Malcolm and Pantelides

[2013] FamCA 1025

FAMILY COURT OF AUSTRALIA

MALCOLM & PANTELIDES [2013] FamCA 1025

FAMILY LAW – CHILDREN – Relocation to New Zealand – Where the mother seeks an order permitting her to relocate the child to New Zealand – Where the parties agree to an order of equal shared parental responsibility – Where equal time or significant and substantial time is not reasonably practicable – Where the mother will have greater family support and greater job opportunities in New Zealand – Where the family consultant recommends the court permit the mother to relocate with the child – Where the time currently being spent between the child and the father will not significantly change.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA

Cowley & Mendoza [2010] FamCA 597

APPLICANT: Ms Malcolm

RESPONDENT: Mr Pantelides

INDEPENDENT CHILDREN’S LAWYER: Catherine Mary Bint

FILE NUMBER: LEC 475 of 2012

DATE DELIVERED: 20 December 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 30 September & 1 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Wright

SOLICITOR FOR THE APPLICANT: Beesley & Hughes

COUNSEL FOR THE RESPONDENT: Mr Lawrence

SOLICITOR FOR THE RESPONDENT: Slattery Thompson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: CM Bint Family Lawyers

Orders

1. That the mother and the father shall have equal shared parental responsibility for the major long-term issues in relation to the child, L Pantelides (“the child”), born … 2003, as that term “major long-term issues” is defined in s 4 of the Family Law Act 1975.

2. That in respect of decisions about those major long-term issues in relation to the child, having regard to paragraph 1 of these Orders and the provisions of s65DAC(2) of the Family Law Act 1975:

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

   (b)Each parent shall consult with the other with a view to reaching terms upon which they may agree; and

   (c)Each parent shall make a genuine effort to come to a joint decision with the other parent.

3. That the child shall live with the mother.

4. That the mother shall be at liberty to relocate the residence of the child to New Zealand on a date after Friday 17 January, 2014.

5. That the child shall spend time with the father as may be agreed between the mother and the father and, in default of agreement, as follows:-

   (a)From no later than 12 midday on Monday 21 December 2013 until 5:00 pm on Tuesday 14 January, 2014;

   (b)For the entirety of the New Zealand school holidays at the end of terms 1 and 3 in each year, provided she is back in her mother’s care at least one clear day before the start of school in the next term;

   (c)For one half of the mid-year school holidays in each year, provided she is back in her mother’s care at least one clear day before the start of school in the next term;  

   (d)For the first four weeks of the Christmas school holiday periods, to include Christmas Day, commencing in 2015 and in all odd numbered years thereafter and the last four weeks commencing in 2014 and in all even numbered years thereafter, provided she is back in her mother’s care at least one clear day before the start of school in the next term;  

   (e)On occasions where the father travels to New Zealand, at times to be agreed between the parents in writing and on special occasions as follows, conditioned upon the father facilitating the child’s attendance at school on any school day and giving the mother 28 days’ notice in writing:

   (i)On the weekend which includes Father’s Day from 5:00 pm on the Thursday immediately prior to Father’s Day and concluding before school Monday;

   (ii)On the child’s birthday, if on a school day from 4:00 pm to before school the following morning, and if a non-school day from 1:00 pm to 9:00 am the following morning;

   (iii)On the weekend of the Greek Orthodox Church Easter celebration, from the conclusion of school on Friday to before school Monday; and

   (iv)For one week in each school term from 9:00 am Saturday to 9:00 am the following Saturday.

6. That the child shall communicate by telephone with the parent with whom she is not residing at the time:

   (a)Each Monday, Wednesday and Friday between 6:00 pm and 7:00 pm local time to the place she is then residing, with the non-resident parent to initiate the call to the mobile telephone of the child and the resident parent to ensure that the telephone is charged and the child is available to accept such calls; and

   (b)At all such other times as the child requests.

7. That within 6 months of the date of these Orders, the father shall arrange for connection to the internet so as to facilitate communication by Skype software with the child each Wednesday between 6:00 pm and 7:00 pm local time to the place she is then residing, in lieu of telephone time on Wednesday as ordered in (6)(a) above.

8. That in respect of calculating the child’s holiday time with the father in the mid-year school holidays, school holidays shall commence at midday on the day following the last day of the school term and shall conclude at midday on the day immediately prior to the first day of the following term and if there is an uneven number of nights during the holidays, then the father’s half shall include the additional night.

9. That to facilitate the child’s travel between New Zealand and Australia, the Father shall make all return flight bookings between Auckland and Sydney for the child and shall provide to the mother 28 days in advance of the date of her flight, a copy of the child’s return tickets and the child’s travel itinerary including flight details and dates of travel.

10. That the father shall be liable for the costs of the child’s flights so that she spends time with him pursuant to these Orders.

11. That the mother shall deliver the child to the Auckland International Airport in sufficient time to ensure her departure on the flight booked by the father at the commencement of the child’s time with the father and the father shall collect the child from the Sydney International Airport immediately upon the child’s arrival.

12. That the father shall deliver the child to the Sydney International Airport in sufficient time to ensure her departure on the flight booked by her father for her  return to Auckland at the conclusion of the father’s time with the child and the mother shall collect the child from Auckland International Airport immediately upon the child’s return.

13. That the father shall forthwith release the child’s passport to the mother.

14. That within fourteen (14) days of a written request from the other, each party shall do and procure the doing of all things and sign and procure the signing of all documents necessary to complete any documentation required by any airline to ensure the child’s ability to travel as an “unaccompanied minor”.

15. That within fourteen (14) days of a written request from the mother, the father shall do all such acts and sign all such documents as may be required to apply for or renew a passport or any other documents deemed necessary for the purposes of travel.

16. That each parent shall do and procure the doing of all things and sign and procure the signing of all documents necessary to give full force and effect to the provisions of these Orders, and in the event that either parent refuses or neglects to comply with any provision of these Orders, within fourteen days of a written request to do so, then by this paragraph of these Orders, the parents shall be deemed to consent to a Registrar of this Court being appointed pursuant to s 106A of the Family Law Act 1975 to execute all documents in the name of that party to give validity and operation to these Orders.

17. That by this paragraph of these Orders, each parent irrevocably authorises any person or institution, including but not limited to any doctor, carer, teacher, hospital, childcare institution, school and any social, sporting or recreational organisation, to release all and any information (verbal or in writing) reasonably requested by the other parent in relation to the child that they are lawfully able to release.

18. That each parent shall be entitled to attend any public or school social, sporting or educational event involving the child, including but not limited to theatre performances, sporting events, school activities and functions, Christmas parties and other special occasions and each parent shall inform the other parent of such events in a timely manner and communicate arrangements that are made for the child to attend such events.

19. That each parent shall keep the other parent informed as to his or her residential address, landline and mobile telephone numbers, work telephone number, email address, facsimile transmission number and shall advise the other parent of any change to any of those details within 48 hours of any such change.

20. That the parents shall communicate with each other by email and or SMS text message in the first instance and by telephone if necessary.

21. That in the event that the child requires any medical or hospital treatment, the parent then caring for the child will immediately inform the other parent of such necessity, including with details of the name and contact details of the hospital and/or treating medical practitioner.

22. That in the event that an urgent decision must be made by either parent and the other parent is not able to be contacted after all reasonable attempts have been made, or fails to respond to reasonable requests for information, the parent then caring for the child shall make the decision and inform the other parent by the most immediate means possible.

23. That all decisions concerning any non-urgent medical procedures and treatment and non-urgent medication will be made jointly by the mother and the father.

24. That the mother shall provide to the father by email, within 48 hours of any days the child is absent from school, notification that she was and such notification shall include the date and the reason for such absence.

25. That the father shall provide the child with her own bedroom during the time that she spends with him in Sydney pursuant to these Orders.

26. That each of the parents is restrained and an injunction is hereby issued restraining each of them from using, consuming or being under the influence of any illegal drug at any time that the child is in his or her presence or care.

27. That pursuant to s 65L of the Family Law Act 1975:

    (a)These orders be supervised by a Family Consultant of the Brisbane Registry of the Family Court of Australia, to be Ms E if possible, and, in particular, the Family Consultant is appointed to explain the Orders made to the child; and

    (b)The mother shall facilitate the child’s physical or telephone attendance, as directed by the nominated Family Consultant, upon the Family Consultant as requested.

28. That upon these Orders being explained to the child by the Family Consultant the Independent Children’s Lawyer is discharged.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 475 of 2012

Ms Malcolm

Applicant

And

Mr Pantelides

Respondent

REASONS FOR JUDGMENT

1. The parents of ten year old L Pantelides disagree about where L (“the child) should live and what time she should spend with each of them. This issue has divided them since the beginning of last year.

2. Unable to resolve that disagreement through negotiation and mediation, the mother applied to the Federal Circuit Court for orders allowing her to move with the child to the north island of New Zealand to live. As it is an application for international relocation, the Federal Circuit Court Judge whose docket it was listed in transferred the matter to this Court for determination.

3. The father lives in the eastern suburbs of Sydney. The mother and the child currently live in Town B on the North Coast of New South Wales. They have lived there since the family moved to that town from Sydney in the middle of 2006. The couple separated in the middle of 2009 and, after seven months of reasonably co-operative shared parenting arrangements, the father left the North Coast and returned to Sydney. He has lived there since then.

4. By agreement between the parents, since the father went back to Sydney, the child has been travelling there to spend time with the father in her school holidays and the father has visited her in Town B for her birthday each year and on a few other occasions, staying sometimes for several days.

5. The mother wants to take the child to live with her in New Zealand. She proposes that the child continue to travel to Sydney in her school holidays to spend time with her father and that she can also spend some time with him in New Zealand during school term if he is able to travel over there. She also proposes frequent telephone and internet video communication.

6. The father does not want the child to move to New Zealand. He would like the mother to move with the child to Sydney where he proposes they could again share her parenting. Alternatively, he would rather that the mother remain in Town B and for the child to continue spending time with him in Sydney in her school holidays until he moves back to the North Coast. He says he wants to do that at some time in the future but is not currently sure when that might be. He proposes that after he moves back to the North Coast the parents equally share the care of the child.

7. I have determined that the child’s mother can take the child to live with her in New Zealand before she starts school in 2014 and after she spends Christmas and New Year in these school holidays with her father in Sydney. These are my reasons for that determination.

Some more factual background

1. The child L was born in Sydney in 2003. That is where her parents had been living since they commenced living together in 1996. The father, who is now sixty-two years of age, had lived in Sydney since coming to Australia from Greece with his parents when he was only a child. The mother, who is now fifty years of age, was born in New Zealand and had come to Australia in the early 1980’s and had lived in different parts of Australia before settling in Sydney herself.

2. The parents, who have no professional or trade qualifications disclosed on the evidence, had worked in various forms of employment up to the time they met and began living together. Each had been married before. The father had two daughters of his earlier marriage who were still children at the time that he and the mother started their relationship. Those girls spent time with the father and the mother in their household during the years of their cohabitation. They still live in Sydney.

3. Just after the child L was born the father ceased working and began renovating the apartment the family lived in. The couple then began to experience relationship discord and when the mother terminated a second pregnancy in 2005 she experienced some depression and anxiety. She left the father and took their two year old daughter to New Zealand and stayed with her extended family there for three months.

4. The couple reconciled and the mother came back to Australia. The couple then made a decision to move to the North Coast of New South Wales to live. They did that, as already noted, in July 2006, when the child was three and a half years of age. The Sydney apartment was sold and the family moved to Town B, with the proceeds of sale of the apartment retained as savings. Each parent found part-time or casual work in Town B and the child started school there in 2008. She has been attending the same school ever since and has now just finished grade five.

5. The parents worked out a co-parenting plan after they separated. They shared the care of the child on a relatively equal basis. There is no dispute between them, on the evidence, that it worked well for the child.

6. In February 2010, the father decided to leave the North Coast and move back to Sydney to live. He says he decided to do this as he was struggling to find suitable employment in Town B and he thought he could find work in Sydney and be in a better position to financially contribute to the support of the child. He acknowledged it was a difficult decision, given that he was so significantly involved in the child’s life. The mother was surprised and disappointed by the decision, but willingly shouldered the responsibility of providing the principal day to day care for the child, all the while encouraging the continuation of her  relationship with her father.

7. Indeed, in 2010, after the father moved to Sydney, the mother and father agreed for the father to care for the child in Sydney for two weeks whilst the mother went overseas on a buying trip for a sales business she was trying to get established. That same year, the father made several trips up to Town B and spent a few days with the child, apparently coming and going from the mother’s residence at will. In 2011, the mother again went overseas on a business trip for three weeks. She and the father again arranged for the father to go to Town B to live in the mother’s residence for that entire time to look after the child.

8. In Sydney, the father lives in the home of his ninety-three year old father, with his father. His mother, who had been in a nursing home for some years, recently passed away. The father, who was injured in a fall at work during the time he lived in Town B, was again injured in another fall at work in or around February 2012. He has been physically unable to work since then and in receipt of periodic compensation payments from the NSW WorkCover Authority whilst on a rehabilitation program with the Commonwealth Rehabilitation Service. The father cares for his elderly father and for that he receives income from the Commonwealth through Centrelink. His income of $1,205 per fortnight is made up of $928 from Centrelink and $277 from WorkCover.

9. Both the mother and the father agree that accommodation in Town B is relatively expensive. In the months after separation when the father lived there, he had a co-tenant to help share that high cost of rental accommodation. Since separation, the mother has also had to have co-tenants. She has apparently had many and there is agreement between the parties that such necessity has created problems from time to time. Indeed, the father travelled to Town B twice in 2012 to help the mother deal with difficult co-tenants. The mother has also had difficulty in recent years finding and retaining suitable employment in Town B. Most of the jobs that she could get would require her to work after school hours or at night or weekends. She is not able to do that due to her responsibility to care for the child.

10. Fortunately, for the mother and the child, the father has voluntarily contributed reasonable financial support, even from his relatively limited income, over the years since separation. In the same way that the parties regulated their parenting arrangements without recourse to the family law courts before this current dispute, they regulated the financial support of the child without recourse to the Child Support Agency in that same time. The father has always voluntarily paid support to the mother at levels higher than he would have been obliged to pay pursuant to administrative assessment. He still does to this day. Currently, he is paying the mother $200 per week (about one third of his income) for her to use towards supporting their child. His child support liability if assessed would be, he said, more like $15 per week.

11. The father’s support certainly has helped the mother, but in the first part of 2012, she thought she might move to New Zealand for a period of twelve to eighteen months. Her eighty-three year old mother lives on a property on the eastern side of New Zealand’s north island. That is about one hour’s drive from the larger regional town of Hamilton and a couple of hours’ drive from the big city of Auckland.

1. Over time, the mother’s intentions changed. She decided that she then wanted to leave Town B and Australia permanently and to go back to New Zealand to live. She considers that accommodation would be cheaper for her; she would be better able to get more suitable employment that will improve her capacity to financially support herself and the child; and she would have access to family support. As I have already said, the father does not support that proposed move and would prefer that the mother and child move back to Sydney.

The determination of this parenting dispute

1. Parenting disputes, regardless of the form they take in each particular application, are to be determined with the child’s best interests as the paramount consideration.[1] In order to determine what is, in fact, in the best interests of the child, the Court must have regard to the “primary” and “additional” considerations set out in s60CC of the Family Law Act 1975.  This process of having regard to the evidence, in light of the legislative considerations, and applying the appropriate weight to each of the relevant considerations, allows the Court to determine what, in any given circumstance, is in the best interests of the child.[2] The determination of the appropriate parenting orders must also be made with regard to the Objects and Principles of the Act set out in s 60B of the Act. I will not set those out here, but am conscious of them in considering the matter before me.

   [1]          Family Law Act 1975 (Cth) s60CA.

   [2]          Cowley & Mendoza [2010] FamCA 597.

2. International relocation disputes are just another form of parenting orders proceedings. Although the outcome of such a dispute can profoundly affect the course of children’s lives, they are to be decided in the same way as all other parenting disputes. I have previously observed that entry into parenthood brings with it heavy responsibilities, as well as profound satisfaction and joy. Very often the best interests of children necessarily impinge upon parental freedom of choice. The reality of this fact is rarely more obvious than when separated parents are in dispute about where their children should live. Quite often a determination by the Court as to what is in the best interests of the subject child can leave each parent unhappy. More often, of course, particularly in relocation cases, one parent will be far more unhappy with the outcome determined by the Court than the other parent. Yet, a decision has to be made.

The proposals of each of the parties

1. In this matter, the mother proposes that the child live with her, and that she be permitted to relocate to New Zealand.  She proposes this together with the child spending half of each school holiday period with the father, and that the child communicate with the father via Skype on two occasions each week.  The mother does not oppose the father’s application for parental responsibility for the child to be shared equally between them.

2. The father opposes the mother’s application for relocation and instead proposes that the child live with each parent in a shared care arrangement.  He says that should be in Sydney but that, in any event, he intends moving back to Town B at some indefinite point in the future. The father proposes though, that if the mother is successful in her application to relocate to New Zealand, that he have liberty to contact the child by telephone on three occasions each week, and that the child spend time with the father in Sydney for the entirety of each school holiday, save that of the Christmas break, where he proposes a half/half arrangement.

3. The Independent Children’s Lawyer effectively supports the proposal put by the mother that the mother be allowed to relocate with the child to live in New Zealand and that the child simply continue to spend holiday time with the father in Sydney.

4. Of course, the Court is not bound to accede to one or other of the proposals put by the parents, or by the ICL’s proposal. It can order what it considers are the appropriate orders, in accordance with its own determination of what is in the child’s best interests.

Consideration of the evidence

1. The Court was greatly assisted in this matter by a family report prepared in February of this year by one of its Family Consultants who interviewed and observed both parents and the child.

2. The Family Consultant noted at the end of her report that neither parent was seeking a change in the parenting arrangements. By that, I understood her to mean that the father was not seeking principal care of the child or even greater care than he had at the time. The Family Consultant went on to recommend that the mother be permitted to relocate with the child to live in New Zealand but that the child should spend time with her father for the majority of each school holiday, save for the Summer holidays which she considered should be shared equally.

3. The Family Consultant observed that orders providing for the child to spend holiday time with her father such as she proposed would essentially facilitate her spending as much time with her father as she has been spending with him since he left the North Coast in early 2010. She did not consider it necessary to require the mother and child to remain living in Town B if the mother did not want to. Further, she did not consider that the child’s relationship with her father was going to be changed in any significant way by a move to the north island of New Zealand.

4. By the time of the trial though, the father’s position was not as simple as just opposing the mother’s proposed move to New Zealand. As I have noted already, he was proposing an equal shared care arrangement, prefaced around the Court ordering the mother to move with the child to live in Sydney or, alternatively, if the Court is not minded to order the mother to move to Sydney, prefaced around the father’s asserted intention of moving back to Town B at some indefinite time in the future.

5. At the trial of this matter, when the Family Consultant went into the witness box to give oral evidence and be cross-examined, the father’s new position was explained to her. The Family Consultant was asked whether hearing and knowing the father’s new position at trial made a difference to the outcome that she recommended in this case. She told the Court that it did not make any difference and that she still recommended that the mother be permitted to take the child to live in New Zealand with her.

6. The evidence of the parties and the Family Consultant convinced me that the child has very good relationships with each of her mother and her father. They have clearly been loving parents to their daughter. They have, I am satisfied, both appreciated the importance of the other in their daughter’s life. I have already noted that the mother was disappointed for her child when the father returned to Sydney to live. On the other hand, the father is recorded by the Family Consultant to have told her that the mother has always promoted the child’s relationship with him. From her observations, the Family Consultant said that the child’s relationship with her father is strong enough and the child is old enough for the nature of the relationship, as it currently exists, to survive the impact of a move across the Tasman Sea, particularly where the time the child spends with her father will not be reduced by much, if at all, below that which she spends with him whilst she lives in Town B and he lives in Sydney.

7. The mother does not want to return to live in Sydney. Financial circumstances, employment issues, and lifestyle issues all inform her determination not to. I do not consider her determination not to go back to Sydney now, just because the father says she should, as being unreasonable.  

8. The mother does not want to stay living in Town B either. She cites what I consider to be sound, well thought-out reasons for wanting to return to New Zealand to live. Even if she is unable to find suitable employment quickly, the ability to live with her mother in her mother’s home will save her money from the outset, compared to what she spends in Town B on rental accommodation. That ability will also alleviate the problems both parties acknowledge have occurred in the mother’s shared accommodation arrangements in the years since the separation.

9. In circumstances, where the father is not even able to tell the Court with any degree of certainty at all when he might move back to Town B, I do not consider it at all appropriate to make orders that require the mother to remain living in Town B with the child, simply on the basis of the father’s assertion that he will at some point in time.

10. The father expressed concern that the child, being well settled in Town B, would suffer social dislocation and disruption moving with her mother to New Zealand. However, the Family Consultant turned her mind to this issue. Acknowledging that a move to New Zealand would constitute living in a new community and require the child to change schools as well as establish new social and friendship networks, she still offered the opinion that the child would successfully navigate the transition. The child is almost 11 years of age. The Family Consultant observed that in her experience children generally cope with change if they are well supported. The Family Consultant observed that the child has the support of her mother and an extended maternal family network who she already knows. She has spent time in New Zealand in the past and it is not totally foreign to her. The Family Consultant also expressed the opinion that the child has the ability and confidence to make new friends. I accept all of those opinions. I am satisfied the child will adjust well to the move.

11. I am satisfied that the mother has made appropriate plans for accommodation, finding employment, caring for the child, including as to finding out about the options in respect of schooling. I am satisfied that she has also given appropriate consideration to the question of maintaining the child’s meaningful relationship with the father. I am completely satisfied of the mother’s bona fides in respect of the proposed move, including in respect of doing all that she can to facilitate and encourage the child’s relationship with the father in the event that she is allowed to move.  

12. I am comfortably satisfied that the child’s closest relationship, having regard to the parenting arrangements that have now prevailed since the beginning of 2010, is with her mother. The father does not propose that the child actually principally lives with him in Sydney. He just proposes that the mother be ordered to move with the child to Sydney, whereupon they could share her care, or that the mother be ordered to stay in Town B, whereupon, if he moves back there, they could share her care. 

13. All parties propose an order that parental responsibility for the child be equally shared. As I intend to make such an order, I am statutorily bound by s 65DAA of the FLA to consider whether the child spending equal time with each of the parents is reasonably practicable and whether it is in the best interests of the child. Only if both those questions are answered in the affirmative must I consider making an order for equal time. If I do not do that, then I must give consideration to the same questions in respect of the child spending substantial and significant time (as that term is defined in the FLA) with each parent and, if they are both answered in the affirmative, again, consider making an order that the child spend substantial and significant time with each parent.

14. If the mother is in New Zealand or in Town B and the father is in Sydney, I do not consider the child spending equal time or substantial and significant time with each parent is reasonably practicable (as that term is defined in the FLA).  

15. Further, I do not consider it reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents at all. That could only happen if the mother lived in Sydney with the father living there, or if the father lived in Town B with the mother living there.

16. It is not reasonably practicable, in all of the circumstances, for the mother to live in Sydney. She has no job there, no accommodation there (and it is relatively expensive in any event), and no desire to go there whatsoever.

17. It is not reasonably practicable, in all of the circumstances, for the mother to continue living in Town B, particularly with no certainty that the father will get back there.

18. I will not be making any orders in this case for the child to spend equal time with each parent. Nor will I be making any orders in this case for the child to spend substantial and significant time with each of the parents. I have determined that it is in the child’s best interests to permit her to move with the mother to New Zealand. The child’s living circumstances should, I am satisfied, immediately improve with a move with her mother to New Zealand. At the same time, her good relationship with her father should not be detrimentally impacted upon and will be maintained by appropriate orders providing for the child to spend consistent time with him and to have regular contact with him. I am satisfied that the financial circumstances of the parties will be able to sustain and facilitate regular trans-Tasman flights to the same extent that the child has been flying between the North Coast and Sydney in recent years, particularly if the father is able to divert some of the money that he has been paying voluntarily towards the child’s financial support towards contributing to the cost of airfares, as the mother asserts she is happy for him to do.

19. As to other matters of evidence, I do not consider the complaints each parent made about the other parent’s immediate parenting capacities have any significant bearing on the outcome of this case. Neither had sought fit to raise them in the context of a parenting orders dispute before the mother raised the desire to move to New Zealand. Her reasons for wanting to go are not related to the father’s parenting capacities and the father’s reasons for not wanting her to go are not related to the mother’s parenting capacities. I accept, as did the Family Consultant, that both parents are suitable parents for the child and that the matters they did complain of are insignificant in this case.

20. The only matter I consider necessary to raise, as I will be making an order in respect of the issue, is the father’s use of marijuana. Suffice to observe that the father, who I have observed has had back injuries preventing him from working, uses marijuana as pain relief. The mother asserts he has exposed the child to his use of it. I will make orders that neither parent expose the child to use of illegal drugs.  

21. The child was assessed by the Family Consultant as being somewhat conflicted about the question of whether or not she wanted to move to New Zealand. She was only just turning 10 years of age at the time she was seen by the Family Consultant. The Family Consultant assessed her as really not wanting to say anything that hurt either parent’s feelings and not wanting to have responsibility for the decision. It is perfectly understandable for a 10 year old girl to not want to be thrust into that position. Her expression of discomfort at the idea of flying unaccompanied on flights backwards and forwards across the Tasman is also understandable and something I have regard to in shaping the orders I make. However, although it is a shorter flight, I accept that she has been flying unaccompanied to Sydney and back for the last eighteen months and I am confident that she can fly unaccompanied between Australia and New Zealand if the relevant airlines permit it.   

22. The mother is of New Zealand (European) cultural heritage and the father is of Greek cultural heritage. The child has extended family on both sides of her parentage. The maternal extended family lives in New Zealand, in the area of where the mother will be relocating to. The child will be exposed on a daily basis to New Zealand culture after her move there.  The paternal extended family lives in the Sydney area, the father and his father living in a suburb with significant community ties to the Greek culture.  It is indeed in the child’s best interests that she continues to have that regular contact with not only her father, but also the other members of her extended paternal family, and with their Greek-Australian heritage. I am satisfied that will continue during the time that my orders will provide for her to spend with the father in Sydney during her school holidays. I am also satisfied that her mother will positively encourage the child’s connections in that regard.

23. I will make the orders that are set out at the commencement of these reasons. They are substantially in accord with those proposed by the Independent Children’s Lawyer as I consider they present an outcome that is in the best interests of the child in this case, in all the circumstances.

24. The orders in respect of the time that the child spends with her father during school holidays are not exactly what any of the parties actually advocated for. I have considered all of the proposals and have determined that the actual orders I am going to make provide a suitable compromise on all proposals that best meets the needs of the child and the concerns of each party.

25. My orders will also provide for the father to pay the costs of the child’s flights between the two countries. As I have said, he has been paying $200 per week towards the child’s financial support and that is money the mother herself says she will not need after her move, given her anticipated savings, and that she would prefer the father use to pay for the airfares. I accept that as a reasonable position for both parties.

26. As to the balance of the orders I intend to make, I do not understand them to be controversial and will make them without giving any further reasons.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 20 December 2013.

Associate: 

Date:  20 December 2013