Mansur & Mansur
[2024] FedCFamC1F 1
•12 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mansur & Mansur [2024] FedCFamC1F 1
File number(s): BRC 7333 of 2021 Judgment of: BAUMANN J Date of judgment: 12 January 2024 Catchwords: FAMILY LAW – Children – Best interests – Child’s wishes – International relocation – Where both parents are native to New Zealand and relocated to Australia – Where the father seeks to return to his natural country – Where the mother seeks to remain in Australia – Where each parent has re-partnered –– Where the children are early adolescents Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Sampson & Hartnett (No 10) (2007) 38 Fam LR 315 Division: Division 1 First Instance Number of paragraphs: 77 Date of last submission/s: 20 December 2023 Date of hearing: 13-14 December 2023 Place: Brisbane Counsel for the Applicant: Ms Horsley Solicitor for the Applicant: BGM Family Lawyers Solicitor for the Respondent: Litigant in Person ORDERS
BRC 7333 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MANSUR
Applicant
AND: MR MANSUR
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
12 JANUARY 2024
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous Orders relating to the children, X born 2009, and Y born 2013 (“the children”) be discharged.
Parental responsibility
2.That the mother and the father shall have equal shared parental responsibility for all major long-term issues in respect of the children including, but not limited to, issues of that nature about:
(a)the children’s education (both current and future);
(b)the children’s religious and cultural upbringing;
(c)the children’s health;
(d)the children’s respective names; and
(e)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
3.That the mother and the father shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility, as follows:
(a)they shall inform the other parent about the decision to be made;
(b)they shall consult with each other on terms that they agree; and
(c)they shall make a genuine effort to come to a joint decision.
4.That notwithstanding the provisions of Orders 2 and 3 of these Orders:
(a)the mother shall be responsible for the daily care, welfare and development of the children when the children are living or spending time with her; and
(b)the father shall be responsible for the daily care, welfare and development of the children when the children are living or spending time with him.
Care arrangements
5.That the children shall live with the mother in Region B, Australia at all times that they are not spending time with the father, pursuant to these Orders, unless otherwise agreed between the parents in writing.
6.That, if the Father is living in City C (or any other location other than Region B, Australia region), the children shall spend time with the Father at all times as may be agreed in writing, and failing agreement (for the sake of school holiday period referenced in these orders these reflect the schools attended by children in Australia):
(a)At anytime during the school term, in Region B for up to seven (7) days at a time, provided that there is at least seven (7) days falling between each additional block period of time spent.
(b)From the First Saturday after the conclusion of Term One until the last Saturday before the commencement of Term Two each year and such time may be away from Region B.
(c)If Easter falls outside the Australian school holiday period, the children spend this time with the mother, save that if the father is present in Region B for the Easter period then the children spend time with the Father from 10:00am Easter Sunday until 5:00pm Easter Monday or as otherwise agreed.
(d)For the Term Two Australian school holidays if there is an overlap between the New Zealand school holidays and the Australian school holidays, for an agreed period of ten (10) consecutive nights and failing agreement the children will spend time with the Father for the first 10 “crossover” or the first 10 nights of the New Zealand/Australian school holidays and such time may be away from Region B, Australia.
(e)For the Term Two Australian school holidays, if there is no overlap between the New Zealand School Holidays and Australian school holidays, the children will remain in Australia with the mother for the Australian school holidays, and the father is at liberty to travel to Australia for 11, consecutive nights between the first Saturday after the conclusion of the New Zealand school Term Two until the last Wednesday before the commencement of New Zealand school Term Three to spend this consecutive time with the children and the children are to attend school for the majority of this period.
(f)From the first Saturday after the conclusion of Term Three until the middle Saturday of the school holidays (7 nights) and such time may be away from Region B, save that, that the children be permitted to attend the Father’s family event in September 2024, for up to a 10 consecutive night period including a specific period in September 2024.
(g)For the Term Three Australian school holidays, if there is an overlap between the New Zealand school holidays and the Australian school holidays, for an agreed period of ten (10) consecutive nights and failing agreement the children will spend time with the Father for the first 10 “crossover” or the first 10 nights of the New Zealand/Australian school holidays and such time may be away from Region B, Australia and save that the children be permitted to attend the Father’s family event in September 2024, for up to a 10 consecutive night period including a specific period in September 2024.
(h)The children live with the father from 5.00pm on 8 January 2024 until no later than lunchtime on 20 January 2024, when the children will return to the mother.
(i)For the 2024/2025 Christmas school holiday period, and each even year thereafter, from 3:00pm on 28 December to 3:00pm on the last Saturday before the beginning of the new school term, and such time may be away from Region B;
(j)For the 2025/2026 Christmas school holiday period, and each odd year thereafter, from the first Saturday after the conclusion of the last day of the school term to 3:00pm on 28 December and such time may be away from Region B;
7.That in order to facilitate the children spending time with the father in Region B (pursuant to paragraphs 6(a), 6(c), 6(e), as they may apply):
(a)Such time shall take place in Region B or as agreed in writing.
(b)Any time the father wishes to spend with the children outside of the holiday times allowed for in these Orders, the father will provide the mother with at least 14 days written notice of his intention to spend that time with the children.
(c)The Father will ensure that the children attend the majority of school-on-school days and their usual extra-curricular activities during this time (unless otherwise agreed);
(d)The time provided for in paragraph 6(a) may fall consecutively with any school holiday time the children are due to be with the father;
(e)The time provided for in paragraph 6(a), shall fall outside of any school holiday periods, Mother’s Day weekend and other special occasion time that the children are to spend time with the mother, pursuant to these Orders.
8.That in order to facilitate the children spending time with the father away from Region B, Australia, the following shall apply:
(a)The father will arrange, at his expense, the child/children’s transport to and from the City C airport;
(b)The mother will arrange, at her expense, the child/children’s transport to and from the Region B/Brisbane airport;
(c)That any time that the father travels to Australia to spend time with the children, the father pay the costs of his travel to and from Australia to spend time with the children;
(d)That both parties shall do all things to get a letter from the children’s doctor allowing the children to travel unaccompanied (noting the use of medical equipment) if required, at least 21 days prior to any intended travel.
(e)Not less than 60 days prior to departure from Australia, the father will present in writing to the mother two travel options and the mother will respond within 7 days as to her preference, failing which the father will choose and notify the mother of his choice.
(f)Not less than 60 days prior to departure from New Zealand, the mother shall present to the father two travel options and the father shall respond within 7 days as to his preference, failing which the mother will chose and notify the father of her choice.
(g)That for the purposes of these Orders and the child /children’s travel between City C and Region B/Brisbane:
(i)the mother shall be responsible for booking and paying the costs associated with the children’s flights from City C to Region B; and
(ii)The father shall be responsible for booking and paying the costs associated with the children’s flights from the Region B to City C
with the parents to provide evidence of the itinerary and payment of fares at least 30 days prior to departure.
Mother’s and Father’s Day
9.That, if the father is in Region B, in the event Father’s Day occurs on a weekend the children are living with the mother, the children shall return to the Father from 9.00am Father’s Day until before school (or 10:00am if a non-school day) the day following Father’s Day.
10.That, in the event Mother’s Day occurs on a weekend the children are spending time with the father, the children shall return the mother from 9:00am Mother’s Day until before school (or 10:00am if a non school day) the day following Mother’s Day.
Children’s birthdays
11.That in the event the father is in Region B for either of the children's birthdays the children will spend time with the father at an agreed time, failing agreement:
(a)if the day of the birthday is a school day, then from after school the day of the birthday, to 10:00am, or the commencement of school the day after the birthday; or
(b)if the day of the birthday is a non-school day, then from 12pm the day of the birthday, to 10:00am, or the commencement of school, the day after the birthday.
Changeover
12.When the children are spending time with the father away from Region B;
(a)If the children are to be accompanied for travel, the parent and/or nominee who elected the option will accompany the children on required flights;
(b)When the children are travelling as unaccompanied minors, the Father and/or his nominee shall collect the children from the City C airport at the commencement of the children’s time with the Father, and the Mother and/or her nominee shall collect the children from the Region B/Brisbane airport at the conclusion of their time with the Father.
13.When the children are spending time with the father in Region B;
(a)Where changeover is to occur on a school day, the father or his nominee shall collect the children from school at the commencement of their time with the father and drop the children at school at the conclusion of their time with the father; and
(b)Where changeover is to occur on a non-school day, the father or his nominee shall collect the children from the mother’s residence at the commencement of their time with the father and drop the children at the mother’s residence at the conclusion of their time with the father.
Communication
14.The parties will communicate from time to time via electronic means (either by way of text message, email or parenting application) as agreed between the parties in writing.
15.That the mother keep the father up to date in all extracurricular activities the children are participating in, including providing details/inclusion for communications including but not limited too social media pages, email/text groups and links to draws.
16.That both children will have their own mobile phone, and the parents will ensure that the children may use their phone at any time the child wishes to communicate with either parent.
17.The children have telephone and/or electronic communication with the father and mother, at all times that can be agreed between the parties in writing and failing agreement, at all times when the children are not otherwise with the father or mother:
(a)At all times reasonably requested by the children;
(b)Each Wednesday and Sunday;
(c)On each of the children’s birthday;
(d)On the Father’s and/or Mother’s birthday;
(e)On Christmas Day;
(f)On Father’s and/or Mother’s Day;
(g)On Easter Sunday.
18.That in order to give effect to the communication provisions:
(a)Apart for Christmas Day, and unless otherwise agreed in writing, communication shall take place between 4:00pm and 8:00pm (in the time zone where the children are at that particular time);
(b)On Christmas Day, at an agreed time, that the parent who is not spending Christmas Day with the children nominates (in the time zone where the children are at that particular time);
(c)The parent whom the children are living with, shall initiate any call to the other parent.
Exchange of information
19.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;
(b)keep the other parent informed of the names and addresses of all treating medical or other allied health practitioners who treat the children, from time to time, and authorise those practitioners to provide the other parent with all information they are lawfully able to provide about the children;
(c)inform the other parent, as soon as is reasonably practicable and by the best means available, of any medical condition, significant health issue or illness suffered by the children and in the event of the children being admitted to hospital for emergency treatment, treatment by an ambulance crew, or being taken to a medical practitioner for urgent treatment following any accident, injury or sudden illness.
20.That this Order authorises any treating medical practitioner to release the children’s medical information to the other parent.
21.That this Order authorises all schools attended by the children, from time to time, to provide to each the mother and the father all information/documentation sought by them in relation to the children’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 children’s school reports, details of the children’s parent/teacher interviews, copies of order forms for the children’s school photographs and certificates and awards obtained by the children, (at each parent’s own cost).
22.That the mother and the father shall each be at liberty to contact the teachers and/or principal(s) and/or administrative staff of all schools attended by the children, from time to time, (by telephone, in writing or in person).
23.If appointments of any kind are to be made for the children during the other parent’s time, these will not be made without confirmation and consent in writing.
24.That during all of those periods when the children are living with or spending time 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 children about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent or members of the other parent’s family, their friends or their partner/spouse to or in the presence or hearing of the children; and
(d)use their best endeavours to ensure that others do not denigrate or insult the other parent or members of the other parent’s family, their friends or their partner/spouse to or in the presence or hearing of the children.
Overseas travel
25.That the Mother and the Father shall each be at liberty to take the children overseas during any of those periods when the children live with each of them in accordance with these Orders, unless otherwise provided in 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 condition that the travelling party shall give the other parent the following:
(a)if any travel impacts the children's attendance at school for more than 5 consecutive days this must be agreed upon in writing prior to any bookings;
(b)as much written notification as possible of their intention to take the children overseas and, in any event, shall give the other party not less than two (2) month’s written notice of such intention; and
(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, the place(s) and country/countries the children will be travelling to and the approximate dates on which the children will arrive and depart each destination;
(ii)a telephone number/numbers and address/addresses at which the children and the travelling party can be contacted during the duration of the children’s holiday; and
(iii)copies of the children’s forward journey and return journey tickets or electronic tickets, (including air tickets).
Passports
26.That in the event the travelling parent is not holding the children’s passport, the non‑travelling parent will provide copies and/or the original (whichever is required by the travelling parent) of the children’s passport to the travelling parent within 7 days of a written request to do so, if necessary for the booking of travel and accommodation and/or application(s) for and issue of a Visa or other travel documents.
27.That if the travelling parent is not holding the children’s passport, the non-travelling parent will provide the children’s passport to the other parent not less than 14 days prior to any overseas travel pursuant to this Order, if necessary and otherwise, the parents will ensure that the passport/s travels with the child/ren.
28.That the parties will each 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 X and Y be issued with an Australian Passport (travel document) and to renew X or Y’s Passport from time to time so as to ensure that X and Y has, at all times, a current Australian Passport.
29.That, in the event that either the Mother or the Father refuses or neglects to sign any document necessary to issue X or Y with an Australian Passport despite this Order and having consented to an Australian Passport (or travel document) being issued, such refusal is to 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.
30.That the Father shall hold all New Zealand Passports for Y and X and that the Mother shall hold all Australian Passports for Y and X and each parent shall provide the other with a copy of each children’s passport, within five (5) days of one parent requesting that information from the other.
31.That the parties must do all acts and things and sign all documents necessary to ensure that, at all times, each child has a current Australia Passport and a current New Zealand Passport.
32.That the Father shall be responsible for ensuring that each child has a current New Zealand passport (including but not limited to completing all necessary documents and applications) and shall be solely responsible for such costs.
33.That the Mother shall be responsible for ensuring that each child has a current Australian passport (including but not limited to completing all necessary documents and applications) and shall be solely responsible for such costs.
Default
34.That in the event that either the Mother or the Father refuses or neglects to sign any document in accordance with any provision of these Orders within 7 days of being requested to do so in writing, a Registrar or Deputy Registrar of the Federal Circuit and Family Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these Orders.
Other orders
35.That pursuant to Section 121 (9) (g) of the Family Law Act, the parties shall be at liberty to provide a copy of these Orders to the children’s school, and any treating therapist appointed to assist the children or either of the parents.
36.That pursuant to Section 121 (9) (g) of the Family Law Act, the parties shall be at liberty to provide a copy of the family reports to any treating therapist appointed to assist the children or either of the parents.
37.That the parties do all things including by way of signing all documents necessary to have these Orders registered such that they are enforceable, in Australia and New Zealand
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mansur & Mansur has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
The applicant mother, Ms Mansur (now aged 44 years), and the respondent father, Mr Mansur (now aged 46 years), are unable to agree on whether their two sons, X, born 2009, and Y, born 2013, should live with the mother in Australia in Region B or in City C, New Zealand, with the father. The Reasons which follow seek to explain why the Court has formed the view that it is in the children’s best interests at this stage that they remain living in Australia with the mother despite the father being obliged to take up a responsibility as an educator in City C from early 2024.
PRINCIPLES
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 (Cth) 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 children.
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.
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.
It will assist in this case to provide a context to the dispute. In doing so, statements of fact shall be construed as findings of fact.
BACKGROUND
The parties commenced cohabitation in New Zealand in 2000, initially living with the father’s parents. The father was 23 years of age and the mother was 21 years of age at that time. They married some two years later in 2003. The young couple moved to the United Kingdon in 2003 and returned to live in Australia in 2007. Australia is the birth country of the mother, whilst New Zealand is the birth country of the father.
In 2009 X was born. He is now 14 years of age and in grade 8 at D School in Region B. In 2010 the family moved to New Zealand when X was less than one year of age. They lived in and around the City C area. Y was born in New Zealand in 2013 and is now 10 years of age. He currently attends grade 5 at the E School in Region B.
In 2016 the family moved back to Region B. It was acknowledged by the father that he had prior to that date formed a relationship of some sort with Ms F. In 2017 the father returned to live in New Zealand. This was a difficult time for the family as the children were separated from the father, and the mother, in my view with some understanding of the needs of the children, chose voluntarily to return to New Zealand (the father was then living in City G) around two months later.
It is not necessary in these Reasons to deal with some of the events that occurred after the mother returned to New Zealand with the boys, save to note that in early 2018 it is acknowledged that the marriage had come to an end, and around the same time the parties entered into a parenting agreement, which is dated 31 January 2018. That parenting agreement provided that the parties had separated on 4 January 2018; that the boys were to remain in the day-to-day care of the mother in Australia; and there is the acknowledgement at clause 2 of the parenting agreement that at the time “the parties agreed that [X] and [Y] are returning to live in Australia with [Ms Mansur] because it is in their best interests to do so”; the parties committed, despite the distance, to use their best endeavours to co-parent effectively with each other. The parties agreed on extensive time arrangements, subject to being able to travel between the two countries.
This parenting agreement was executed in New Zealand. The Court does not know what effect the parenting agreement had in New Zealand, but certainly the parties appear to have complied with the terms of the agreement without significant difficulty. Between early 2018, when the mother returned to Australia with the boys, and early 2019, when the father decided to return to Region B to be closer to the family, the evidence suggests and I accept that the father and the children spent time on approximately four occasions over that nearly 12-month period.
In early 2019 the mother commenced a relationship with Mr H (aged 46 years). Mr H is the father of two children, J, now aged 14 years, and K, now aged 12 years. Those children live in a week about arrangement in Region B between Mr H and the mother of those children.
The mother commenced proceedings in the Federal Circuit Court of Australia (as it was then known) on 4 June 2021. In those proceedings, the mother sought orders that the children live with her in Australia. She also sought an airport watch order. There was some cross‑examination in the trial before me about the effect of the mother seeking to obtain that order at that time. It is clear by the nature of the mother’s application that the mother was concerned that there was a prospect that the father would seek that the children live with him in New Zealand. I do not regard it as inappropriate in those circumstances, where the parties had not consented at that stage in any enforceable way in Australia to travel arrangements, for the mother to seek protection, initially, through an airport watch order. To the extent that the father said that was the catalyst for a breach in trust between him and the mother, I regard the father’s actions as somewhat overstated.
The first family report of Ms L was produced on about 16 February 2022. By this time, the mother and Mr H had commenced cohabitation (that occurring in 2020). I should indicate that, without giving particular details of every event, that these parties have done all they could to seek to resolve the seminal issue that remains to be determined, as I identified in the introduction to these reasons.
It can be shown that they engaged in at least three family reports; private mediation on more than one occasion; engaged in family therapy and; engaged the services of Ms M as a parenting coordinator. I observed, at the commencement of the trial, that the issue that has required this Court’s determination, despite all those endeavours, remains because the parties were understandably, been unable to reach a compromise. After the father moved back to Australia in early 2019, and the parties were able to transition within six months from him returning to an equal time regime by agreement, the report of Ms L persuaded the parties to consent to orders before Judge Vasta on 30 April 2022 whereby the time that the children spent with the father would be nine nights a fortnight and five nights a fortnight with the mother.
I am satisfied that the issue of the father relocating to New Zealand was an underlying issue, although, perhaps not at the forefront of the parties’ minds on a regular basis. Certainly, when the father filed an Amended Response on 2 February 2023 seeking orders that the children live with him in New Zealand, the dispute was clearly identified.
As will become obvious, in my view, these children have been aware of this ongoing issue for some years. The matter was transferred to Division 1 in accordance with the protocol between the Courts.
When the matter came first before me on 22 March 2023, by consent, the time arrangements reverted back to an equal time arrangement, week about with changeover on a Wednesday.
Non-reportable counselling was ordered and a fresh family report, engaging Mr N, an experienced social worker, was agreed to by the parents. I accept that there were some issues with counselling for Y relating to retained services of Dr P. I do not regard it as particularly necessary or helpful to deal with that particular matter at any great length, other than to observe that the mother acknowledged that she felt it was in the best interests of Y to engage in counselling; knew that she was required, where the parties had equal shared parental responsibility, to do so consensually with the father (which did not happen), and that the father felt somewhat offended by Y engaging in counselling (which on the evidence, only occurred twice, in any event) thinking he had, in some way, been minimised in his role as a co-parent of the children.
He acknowledged that his personality is such that he requires and prefers quick responses to requests for information or opinions from the other parents a timetable not always achieved during this matter, or thought quite as necessary by the mother. Nonetheless, by early 2023, with the clear issue of relocation to New Zealand on the agenda, some tensions occurred between the mother and the father on a day related to Mother’s Day 2023. The mother felt stressed and anxious about the pending the need to make a decision or to proceed with a trial about the relocation, such that she felt she was not able to function as well at work as she might have hoped. She negotiated arrangements with her employer to reduce her work from full time to part time.
On 1 August 2023, the parties had interviews with Mr N, resulting in a report dated 11 September 2023. Whilst I refer to that report later in these reasons, the final paragraph of Mr N’s report was very confronting for, at least, the mother, but I suspect for both parties, and provided as follows:
179.I am of an overall view the children are at greater risk of upheaval and instability if they relocate to New Zealand, partly because the mother sees herself as having no choice but also to relocate. Despite the loss it poses to the children, a scenario in which both parents maintain enduring social stability is likely to have a positive bearing on their long-term outcomes. To that end, if the father relocates to New Zealand, I recommend that the children remain in Australia in the mother’s primary care.
I was informed on 17 October 2023, the parties were unable to resolve the matter, but that it required an early trial, as the father was likely to commence employment in New Zealand in early 2024. The matter was listed for trial to commence on 13 December 2023, as it did. I pay tribute to the father who represented himself in the hearing. He is a very articulate man and whilst emotional at some times, which was understandable, he conducted the trial perfectly well and was well prepared in terms of his cross-examination and final submissions. The mother had a benefit of experienced counsel, Ms Horsley of Counsel, and instructing solicitors.
I should mention at this stage that when the matter was listed for trial, and the father was represented, I raised with the parties whether, in the circumstances, an Independent Children’s Lawyer needed to be appointed. I was aware of authorities of the Full Court suggesting that in most cases, that would be appropriate.
The parties were concerned that the appointment of an Independent Children’s Lawyer would delay a determination of the matter, which would be contrary to the best interests of the children. Accordingly, the matter was set down for hearing and determined without an independent children’s lawyer having been appointed or appearing before the court.
I made the observation at the commencement of the hearing that, in many ways, this is not a relocation case, as often known and described, but rather, a competing residence case; that is because there is no suggestion that the father will remain in Australia if the children are not able to relocate to New Zealand, as he seeks. That is because the father, as reflected in the contract of employment that was marked in the proceedings as Exhibit 4, has a contract as the educator in City C. He expects to leave Australia to take up preparation for that employment in early 2024. I should mention at this stage that although the parties were invited to indicate whether they wished to have my decision prior to Christmas 2023, both parties indicated they would prefer for the Reasons and Judgment to be delivered after Christmas so that they could, effectively, enjoy the time with the boys over Christmas without the shadow of my decision having been cast.
As is clear, the primary issue I need to decide is where the children live. Again, reflective of the quality of the parents and their desire to try to reach agreements on matters they can, the Court was provided and marked as Exhibit 1, a raft of orders that had been discussed between the parties and agreed to in three different classes, namely agreed orders; orders the mother asked the Court to make; and orders that the father seeks the Court to make, also within the various scenarios, namely:
(a)In the event that the court determines the children remain in Australia;
(b)In the event that the children are permitted to relocate to New Zealand;
(c)In the event that the children relocate to New Zealand and the mother relocates to New Zealand in the future.
When I discuss the terms of orders I have decided to make in the best interests of the children, I will return to some aspects of Exhibit 1. After the trial was completed, the Court received a slightly different Exhibit 1 and also an email from the father dated 20 December 2023, all of what I have considered, those documents have been marked as Exhibit 5.
Mr N helpfully, in his family report, identified what he described as advantages and disadvantages of the parties’ competing proposals. I incorporate in these Reasons, arising from the evaluation by Mr N:
173. In terms of the dispute, it appears the Court is asked to consider two possible outcomes:
a. The children live in [City C] with the scope to spend significant and substantial time with both parents during school terms and school holidays, as the mother states she will also move to New Zealand in those circumstances.
b. The children live in Australia, primarily with the mother, while the father relocates to [City C]. In this scenario, the parents contemplate the children spending the bulk of their school holidays with the father and measures for him to spend blocks of time with them in Australia during school terms, when he is on holiday.
174. I identify advantages and disadvantages with the father’s proposal. The advantages include:
a. It aligns with [X’s] views, expressed clearly and with force, and there is a greater chance of him feeling stable and happy.
b.It allows the children stronger connections to the paternal family members.
c. It allows the continuation of a structure where the children draw heavily on the support of both parents.
d.It is likely to create greater happiness and stability for the father, and likely to increase his capacity to provide for the children physically and emotionally.
e. Having a twelve-month review of the arrangement through dispute resolution or an updated family report allows the children the scope to express views about their situation from a more informed position.
175. The disadvantages include:
a. It causes significant structural change and upheaval for the children. It requires them to change schools and sever peer connections.
b. It creates a significant upheaval for the mother, to separate from her long-term partner and maintain independent accommodation in another country, against her wishes, and to find secure employment and become established in a different community.
c. The father’s proposed living and working arrangement is untested.
d. Having a formal review of the children’s arrangement after twelve months risks further pressure being placed on the children by the parents, to their detriment.
176. I identify advantages and disadvantages with the mother’s proposal for the children to remain in Australia, with the father likely to live in New Zealand. The advantages include:
a. It allows the children to maintain their daily lives in the same school communities.
b. Both parents are likely to have greater social integration and stability under this scenario.
c. It allows the children to enjoy family life with each parent, within their respective communities.
d. The children are of an age developmentally where they can maintain meaningful relationships with the parents from a distance through communication and more spaced out, more intense blocks of time.
e. Having the children go to and from school from one home rather than two allows more consistency during the week. It reduces the extent to which the parents must communicate about daily matters.
177. The disadvantages include:
a. It is likely to pose a degree of loss and thus distress to the children, particularly in the medium term, at their separation from their father.
b. It goes against [X’s] sincerely expressed views and he may struggle with this situation over time, particularly when managing transitions back to the mother at the end of holiday time. I see potential for ongoing conflict and disruption in managing this arrangement.
c. Practical difficulties may arise given the difference in school holiday dates between the jurisdictions.
d. The children have had some previous difficulty coping in the mother’s blended family household. It brings the larger sibling group together for longer blocks of time, which adds pressure to these dynamics.
178. This is a difficult and finely balanced matter. If the children end up living at a prohibitive distance from the mother or father, I suggest the following measures are installed to enable them to maintain a meaningful relationship with the ‘distant’ parent:
a. Electronic communication at reasonable times.
b. The scope to spend a week at a time with the distant parent on at least one occasion during each school term, if the distant parent can remain within practical distance of the children’s school/s.
c. A leaning of school holiday time toward the distant parent so the children may travel to their home. I suggest all the Autumn and Spring holidays, 10 days of the winter holiday and half of the summer holiday. I suggest the summer holiday is rotated so the children alternate Christmas Day in each home.
d. Ongoing authorities for both parents to communicate about the children with their school/s and service providers.
e.Ongoing obligations on the parents to inform each other of all the children's health, educational and developmental concerns, including to consult about their extra-curricular activities.
As the father, in his effective cross-examination of Mr N raised with Mr N, many of the advantages and disadvantages are common to both scenarios. As has been mentioned on more than one occasion during the case management of this case and the hearing, it is not in any way optimal for these two parents to be living many thousands of kilometres away from each other.
The fact that the costs of travel between Region B and City C (and other parts of New Zealand) can be managed both frequently and fairly cost effectively (and acknowledged by the parents with the children flying unaccompanied) only goes some short way to making the clearly less optimal arrangements manageable. Nonetheless, it is still far from ideal. I will refer, later in these Reasons, to the primary and additional considerations, being the legislative pathway identified by the legislation in determining what is in the best interests of the children. Because of the remarks I will make in this Judgment in relation to the next issues, I will undertake that analysis in a narrative form.
THE MOTHER’S HOUSEHOLD
The mother, by her application initiating these proceedings, says and has continued to say that it is in the best interests of the children that the children live with her in Australia when the father moves back to New Zealand. I find on the evidence, at least, the following matters of relevance.
The mother is well aware of the strong wishes to relocate expressed by the oldest child, X. As I will mention later in these reasons, I am satisfied that they are his genuine and strongly held wishes. Whilst the mother has expressed difficulty during the course of these proceedings, and even in the witness box, to accept that the wishes could be expressed so strongly by X without significant influence by the father, I am not satisfied that that has been the case.
The wishes expressed by X identify that he feels his father “gets him”. It seems to me that the acknowledgement of that close attuned emotional relationship between X and the father has been a difficult issue for the mother to accept. She gave evidence that she and X are able to speak about a range of topics openly and honestly, but not this issue of relocation. Part of the reason why, she says, she has some concerns that the wishes are in fact his wishes, genuinely held, is that X has not been able to speak to her about it. She did acknowledge, in cross‑examination, and also some questions raised by the bench, that X may find it difficult to raise the issue with her when he is likely to know that the mother’s position is contrary to his wishes.
Nonetheless, and save for this issue, there are no areas of concern in the relationship between the mother and X. She has been, at times, his exclusive carer when the father, as the history shows, elected to remain in New Zealand when the children returned to Australia, although, that was some years ago.
Y is a younger child with a quite different personality. His wishes and feelings expressed to Mr N suggest that he is likely to miss his mother if he lives in New Zealand more than he is likely to miss his father if he lives in Australia and his father lives in New Zealand. Again, the differentiation is narrow and not, of itself, determinative, but reflects, in my view, the history of care, the age of the child, and the parenting role the mother has undertaken with Y, which does seem to be closer, in some respects, at this stage than it is with X.
Having had the benefit of observing the mother and Mr H in the witness box, I am satisfied, as Mr N opines, that they have a solid and effective relationship. It is a relationship that has been tested at times, not always completely happily, when the five children (the subject boys and the three children of Mr H) cohabit in the same home. I accept there have been tensions, and at one stage, the mother’s parents, who reside in Region B and support the mother (although they provided no evidence in this trial), offered a bit of pressure release every alternate Friday, and in fact, were happy, at times, to increase the amount of time they spent with their grandsons so as to allow Mr H to spend “one on one time” with his children when they were in his care. To the extent that this was being suggested by the father to be a criticism, I do not agree.
One of the issues which I accept, is that the grandparents have an intact and ongoing relationship with their grandsons, which on all the evidence, their grandsons enjoy.
It was submitted by Ms Horsley on behalf of the mother that the court would find that the mother is better placed to meet the emotional needs of the children through what is, as everybody acknowledges, likely to be a very difficult time for the children with the parents not only separated, but unlike in the past, seemingly separated in different countries on a permanent basis.
I am satisfied that the mother is likely to return to work, although as the female role model during the time the children and Mr H’s children are in the home together, she will have duties relating to her employment as a public servant and I have no concerns about Mr H and the mother working as a team to meet that range of responsibilities that include day to day care, attending school, pursuing peer relationships and extracurricular activities. Again, I say that in my view, the relationship between the mother and Mr H has not only been tested by the tensions arising from these ongoing proceedings, but on my assessment, and I find they have passed that test.
THE FATHER’S HOUSEHOLD
One of the issues raised on the evidence and, it seems, one of the “tipping points” described by Mr N in his cross-examination, is the untested nature of the father’s household that involves himself, Ms F, Ms F’s children, Q (aged 18) and R (aged 14), and on the father’s proposals, the two boys that are the subject of these proceedings. The father, I sensed, felt unfairly criticised by the descriptor of his relationship with Ms F as “untested”. However, he acknowledged that the amounts of time he and Ms F and the children have spent together as a family unit would be no more than four or five weeks a year. That has sometimes been in New Zealand and occasionally in Australia. I had the benefit of seeing Ms F in the witness box.
She impressed, much as Mr H did, as supportive of her partner and willing to do what was necessary to make the children happy. No criticisms of her as a person were or could be advanced. To the extent that to some degree some submissions were made about the poor communication between the mother and Ms F, in my view, that is more associated with the nature of these proceedings, and the uncertainty of these proceedings are not reflected of the personalities of these two quite impressive women. The father’s household in New Zealand is untested. If the children relocate, they will be in a home that involves two children (although Q may not be there as often) with whom they have a relationship but not a long relationship. Both boys have expressed to Mr N how comfortable they feel with Ms F and that is attribute to the way in which he has developed a relationship with them. There is no sense that she has, in any way, sought to introduce herself as an alternate mother.
Although, to be fair, if the children do live primarily in New Zealand as the father proposes, that is a role that she will be, to some degree undertaking, namely the predominant day-to-day female role model in the home of the children. I find, as might be expected, that the father’s desire to return to his homeland has meant that he has, to some degree, minimised some of the challenges of adjusting back to living in New Zealand for the children. It is true that the children have lived in New Zealand, but always with their parents, never, as will be their position now, with one parent being in Australia.
As I will refer to later in these reasons, X strongly identifies as a New Zealander. He has made comments which have been repeated by others that that is his “home”. However, it is my view that there will be tensions that will need to be worked through if the children live in New Zealand with the father, Ms F and her two children, which have not been tested and include the father not only adjusting to a new employment and the stresses of that employment but also to actually living day in, day out with Ms F. I have no doubt that Ms F and the father are committed to their relationship. The fact that their relationship may have even commenced in some way prior to separation and has endured what is now a period of nearly six years where they are living in different countries primarily is a tribute to their commitment to each other. Nonetheless, their commitment at an adult level needs to be replicated in the household when other stressors are being exerted upon them and the children.
Some criticism was made of the father about what level of financial commitment he might continue to offer. In my view, both the mother and father will have the capacity to support their children to some extent, wherever they live, and I believe they will do so. The orders that will be made in relation to travel between the two countries being shared by the parents is the most clear demonstration of their commitment.
The father, in terms of his proposal, draws strongly on satisfying the genuine express wishes of his son, X. He was entitled to do so. The evidence reveals that the wishes have been expressed consistently for some time. The father indicated that he would “not be here” but for the wishes expressed by X in particular (and to a lesser extent, by Y). By that, I took it to mean that if X had expressed to him a desire to remain living in Australia, he would not have expended the time, effort (and when he had lawyers – money) to pursue orders of the Court, opposed by the mother, that the children live with him in New Zealand.
It may be that the father needs to be able to express to X at some stage that he fought for what X wanted. I understand why that might be his perspective. In saying that, however, the father, in his evidence, genuinely believes the children’s best interests will be served by living with him in New Zealand where he says, and I accept, he feels he will be happier. There is nothing novel about the suggestion that a happy parent usually makes a better parent. The mother who has now been living in Australia after periods of time living in New Zealand and elsewhere and where she has formed an enduring relationship, has security of employment and likes the area she lives. The father craves to return to his country of origin. It is not an unreasonable pull on him emotionally to do so. Not only is New Zealand an environment in which he is familiar, but he has family support there.
The grandparents in New Zealand are no less important that the grandparents in Australia to these boys. There is evidence that the boys enjoy their time with their New Zealand grandparents, although, of course, over the last few years that have had less opportunity to spend time with them than they have with the maternal grandparents. Overall, the father can only see positives about the move to New Zealand by which I mean that he believes any of the concerns associated with the distress to children might feel, from being separated from the mother, he can manage empathetically, sympathetically and, if necessary, with therapeutic support. I had no concerns that he would seek to do so.
Before considering the competing proposals within the matrix of the primary and additional considerations, I make the observation that Mr N opined, and I find, that X and Y are, indeed, fortunate children. They are greatly loved by their mother, their father and their respective extended families. They are genuinely loved by their parents’ new partners. Their life is likely to be enriched by engagement with the children of their parents’ new partners. The mother and father’s case are not required to meet the challenges which so often affect parenting capacity, such as significant mental health issues, substance and alcohol abuse, family violence, and the like. In fact, it is comforting to see, although both mother and father have been tested at times, how they have each tried to avoid involving the children in this dispute. Although, it is said that the father may have, by his personality or otherwise, be more inclined to involve the children than the mother, the best testament to the way these parents have worked is how they have managed a shared care regime with very few difficulties for now, nearly, six years since separation.
That would have, as a matter of common sense, imbibed many occasions where compromise; turning the other cheek and merely moving on would have been reactions to an action or reaction by the other parent.
PRIMARY CONSIDERATIONS
When the parties lived in separate countries, it is inevitable that even if there is a benefit to the children having a relationship with the parent, as there is in this case, the nature of being able to fulfil that relationship will be very different from that which exists when they live, as they do now in adjoining suburbs. Nonetheless, I find that it is to the benefit of the children that they have a meaningful relationship with each parent.
As earlier indicated, section 60CC(2)(b) requires the Court to consider “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.” In my view, thankfully for these boys, these issues do not loom large in this case. The conflict between the parents has been contained as much as possible, however, the children are aware that we have reached the pinnacle of the dispute. In my view, it is an ongoing emotional risk to the children if a decision is not made. It is my view that the mother’s alternate proposal that if relocation was permitted, it should be delayed, would not be in the best interests of the children and likely to expose the children to more psychological harm of uncertainty, at least. Even if there was an order made that the children were to relocate, for example, to New Zealand in 12 months’ time as the mother proposes (mostly, she would say, based on the need to allow the father to get ready for the children to come and settle into his new household and new job, and for the children to complete some of their schooling in Australia), the Court can offer no guarantee or any certainty that if the mother found that the children were even more settled than she currently says they are, and it would be contrary to their interests to move in 12 months’ time to New Zealand (or, for example, if X, for some reason, changed his wishes), then further litigation relating to the move to New Zealand could start again.
I am firmly of the view, and Mr N agreed with this proposition that a decision needs to be made and the parents need to do their best to support the decision once made. By so doing, the children are better able to cope with the consequences of a difficult decision which has, as Mr N has already identified, positives and negatives.
ADDITIONAL CONSIDERATIONS
I am satisfied that X genuinely expresses a desire to live with the father in New Zealand, once the father moves.
The attraction, it seems to me, on the evidence, is that X strongly identifies with New Zealand and with the father now having decided to move back to his country of origin, this opens up the opportunity that has not otherwise been available until the father took the job in City C to return to live in New Zealand. In my view, at least as much as living with the father is the child’s desire to live in New Zealand, a country with which he identifies. This has been a constant wish expressed on more than one occasion. It must be given weight, but in my view, as I would explain, there are other factors which need to be taken into consideration in determining what is in the best interests of both children.
Y is more flexible. My sense from what he has expressed to Mr N, is that he acknowledges it would be a great loss for him to be absent from the day to day care of his mother. He loves his father and he loves his big brother, and my sense is that he will cope with whatever decision is made more comfortably based on his wishes, maturity and age of development, than X is likely to be able to achieve.
I have already indicated that these children have strong relationships with each of their parents, and their parents’ partners and extended family. I would not regard there to be such a significant differentiation in a form and strength of these relationships to be factor likely to assist in this case.
The parents have participated in making decisions (save for the Dr P issue and a few other examples) and as I say, have maintained a shared care arrangement for nearly six years. At the conclusion of these Reasons I will deal with section 60CC(3)(d) namely “the likely effect of any changes in the child's circumstances”. The mother and father are both likely to have sufficient income to be able to afford as they say they will, an equal contribution to the travel expenses between Australia and New Zealand, wherever the children live. The parents accept that in between physical visits, access to all forms of electronic communication between the children and the non-resident parent is important.
I did not discern on the evidence, nor do I find any significant difference in the capacity or attitude to parenting of the parents. In fact, they do, on the evidence, parent quite similarly, although one might expect there are nuanced differences all within appropriate parenting range. Values of hard work, getting a good education, getting on with others and being respectful are, it seems to me, core values that are reflected in each household.
There are no family violence orders in existence.
The court is required by section 60CC(3) 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 children. In my view, on the evidence I would find that making a decision effective now rather than delaying it, as is the mother’s proposition to invite revisiting in 12 months’ time the same issue.
These children have had this uncertainty hanging over their head for many years, although not actually materialised in a manifest way until more recently. Nonetheless, they need certainty, and, in my view, that is the best way to relieve the prospect of the institution of further proceedings, save for one aspect which I will refer to shortly.
PARENTAL RESPONSIBILITY
Both parents accept that it is in the best interest of the children that they continue to equally share parental responsibility. The enforceability of such an order in New Zealand is a matter to which there has been no domestic law evidence given, but which I am satisfied is able to be achieved by the conduct of the parties as it has in the past.
WHERE SHOULD THE CHILDREN LIVE?
Ms Horsley submitted that the court would find that when the father committed to moving to New Zealand for the quite understandable reasons that he has expressed and which I accept relate to reconnecting with his family, his country of origin and his partner, Ms F, that he did so knowing that there was a prospect that the children would not be permitted by the Court to relocate with him. She says and I accept that this means the father, at some level, should be seen to understand and concede that the mother will be able to meet the needs of the children in Australia if he lives in New Zealand. I accept that submission.
The mother says that if the children are permitted to relocate, then she would certainly consider and likely would move to New Zealand. It is not her preference. It would mean, most likely, the cessation of a long relationship she has now developed with her partner, Mr H. It would mean she would need to find employment in a country in which I infer she has been employed before but does not have the same level of connection that she has developed since living in Australia since, at least, 2018 when she returned from New Zealand.
She, of course, has family support in Region B that she does not have from her own family to the same level in New Zealand. While she acknowledged she has some “great girlfriends” in New Zealand, moving back to that country does not necessarily mean that their relationships will be maintained to the same level as they may have been many years ago. She is prepared to consider moving back to New Zealand if the children live there, which would involve also a sale of a home she has purchased.
Authorities such as Sampson & Hartnett (No 10) (2007) 38 Fam LR 315 make it clear that the court should be careful in making orders which have a coercive effect upon a parent. If the children live in New Zealand, the mother may ultimately decide to return or she may not.
One of the significant factors in this case which has troubled the court in its determination and one over which the court has spent some time in consideration is the effect, if the children do not relocate to New Zealand, of X’s strongly held views not being supported.
When the Court, through its processes, invites children to express a view through a family report writer or otherwise or whether as a result of maturity, they are keen to be heard, there are difficulties that arise when having expressed their views, they are not supported in relation to the future possible management of the disappointment and/or distress or sense of not being heard that a child of the age of X might feel. It is, therefore, in many ways appropriate, when a strongly expressed view is evidenced by a mature-age child, to support those views.
However, I am satisfied that although I do not expect X’s disappointment to be easily managed, supporting his views will have a consequent effect upon the relationship with his brother, Y, and Y’s happiness which I find is shaped by being with his brother and being in the home of his mother. I could not discount the prospect that X might, if required to remain in Australia, act out. I am satisfied that the mother is well alert to such a possibility. So much is obvious from paragraph 303 of her affidavit where she says as follows:
303.I have discussed at length with [Mr H] the prospect of [X] (or, in fact, [Y]) being older and expressing a desire to move to New Zealand. I accept, that if the boys stay in Australia if [X] expresses a wish when he is older, to relocate to New Zealand, and we can determine that it is indeed a genuine wish, and that it is in [X’s] best interests to move then I will very serious consideration to that happening. It is really hard to put into words an age, or a specific point when that may be, as we had no idea how the boys will or will not flourish if [Mr Mansur] moves to New Zealand and they are without the stress of a relocation or of a split household. All I can say is that I have always done what is in the boy’s best interest, and I will continue to do that as a good parent. For now, though, I have serious concerns about whether [X] is expressing a genuine wish and whether he truly understands the ramification of such a move.
(as per original)
I regard that expression, although, no doubt, drawn by her experienced Family Law expert lawyer but adopted by the mother, as giving me comfort that she understands that a point may arise where she needs to consider in the future X moving to New Zealand.
CONCLUSION
This is, as everyone has described, a finely balanced matter. Probably, the boys will cope if required to live in New Zealand with the father or with the mother in Australia in time. It is very difficult to differentiate between the proposals but, in my view, I have done so by drawing on the two factors which I think are the most important differentiation, namely:
(a)what weight can be applied to X’s wishes and the effect of that on his relationship with his brother and including the concerns that arise from not following his wishes as expressed; and
(b)the uncertainties of these children, who have lived in Australia with their parents, moving to New Zealand into a household arrangement; new schools; new dynamics with other children which is quite untested.
For the Reasons expressed, I have formed the view that the children should remain living in Australia with the mother. The mother will have to confront the disappointment, sadness and perhaps even anger of X. To perhaps, at least, assist the children getting an independent appraisal of why the court has made this decision in the way that it has, the parties agree that Dr S, who has been engaged with non-reportable counselling, then be engaged by the parents at their joint cost to explain, as best as possible in language the children understand, and, if not accept, at least, appreciate, why the Court has made the decision it has.
The mother will need to deal with the fallout. Dealing with the fallout will be better achieved for X if the father’s emotional reaction and disappointment in the decision is, at the very least, camouflaged from the children. Having seen the father in the witness box where he, at times, became emotional and even when he was presenting his case, that will not be easy for him. However, he has done exactly what any loving parent would do. He has articulated a strong case consistent with his oldest son’s wishes and adopting a position that he believes is in the best interests of both children and pursued with all vigour and reasonable endeavour a decision from a court which is ultimately empowered to make the decision. His son, X, could hardly be disappointed with the actions of the father, because the Court has not agreed with the father.
FORM OF ORDER
In circumstances where the Court has decided that X and Y will remain living in Australia when the father relocates to New Zealand, I incorporate in the orders which appear at the commencement of these Reasons, those orders agreed to by the parents.
As is apparent, it is not necessary to make alternate orders on the basis of the children relocating to New Zealand. Importantly, the orders comprehensively set out how the children will spend time with the father in New Zealand, and how travel will be facilitated.
The father in his email correspondence of 20 December 2023, raised the following issues:
(a)Although it is acknowledged that the school holidays in Australia the children will be entitled to enjoy and the school term/holidays which the father (working in New Zealand) will not always be the same, a great deal of effort deems to have been exerted to try and maximise (in the agreed ordered) the opportunities for the children to spend time with the father. I have included, at paragraph 5, the simple phrase “unless otherwise agreed between the parents in writing” – so as to remind the parents that they can deviate from the orders if they agree to do so, in particular circumstances, because it is in the children’s best interests. They are not required to return to a Court if they agree on the variation. These are sensible parents who have shown a capacity at times to be flexible. As a result, whilst consistent with the father’s desire for absolute literal certainty, some need for flexibility is important.
(b)The father seeks a variation to paragraph 6.7 to allow the children to spend up to ten nights with him, ideally the “cross-over nights”. I agree with that variation.
(c)I see no need to incorporate in paragraphs 6.9 and 6.10 a certain 21 day period as the father proposes. The orders allow, in effect, for Christmas to be spent with the mother for Christmas 2024 and each even year thereafter and with the father for Christmas 2025 and each odd year thereafter. As already indicated, if the father wishes to alter the commencement date, he can do so, but the end date will be fixed. If because of circumstances the father, in a year, has less than 21 days with the boys, then that should be the case, rather than requesting the mother to adjust her arrangements (including work obligations), unless she otherwise agrees in writing.
(d)The father says that, a time needs to be set for notification to the other parent about the airfares book by the parent, pursuant to paragraph 8.6. I have amended proposed orders 8 to simplify the process, whilst acknowledging that:
(i)It is likely to be cost effective for flights to be booked early; and
(ii)The parents are well aware of the distances between the airport and where they live, and such are to be sensible about nominating times for departure that do not require unreasonably early departure times or late arrival times. Seeking to prescribe the exercise of “common sense” is never easy, and for these parents in my view, unnecessary.
(e)I regard proposed paragraph 19 as too prescriptive, and capable of leading to further proceedings by way of enforcement. With the regular telephone communication ordered, and with the obligations to keep each parent informed, I see no need to prescribe the “weekly update” proposed.
(f)The proposals for additional overseas travel should, considering the travel already prescribed, not occur without at least two months written notice.
(g)With the parents likely now to be living in two different countries, I am not persuaded that it is necessary, or even practically achievable, to engage the services of a parenting co-ordinator. Both Australia and New Zealand legislation prescribe “pre-action” procedures. These parents have shown capacity to engage in multiple dispute resolution events and I see no need to prescribe any particular practitioner.
(h)The parents agree that Dr S should explain these orders to the children. As to any need, now this matter has been determined, for ongoing therapeutic counselling, I am less than satisfied about that benefit. I had no evidence from Dr S but am confident the mother is alert to the possible benefits that could flow from the adjustment to this decision by both boys, and if Dr S is available and happy to assist, then I am comfortable the mother will make whatever arrangements are appropriate.
Finally, it is not clear whether either party wishes to pursue any application for costs. Whilst not either encouraging (or discouraging) any such application, the Rules provide how any such application is to be provided. It would be my usual practice, for issues of costs, to be determined by written submissions.
I find that the orders which appear at the commencement of these Reasons, are in the best interests of both children at this time.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 12 January 2024
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