] continue to spend time with his daughters as per the current orders and that [the older child’s] time with her father increase from 4:00pm Friday until before school Monday each alternate weekend, from the commencement of the 2016 school year. It is suggested that [the younger child’s] time with her father continue as per the current orders until July 2016 where her time increase to include each alternate weekend from 9:00am Sunday until 4:00pm Sunday. It is anticipated that should the mother have returned to work and is required to work night shifts, that [the younger child] may tolerate some overnights with her father (given that she will have her older sister accompanying her), but it is not advisable that regular overnight time with her father commence until she is approximately 2 ½ years old.
54. It is recommended that should the mother be permitted to move to New Zealand with the children, that [the older child] will be able to spend time with her father for up to five days at a time… Until she turned 7 years of age, when it is anticipated that she will be able to manage up to 10 days over the 2016/17 Christmas school holidays and then half of the gazetted school holidays from 2017 onwards.…
Ms E conducted interviews on 20 July 2016. During her interview with the mother, Ms E notes that the mother stated that not being permitted to relocate to New Zealand with the children would be “taxing” on her mental well-being, although “I will just carry on” if made to stay. Ms E noted that the mother impressed as if her mental health and its stability was largely dependent upon the quality of her co-parenting relationship with the father. Ms E was left with the impression that there were no issues from the mother’s perspective with regards to the children’s time with the father, in that they were generally willing to spend time with him and returned happily to their mother’s care. The mother stressed, however, that the changeovers have been “stressful”.
Ms E noted that the older child’s impression is that she lives with both her mother and her father. When asked how she would feel if she was to have less time with her father or only holiday time with him the older child reported that she would feel “sad”.
Ms E observed the older child as being happy to see her father and embraced him. The younger child was crying at the time but when she sighted her father she reached for him. Both children presented as being content in their father’s care and exhibited no signs of stress and/or distress. Ms E was of the view that both parents impressed as being warm and caring with their children. At the end of the day the older child was observed to approach her father to hug him goodbye and then as she walked away was heard to say “I love you, daddy”.
Ms E opined:
60. As parents, Mr and Ms [Kadivar] are both assessed as being warm and loving parents whose affection for [the children] appears to be reciprocated by each of their children. There is a risk however that if unsupported in her parenting role, [the mother’s] capacity to be responsive, both emotionally and on a practical level, to the children’s needs may be affected.
61. Whilst, I have no doubt that [the mother] will endeavour to the best of her abilities to meet the basic care needs of the children to a good enough standard, her parenting capacity may be compromised by increased levels of stress that may engender the onset of a depressive state of mind, which she appears to have a predisposition for given her history of post-natal depression and her ongoing issues with depression and anxiety which are presently stable it seems. If accepted by the Court, this would not serve the children’s best interests as it may adversely affect their wellbeing and thereby their respective development, which would only place further pressure on the mother’s diminished parenting.
62. Whilst the mother’s parenting may be buoyed from the additional support of her family should she relocate closer in proximity to them, allowing her to effectively parent the children, the children will experience the loss of a regular relationship with the father… There will be long periods of separation, which is likely to interfere with their ability to maintain a sound attachment to him, and he may essentially become insignificant to them, particularly for [the younger child] due to her age.
63. [The younger child], given her developmental stage, has not yet developed the cognitive ability to rely on her memories to sustain an active and relevant awareness of her father during the long lapses of time between visits. This said the children appear to presently experience a healthy relationship with their father, which should he be absent by virtue of distance could possibly be preserved by regular and frequent Skype communications with him.… Obviously, Skype communications is no comparison to real time, but it offers an option in this situation.
64. That said there is still a risk that the children may be adversely affected by the loss of time with their father. It may have implications for their sense of self and self worth. There is research indicating that children who have the involvement of both parents in their upbringing have better outcomes in the future, compared to those who do not, assuming that both parents are responsive and actively involved in all aspects of their children’s upbringing. Based on my observations during this court event, both parents present as being emotionally and psychologically responsive to their children.
65. … On the balance of information available to me, it is my assessment that the pathway forward that will have the least harmful effect upon the children is them living with their mother and doing so in [Brisbane] so as to be afforded regular and frequent opportunities to maintain their relationship with the father.
…
68. [The mother] impresses as if she possesses the resilience required to remain living in Queensland as a single parent. She, to date, has managed to parent the children in circumstances that she indicates are presently stressful for her, and has done so seemingly without it significantly impacting upon her mental wellbeing. She has reported to manage any anxiety she may experience as a result of her current co-parenting relationship with father, and not allow it to impact upon her parenting and care of the children. I have therefore formed the view that [the mother] would manage staying in Queensland, without impacting adversely on her mental health.
69. Of course, the alternative might be more likely to ensure [the mother’s] mental health remains stable, therefore maintaining her parenting of the children at a ‘good enough’ standard, but I do not anticipate that her mental health and therefore her parenting would be [so] greatly improved that it justifies a significant disruption to the children’s relationship with the father.
…
71. An equal shared parenting arrangement, particularly a week about one, usually has inherent in its structure increased need for parents to communicate or be in direct contact with each other, thus increasing the likelihood that [the children] will be exposed to conflict between their parents…
72. With regards to [the younger child] in particular, she is still not of an age whereby she should be having long separations from either parent, particularly her mother who I would argue is [the child’s] primary care figure… Even three consecutive nights, given she has not yet developed a concept of time, might prove difficult for her. For this reason, the current parenting regime is, developmentally speaking, probably the most ideal.
…
74. Given the current nature of the current parent’s relationship which could be best described as antagonistic, it would be best that the children’s time with their father on Thursday either be suspended or facilitated away from the mother’s home… [The younger child] is a little older than when this regime was first put in place… and could spend the day with him from 9am to 4pm.
75. I propose that the children continue to spend time with their father as per the current parenting regime, with the suggested modifications, but that [the older child] begins to spend increased time with her father each alternate weekend from Friday after school to Monday before school. As for [the younger child], I propose that once she is two and a half years of age, she spent overnight time with her father, with this occurring simultaneously to her sisters overnight time with him on each alternate Friday night.

In her oral evidence Ms E was more reticent in her recommendation that the mother remain in Brisbane having read the mother’s recent affidavit material shortly prior to giving evidence. She described the case as ‘complex’ and observed that any decision required a balancing of the mother’s mental health needs against the needs of the children to have a meaningful relationship with the father.

Discussion

A parenting case involving relocation is just another parenting case. There are no special tests that apply. For instance the mother does not have to establish a compelling reason for wishing to relocate.[4] Her desire to relocate with the children to New Zealand is perfectly understandable in the circumstances. The father’s opposition to that proposal is also perfectly understandable.
[4]AMS v AIF (1999) 199 CLR 160; (1999) FLC 92-852
Ultimately, my task is to make a parenting order that I consider to be proper having regard to the objects and principles of the Act, the rights of adults to freedom of movement and considerations as to what order will be in the children’s best interests in the particular circumstances of the case. The best interests of the children remain the paramount though not the sole consideration.[5] Where the legitimate interests of an adult conflict with the best interests of children, the former must give way.[6]
[5]AMS v AIF (supra)
[6]AMS v AIF (supra)
The mother has always been the children’s primary carer. There is no doubt that she has a meaningful relationship with the children and that the relationship should continue. There is no suggestion that the mother will relocate without the children. The children’s relationship with their father is a loving one and he should have a meaningful relationship with the children into the future.
Although the mother applied for a Protection Order and the father provided an undertaking not to commit an act of domestic violence the issue of family violence was not one which loomed large in the conduct of the trial.
The basis for the mother’s application for a Protection Order appears to relate to the father attending at the former matrimonial home unannounced in May 2015 and stating his intention to come to the house each day.
The Independent Children’s Lawyer submitted that family violence is not a risk and the evidence does not support a finding that the father has engaged in family violence. I accept those submissions.
There are competing allegations made by both parties that the other has lost control or taunted the other at changeovers but neither party submits that there should be any restriction on parental responsibility or the time the children spend with either party arising therefrom.
The mother’s mother and sister have played a significant role in the children’s lives to date as evidenced by annexure A to exhibit 5. I have no doubt that the children are loved by the mother’s family and that the children have a close relationship with the maternal grandmother and aunt and other members of the mother’s family.
The father’s brother lived with the father until recently and continues to see the children each week. The father’s sister, Ms L, and her daughter have lived with the father since January 2016 and have been present when the children spend time with the father. I have no doubt that the children are loved by father’s brother, sister and niece and have a developing relationship with them. The relationship is unlikely to be as strong as with the mother’s family given the more limited time the children have spent with them. They are nevertheless significant people in the children’s lives.
Each party has taken the opportunity to make decisions about long term issues and spend time with the children. Each party is genuine, in my view, about wishing to remain significantly involved in decision making and spending time with the children. I note that both parties seek an order for equal shared parental responsibility.
Until the parties separated they each provided financial support for the children. The mother’s family also assisted the parties. Subsequent to separation the mother has been supported by the Australian taxpayer in the form of Centrelink payments and by the father’s child support payments of $212 per week. The mother’s combined fortnightly income is $1624 and her expenses are $1564. She lives in a home provided to her by her mother for which she pays rent of $400 per week. She is due to return to employment in December 2016. She may or may not do so.
The impact on the children of a move to New Zealand will be significant. The older child has found school somewhat of a challenge according to the mother given her vision impairment and delayed speech development. I have no doubt that a change of school and therapy providers would present some difficulties for her although I expect she would adjust in time. Currently the children spend time with their father on several occasions each week. The observations made by Ms E indicate a warm, affectionate and loving relationship. A move to New Zealand would result in the children seeing their father significantly less, perhaps for two weekends per term and during school holidays.
While Skype communication may assist in maintaining the children’s memory of the father it does not meet the children’s right to be cared for by the father on a regular basis. Such communication does not enable the children to exchange affection with their father or for them to be actually parented by him e.g. eat meals prepared by him, bathed by him, dressed by him, put to bed by him etc. This is a particularly important factor for the younger child, given her tender years, as identified by Ms F and Ms E.
The mother’s proposal that the father spend two weekends with the children each term in New Zealand and half holidays in Australia will involve eight return flights for the father and four return flights for the mother and children, assuming the mother is able to take that much time off work.
The mother says she may be able to obtain discounted airfares for the father for a few years if she obtains employment in New Zealand with an international airline. There is no certainty that she will obtain such employment. The mother’s sister, who is not eligible for the family discount (said by the mother to be available to the father), says that return flights cost her up to $400 if booked in advance. It is not entirely clear what the discounted airfares might be but if the staff discount is not forthcoming the airfares may be up to $8,000 per annum.
Given the parties’ respective financial circumstances this is not an insignificant sum. However, as both parents impressed as being motivated to ensure that the children spend as much time as practically possible in the event of a relocation to New Zealand I consider it more likely than not that the children would see their father at the times proposed by the mother, particularly in circumstances where the mother may be able to provide accommodation to the father in New Zealand and she may be able to stay with friends in Brisbane when visiting.
The children have been and are being well cared for by the mother. There is no suggestion that the mother has been other than a caring and responsible mother. This is despite the fact that she has a history of suffering from anxiety and depression. Given her mental health history I accept the mother’s family support is of greater importance to her than in circumstances that do not involve such a history. The mother certainly presented as unhappy and on occasion distressed when giving evidence.
The mother’s concern is that her family will be unable to continue to travel as frequently as they have in the past and she contends in effect that she relies on that support to maintain her optimal parenting ability. However, both the maternal grandmother and maternal aunt gave evidence that they would continue to do all they could to support the mother and for that purpose travel to Brisbane as often as possible (if that were necessary) limited only by restrictions of time off work and to a more limited extent, cost. They are both employed full time. The maternal grandmother is a health professional and the maternal aunt is a civil engineer. They each have four weeks annual leave and the maternal grandmother receives an additional ten days each calendar year for domestic leave while the maternal aunt was less sure about the extent of her additional leave but thought it might be five days per calendar year. Their availability to provide practical assistance to the mother will be prescribed by their work commitments in either New Zealand or Australia. They communicate regularly with the mother by telephone and Skype and will continue to do so.
It is apparent that the mother has had to endure an inordinate number of stressors in recent times, ranging from her separation from the father in February 2015 after what appears to have been an unhappy marriage; missing her family; house sharing with friends; concern about how she would manage a return to employment; concern about her inability to remain calm and polite when interacting with the father; disappointment at not being able to relocate when she desired; having to associate with the father for the purposes of the children spending time with him given her perception of being undermined and treated disrespectfully by him; financial worries; grieving the illness and sudden death of her beloved father; responding to the pressure from her mother and sister to discontinue the proceedings; managing the older child’s medical needs and involvement in this litigation. A number of these stressors will diminish or disappear at the conclusion of this case, and others, with time.
Although the father can be rightly criticised for his mean spiritedness in the lead up to the maternal grandfather’s death in putting in place obstacles to the mother’s immediate departure with the children for a limited period, I am not of the view that his actions or attitude were entirely unreasonable. The older child does struggle at school according to the mother and an extended period away (initially the mother proposed six months) would no doubt have been very unsettling for her and more importantly would have deprived her and her sister of spending time with the father for a significant time. However, when the mother proposed a visit to New Zealand for two weeks the father should not have cavilled. His unnecessary resistance has resulted in a great deal of animosity from the mother, which is entirely understandable in the circumstances. However, I do not regard his actions in that instance as being indicative of his future conduct or attitudes (I note the mother did travel with the children for a week in May 2016 and for three weeks in January 2016).
Ms E opined that research indicates that the first two or three years after separation are not necessarily indicative of future parenting co-operation. She stated that research indicated that even where there is significant animosity early on, time can heal and parents can move on and form a co-operative parenting relationship. Despite the tensions, the parties have demonstrated an ability to co-operate so that they spend significant time with the father and the children appear to have been largely protected from any unpleasantness. What I do find is that both parents impressed as devoted to their children and wanting what is best for them. A parenting course may assist the parties in improving their co-operation.
Both Ms G and Ms E describe the mother as demonstrating resilience and the mother’s comment to Ms E that if she were unable to relocate with the children she would ‘just carry on’ is possibly indicative of that capability.
Perhaps putting the mother’s case at its highest, Ms G opined – “If [the mother]has difficulty accessing family support in the future I would expect that it would be a risk factor for her mental health.”(my emphasis) I am not satisfied that the mother will have difficulty accessing family support. Both her mother and sister impressed as committed to supporting the mother in whatever way might be required.
The mother has been taking prescribed anti-depressants on an off for a number of years. There is no suggestion that her dosage has increased as a result of any deterioration in her mental state or at all. She consults her treating psychologist on an ‘as needs’ basis, being three occasions this year and attends upon her treating General Medical Practitioner every three months. I do not accept the submission of the mother’s counsel that the mother’s limited attendance at health professionals arose from her parlous financial circumstances. The mother did not give that evidence.
I have no doubt that were the mother to be at liberty to relocate to New Zealand with the children her parenting capacity would be ‘buoyed’ and she is likely to be happier at least in the short term, but I am unable to find that her parenting capacity would be undermined significantly or at all if she remained in Australia with the children.
The children are able to be exposed to their respective Country P and New Zealand heritages while continuing to live with the mother and spend time with the father.
As I propose to make an Order for equal shared parental responsibility given these parents in my view have the capacity to make joint decisions about major long term issues concerning the children and given they both seek that Order I turn to consider whether equal time or substantial and significant time between the father and children is in their best interests and reasonably practicable.
The mother was the primary carer for the children during the marriage as the father worked full time and from 2011 the mother, when in employment, worked part time. The older child was five and the younger child only two months old when the parties separated. The time spent between the children and their father has been different for each child given their ages. The younger child has only spent four overnights with the father since separation. On the child’s first overnight she woke up a number of times during the night but it seems this is not uncommon in the mother’s home. On the further overnights she has spent with the father he contends that she has coped well. I accept that evidence.
Both Ms F and Ms E recommend against the younger child spending overnight time with the father until she is two and a half years of age. Neither expert provided a basis, whether evidentiary or forensic, for that recommendation. Ms E’s recommendation seems somewhat inconsistent with her opinion that -“Even three consecutive nights, given she has not yet developed a concept of time, might prove difficult for her.” The father describes the overnights with the younger child as progressing well and the mother does not provide any evidence of any adverse reaction upon her return. Indeed the mother proposes that the father have two consecutive nights twice per term with both children should she relocate to New Zealand with them.
In my view equal time at this point in the children’s developmental stage is contraindicated. They should have the stability of having one predominant home but spend significant and substantial time with the father as is appropriate given their respective developmental stages. Both parents advocate for different arrangements for each child at least for a period. As the parents currently live in the same suburb it is reasonably practicable for the children to spend significant and substantial time with the father. Obviously, it would not be reasonably practicable for there to be equal or substantial and significant time if the children were living in New Zealand.
It was submitted on behalf of the mother that as the father had failed to make any enquiries about moving to New Zealand that should somehow advance the mother’s case for relocation. The father states that he cannot move because his business is in Australia and he has a commercial lease with two and a half years left to run which would have to be paid out if another tenant could not be found. He states that he owes his mother $400,000 which she invested in his business. He would not be able to meet his financial commitments if he were to move to New Zealand as he would have to start again. On the evidence before me I cannot be satisfied that the father’s relocation to New Zealand is either practicable or likely.
Overall I find it is not in the best interests of the children in the circumstances of this case to relocate to New Zealand. The impact on their relationship with the father would be too disruptive and I am not satisfied that it would be possible for them, and in particular, the younger child, to maintain a meaningful relationship with the father if they were to relocate to New Zealand. Their rights to know and be cared for on a regular basis by their father tips the balance in favour of the children remaining in Australia and in the circumstances of this case those matters must take priority over the mother’s legitimate desires to relocate.
As to the time the children are to spend with the father I am conscious that one of the stated triggers for the mother’s feelings of anxiety is having contact with the father. To date that contact has been significant and the mother has not been afforded the opportunity to spend uninterrupted time with the children on any weekend. The mother will be disappointed with the outcome of this trial and will no doubt require some additional support from family, friends and her therapist to adjust to her circumstances. I consider it will be beneficial to reduce the occasions that she and the father come into contact and in addition I consider that each parent should be at liberty to have another adult attend to the changeovers if that person is known to the other parent and the children. I am also conscious of the difficulty the father has experienced in arriving on time given his work commitments.
The Order I propose will nevertheless afford the children the opportunity to spend time with the father on week days, weekends, holidays and will allow the father to be involved in the children’s daily routine and occasions and events that are of special significance to the children and the father.
The parents, particularly the father, would benefit from some assistance in improving communication. I accept that he may have been reticent to engage in conversation with the mother in case he said the ‘wrong thing’ and the mother revisited the domestic violence issue as he states, but there is no excuse for failing to greet the mother and answer any reasonable enquiry relating to the children. I propose to require the parties to attend a parenting program that focuses in particular on communication after separation and the impact behaviour can have on children and the other parent.
Both parents sought lengthy detailed Orders but neither counsel for the mother nor father made submissions about the content of the proposed Orders (other than relocation and overseas travel). Indeed, other than submit the children should not relocate and that there should be substantial and significant time with the father, the Independent Children’s Lawyer made no submission about the content of the Order.
As to the issue about overseas travel I am not convinced that restrictions as sought by the mother are necessary. The father has lived in places other than Country P for most of his life. His only remaining family in Country P are his mother and one sister, whom he contends is looking to relocate to Australia. Given that the father and his brother and another sister are already living here that seems entirely possible. There is no evidence before me that the father is likely to withhold the children and move to Country P. Indeed the father says there is no need for him to go to Country P and his proposed Order seeks a limitation on overseas travel to countries that are signatories to the Hague Convention on the Civil Aspects of Child Abduction.

As I suspect the mother may be travelling with the children to New Zealand more often than the father travels internationally (in any event he realistically will not have the opportunity until he is spending holiday time with the younger child) I propose that she hold the children’s passports.
In summary the mother will not be able to relocate with the children to New Zealand and the father will spend substantial and significant time with the children.

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 2 September 2016.

Associate:

Date: 2 September 2016

[2016] FamCA 739

2 September 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Injunction

Remedies