LEVAN & HUXLEY

[2020] FamCA 704

FAMILY COURT OF AUSTRALIA

LEVAN & HUXLEY [2020] FamCA 704

FAMILY LAW – CHILDREN – international relocation – where the mother seeks to relocate with the child to her country of birth, New Zealand – where the father opposes the application – where it is uncertain the mother’s level of distress in not being permitted to relocate with the child will affect her capacity to parent the child – where the Court finds, on balance, such an outcome is a possibility but not a probability – relocation of the child not permitted.

Family Law Act 1975 (Cth) ss 60B, 60CC

A & A:  Relocation Approach (2000) FLC 93-035
Lansa & Clovelly [2010] FamCA 80
U v U (2002) 29 Fam LR 74
CDJ v VAJ (1998) 197 CLR 172
Re G:  Children’s Schooling (2000) FLC 93-025

APPLICANT: Ms Levan

RESPONDENT: Mr Huxley

FILE NUMBER: BRC 4976 of 2018

DATE DELIVERED: 28 August 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 10 & 11 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms S Downes

SOLICITOR FOR THE APPLICANT: BGM Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr G Shoebridge

SOLICITOR FOR THE RESPONDENT: Advance Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms R Lyons

INDEPENDENT CHILDREN’S LAWYER: Ms A Smerdon
Legal Aid Queensland

Orders

1. That the application of the mother to relocate the child, X born … 2015 (“the child”) to New Zealand is dismissed.

Parental responsibility

1. That except as otherwise stated, the father Mr Huxley (“the father”) and the mother Ms Levan (“the mother”) (collectively “the parents”) are to have equal shared parental responsibility for the major long term issues of the child.

2. That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibilities as follows:

   (a)They shall inform the other parent about the decision to be made;

   (b)They shall consult with each other on terms that they agree; and

   (c)They shall make a genuine effort to come to a joint decision.

3. That notwithstanding the provisions of Order 3 herein:

   (a)the mother shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with her; and

   (b)the father shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with him.

Living arrangements

1. That the child shall live with the mother and spend time with the father at all times that may be agreed in writing, and failing agreement:

   (a)in a two (2) week cycle as follows, up until January 2021:

   (i)In week one (1), commencing the first week after the making of these Orders from 4.00pm Thursday until 4.00pm Sunday and each alternate week thereafter;

   (ii)In week two (2), commencing the second week after the making of these Orders from 4.00pm Thursday to 4.00pm Friday and each alternate week thereafter.

   (b)commencing in January 2021 from afterschool or 3.00pm Wednesday to 9.00am or before school Monday and each alternate week thereafter;

   (c)for a period of five (5) nights in November 2020, to coincide with the birth of the father’s sister’s baby;

   (d)each alternate week during December 2020 and January 2021 (such that the child shall live on a week-about basis with each parent); and

   (e)from 9.00am on Christmas Eve until 12 noon on Christmas Day 2020.

2. That notwithstanding any other order, the child shall be with the mother from 12 noon on Christmas Day until 4.00pm on Boxing Day.

School holidays

1. That the child spend time with the parents during school holidays at all times that may be agreed in writing, as follows:

   (a)For the first half of all school holiday periods with the father and the second half with the mother in 2021 and each alternate year thereafter; and

   (b)For the second half of all school holiday periods with the father and the first half with the mother in 2022 and each alternate year thereafter.

2. That in order to give effect to Order 7:

   (a)the time provided for in Order 5(a) and 5(b) shall be suspended and shall recommence at the commencement of the new school term as though the school holidays had not taken place (for example, if the last week of the school term is week one (1), the first week of the school term is week two (2));

   (b)school holidays are deemed to commence after school on the last day of the school term and conclude before school on the first day of the school term;

   (c)changeover on the midpoint day shall be at 5.00pm; and

   (d)in the event that there is an uneven number of nights in any school holiday period, the father shall have the extra night on the first occasion and each alternate occasion thereafter and the mother shall have the extra night on the second occasion and each alternate occasion thereafter.

3. That for the calendar years 2021 and 2022, the mother may elect, on at least ninety (90) days prior written notice to the father, to increase any period of time when the child is in her care for a total period of four (4) weeks, on the following basis:

   (a)The extended total period of four (4) weeks can occur on two occasions each year in 2021 and 2022;

   (b)If the extended period occurs during the end of term four (4) school holidays, it shall not extend in a way that, without the father’s consent, prevents the child from spending time with the father at Christmas under Orders 5(e) and 7(a); and

   (c)If the block period includes school term time, then the mother shall use her best endeavours (after discussions with the child’s teachers) to encourage continued school work to some degree during that period he is not attending school.

Special occasions

1. That unless otherwise agreed in writing, the child shall spend time with each of the parents om special days as follows:

   (a)With the father on Father’s Day, should the child not already be spending time with the father, from 9.00am until 4.00pm;

   (b)With the mother on Mother’s Day, should the child not already be spending time with the mother, from 9.00am until 4.00pm;

   (c)On the child’s birthday, with the parent whom the child is not spending time:

   (i)if a weekday, from after daycare/school until 6.00pm; and

   (ii)if a weekend, from 10.00am until 2.00pm.

   (d)On the birthday of each parent, should the child not already be spending time with the parent on the day:

   (i)if a weekday, from after daycare/school until 6.00pm; and

   (ii)if a weekend, from 10.00am until 4.00pm.

   (e)With the father on the birthdays of the child’s siblings (paternal side), on 29 October and 1 February each year, from 9.00am until 4.00pm, if a non- daycare/school day or from after daycare/school until 6.00pm, if a daycare/school day.

Changeovers

1. That for the purposes of changeover:

   (a)the child shall be collected from and returned to his school on school days; and

   (b)on non-school days the child shall be collected from and returned to a location in Suburb B.

Communication

1. That unless otherwise agreed in writing, the child shall have telephone and/or electronic communication with the parents at all times that can be agreed, and failing agreement:

   (a)at all reasonable times as requested by the child;

   (b)each Tuesday at 6.30pm when the child is not otherwise with the father;

   (c)each Friday at 6.30pm when the child is not otherwise with the mother; and

   (d)both parents will ensure that the child has privacy during the call and will ensure that the child telephones the parent the following evening in the event of the call being missed.

Schooling

1. That the child shall be enrolled and shall attend Suburb C State Primary School for the commencement of the 2021 Queensland school year and shall continue to attend that school for his primary education unless otherwise agreed between the parents in writing or ordered by a Court.

Exchange of information

1. That the mother and the father shall:

   (a)keep the other parent informed at all times of their residential address, email address, landline and mobile telephone numbers and update the parents within seven (7) days of any changes to such details;

   (b)keep the other parent informed at all times of any other persons living at their residential address, with such information to be provided within seven (7) days of any changes to such details;

   (c)keep the other parent informed of the names and addresses of all treating medical or other allied health practitioners who treat the child from time to time, and authorise those practitioners to provide the other parent with all information they are lawfully able to provide about the child; and

   (d)inform the other parent, as soon as is reasonably practicable, and by the best means available, of any significant health issue suffered by the child and this Order authorises any treating medical practitioner to release the child’s medical information to the other parent (at the requesting parent’s cost).

2. That the mother and the father authorise, by this Order, all schools attended by the child from time to time to provide to each of them all information/documentation sought by them in relation to the child’s welfare, progress and activities at school from time to time (including but not limited to providing the mother and/or the father with copies of school newsletters and other notes/letters to parents, copies of the child’s school reports, details of the child’s parent/teacher interviews, copies of order forms for the child’s school photographs and certificates and awards obtained by the child, (at each parent’s own cost)).

3. That during all those periods when the child is living with the mother and the father in accordance with these Orders, the mother and the father shall each:

   (a)respect the privacy of the other parent and not question the child about the personal life of the other parent;

   (b)speak of the other parent respectfully; and

   (c)not denigrate or insult the other parent in the presence or hearing of the child and shall remove the child from surroundings where other persons may be denigrating or insulting the other parent in the hearing or present of the child.

Overseas travel

1. That the mother and the father shall each be at liberty to take the child overseas during any of those periods when the child lives with each of them in accordance with these Orders and at such other times as shall be agreed upon between the mother and the father from time to time in writing, on the following conditions:

   (a)The travelling parent shall give the other parent as much written notification as possible of their intention to travel and, in any event, shall give the other parent not less than one (1) month’s, written notice of such intention save in the event of an emergency when notice will be provided as soon as is reasonably practicable; and

   (b)Should the dates of the travel fall outside the mother’s usual time with the child (such as in the case of a family emergency) pursuant to these Orders, the additional time shall be as agreed between the parents and the father is not to unreasonably refuse the time sought by the mother;

   (c)That at least two (2) weeks immediately prior to the departure date, the travelling parent shall provide to the other parent:

   (i)an accurate, written itinerary for the trip, including but not limited to departure and return times and dates and the place(s) and country/countries the child will be travelling to and the approximate dates on which the child will arrive and depart each destination;

   (ii)a telephone number/numbers and address/addresses at which the child and the travelling parent be contacted during the duration of the child’s holiday; and

   (iii)copies of the child’s forward journey and return journey tickets or electronic tickets, (including air tickets).

Passport

1. That the child’s passports shall be held by the mother and the mother shall do all acts and things as may be necessary so as to ensure that the passport or passports travel with the child.

2. That the father shall do all acts and things as may be necessary so as to ensure he returns the child’s passport with the child after any overseas travel.

3. That the mother and the father shall do all acts and things and sign all documents necessary directed to the Australian Passport Office (or such other Department or instrumentality administering the Australian Passports Act 2005) within seven (7) days of receiving that document from the parent requesting the passport to enable the child to be issued with an Australian passport (travel document) and to renew the child’s passports from time to time so as to ensure the child has at all times a current Australian passport.

4. That in the event that either the mother or the father refuses or neglects to sign any document necessary to issue the child with an Australian passport despite these Orders and having consented to an Australian passport (or travel document) being issued, such refusal will constitute sufficient special circumstances for a parent to seek that the Minister administering the Australian Passports Act 2005, give consideration to issuing an Australian passport (travel document) pursuant to section 11(2)(1) of the Australian Passports Act 2005.

5. That the mother and the father shall each do all acts and things and sign all deeds, documents, instruments and writings as may be necessary so as to facilitate the child being able to travel, including by signing Australian passport applications and/or Australian passport renewal/extension applications and any other necessary visa/other travel documentation for the child.

6. That the mother and father shall do all things including by signing all documents within seven days of a request being made by the mother or father to execute a New Zealand Passport application and or renewal for same.

Signing of documentation

1. That:

   (a)each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of these Orders within seven (7) days of being requested to do so;

   (b)in the event that a party refuses or neglects to sign or execute and return a document within seven (7) days of presentation to them or a lawyer representing them then pursuant to Section 106A of the Family Law Act 1975, the Registrar of the Brisbane Registry of the Family Court of Australia is appointed and empowered and directed hereby to sign or execute the same in the name of that party upon presentation of such document and an affidavit of a lawyer on behalf of the requesting party as to the said neglect or refusal;

   (c)the costs of and incidental to such request and production of documents to the Registrar shall be borne by the defaulting party without further order of that Honourable Court and may be taxed or fixed by the Registrar and thereafter shall be recoverable from the defaulting party by the other party as a debt; and

   (d)an affidavit by the lawyer acting for the non-defaulting party shall be sufficient proof of the other party’s default.

2. That the Independent Children’s Lawyer be discharged.

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 Levan & Huxley 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 4976 of 2018

Ms Levan

Applicant

And

Mr Huxley

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case brings into sharp focus the difficult tensions that can arise when two high-functioning parents separate, with one parent wishing to return to their country of birth – in this case, the mother to New Zealand – and the other parent wishing to remain in Australia and where they have a child – in this case, X, born … 2015 (four and a half years of age) with whom the parties wish to maintain regular interaction and time.

2. As the contextual history below sets out, thankfully, it has been possible for this matter to be listed for trial in a relatively short period of time.  Although the mother, seeking to relocate, agrees not to do so until January 2021, the fact remains that the father opposes her relocating to New Zealand and the mother is desperate to return.

Legislative pathway

1. Although “relocation” cases are often said to be a species of parenting cases, the fact remains that like all parenting cases the best interest of the child remains the paramount (but not only) consideration and no principles specific to such cases apply.

2. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.

3. To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.

4. In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

5. As I next identify, the application of these legislative requirements must be considered within the matrix of the competing proposals offered by the parties.

6. It is not controversial that a parent seeking to relocate with a child has no onus to establish any compelling reasons why they wish to exercise their right of freedom of movement (see A & A:  Relocation Approach (2000) FLC 93-035). This does not mean that the reasons are irrelevant.

7. Furthermore, the authorities identify that, as Murphy J enunciated in Lansa & Clovelly [2010] FamCA 80 at [16] when discussing the binding principles that emerge from the Act in these cases, inter alia that:

   The issue of relocation (and, necessarily, the parties’ proposals in respect of same) should not be considered separately from the issue of best interests. In truth, the proposals, including potential relocation, form part of the factual permutations within which best interests must be considered and findings made.

8. As to the right of freedom of movement, the remarks in U v U (2002) 29 Fam LR 74 at [92] remain an important reminder that:

   The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.

9. In short, the burden of parenting often means the reasonable aspirations of a parent are delayed or for a time abandoned, so as to enable the best interests of a child to be achieved.

10. In every case that involves a potential movement of one parent with the child to another distant location, the other parent (sometimes referred to as the “staying” parent) understandably holds a fear that any such movement will inevitably have an adverse impact on their relationship with the child.  In such circumstances, the position of such parent to resist relocation of the child is perfectly understandable.  In this context, the capacity of the “staying” parent to themselves relocate (if the child is permitted to relocate), is a matter that should be considered (see the observations of Gaudron and Hayne JJ in U v U (supra).

1. In this context, it is worthwhile to observe that the necessary balancing exercise between the competing proposals involves:

   …predictions and assumptions about the future which are not susceptible of scientific demonstration or proof” and “[p]erceptions, predictions and even intuition and guesswork…

   (CDJ v VAJ (1998) 197 CLR 172 per McHugh, Gummow and Callinan JJ at [151])

2. Ms Downes for the mother asked the Court to consider the decision of Thornton J in Ferrante & Guiliani [2016] FamCA 1042, which also related to a mother seeking to relocate to New Zealand. Her Honour, in that case, identified as I have in this case, the issues are “finely balanced”.  In my view, the reasons in that case show the basis why the discretion permitting relocation was permitted – but the facts are in many respects quite different.  In particular, Thornton J was dealing with a child of at least nine years of age and the expert opined (see [43]) that:

   She is old enough to be able to have regular and meaningful communication with him [the father], she is old enough to be able to travel to and from New Zealand on her own and she is old enough to be able to hold her father in her psychological world in a manner that maintains his equal prominence.

3. The facts of this case are easily distinguished from the facts in that case.

Competing proposals

1. The Court was greatly assisted by the sensitive and efficient advocacy from Ms Downes of Counsel for the Applicant mother; Mr Shoebridge of Counsel for the Respondent father and Ms Lyons of Counsel for the Independent Children’s Lawyer.

2. To that end, the parties were able to agree on a number of orders which were in three categories:

   a)Irrespective of where the child lives;

b)In the event that relocation is permitted; and

c)In the event that both parents live in Australia.

(are collectively Appendix One to these Reasons)

1. Those agreements were shaped by the fact that the mother has made it clear, and I accept, that if X is ordered to remain living in Australia she will remain living in Australia, although that is not her preferred option.

2. It is also shaped by the fact that the father says that if the child, X, is permitted to relocate and live in New Zealand, then he is not able or willing to do so and would remain living in Australia.

3. Although the authorities earlier identified make it clear that a parent seeking to relocate with a child is not required to demonstrate compelling reasons to do so, the reasons for the parties’ primary positions are obvious, reasonable and understandable.

4. There are some issues that the parties could not agree on (including the schooling if the child remains in Australia; whether there should be an increase in time if relocation is not permitted; cost of flights if the relocation is permitted and additional time with the father pending relocation) and these are dealt with later in these reasons as required.

5. Because of the clearly identified competing proposals, namely:

   a)that the child be permitted to relocate to New Zealand and live primarily with the mother; or

   b)that the child not be permitted to relocate to New Zealand, in which case he will remain living primarily with the mother and spend substantial and significant time with the father in Australia.

6. I choose not to include, in these Reasons, the variations to the proposal set out in the parties’ case outlines prepared for trial.  They have, to a large degree, been overtaken by the agreements reached in relation to orders which are, as I say, Appendix One to these Reasons.

Contextual history

1. The following contextual history sets out a number of facts which should be regarded as findings of fact.  In making these findings, I accept the submission of Counsel for the father, not in any way challenged by the Counsel for the mother and the Independent Children’s Lawyer, that issues of credit do not arise significantly in this case.  I found both parents to be impressive, honest, thoughtful and considered but both found it difficult, whilst understanding the other person’s point of view, to accept that the other person’s position is in the best interests of X.

2. My view as to the reliability of the two principal parties can also be extended to the father’s partner, Ms D, who briefly gave evidence under cross-examination.

3. The father was born in Country E; he moved to Australia when he was 13 years of age and is now 39 years of age.  He has tertiary qualifications as an engineer and currently works for a large Australian company as a project manager.

4. The mother will soon turn 35 years of age and was born in New Zealand.  She has tertiary qualifications but little experience to date in respect of the property industry directly other than for a short period of time when she undertook a trainee position in New Zealand.  Relevantly, in my view, the mother first came to Australia with a former partner in approximately 2005 when she was approximately 20 years of age.  She remained in Australia until 2009, when that relationship had broken down and returned to New Zealand.

5. She then came to Australia again in 2011 and has continued to reside primarily in Australia since that time, save for periods reflected in her material where she has spent time in New Zealand.  Having met the father, the parties began cohabitation in March 2012.  At the time of cohabitation, the father was working as a fly-in fly-out worker in F Town, central Queensland.  The mother commenced study for her degree (part-time, remotely from G University in New Zealand) at about the time the parties moved to City H in early 2013.

6. The parties were married in New Zealand in early 2015 and X was born in Australia on … 2015.  It is the mother’s case that as soon as the parties began cohabitation she had indicated to the father that, if their relationship ended, she was most likely wishing to return to New Zealand.  She says – and I accept – that she may have communicated these views as early as 2012 and certainly well before the birth of X.

7. Although the parties did not separate until 30 December 2017, there are examples of the parties’ discussions after the birth of X where a return of the mother and her then family unit with the father and X was discussed.  The mother asserts that in early 2016 the parties agreed to move to New Zealand by late 2016.  The father says whilst that was discussed and he understood - and I find – supported the mother’s need at that time to return to New Zealand, it was only financially viable for him to do so if he was made redundant by his current employer and received a redundancy payment.

8. In mid-2016, the father was offered employment in New Zealand with the company.  There is a dispute between the parties about whether the father’s rejection of the job offer was with the agreement of the mother.  The mother says that the father made the decision unilaterally.  Little turns on the difference, save to acknowledge that by this stage the question of returning to New Zealand was again a current topic of discussion between the parties.

9. The mother’s degree was completed by November 2016.  By this stage, I am satisfied that the parties’ relationship was in a tense state.  The mother had commenced therapeutic counselling with Psychologist Ms J from August 2017.  Consistent with the obtaining of her degree in November 2016 with a view to having some practical training, the mother spent nearly three months in New Zealand with X from 22 November 2016 when she undertook some training and/or work experience in the property industry.

10. The evidence is that the father did spend some time in New Zealand with the mother and X at this time.  When the mother returned from New Zealand in or about the end of February 2017, I am satisfied that the relationship had not improved and that the mother’s desire to move permanently to New Zealand only became stronger.  There had been threats of self-harm by the father during 2016 which again reflected – it seems to me – a growing unhappiness in the relationship.

11. I am satisfied from the evidence of the father’s Psychologist, Mr K (who was not required for cross-examination) that his level of unhappiness at that time has been dealt with to some degree because of his new relationship and that he does not maintain any current psychological vulnerability at this stage.  That certainly is the assessment of Mr K.

12. Things began to happen very quickly at about the time the parties separated on 30 December 2017.  Certainly, as Exhibit 1 sets out (a draft parenting plan dated 11 January 2018), the discussions at that stage between the parents could well have caused the mother to believe – as she did – that the father was likely to support her and X living in New Zealand, provided suitable care arrangements could be reached.  Even the letter from the father’s solicitor to the mother of 24 January 2018 (Annexure “R1”) - whilst making it clear that the father did not support or consent to the mother relocating to New Zealand with X – were in the midst of a range of negotiations at that stage including property settlement.

13. As the father indicated, he did not wish to, in the midst of those negotiations, appear to be too harsh in his position in relation to the mother relocating to New Zealand.  In many ways, the position between the parties and the dynamics of their co-parenting of X changed significantly when, after meeting Ms D on the internet, a relationship developed between the father and Ms D by early 2018.  Ms D is a community worker with a son, Y, who is only two months younger than X.  The father and Ms D commenced cohabitation in August 2019.

14. Although the mother did not formally commence proceedings seeking relocation to New Zealand until 14 February 2019, it is clear that the parties continued to seek a solution to the impasse that had been created, including multiple attempts at mediation (one of which resulted in an agreed parenting plan on 6 April 2018 that provided for the child to live with the mother and the father to have increasing time, but also acknowledged the mother’s desire to relocate to New Zealand).

15. Again, reflective of the parties’ desire to try to seek a solution in X’s best interests, family report interviews with experienced Social Worker Mr L took place on 27 February 2019 (reflecting arrangements having been made even before the mother commenced her formal application) with a report issued on 27 March 2019.  Mr L was the subject of cross-examination before me, both in respect of his first family report and the subsequent family report dated 10 June 2020 that arose from interviews he conducted of the parties and observations he made on 20 May 2020.

16. Sadly for the mother, her step-father Mr M (who lived with her mother in New Zealand) died in early 2019.  She was close to him.  At that stage, the parties were in the throes of a further discussion about time between the father and X increasing.  Although the mother felt she was pressured into the consent Orders of 8 May 2019 which extended the father’s time with X to three nights a fortnight, together with some allowance for a block time for holidays (a claim the father denies), nonetheless, those Orders were complied with and were in place at a time when the mother began her part-time employment at N Company in in Suburb B on 22 August 2019, and during the course of a further mediation undertaken on 2 October 2019.

17. However, it is fair to infer that the dynamics of these family relationships only became more complicated on 29 October 2019 when a child of the relationship of the father and Ms D was born – Z, X’s younger sister.  It became apparent to the Court when the matter was listed for directions on 23 January 2020 from the trial pool that the matter would most likely need a trial and the matter was listed for trial in August 2020, being aware that there would be an opportunity for Mr L to update his report and to take account of the change in the dynamics of the father’s household, at the very least.

18. Even before Mr L’s report was available to the Court and the parties, the parties consented to a slight increase in the child’s time with the father by Orders made on 7 April 2020, increasing the time to four nights a fortnight in a configuration of Thursday afternoon to Sunday afternoon in one week, and Thursday overnight in the alternate week.  That configuration has been maintained to the time of trial and, as earlier indicated by reference to Appendix One, if the child remains in Australia, then the parties agree that, from the beginning of 2021, the child, X, will spend a block of five nights a fortnight in the care of the father.

Report of Mr L

1. Mr L correctly identified that this is a finely balanced case.  He was not the subject of cross-examination by the mother, and only briefly by the father.  I accept Mr L’s opinions expressed in his reports of the finely balanced nature of this dispute.  In particular, in his first family report, he identified what he saw to be the advantages and disadvantages of X relocating with his mother to New Zealand (paragraphs 105 and 106) and the advantages and disadvantages of X remaining primarily in Australia (paragraphs 108 and 109):

   105.I see advantages for X if the Court allows him to relocate to New Zealand with his mother, including:

   a.It creates greater scope for X to end up with two parents with a higher level of social integration and support, strengthening the resources each can offer the child in the longer term.

   b.In the short term, it creates emotional relief for the mother and the opportunity for her to plan her life as a single parent from a position of having her basic needs more easily met.

   c.It sees X cared for predominately by the mother, in line with his structural history.

   d.It ensures X has a consistent, relatively seamless day-to-day existence, more from the one household, which is inherently less disruptive for him.

   106.I can see disadvantages for X relocating with his mother to New Zealand, which include:

   a.It substantially limits the extent to which X receives regular, frequent hands-on care from his father, at a stage of his development where he has limited sense of time and foresight and limited capacity to communicate by more abstract means, such as telephone or FaceTime.

   b.There is a loss of opportunity for him to grow up with an understanding of his father as an active, involved day-to-day caregiver and it is likely to reshape his long-term appraisals of his father.

   c.To see his father, he will be required to travel long distances.  He is too young to cope with and understand prolonged separation from his mother at this stage, without it causing him confusion and discomfort.

   …

   108.I identify advantages and disadvantages for X if he remains primarily in Australia.  The advantages include:

   a.It ensures he remains in close proximity to each parent, at a stage of development that lends itself to structures of regular, frequent and broad-ranging time.  It allows him to spend gradually increasing time with his father in a more frequent manner.

   b.Although the mother is likely to have greater social integration in New Zealand, she is likely to maintain adequate social integration in Australia, with stable accommodation and employment.

   c.It represents less structural change for X and is the less disruptive option in the short to medium term.

   109.The disadvantages include:

   a.The mother is likely to be distressed by the outcome, creating more stress and uncertainty for her.  It is likely to have some bearing on her emotional availability to the child.

   b.It may have a bearing on the mother’s ability and willingness to co-parent openly with [the] father in short to medium term circumstances where, from her perspective, she is constrained in City H, whereas he enjoys greater freedom and personal development.

   c.It keeps the mother disconnected from loving and enduring support from her family and more socially isolated in Australia.

2. In those paragraphs of his report, Mr L properly identified many of the relevant issues.

3. However, by the time of his second report, Mr L opined at paragraph 103 as follows:

   103.The previous family report contains an analysis of advantages and disadvantages of the competing proposals.  I remain of the view that the issue of relocation is a finely balanced matter.  The opinion of the mother’s psychologist, if accepted by the Court, adds weight to the advantage to the child of ending up with two well resourced, independent, socially integrated and emotionally stable parents in the longer term, if relocation were ordered.

4. In her final submissions, Counsel for the Independent Children’s Lawyer identified, in supporting the mother’s application for relocation, that the mother’s functioning after the decision is made, if it were that the child remain in Australia, is a critical part of the analysis.  Other Counsel in this case agreed.

5. In Mr L’s brief cross-examination by Counsel for the father, he acknowledged that even if – as the parties suggested in their evidence to the Court – the communication has improved between the parents (which is a positive outcome) X will benefit from increasingly being engaged socially with effective “hands-on care” from both parents, and that FaceTime or remote interaction electronically is inferior to physical time with a parent.

6. I felt that Mr L, having been required to prepare a family report, was cautious about and, to a degree, deferred to the opinions of the mother’s counsellor in assessing the mother’s likely reaction to an adverse outcome of these proceedings that the child remain in Australia.  Although he offered the opinion that he felt the mother was resilient in the sense that she had the capacity for self-reflection; was highly resourceful and had shown insight into the need for support and to manage her time and obligations, he made further comments about progressing time if the child remains in Australia from the agreed platform of five nights a fortnight from the beginning of 2021 within the rubric of a need to “hasten slowly” as the mother would need to work through the distress of an adverse outcome from the proceedings and that may take some time.

7. He paid tribute to the parents, who he regarded as “high-functioning” and who had much to offer their child, but opined that each of the parents would need time to recover from the outcome of the litigation and that any assessment of future behaviour or the effect on future communication would involve a degree of speculation.

Mother’s psychological vulnerability

1. The evidence of the mother’s treating psychologist, Ms J, was important evidence in this case.  It was shaped by the period of engagement, therapeutically, Ms J – a registered Clinical Psychologist – has had with the mother.

2. Her report, attached to the Affidavit filed on 15 May 2020, identified a number of factors which I summarise as follows:

   a)The mother first presented for psychological consultation on 11 August 2017 and attended a further four sessions during that year.  In 2018, the mother attended four sessions between January and September.  In 2019, the mother attended 12 sessions between January and November and, up to the time of the report of Ms J (7 May 2020), the mother had had six sessions with the therapist in 2020;

   b)During the course of the therapy sessions, the Psychologist administered a test described as “Depression, anxiety and stress scale”.  The most recent test, administered on 4 March 2020, showed an improvement in the level of the mother’s anxiety and stress and moderate depression.  The six test results identified in the report reveal, for example, that in tests conducted in November 2018 and May 2019 the mother’s depression rating was “severe”; her anxiety rating was “moderate” and her stress level was “severe”.  No further explanation of the scale testing was offered to the Court, but, no doubt, was taken into account by Ms J, a practitioner with 22 years of clinical experience, in the opinion she expressed.

   c)At paragraph 5 of her report, Ms J opines as follows:

   5.      …

   In the event the Family Court ruling is for Ms Levan and her son, X, to remain in Australia, it would be expected that she would require more intensive treatment, with the initial period of care being at least weekly visits for a number of months.  It is anticipated that Ms Levan would be likely to need ongoing psychological treatment for a minimum of 12 months, while she adjusts to the outcome and addresses trauma, loss and grief related to separation from her supports in New Zealand, in particular her mother.  Exacerbation of interpersonal problems and further breakdown of relationship with her ex-husband may occur, which will perpetuate psychological problems and require further support.  If Ms Levan is assessed to be at risk of deterioration in her mental health and wellbeing during this time, it may be necessary to refer her to her General Practitioner for further management and link her to additional intensive mental health services.

   d)Ms J further opines, totally consistent with the mother’s evidence, particularly at paragraph 349, that:

   If Ms Levan is granted permission to relocate to New Zealand with X, it would be likely she would require treatment following the conclusion of the [the] court case as she processes the outcome and associated stresses and makes the initial adjustments.  I would anticipate that this may only be for a short period, requiring only a few sessions.  I would expect that Ms Levan would make a full recovery if she was connected back with her strong support networks in New Zealand.  It is anticipated that she would be in a position to discontinue treatment on or soon after her return to New Zealand.

1. This is entirely consistent with the mother indicating her level of happiness would be greatly improved with permission to relocate.  At paragraph 349, the mother says, when discussing X’s relationship with her in New Zealand that:

   349.I would not have to pretend to be happy for X, I genuinely would be happy.  I would not have to wait until X was asleep to cry, cry in the shower or once he has gone to his Dad’s.  I would not have a reason to be crying, depressed, anxious and ‘holding it together’ anymore.

2. Not surprisingly, the cross-examination of Ms J by Counsel for the father was very much directed towards a prediction of the effect upon the mother’s emotional state of being required, against her strongly held wishes, to remain in Australia, and how that may affect her parenting of the child.  Ms J indicated that if the mother was required to remain in Australia, she would have a “severe” reaction, on her assessment.  She accepted there is a degree of uncertainty, generally, about the severity and intensity of the mother’s reaction.  She believes that the mother has relied upon the hope of the Court permitting X to live in New Zealand to sustain her continued residence in Australia.

3. Ms J confirmed that if the mother was to remain in Australia, she has identified a number of strategies and plans about how she would seek to support the mother and believes the mother would seek out and maintain a therapeutic relationship with her.  I agree, although Ms J indicated that she had not discussed with any specific detail future treatment with the mother.  When asked by Counsel for the Independent Children’s Lawyer to point to a “timeframe” on management of the mother’s “severe” distress in being required to remain in Australia, Ms J was really unable to say more than it would be a minimum of 12 months, in her assessment.

4. As I deal with later in these Reasons, whilst I accept the evidence of Ms J that the mother would, for the reasons that she advances, suffer a severe disappointment and stress from an order requiring the child to remain in Australia, it was difficult for Ms J to predict the extent to which this would manifest in the mother’s parenting of X.  It is apparent from the mother’s own evidence and the resilience that she has demonstrated since the relationship came to an end in December 2017, and at least the father’s reluctance to support her leaving to relocate to New Zealand from January 2017 (albeit not completely), that the mother has had to live with the stress of uncertainty now for well over two and a half years, and if I accept the evidence she gives (which I do) about how she has sought to contain her emotions, I have no doubt this has taken its toll on her.

5. However, the evidence overall demonstrates that, at least to date, even though on balance I would think the child is probably aware that the mother would like to live in New Zealand with him, there is no evidence that it has affected her day-to-day parenting of this child, or the focus on his needs, which has been without criticism by either the father or Mr L, and to that I can add the Court.

6. As was discussed with Counsel for the mother, with that history, it might be unfair to predict the mother as being able to keep it together into the future, but at least it is clear she has done so under significant stress – including, at times, difficult communication with the father; financial uncertainty; job security uncertainty and the ever-present desire to return to New Zealand that shapes her as a person.  I find that the mother’s capacity, as it seems to me on the evidence to be demonstrated, to consistently put her child’s needs first and to disguise her true feelings about her level of unhappiness is a great tribute to this mother.

Primary and additional considerations

1. Within the matrix of the primary (s 60CC(2)) and additional (s 60CC(3)) considerations, I do look at the competing proposals.  In so doing, I do not repeat but do rely upon the earlier findings.  As Ms Downes quite fairly and properly conceded in her final submissions, the best interests of X is the paramount consideration, and that the “mother’s need to be in New Zealand will never trump the best interests of X”.  It is apparent, of course, that parents living a significant distance apart in different countries (even as close as New Zealand and Australia) does not provide an optimal parenting environment for two parents who crave to provide the type of daily – at times, regular – interaction with a developing child of young years.

2. Nonetheless, as many authorities identify, when the Court is being asked to consider the benefit to a child of a meaningful relationship with a parent, “meaningful” is the not the same as optimal.  It was a strong submission of both parents through their Counsel that it is in the best interests of X that he have a meaningful relationship with both parents.  It is clear that the benefit of that relationship with his mother is preserved by her remaining as the primary carer, whether that be in Australia or in New Zealand.

3. The preservation of a meaningful relationship between the child, X, and the father of a meaningful nature, which would be to his benefit, is, in my view, put into sharp focus if the child was to live in New Zealand.  Whilst over the period of the time since separation the father’s time with X has increased, he is yet to start school, and there are many other aspects of his development, both within an educational environment; in an extra-curricular and sporting environment and just socially, which would develop the strength and warmth of the relationship between the father and the child.  That would be affected, in my assessment, if the child was permitted to relocate to New Zealand.

4. This arises from the simple absences from regular events like school events, sporting events, life events (birthdays, etc.) which are a normal part of interaction between children and parents with whom they have regular contact.  Whilst I accept that electronic interaction can go some way to providing a facility for engagement, it is not the same as physical contact, and neither Counsel would be heard to say otherwise.  Clearly, with older children who have developed a long and secure attachment to a parent, distance may not always be an impediment to a maintenance of that relationship.

5. However, as I further explore in these Reasons, for a child of this age, who is yet to start pre-school and is developing many of his traits as a young child, the absence of regular physical contact with his father if X relocates, is an adverse impact on the child that must be weighed against the other potential adverse impacts, particularly of the mother’s continued primary care in Australia if she does not function well emotionally.

6. It is a relief to acknowledge that in this case, s 60CC(2)(b) (which, of course, is required to be given greater weight) – namely, the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence – does not arise on the facts of this case.  As Counsel for the Independent Children’s Lawyer properly identified at the commencement of her submissions, X is, indeed, a lucky little boy in having such capable, committed and loving parents as he does.

Additional considerations

1. The child is of such an age and level of maturity that any views that he might have in respect of the competing proposals could not be given any weight, and neither Counsel asserted otherwise.  In respect of the nature of the relationship X has with each of his parents and other persons, I make the following findings:

   a)The child’s primary attachment is to his mother.  This is a reflection of not only her role in giving birth to him, but the primary care she has provided to the child during the course of the relationship and particularly since separation in December 2017.  The fact that he presents so well in a wider context is, in no small part, attributable to the efforts of the mother who – under some stress – has managed his care excellently;

   b)After the initial tensions that one might expect when a relationship breaks down and thereafter, the father’s growing relationship with X has developed through the stage where he has a strong and warm bond with him of significant importance to the child and one from which he derives significant benefit.  The evidence would suggest that the relationship with Ms D was sensitively introduced to the child such that he now has a warm relationship with her and her son, Y, who is of a similar age to X.  I accept that the relationship X has with Ms D, with Y and with his little sister, Z, are important to his development, sense of identity and social context.  They will, most likely, be members of his inner circle of support in one form or another for the rest of his life, as will the mother and father;

   c)I had the benefit of evidence from Ms P Levan, the maternal grandmother, who currently resides in New Zealand, but will soon retire from her role as a caretaker of a property.  Although her evidence was taken by telephone, she evinced all the qualities of a loving and caring mother and grandmother.  She has shown her support for her daughter – the mother, in this case – by regular trips to Australia and by supporting her daughter when the daughter travelled often to New Zealand.  In that respect, at paragraphs 174, 175 and 176 of her affidavit, the mother identified the periods of time that she spent in New Zealand when, I infer, the child, X, would have also spent time with the maternal grandmother and, possibly, wider family.  I have no doubt that the maternal grandmother is an important person to X and that her desire to continue to teach him about Maori culture in New Zealand and the differences of New Zealand society is genuine and beneficial to him;

   d)There is little evidence of the extent of interaction X has had with the paternal grandparents (who reside in the O Region in North Queensland); the father’s sister, who resides in Q Town (and who is to give birth to a cousin in November this year) and the father’s brother who lives in R Town and who, himself, has three children.  However, to the extent that time with these members of the family may be limited by distance and opportunity, there is nothing adverse from any of these extended paternal family relationships that arises from the evidence.

2. I am satisfied that, although, at times, there have been difficulties with communication, with small eruptions from time to time reflective of the tension of ongoing litigation as much as anything else, both parents have taken the opportunity to participate in making decisions about the child and to spend time and communicate with the child.  In this regard, the mother acknowledges that the father pays regular child support of a reasonable level as assessed and makes no complaint about his failure to do so.

3. In that regard, although not truly child support, the property orders of the parents reflect an obligation of the father to pay the mother by way of spouse maintenance lump sum payments, annually, of $15,000:  one having been made in or about December 2019 and the next and final payment being due in December 2020.

4. In the analysis at the conclusion of these Reasons, I deal with the very relevant consideration set out at s 60CC(3)(d), namely the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person, including any grandparent or other relative of the child with whom he or she has been living.

5. The Court is required to consider the practical difficulty of the expense of the child spending time with or communicating with a parent.  Clearly – although even in City H – a travel time of approximately 40 minutes might currently exist between the mother’s residence at Suburb S and the father’s continued and likely continued residence at Suburb T, there are no real practical difficulties in the child spending time with the parents if they live in City H.

6. The practical difficulties that do arise clearly come into more sharp focus if the child relocates to New Zealand, however to some degree (especially in a post-COVID-19 environment; the current environment somewhat distorting practical arrangements), there are numerous flights available from both Brisbane and City H in a regular, normal, setting between those cities and City U, New Zealand which would be the major airport closest to where the mother is likely to live in New Zealand with the child.

7. Whilst there are issues in respect of costs and the child being accompanied, they are, to a large degree, resolvable and, in fact, have been resolved by the parties save as to the contribution to costs which – if necessary – will be dealt with in these Reasons.

8. The Court is required to consider the capacity of each of the child’s parents and any other parent to provide for the needs of the child, including emotional and intellectual needs.

9. As high-functioning parents, one would not anticipate any significant difference in their capacity to meet the needs of this child.  They are both parents who value education; and although there are differences in their parenting styles – mostly related to activities that they may primarily do with a child of this age, the only real difference in capacity arises from the assessment of a reduction in the mother’s capacity if she is required to cope with the disappointment and severe distress that is likely to – at least initially – occur if the Court does not support her primary application for the child to live in New Zealand.  I have, to some degree, dealt with that already when dealing with the evidence of Ms J, but I do further deal with this matter below.

10. For completeness, there is nothing in the evidence that would suggest to me that, although likely to be extremely disappointed, the father’s capacity to provide for the needs of X would be adversely affected if the child lived in New Zealand rather than Australia (other than for the obvious lack of opportunity that distance would create).

11. I have already alluded to the fact that the child’s now-deceased step-grandfather was, as I understand it, a person of Maori heritage but that, in any event, consistent with contemporary New Zealand norms, the mother and, particularly, the maternal grandmother would seek to provide the child with an understanding of the cultural environment relating to modern New Zealand, with an eye to the past and historical events.

12. It seems to me however that the mother has the capacity to provide for that understanding in Australia, although more opportunities to do so and more readily so (including introducing more of the native language) would present themselves in New Zealand.

13. There is nothing in the evidence before me that would suggest that these parents do not have an appropriate attitude to the responsibilities of parenthood.  As already indicated, they might have slightly different parenting styles but I do not detect any significant differences in their views about things such as values, honesty, hard work, respect for others and education.

14. There are no family violence orders that exist in this matter, nor are there any events of any significance in the history of their relationship which calls for a finding under s 60CC(3)(j).

15. The Court is required to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.  It might be said that an order for the child to reside in New Zealand is likely to be an order least likely to lead to further proceedings because, that matter having been resolved, there is, unlikely – save in the extent of a major change of circumstances – to be a revisiting of those arrangements.

16. The same may not be said in relation to an order that requires the four and a half year old, X, to remain in Australia.  To some degree, this is predicated by an uncertainty relating to the mother’s capacity to cope with an order that the child remain in Australia.  If the mother genuinely copes well, obtains employment, may form a new relationship in Australia and has regular opportunities for her and the child to visit New Zealand and to have visitors from New Zealand, then the only areas that are likely to be the subject of further litigation would seem to be moving the child’s time with the father from the agreed five nights a fortnight to a greater level of care (as the father seeks by orders now and to which the mother does not consent).

17. However, that is not an unusual occurrence where co-parents do not have equal time, and where one parent seeks equal time for a child of this age, and if there is continued improvement and communication, these are matters in the future that the parents may well be able to resolve in Australia with the use of community-based mediation or other techniques without having to launch new proceedings.  I think the cost and the effect of the litigation, which is culminated by the trial before me, would act as some impediment to the parties really wishing to undertake further litigation.

Evaluation

1. It is clearly not reasonably practicable (even if it was in the best interests of the child) for equal time to occur if the mother and the child were to reside in New Zealand.  I make this comment because the parties have agreed to an order for equal shared parental responsibility and, by operation of the law, the Court would be required to consider whether an equal time arrangement is in the best interests of X and is reasonably practicable.

2. On more than one occasion during the course of the trial I observed, in interaction with Counsel, that I did regard this as a very highly balanced case.  It is a difficult case.  There are uncertainties about, particularly, how the mother might respond to being required to remain in Australia as a result of her choice to do so if X cannot relocate.

3. I have, however, come to the conclusion that it is in X’s best interests to remain in Australia in the primary care of his mother and with regular and substantial time with his father.  I take into account that there is likely to be an initial severe reaction by the mother through the disappointment and, if you like, the pent-up emotions that have been contained by her whilst this dispute has simmered and been litigated since separation.  I accept that, in view of the father’s comments - particularly shortly after separation - she had a reasonable expectation that she may have been able to return to New Zealand.

4. However, the new relationship of the father with Ms D and the subsequent birth of Z have, in the father’s view and in the Court’s view, made the need for X to retain those important and developing relationships a critical factor.

5. It weighs heavily in the Court’s mind in making this decision that, although I have assessed, on the evidence, the mother is so devoted to her child that she will do everything she can to find work; to obtain a successful career in the property industry; to maintain other social connections which have not yet been developed with any sustainability – including, perhaps, an adult personal relationship if that is her desire – and to maintain connections with her birth country, there is still an uncertainty about whether she will suffer such severe distress that her parenting will be affected.  However, in my view, although that is a possibility, on balance, I do not regard it as a probability.

6. I do accept the submissions of Counsel for the father that “whilst there is a risk of severe reaction, there are safe-guards in place if that occurs.  There is a greater likelihood that the reaction of the mother to an order that X remains in Australia is likely to be one that can be addressed satisfactorily with the assistance of Ms J”.  The therapeutic relationship between the mother and Ms J is of some duration, and my impression from the evidence given by Ms J is that she is well placed and has the mother’s confidence, to offer psychological support.

1. In this regard, I have considered the mother’s evidence in her Affidavit at:

   a)Paragraphs 229 to 251 (career and employment opportunities in City H);

   b)Paragraphs 252 to 264 (career and employment opportunities in New Zealand);

   c)Paragraphs 265 to 269 (housing in City H);

   d)Paragraphs 270 to 275 (housing in New Zealand);

   e)Paragraphs 276 to 284 (financial circumstances in City H); and

   f)Paragraphs 285 to 298 (financial circumstances in New Zealand).

2. The mother’s evidence of employment opportunities in City H are not the subject of any reliable probative evidence.  For example, it is not clear to me why a “New Zealand degree” is less recognised than an Australian degree.  I am prepared to accept the mother’s evidence that she has made a number of job applications, however I am not satisfied that the mother’s strong desire to return to New Zealand (a consequence of which is whether she was able to commit to a long term position in City H) was not a factor.  I speculate that, to some degree, the mother’s inability to obtain a position in the property industry in City H (as she says would be available to her in New Zealand), has a connection with her lack of practical experience more than her formal qualifications.

3. She currently works part-time for a property related business – an area where her training in the property industry may well be of assistance, but in the absence of any evidence from her current employer, or a person in the property field in City H (which the mother did not provide), I cannot be satisfied that the mother’s prospects of employment in City H are as bleak as she predicts.  I note that she acknowledges (at paragraph 233) that there have been jobs in Brisbane that “I am qualified for”, but that she prefers not to “commute from my home to Brisbane each day”.  It is not always possible, although it is desirable, for parents to live close to where they work but I do not accept that, if necessary, a commute to Brisbane is prohibitive.  Furthermore, the extent to which in the post COVID-19 work environment in some industries increased “work from home” opportunities existed have not been explored by the mother.

4. It follows that I accept that the mother being in full-time employment, increasing her income, would improve the range of options for her as to housing – whether in City H (where she seeks to live if X is not permitted to relocate) or New Zealand.  Whilst the mother says “given the limited nature of my income, I would not be able to purchase a property in my name for the foreseeable future in Australia”, her housing situation in New Zealand – whilst initially being available with her mother or father – seems to rely upon an asserted “indication” and “desire” of her father “to gift me his home”, allowing it to be used as security for a loan in New Zealand.  The evidence, not in any way corroborated by the mother’s father, is vague as to the “logistics” or timing.

5. I regard it as more likely than not that she will struggle initially, but that when she sees her child enjoy his relationship with the father and his siblings (for that is how he probably sees Z and Y) and when X gets involved in the day-to-day rigors of schooling, including friendships and extra-curricular activities, that this very committed and focused mother will do what good parents are required by authority to try to do – namely to put their heartfelt personal desires either on hold or adjust so as to meet the best interests of their child.  On balance, although difficult, I believe this mother both can and will do so.

Other issues

1. In my view, the dispute about schooling, consistent with authorities like Re G:  Children’s Schooling (2000) FLC 93-025, is shaped by the primary care the mother will have for the child. The mother has less financial capacity than the father, and therefore the cost of travel, even for the 12 occasions (out of 20) that would occur for the first school year, should not be underestimated. Furthermore, although I accept a submission of Mr Shoebridge, Counsel for the father, that X may benefit from beginning school at the same school as Y in 2021, the fact that they live in different households will mean that their experience in the wider environment will be slightly different.

2. There is a prospect, as the mother conceded, that as a single parent working and managing her child, when the child is with her there will be occasions where she may need to call upon the father and/or Ms D to assist.  I have little doubt that the father and Ms D would do so (and the evidence of the father is they will), not with the point of saying to the mother that she cannot cope, but rather to acknowledge the difficulties she will encounter as a single parent from time to time, and the need for support on those rare occasions.

3. There is no real difference between the curriculums offered, it would seem, between Suburb C State School – which would be close to the mother’s current residence, or a residence she hopes to be able to obtain within the region – or Suburb V State School, which are the two options identified as being close to the father’s residence.  I regard it in the best interests of the child that he commence his primary school education at Suburb C State School and will so order.

4. As the Court is not permitting relocation, the Court is not required to consider any increase in time between now and the start of the 2021 school year, although it is noted that there is some additional time that the parties have agreed to and which includes a period for X to travel to Q Town at the time of the birth of the father’s sister’s baby in November this year.  The parties have reached agreement as to arrangements for the likes of Christmas this year and school holidays in the future.

5. Because of the decision the Court has made which will not permit the child to relocate, the Court is not required to consider the dispute that arose as to extended time up until relocation or making orders as to the costs of travel from New Zealand to Australia and return, had the mother relocated.  The father seeks an increase in time if relocation is not permitted.  In particular, the father says that upon the child commencing grade one in January 2022, that the child spend time with the father from after school Tuesday to before school Monday, and then in week two from after school Monday to before school the following Tuesday – effectively six nights a fortnight.

6. Upon the commencement of the 2023 year (grade 2) the father seeks to move to a week about arrangement with changeovers on a Friday.

7. Whilst there has been an acknowledged improvement in the parties’ communication, in my view, at this stage on the evidence, it is highly speculative as to whether it would be in the best interests of X to increase the time that he spends with his father beyond the agreed arrangement to commence from the beginning of the school year 2021 of five nights a fortnight.

8. In particular, I acknowledge the following uncertainties which will need to be assessed, perhaps at a future date, if such an application is brought by the father, namely:

   a)how the communication has continued to improve or otherwise as a result of the completion of this litigation and the effect upon the mother of being unable to live with X in New Zealand;

   b)how the dynamics of the various households shape the capacity for increased time.  In this respect, I acknowledge that the households that the child will navigate are significantly different.  In the mother’s household, the child, at this stage, is an only child, to whom the mother is able to devote all her time and energy.  In the father’s household, when the child X is with him, there will be three young children, two at school for some time, but at different schools.  The father’s work situation, when it returns to normal, requires him to leave by train to Brisbane well before the child would wake up in the morning.  Ms D will be required to navigate a number of practical and somewhat quite “sticky” arrangements involving a number of children in a number of different locations as well as her own work situation.  Although she says she can rely upon her mother (evidence of which was not before the Court, but which I will accept for the sake of this discussion) there are uncertainties about how the co-parenting will be challenged by the individual personal situations of the parties;

   c)although there is nothing to indicate that the child, X, will not cope well with school, there could be difficulties not even anticipated yet, which would need to be taken into account; and

   d)as children get older, extra-curricular activities impact on block care arrangements and they will need to be considered.

9. For at least these reasons, it is premature, on my view, on the current evidence, to predict in such a way as to make an order that it is in the best interests of the child that the child will benefit from increased time with the father in 2022, and equal time between the parents in 2023.  I accept that, by not making such an order, there is a risk that the parties may engage in further litigation.  But, as I earlier indicated in these Reasons, that is a matter that two good parents who have shown an interest in maintaining mediation and engaging in dispute resolution should be able to navigate easily.

10. I raised during the hearing the ability for the mother, if relocation for X was not permitted, to travel with him to New Zealand so that she (and X) can physically connect with her family.  I note that although the maternal grandmother is retiring, her ability to spend time with the mother in Australia for regular and lengthy periods is uncertain (beyond one visit a year).  The orders I propose to make are that the mother, for the years 2021 and 2022, shall have the right to suspend the father’s time for up to four weeks for two occasions each year (unless otherwise agreed) to enable her to return to New Zealand.  I do not regard the potential loss of some educational opportunities at school or the slight reduction in the father’s time for those blocks of time, as outweighing the benefit to the mother and X of connecting with their family in New Zealand during the period of adjustment created by the Court’s Orders.

11. For the reasons which are set out, I make the orders which appear at the commencement of these Reasons.

I certify that the preceding one-hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 28 August 2020.

Associate: 

Date:  28 August 2020

APPENDIX ONE

ORDERS AGREED TO IRRESPECTIVE OF WHERE THE CHILD LIVES

Parental Responsibility

1. Except as otherwise stated, the Father and the Mother (collectively “the parties”) are to have equal shared parental responsibility for the major long term issues of the Child, X (“the Child”) born … 2015.

2. The parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibilities as follows:

   2.1they shall inform the other parent about the decision to be made;

   2.2they shall consult with each other on terms that they agree; and

   2.3they shall make a genuine effort to come to a joint decision.

3. Notwithstanding the provisions of Order 2 herein;

   3.1the Mother shall be responsible for the daily care, welfare and development of the Child when the Child is living with or spending time with her; and

   3.2the Father shall be responsible for the daily care, welfare and development of the Child when the Child is living with or spending time with him.

Exchange of Information

1. That the mother and the father shall:

   4.1keep the other parent informed, at all times, of their residential address, email address, landline and mobile telephone numbers and update the parents within seven days of any changes to such details;

   4.2Keep the other parent informed at all times of any other persons living at their residential address, with such information to be provided within seven (7) days of any changes to such details;

   4.3keep the other parent informed of the names and addresses of all treating medical or other allied health practitioners who treat the Child, from time to time, and authorise those practitioners to provide the other parent with all information they are lawfully able to provide about the Child; and

   4.4inform the other parent, as soon as is reasonably practicable and by the best means available, of any significant health issue suffered by the child and this order authorises any treating medical practitioner to release the child’s medical information to the other parent (at the requesting parents costs).

2. That the Mother and the Father authorise, by this Order, all schools attended by the Child, from time to time, to provide to each of them all information/documentation sought by them in relation to the child's welfare, progress and activities at school, from time to time, (including, but not limited to, providing the Mother and/or the Father with copies of school newsletters and other notes/letters to parents, copies of the child's school reports, details of the Child’s parent/teacher interviews, copies of order forms for the Child's school photographs and certificates and awards obtained by the Child, (at each parent's own cost)).

3. That during all those periods when the Child is living with the Mother and the Father in accordance with these Orders, the Mother and the Father shall each:

   6.1respect the privacy of the other parent and not question the Child about the personal life of the other parent;

   6.2speak of the other parent respectfully; and

   6.3not denigrate or insult the other parent in the presence or hearing of the child and shall remove the child from surroundings where other persons may be denigrating or insulting the other parent in the hearing or present of the child.

Overseas Travel

1. That the Mother and the Father shall each be at liberty to take the Child overseas during any of those periods when the child lives with each of them in accordance with these Orders and at such other times as shall be agreed upon between the mother and the father, from time to time, in writing, on the following conditions:

   7.1the travelling party shall give the other parent as much written notification as possible of their intention to travel and, in any event,  shall give the other party not less than one (1) month's, written notice of such intention save in the event of an emergency when notice will be provided as soon as is reasonably practicable; and

   7.2Should the dates of the travel fall outside the mother's usual time with the child (such as in the case of a family emergency) pursuant to these orders, the additional time shall be as agreed between the parents and the Father is not to unreasonably refuse the time sought by the Mother.

   7.3that at least two (2) weeks immediately prior to the departure date, the travelling parent shall provide to the other parent:

   7.3.1an accurate, written itinerary for the trip, including, but not limited to, departure and return times and dates,  the place(s) and country/countries the child will be travelling to and the approximate dates on which the child will arrive and depart each destination;

   7.3.2a telephone number/numbers and address/addresses at which the child and the travelling party can be contacted during the duration of the child's holiday; and

   7.3.3copies of the child's forward journey and return journey tickets or electronic tickets, (including air tickets).

Passport

1. That the Child’s passports shall be held by the Mother and the Mother shall do all acts and things as may be necessary so as to ensure that the Passport or Passports travel with the Child.

2. That the Father shall do all acts and things as may be necessary so as to ensure he returns the Child’s Passport with the child after any overseas travel.

3. That the Mother and the Father shall do all acts and things and sign all documents necessary directed to the Australian Passport Office (or such other Department or instrumentality administering the Australian Passports Act 2005) within 7 days of receiving that document from the parent requesting the Passport to enable the Child to be issued with an Australian Passport (travel document) and to renew the Child’s Passports from time to time so as to ensure the Child has at all times a current Australian Passport.

4. That in the event that either the Mother or the Father refuses or neglects to sign any document necessary to issue the Child with an Australian Passport despite these Orders and having consented to an Australian Passport (or travel document) being issued, such refusal will constitute sufficient special circumstances for a party to seek that the Minister administering the Australian Passports Act 2005, give consideration to issuing an Australian Passport (travel document) pursuant to section 11(2)(1) of the Australian Passports Act 2005.

5. The Mother and the Father shall each do all acts and things and sign all deeds, documents, instruments and writings as may be necessary so as to facilitate the child being able to travel, including by signing Australian passport applications and/or Australian passport renewal/extension applications and any other necessary visa/other travel documentation for the child.

6. That the Mother and Father shall do all things including by signing all documents within seven days of a request being made by the Mother or Father to execute a New Zealand Passport application and or renewal for same.

Signing of documentation

1. That:

   14.1each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of these orders within 7 days of being requested to do so.

   14.2in the event that a party refuses or neglects to sign or execute and return a document within 7 days of presentation to them or a Lawyer representing them then pursuant to Section 106A of the Family Law Act 1975 the Registrar of the Brisbane Registry of the Family Court of Australia or any Deputy Registrar from time to time is appointed and empowered and directed hereby to sign or execute the same in the name of that party upon presentation of such document and an affidavit of a Lawyer on behalf of the requesting party as to the said neglect or refusal.

   14.3the costs of and incidental to such request and production of documents to the Registrar shall be borne by the defaulting party without further order of that Honourable Court and may be taxed or fixed by the Registrar or Deputy Registrar and thereafter shall be recoverable from the defaulting party by the other party as a debt.

   14.4an affidavit by the Lawyer acting for the non-defaulting party shall be sufficient proof of the other party's default.

IN THE EVENT THAT THE RELOCATION IS PERMITTED

1. That the Mother be permitted to remove the child from the Commonwealth of Australia and relocate him to reside with her in New Zealand from January 2020 (‘the relocation’).

2. Up until the day before the relocation, the Orders dated 7 April 2020 (‘the April Orders’) shall remain in place (though noting that the Father seeks additional time pending relocation as per Notation).

3. That in addition to the time provided for in the April Orders, the child shall be with the Father:

   17.1For a period of five nights in November, to coincide with the birth of the Father's sisters’ baby;

   17.2From 4pm on the 9 December until 4pm 21 December 2020.

   17.3From 4pm on the 24 December until 9am on the 31 December 2020;

   17.4For a further block period of seven nights during January 2021;

4. That the April Orders be discharged as and from the relocation.

5. From the date of the relocation, the Child shall live with the Mother.

The Father’s time with the child

1. In the event the relocation is ordered, the Child shall spend time with the Father at all times that may be agreed in writing, but failing agreement, from the relocation as follows:

   20.1For the whole of the Term one school holidays, from the last day of the school term until the Saturday before the commencement of Term Two each year;

   20.2For eight nights during the Term two school holidays each year, commencing on the last day of school term;

   20.3For the whole of the Term three holidays, from the last day of the school term until the Saturday before the commencement of Term Four each year;

   20.4For the 2021/2022 Christmas holiday period and each alternate year thereafter, for 30 consecutive nights commencing on the first Monday after the end of school (noting that such time will include Christmas);

   20.5For the 2022/2023 Christmas holiday period and each alternate year thereafter, for 30 consecutive nights commencing 3 January 2023;

   20.6Upon the child relocating to New Zealand, for four separate periods, each of up to fourteen nights in duration.

   20.7On the child's birthday each alternate year with the time to coincide with the father's travel to New Zealand.

2. In order to facilitate the Father spending time with the child in accordance with Order 20.1 to 20.5 the following shall apply;

   21.1The Mother or the Mother's nominee shall accompany the Child to and from Australia until such time as he can travel as an unaccompanied minor and the Mother shall be responsible for the costs associated with same;

   21.2The Child can be booked to arrive at the Brisbane or City H airports;

   21.3Changeover shall take place:

   21.3.1at City H or Brisbane airport, whichever the case may be, whilst the Child is to be accompanied;

   21.3.2once the Child is to travel as an unaccompanied minor, the parents shall ensure that the Child arrives at the relevant airport no later than two hours prior to the intended flight.

3. In order to facilitate the Child spending time with the Father in accordance with Order 21.6 and 21.7 the following shall apply;

   22.1Such time shall take place in New Zealand;

   22.2The father will provide the Mother with at least 30 days written notice of his intention to travel and the Father shall be responsible for the costs of his own flights;

   22.3The Father will ensure that the child attends school on school days and extra curricular activities (unless otherwise agreed);

   22.4The Father shall collect the child from and return the child to, the Child's school;

   22.5Such time shall fall outside of school holiday and special occasion time that the Child is to spend time with the Mother, pursuant to these Orders.

Communication

1. That the Child have telephone and/or electronic communication with the Father, at all times that can be agreed between the parties in writing and failing agreement, at all times when the child is not otherwise with the Father:

   23.1At all times reasonably requested by the child;

   23.2Each Sunday at 5pm and each Wednesday at 7pm (child’s location);

   23.3On the child’s birthday;

   23.4On the Father’s Birthday;

   23.5On Ms D’s birthday;

   23.6On Y’s birthday;

   23.7On Z’s birthday;

   23.8On Christmas Day;

   23.9On (Australian) Father’s Day; and

   23.10On Easter Sunday.

2. That the Child have telephone and/or electronic communication with the Mother at all times that can be agreed between the parties in writing and failing agreement, when the child is not otherwise with the Mother:

   24.1At all times reasonable requested by the child;

   24.2Each Sunday at 5pm (child’s location);

   24.3Each Wednesday at 6pm (child’s location)

   24.4On the Child’s birthday;

   24.5On the Mother’s birthday;

   24.6On Christmas Day;

   24.7On (New Zealand) Mother’s Day; and

   24.8On Easter Sunday.

3. In order to give effect to Orders 23 and 24:

   25.1On special occasions time shall take place at 8am;

   25.2The parent whom the child is not living with, shall instigate the call to the second parent;

   25.3Both parents will arrange for the child to telephone the other parent on the following night, for any unforeseen circumstances, the child misses the telephone call with the parent;

   25.4Both parents will ensure that the child has privacy during the calls.

4. That the mother will ensure, that within seven days of the date of this Order she will set up a specific email address or online app (‘the email address’) to be used by her and X to communicate with the Father and in Order to give effect to same:

   26.1The Mother will provide the Father with the email address as soon as it set up;

   26.2The Mother will upload, at least monthly, photographs of what the child has been involved in during the previous month;

   26.3The Mother will upload, at least monthly, drawings and school work that the child has completed in the previous month;

   26.4The child will be at liberty to email and otherwise communicate with the Father via the email;

   26.5At least weekly, the Mother will have the child write a story, or draw a picture for the father to be uploaded to the email address;

   26.6The Mother will ensure that the child is given access to and the opportunity to engage, at least weekly on the email address;

   26.7The Mother will ensure that she assists the child to access the email address if he makes a request to do so.

IN THE EVENT THAT BOTH PARENTS LIVE IN AUSTRALIA

Live with arrangements

1. The child shall live with the Mother and spend time with the Father at all times that may be agreed in writing, and failing agreement:

   27.1In a two-week cycle as follows, up until January 2021:

   27.1.1In week one, commencing the first week after the making of these orders from 4:00pm Thursday until 4:00pm Sunday and each alternate week thereafter;

   27.1.2In week two, commencing the second week after the making of these orders from 4:00pm Thursday to 4:00pm Friday and each alternate week thereafter.

   27.2Commencing in January 2021 from afterschool or 3pm Wednesday to 9am or before school Monday and each alternate week thereafter.

   27.3For a period of five nights in November 2020, to coincide with the birth of the Father's sisters' baby;

   27.4Each alternate week during December 2020 and January 2021 (such that X shall live on a weekabout basis with each parent);

   27.5From 9.00am on Christmas Eve until 12 noon on Christmas Day 2020.

2. Notwithstanding any other order, the child shall be with the Mother from 12 noon on Christmas Day until 4.00pm on Boxing Day.

School Holidays

1. That the child spend time with the parents during school holidays at all times that may be agreed in writing, as follows:

   29.1For the first half of all school holiday periods with the Father and the second half with the Mother in 2021 and each alternate year thereafter;

   29.2For the second half of all school holiday periods with the Father and the first half with the Mother in 2022 and each alternate year thereafter.

2. In order to give effect to Order 29:

   30.1The time provided for in Order 27.1 and 27.2 shall be suspended and shall recommence at the commencement of the new school term as though the school holidays had not taken place (for example, if the last week of the school term is week one, the first week of the school term is week two);

   30.2School holidays are deemed to commence after school on the last day of the school term and conclude before school on the first day of the school term;

   30.3Changeover on the midpoint day shall be 5pm; and

   30.4In the event that there is an uneven number of nights in any school holiday period, the Father shall have the extra night on the first occasion and each alternate occasion thereafter and the Mother shall have the extra night on the second occasion and each alternate occasion thereafter.

Special Occasion

1. Unless otherwise agreed in writing, the child shall spend time with each of the parents om special days as follows:

   31.1With the Father on Father's Day, should the child not already be spending time with the Father from 9.00am until 4.00pm;

   31.2With the Mother on Mother's Day, should the child not already be spending time with the Mother from 9.00am until 4.00pm;

   31.3On the child's birthday, with the parent whom the child is not spending time:

   31.3.1If a weekday, from after daycare/school until 6.00pm;

   31.3.2If a weekend, from 10.00am until 2.00pm.

   31.4On the birthday of each parent, should the child not already be spending time with the parent on the day;

   31.4.1If a weekday, from after daycare/school until 6.00pm;

   31.4.2If a weekend, from 10.00am until 4.00pm.

   31.5With the Father on the birthdays of the child's siblings (paternal side), on 29 October and 1 February each year, from 9.00am until 4.00pm, if a non- daycare/school day or from after daycare/school until 6.00pm, if a daycare/school day.

Changeover

1. That for the purposes of changeover:

   32.1The Child shall be collected from and returned to his School on school days; and

   32.2On non-school days the Child shall be collected from and returned to a location in Suburb B.

Communication

1. That unless otherwise agreed in writing, the child shall have telephone and/or electronic communication with the parties at all times that can be agreed, and failing agreement:

   33.1At all reasonable times as requested by the child;

   33.2Each Tuesday at 6:30pm when the child is not otherwise with the Father; and

   33.3Each Friday at 6:30pm when the child is not otherwise with the Mother.

   33.4Both parties will ensure that the child has privacy during the call and will ensure that the child telephones the parent the following evening in the event of the call being missed.