Merritt and Watson

FAMILY COURT OF AUSTRALIA

MERRITT & WATSON

[2016] FamCA 853

FAMILY LAW – CHILDREN – where the parents are agreed that the child should continue to live primarily with his mother – where the mother seeks to relocate with the child to New Zealand – where the father opposes the relocation – relocation permitted toward the end of January 2017

Family Law Act 1975 (Cth)

AMS v AIF (1999) 199 CLR 160
Banks & Banks (2015) FLC 93-637
Godfrey & Saunders (2007) FamCA 102
McCall & Clark (2009) FLC 93-405
Vigano & Desmond (2012) FLC 93-509

APPLICANT:

Mr Merritt

RESPONDENT:

Ms Watson

FILE NUMBER:

BRC

6522

2015

DATE DELIVERED:

5 October 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

22, 23 August 2016 and 6 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jordan

SOLICITOR FOR THE APPLICANT:

Boughton Legal

COUNSEL FOR THE RESPONDENT:

Mr Hanlon

SOLICITOR FOR THE RESPONDENT:

Woods Murdoch Solicitors

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT:

All previous orders are discharged.

IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT:

The child, B, born on … 2013, live with the mother.

AND IT IS ORDERED BY WAY OF FINAL ORDER THAT:

The mother have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that she shall, prior to making a decision about any such issue:
(a)inform the father in writing by email of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and
(b)allow the father 14 days after the provision of the information referred to above to respond to the same in writing by email; and
(c)consider the father’s response, if any, when coming to a decision about any such issue; and
(d)inform the father in writing by email of the final decision made with respect to that issue as soon as practicable thereafter.
Each party have responsibility for daily decisions about the day to day care, welfare and development of the child when he is in that party’s care.
By 4.00 pm on 16 December 2016, the mother cause the sum of $2,500.00 to be deposited into the trust account of her solicitors, Woods Murdoch Solicitors, to be held on trust by them pending her direction to use the same only to meet the flight costs of the child’s travel from New Zealand to Australia.
Provided that the mother has complied with Clause (5) and the father has received notification from the mother’s solicitors in writing by 4.00 pm on 23 December 2016 that such funds are held by them in trust, the mother is permitted to relocate the child to live in New Zealand at any time after Sunday 22 January 2017.
Child’s time with the father until relocation to New Zealand
Until the child is relocated to live in New Zealand, he shall spend time and communicate with the father at all times as may be agreed between the parties in writing but failing agreement as follows:
(a)commencing on the first weekend on which the child is due to spend time with his father after the making of Orders and each alternate weekend until the end of November:
(i)for three (3) consecutive nights from 4.00 pm Friday afternoon, until 12.00 pm Monday provided that the father gives the mother seven (7) days’ notice in writing that he is able to take advantage of this time; or
(ii)failing such notice: from 4.00 pm Friday until 4.00 pm Sunday; and thereafter;
(b)commencing on the first weekend in December on which the child is to spend time with his father and each alternate weekend thereafter:
(i)for four (4) consecutive nights from 4.00 pm Thursday afternoon until 12.00 pm Monday provided that the father gives the mother seven (7) days’ notice in writing that he is able to take advantage of this time; or
(ii)failing such notice: from 4.00 pm Friday until 4.00 pm Sunday; and
(c)in the event the child would not otherwise be spending time with his father on the weekend on which Christmas Day falls: from 4.00 pm on 24 December 2016 until 12.00 pm on 26 December 2016; and
(d) by Skype: each Wednesday between 5.00 pm and 5.30 pm.
For the purpose of the child’s time with his father, changeovers shall occur at the C Town Contact Centre unless otherwise agreed in writing.
Child’s time with the father after relocation to New Zealand if the father does not move to live in New Zealand
After the child is relocated to live in New Zealand and in the event that the father does not move to live permanently in New Zealand, the child shall spend time and communicate with the father at all times as may be agreed between the parties in writing but failing agreement as follows:
(a)       in New Zealand:
(i)from 4.00 pm Friday until 4.00 pm Sunday on any weekend in respect of which the father has given the mother no less than two (2) weeks’ notice in writing that he will be present in New Zealand; and
(b)       in Australia each year:
(i)on the middle weekend of each school Term, with such time to commence by no later than 8.00 am on Friday and to conclude by no later than 5.00 pm on Sunday, with changeovers to occur at the Brisbane Airport; and
(ii)in 2017: during each of the child’s school holiday periods - for a period of not more than four (4) consecutive nights; and
(iii)in 2018: during each of the child’s school holiday periods - for a period of not more than five (5) consecutive nights; and
(iv)in 2019: during each of the child’s school holiday periods - for a period of not more than six (6) consecutive nights; and
(v)in 2020, and thereafter: during each of the child’s school holiday periods at the conclusion of Terms 1, 2, and 3 - for half of those school holiday periods:
A.being the first half in even numbered years; and
B.the second half in odd numbered years; and
(vi)in 2020 and thereafter: during the child’s school holiday period at the conclusion of Term 4: for not more than seven (7) consecutive nights; and
(c)       by Skype: each Tuesday and Sunday between 6.00 pm and 6.30 pm.
The child’s time with his father during the school holiday period at the conclusion of Term 4 in each year may not occur between 23 December and 7 January in odd numbered years.
For the purpose of facilitating the child’s time with his father in Australia, pursuant to Clause (9)(b) herein:
(a)the mother shall notify the father of the child’s school term and holiday dates for the following year by no later than 31 December in each year; and
(b)by no later than 31 January in each year, the father shall nominate the dates in the school holiday periods during which the child shall spend time with him in Australia; and
(c)the mother shall be responsible for booking and meeting the costs associated with the child’s travel for those occasions on which the child travels to Australia during the school Term as provided for in Clause (9)(b)(i); and
(d)the father shall be responsible for one half of the child’s travel costs for those occasions on which the child travels to Australia to spend time with him during each school holiday period, as provided for in Clause (9)(b)(ii) – (vi); and
(e)in respect of any occasion on which the child travels to Australia to spend time with the father during any school holiday period, as provided for in Clause (9)(b)(ii) – (vi):
(i)the father shall be responsible for arranging and meeting the cost of the child’s airfare and, until he is old enough to travel as an unaccompanied minor, the cost of an accompanying adult from New Zealand to Australia; and
(ii)the mother shall be responsible for arranging and meeting the cost of the child’s airfare and, until he is old enough to travel as an unaccompanied minor, the cost of an accompanying adult from Australia to New Zealand.
No later than sixty (60) days before the child’s planned travel, the father shall provide the mother with a copy of the ticket/s he has purchased as provided for in Clause (11)(e)(i).
No later than forty-five (45) days before the child’s planned travel, the mother shall provide the father with a copy of the ticket she has purchased pursuant to Clause (11)(e)(ii).
In the event the father does not provide the mother with a copy of the ticket he has purchased in the manner provided for by Clause (12), the mother is relieved of any obligation to ensure that the child travels to Australia to spend time with the father on that occasion.
The child shall communicate with the parent with whom he is not then living by telephone or Skype every Tuesday and Sunday between the hours of 6.00 pm and 6.30 pm (New Zealand time).
In the event the child is not otherwise spending time with his father, the child shall communicate with his father by telephone or Skype on the child’s birthday, the father’s birthday, Father’s Day, Christmas Day and Easter Monday between the hours of 6.00 pm and 6.30 pm (New Zealand time).
In order to facilitate the child’s telephone or Skype communication with his parents:
(a)the parent in whose care the child is at that time shall make the child available to receive the telephone or Skype call; and
(b)the parent with whom the child is not spending time shall initiate the telephone or Skype call; and
(c)each parent shall ensure that the child is available to receive the telephone or Skype call; and
(d)the parent in whose care the child is at that time shall arrange for the child to telephone or Skype the calling parent on the following night if, for any unforeseen circumstance, the child misses the telephone or Skype call from that parent; and
(e)the parent in whose care the child is at that time shall ensure that the child has privacy during the communication.
Child’s time with the father after relocation to New Zealand if the father moves to live in New Zealand and lives within a 100km radius of the child’s residence
After the child is relocated to live in New Zealand and in the event that the father moves to live permanently in New Zealand at a place which is within a 100 km radius of the child’s residence, the child shall spend time and communicate with the father at all times as may be agreed between the parties in writing but failing agreement as follows:
(a) each alternate weekend from 4.00 pm Friday until 4.00 pm Sunday; and
(b)in 2017: during each of the child’s school holiday periods - for a period of not more than four (4) consecutive nights; and, thereafter
(c)for half of each school holiday period, being the first half in even numbered years and the second half in odd numbered years; and
(d) by Skype: each Tuesday and Thursday between 6.00 pm and 6.30 pm.
In the event that the child would not otherwise be spending time with the father on the weekend on which Father’s Day occurs, the child shall spend time with the father from 4.00 pm or after school Friday until the start of school Monday on that weekend with the father to collect the child from school at the commencement of time and return the child to school at the conclusion of such time.
From the start of Term 2 in 2017, the operation of Clause (18)(a) shall be suspended during any school holiday period and shall resume with weekend time commencing:
(a)on the first weekend of school Term if the child has spent time with the mother in the first half of the holiday period; or
(b)on the second weekend of school Term if the child has spent time with the father in the second half of the holiday period.
After the child relocates to live in New Zealand, each parent is permitted to remove him from that country for holiday travel purposes on the proviso that, unless otherwise agreed between the parents in writing, the period of time during which he is outside New Zealand shall occur when he is spending time with that travelling parent during school holiday periods and shall be for no more than twenty-one (21) consecutive days.
Neither parent shall enrol the child in any activity which occurs during time the child is with the other parent without first obtaining the written agreement of that parent.

Orders which apply irrespective of where the child lives

In any school holiday period during which the child is spending holiday time with the father, the mother shall have telephone or Skype communication with the child each Tuesday and Thursday between the hours of 6:00 pm and 6.30 pm or at such times as may be agreed in writing between the parents with:
(a)the mother to initiate the telephone call or Skype communication; and
(b)the father to ensure the child is available to receive the telephone call or Skype communication.
Unless otherwise agreed between the parents in writing, any time prescribed in this Order as the time at which a particular event is to occur shall be the time where the child is when the particular event is to occur.
The mother and father shall:
(a)keep the other informed at all times of their contact telephone number and advise the other of any change to the same within forty-eight (48) hours of such change; and
(b)notify the other at least seven (7) days prior to relocating their residence; and
(c)keep the other informed of the names, addresses and contact details of any medical or other health professionals who treat the child; and
(d)inform the other as soon as is reasonably practicable of any serious medical condition suffered by the child; and
(e)keep the other informed of any school, educational facility or extra- curricular activity provider attended by the child.
Each party shall inform the other, as soon as reasonably practicable, of any significant medical condition, illness or significant health issue suffered by the child.
The mother shall be entitled to possession of the child’s passport.
By this Order, the mother and father authorise any day care, school or educational facility attended by the child to provide to each parent, at that parent’s request and cost, all information about the child’s educational progress and school related activities.
Subject to the conditions imposed by the child’s schools, this Order authorises both parents to attend school functions to which parents are ordinarily invited, including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interview.
By this Order, the mother and father authorise any medical or other health professionals who treat the child to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about the child’s attendance and treatment.
Neither parent denigrate the other, any partner or their family to, or in front of, or within the hearing of the child and each shall direct third parties to refrain from denigrating either party, any partner or their family to, or in front of, or within the hearing of the child and, failing the third parties’ compliance with such a direction, shall remove the child from that environment immediately.
The mother, Ms Watson, born … 1982 and the father, Mr Merritt, born … 1979 and their servants and agents each are restrained from removing or attempting to remove or causing or permitting the removal of the child B (a male), born on … 2013, from the Commonwealth of Australia before 22 January 2017.
It is requested that the Australian Federal Police give effect to the preceding Order by maintaining the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until 22 January 2017.
Upon expiration of the period referred to in Clause (33) and upon being provided with a copy of the Trust Account Receipt evidencing the mother’s compliance with Clause (5) and a copy of the correspondence to the father confirming the same as required by Clause (35) and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police shall cause the removal of the child’s name from the Watchlist.

AND IT IS FURTHER ORDERED THAT

The mother is hereby directed to instruct her solicitors to confirm their receipt of the funds referred to in Clause (5) in writing directed to the father and to cause them to provide him with a copy of their Trust Account receipt confirming their receipt of the same.
The mother is hereby restrained and an injunction issue restraining her from directing her solicitors to release the funds referred to in Clause (5) for any purpose other than meeting the child’s flight costs for his travel to Australia.

AND IT IS FURTHER ORDERED BY CONSENT THAT

The mother’s solicitors will pay the father’s costs in the agreed sum of $5,250.00 within 28 days of the date of this Order.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

IT IS NOTED THAT

A.Both the mother’s solicitor and Counsel who appeared for the mother undertook to the Court on 6 September 2016 that neither would charge the mother anything for the appearance on 6 September 2016.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6522 of 2015

Mr Merritt

Applicant

And

Ms Watson

Respondent

REASONS FOR JUDGMENT

B (the child), who was born in 2013, has only ever lived with his mother. It is agreed he will continue to do so. What is not agreed by his parents is whether his best interests require that he continue to remain living in Australia with his mother (as his father proposes) or be permitted to move to live in New Zealand (as his mother proposes).
Neither of the child’s parents are Australian citizens. Rather, both were born in, and remain citizens of, New Zealand. They knew each other during their time at high school there. The father (who was born in 1979) moved to live in Australia in 1999. He is currently enhancing his already extensive work skills, training and qualifications by undertaking an apprenticeship which he began in August 2015. Whilst he can apparently obtain recognition for his prior training and experience, it seems it will still take him four years to complete this apprenticeship.
Members of the father’s extended family live in Brisbane and other parts of Queensland. Other members of his extended family remain living in New Zealand. He has been a fairly regular visitor to New Zealand since he moved to live in Australia: his evidence is that between 1999 and the trial, he returned to New Zealand on 10 – 15 occasions for various purposes and durations.
The mother (who was born in 1982) came to Australia at the end of 2011 from the town in New Zealand in which she had lived all of her life. Her evidence that she travelled to this country for the purpose of an extended holiday - and with the intention of staying here for no more than about six months to one year - is not in contest.

After the parties resumed their acquaintance, they commenced an intimate relationship in about April 2012. At this time, the mother was living with her sister at D Town and the father was living with his mother in Brisbane.
Whilst the parties differ about when they started to cohabit[1] it is, I think, sufficient to conclude that their cohabitation commenced no later than June 2012, at which time they lived with the child’s paternal grandmother.
[1]The mother’s position is that this was within a couple of weeks of them commencing their intimate relationship whereas the father says it was by June 2012.
The mother’s pregnancy was not without issue. She was admitted to hospital in early January 2013, when about 32 weeks pregnant. The child was born prematurely and remained in a neo-natal unit for about 37 days until he was discharged into his parents’ care on 14 February 2013. This whole time can only have been stressful for both his mother and father and all other family members to varying degrees.
In August 2013, the mother and the child travelled to New Zealand. The father remained working in Brisbane. The mother says this trip was in the nature of a planning trip for what she asserted was the parties’ planned return to live in New Zealand and raise the child there. The father says, however, that this trip was just a holiday to enable the child to meet members of the extended maternal family.
This disagreement reflects the parents’ more fundamental disagreement about their plans and/or intentions about where the child would live and be raised: from the mother’s perspective, they had agreed he would be raised as a “kiwi kid” after they returned to New Zealand as a family unit whereas, from the father’s perspective, they had had nothing more than discussions about where the child would live and be raised. Given the time that has passed, it seems to me that little now turns upon this issue other than to record that it remains a matter of contention between them.
After spending about a month in New Zealand, the mother and the child returned to Australia. On 4 October 2013, the parties signed a lease for a residential rental property located in Brisbane.
On 18 November 2013, the mother went to police to complain that the father had issues with the over-consumption of alcohol and use of illicit substances: she also reported he had threatened to kill her and that she was scared of him. She says the police advised her to travel back to New Zealand with the child to have the support of her family; she also says she was advised to obtain a protection order once back in New Zealand.
I accept that police advised the mother not to return to the father or to their shared residence other than to collect personal items. I also accept that she considered they advised her to go to where she had love and support. I am not so persuaded that they, in fact, advised her to leave the country.
In any event, the mother and the child left Australia for New Zealand on 19 November 2013. It is undisputed that, when she removed the child from Australia, the mother acted without notice to the father and without his consent.
On 20 December 2013, the father completed an application pursuant to the Convention on the Civil Aspects of International Child Abduction (the Hague Convention) with the Australian Central Authority to seek that the child be returned to Australia. Hague Convention proceedings were subsequently filed in New Zealand on 31 January 2014. The matter was heard by Judge Russell on 3 April 2014. On 24 April 2014, Judge Russell ordered that the child be returned to Australia. After an unsuccessful appeal against the return Order, the mother and the child returned to Australia in about June 2014.
Since then, they have lived in the E Town area in Queensland.
The mother’s half-sister lives at D Town: about 40 - 45 minutes’ drive from the mother. I accept she has done all that she can do to support her sister – and, similarly, will do all that she can in the future if the mother remains living in Australia with the child. However, the reality of a combination of the distance between them and her own living and working arrangements has meant that the mother has, to a large degree, discharged the primary responsibility of parenting the child without the day to day support of close family. She has, though, had the benefit of some support from her mother (the child’s maternal grandmother) who has travelled to Australia to spend time with her and the child on about nine occasions since about June 2014.
The child’s time with his father in New Zealand
It is uncontentious that the child spent one hour with his father when he was living with his mother in New Zealand between 19 November 2013 and June 2014. This time occurred in about May 2014 on a supervised basis and after much negotiation between the parties’ respective legal representatives.
The parties are in dispute about why the child’s time with his father was so limited: from the father’s perspective, his time with the child was so limited because the mother was obstructive whereas, from the mother’s perspective, the father changed his plans in such a manner and left New Zealand so that this single visit was all that could be arranged.
On balance, I am persuaded that the child’s limited time with his father during this period was most likely a combination of the fact that the mother was concerned about the father’s aggressive behaviour toward her, potential miscommunication (which resulted in her and her mother travelling with the child to F Town to facilitate an intended visit whilst the father simultaneously travelled to her location) and the fact that the father was only in New Zealand for a relatively short period of time.
B’s time with his father after his return to Australia in June 2014
After the child returned to Australia in June 2014, his parents reached various interim agreements about his parenting arrangements.
The July 2014 Parenting Plan
On 29 July 2014, the parties entered into a Parenting Plan. By it, they agreed to be jointly responsible for major long-term issues about the child’s care, welfare and development. They also agreed he would live with his mother and spend time with his father each alternate weekend (starting on 2 August 2014) as follows:
a)for two hours on the first Saturday and for three hours the next day (Sunday); and then
b)for three hours on both the Saturday and Sunday of the next visit; and then
c)for four hours on both Saturday and Sunday for the duration of the Plan; and, additionally
d)for three hours on the “off week”; and
e)on Father’s Day.
They also agreed the father would spend Christmas Day with the child in D Town with the mother and her family and that they have a joint celebration in D Town for the child’s birthday. They agreed to Skype communication and that each communicate respectfully with the other and try not to denigrate the other in the child’s presence. As will be discussed later, the father has not always been able to communicate respectfully with the mother.
The parents also agreed they would consider enrolling the child in a school in New Zealand; that neither use illicit substances or consume excessive alcohol and that the father undertake random drug testing and continue attending “Dads in Distress”. They agreed to review the Plan in January 2015.
It does not seem to be seriously disputed that the father did not spend as much time with the child as the terms of this Plan provided. I accept this was the case because he did not want his time to be supervised, which the mother sought, even though the actual terms of the Plan do not impose this requirement.
I accept the evidence of the author of the two Family reports (Ms G) that the father’s overall explanation for his failure to take up all of the opportunities to spend time with the child at this stage was that he did not feel comfortable being watched by the mother’s sister during his time with the child. I also accept Ms G’s evidence that it is unfortunate he only spent time with the child on a limited number of occasions.
However, even if the father only spent time with the child on three out of a possible twenty-seven occasions in the period from July 2014 until December 2014, I am not persuaded that this indicates he was disinterested in having a relationship with his son. Rather, I suspect this situation arose because of a combination of the parties’ likely disagreement about the necessity for the time to be supervised and the geographic distance between them.
In any event, even with the lesser amount of interaction than was made available by the terms of the first Parenting Plan, the parties agreed to the terms of the second Parenting Plan, which provided for an increase in the child’s time with his father.
The December 2014 Parenting Plan
On 3 December 2014, the parties entered into a new Parenting Plan. This included, in summary, that the child’s time with his father occur for up to two hours each alternate week on a supervised basis[2] for a period of up to two months and, then, for four hours unsupervised each alternate week, with the Contact Centre to facilitate changeovers. It was agreed that the father pay the costs of the Centre.
[2] as nominated by the C Town Contact Centre.
It was also agreed that the child spend three hours with his father on Christmas Eve[3] and on his birthday.[4] The Plan also provided that the child communicate by Skype with his father each Monday and Friday at 5.00 pm.
[3] with changeover to occur at D Town.
[4] at D Town.
This Plan also recorded the mother’s intention to apply for an order permitting the child to relocate to New Zealand, his father’s opposition to such an order and that the father had only agreed to the terms of the Plan because he wanted to see the child and intended to commence proceedings to seek orders that the child spend more significant time with him in the future.
Given that neither party’s material provides any particular detail about the child’s interaction with his father in the period from December 2014 until Orders were made in February 2016 and noting that, at the time of the interview with Ms G in February 2016, it was recorded that the child was then spending four hours each alternate weekend with his father, I have proceeded on the basis that the child and his father spent all of the time together as was provided for by the terms of the December 2014 Plan.
The February 2016 Order
After Orders were made by consent on 22 February 2016, the child started to spend time with his father from 4.00 pm Friday until 4.00 pm Sunday each alternate weekend. Changeovers remain facilitated by the C Town Contact Centre.
This is the regime which continues at present.

The competing proposals

The mother’s primary proposal is that she be able to immediately take the child to live with her in New Zealand. She proposes that, if he lives in New Zealand, the child spend time with his father in Australia for two to three weeks every two to three months until he starts school and, thereafter - commencing in 2017 - during each school holiday period. She also proposes that the child spend time with his father during any occasion his father travels to New Zealand, with this to occur for periods of not less than three days and not more than seven days, upon the father providing her with seven days’ notice in writing.
Additionally, she proposes that, in order to maintain the child’s relationship with his father during the time they are not spending face-to-face time together, they have weekly Skype and/or telephone communication.
As already noted, the father opposes the child moving to live in New Zealand. By way of broad overview, he proposes the child remain living in Australia and, until he commences formal schooling, spend time with him from 4.00 pm Friday until 4.00 pm Sunday (or if Monday is a public holiday, until 4.00 pm Monday) on the first three weekends of each calendar month. Once the child starts formal schooling, the father proposes the child spend time with him from 4.00 pm Friday until 4.00 pm Sunday (or if Monday is a public holiday, until 4.00 pm Monday) each alternate weekend or, if the child and his father are living in the same town or city, from after school or 3.00 pm Friday until school or 8.30 am on Tuesday.
He also proposes that the child spend half of the Easter, June/July and September/October gazetted school holiday periods and for a period of three one week blocks (being alternate weeks) during the end of year school holiday period with each parent. The father’s proposals for the child’s time with each of his parents on special days, such as birthdays and Mother’s and Father’s Day – and how each may travel with the child outside of Australia - are as outlined in the Outline of Case Document filed[5] on his behalf.
[5] on 19 August 2016.
The father’s formal documentation contains no particularisation of the orders he seeks in relation to the child’s time with him if the child is permitted to relocate to live in New Zealand. Whilst this is, perhaps, explicable because his position - as outlined to Ms G and confirmed during his cross-examination - was that he intends to return to live in New Zealand if the child moves to live there, submissions made by his Counsel at the conclusion of the evidence specifically included that he did not currently intend to move to New Zealand and, therefore, did not seek that any parenting orders be made to deal with such eventuality. These submissions reflected the evidence given by the father during re-examination, when he said that he did not have any current plans to move to New Zealand at this time.
B’s parents are also in dispute about the allocation of parental responsibility for the child: in her formal documentation the mother seeks an order for sole parental responsibility, while the father seeks an order for equal shared parental responsibility.

Principles

The statutory framework does not deal differently or specifically with cases involving a proposed relocation of a child. Therefore, in these proceedings, being proceedings for a parenting order[6] in relation to the child, I may, subject to s 61DA[7] and s 65DAB[8] and Division 6 of Part VII of the Family Law Act1975 (Cth), make such parenting order as I think proper.[9] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects and I have done so.[10]
[6] s 64B of the Family Law Act 1975 (Cth).
[7]          Presumption of equal shared parental responsibility.
[8]          Parenting plans.
[9]          s 65D of the Act.
[10]         s 60B of the Act.
In deciding whether to make a parenting order, I must regard the child’s best interests as the paramount consideration.[11] Such interests should not be viewed in the abstract or separate from the circumstances of the mother, the parent with whom it is agreed that the child will continue to live primarily.[12] Further, the statutory exhortation to regard the child’s best interests as the paramount consideration does not mean that the legitimate desires and interests of his parents are to be completely ignored – rather, where the legitimate interests of the adults conflict with the child’s best interests, the former must give way.[13] That is, the determination of those orders which are in a child’s best interests may well mean that one parent’s choice is effectively outweighed in the balance; a parent may not receive an optimal outcome or arrangement from that parent’s perspective.
[11] s 60CA and s 65AA of the Act.
[12]See, for example: AMS v AIF (1999) 199 CLR 160 at 207-208; Godfrey & Saunders (2007) FamCA 102.
[13]AMS v AIF (supra).
To the extent it is possible to do so consistently with the child’s best interests, any order made must be consistent[14] with any family violence order and must not expose a person to an unacceptable risk of family violence.[15]
[14] S 60CG of the Act
[15]Defined in s 4AB of the Act as meaning: violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful.
If neither of the parent’s proposals satisfies the criterion of being in the child’s best interests, then, subject to affording the parties procedural fairness, I am required to craft those orders which are in his best interests.[16]
[16]See, for example, AMS v AIF (1999) 199 CLR 160, at 191–194; A and A: Relocation approach (2000) FLC 93-035 at 87,553.
The matters to be considered in determining those parenting orders which are in the child’s best interests are as prescribed by s 60CC of the Act. As it is unnecessary for each of these considerations to be the subject of any particular discussion - particularly where the evidence relevant to it leads inexorably to a particular conclusion[17] - any failure to specifically mention a consideration does not mean it has been overlooked in the course of the determination of those orders which are in the child’s best interests.
[17] Banks & Banks (2015) FLC 93-637.

The benefit to the child of having a meaningful relationship with both parents

The term ‘meaningful’ is not synonymous with the term ‘optimal’.
The Act does not define the term ‘meaningful relationship’ nor does it prescribe criteria on which the Court should rely to assess how a child’s parents have, or should have, a meaningful involvement in that child’s life.
In McCall & Clark,[18] the Full Court concluded that the preferred interpretation of ‘benefit to a child of a meaningful relationship’ is the prospective approach. That is, the Court should consider and weigh the evidence at trial and determine how, if it is in a child’s best interests, orders can be framed to ensure that the child has a meaningful relationship with both of that child’s parents. Thus, the Court must consider and determine whether there is a benefit to the child in having a meaningful relationship with each of his parents, such finding not being dependent simply on a lack of danger of physical or psychological harm arising from time and/or communication with his parents.
[18] (2009) FLC 93-405.
If I determine that such benefit exists, then I must consider whether the benefit needs to give way to the requirement to protect the child from physical or psychological harm.[19]
[19]Vigano & Desmond (2012) FLC 93-509, [128]-[129] per Bryant CJ, Strickland & Murphy JJ.
The mother’s proposal that, wherever the child lives, he continue to have the opportunity to spend some face to face time with his father reflects some acknowledgment that the child will obtain some positive benefits if he has the opportunity to have a meaningful relationship with his father.[20]
[20]It being an obvious consequence of his historical care arrangements that he has a meaningful relationship with her and there being no suggestion that this is not beneficial for him.
Given the child’s observed reaction to his father during the interview with Ms G in June 2016, I accept that, as long as his father is able to manage his interactions with, and the outward manifestations of his attitude toward, the mother appropriately, the child will benefit if afforded the opportunity to maintain a meaningful relationship with him. I am not so confident that this is likely to be the case if the father continues to behave in the demeaning, threating and immature way he has on occasions thus far.
As Ms G said during her cross-examination, if either parent is unable to refrain from making derogatory, insulting, offensive and/or denigratory comments about the other in the child’s presence, then there is a very real risk that, as he matures, their son may suffer negative impacts to his self-esteem. There is also the potential that he may suffer detriments to his relationship with the parent who made such comments about his other parent to him or in his presence: that is, the impact of hearing one parent make hurtful, offensive and belittling comments about the other parent will be likely to harm the child.

I also accept Ms G’s evidence the potential impact on the child of exposure to comments which are critical of either of his parents is that this may shape the way he perceives each of them and the way he perceives himself: that is, because he will come to understand that he is a part (in a sense) of each of his parents, if either speaks negatively in front of him about the other, he may well think they share that same negative view about him.
It is necessary to emphasise that there is the potential for derogatory, insulting, offensive and/or denigratory comments to cause harm to the child (irrespective of the harm and upset they may cause the mother) because of the father’s highly offensive comments to the mother – as clearly captured in text messages - and his threat to ‘gut her like a pig’ if she left their relationship.
Whilst he has obviously not acted upon that threat, as Ms G said in the context of her evidence about the impact on the child of exposure to offensive words, these comments are not ‘only words’ : they clearly demonstrate attitude. In the current case, unless the father changes his attitude or – at the very least - tempers his expressions, there is the very real risk that such comments will convey to the child an attitude that is particularly disrespectful of his mother (his agreed primary care provider) and generally disrespectful of women. It could not be thought that exposure to this type of attitude will benefit the child at all.
Given that no submissions were made to the contrary by Counsel for the mother, I proceed on the basis that the child will obtain some benefit from the opportunity to have a meaningful relationship with both of his parents. In my view, though, the extent of that benefit vis-à-vis his relationship with his father will very much depend on the father moderating his behaviour and attitude in the manner I have outlined.
The need to protect the child from harm from being subjected or exposed to abuse, neglect or family violence
There is nothing in my view to suggest the child is at risk of being exposed to abuse, neglect or family violence whilst in his mother’s care.
Whilst the mother makes serious allegations about the father’s behaviour toward her during their relationship – about which more will be said later – she does not allege he has ever directly physically harmed the child.
That this is the case, however, does not diminish the fact that there remains a real risk that the child may suffer harm if his father exposes him to the kind of vitriol he directed to the mother during their relationship.
I refer in particular to an occasion on which the father returned home heavily intoxicated, had difficulty in his attempts to watch the rugby on the computer, lost his temper and “started to take it out on the cupboard in the kitchen”. I accept that, when the mother tried to placate him, the father said she was “fucking crazy like my mother” and told her: “you’re just a parrot”; and “you’re fucking crazy”.
After this, the mother went to a friend’s house. I accept the father then sent her a text message in which he said: “You’re a cunt. Where’s my son, you cunt?”
He subsequently sent her the following text message:
The police are coming, you had better have a great story. Answer your phone. You have taken my child. You’re in big trouble, bitch. Kidnapper. Watch what happens. Police are on their way. Ha Ha. Play your game [Ms Watson]. I am that angry, its not funny. Where the fuck is my child, you cunt? This is it. We’re hide the boy? Fuck you. How dare you do this. Wait and see what happens, cunt. Fucken phone. Where is the child, cunt? I’m gonna do this to you as soon as u find you cunt. See how you like it. Where the fuck is the baby? I am worried cuz you’re crazy like [Ms H], you bitch.
The reference to “Ms H” is a reference to the child’s paternal grandmother.
Whilst the father agreed the contents of the SMS were very inappropriate, he did not accept that those contents established that he was upset at the time he sent it. Rather, his view is that the contents of this message demonstrate that he was extremely concerned for the welfare of both the mother and the child. I do not join in his view.
The contents of this highly threatening and abusive message certainly support my acceptance of the mother’s evidence that, during their relationship, the father often yelled at her and told her on multiple occasions after the child was born that: “I will hunt you down and gut you like a pig if you leave”.
Given the content of the message set out above and for additional reasons which are set out later, I do not accept the father never behaved in an aggressive, intimidatory and threatening manner toward the mother during their relationship. I do not accept that he never threatened her in the manner she alleged.

B: his views and relationship with each of his parents[21]

[21] ss 60CC(3)(a) and (b) of the Act.

B is clearly primarily attached to his mother. No other conclusion could sensibly be made. His relationship with her is the primary relationship in his life to date. It is accepted he will continue to be cared for primarily by her.
It is accepted by the mother that the child enjoys his time with his father. She also accepts that, as the father has been caring for the child, he is capable of caring for him.
As the Family Reports make clear, the child’s relationship with his father was tenuous at the time of the 27 January 2016 interviews for the first Family Report but much improved, relatively, by the time of the 15 June 2016 interviews for the second Family Report.
I therefore accept that the child and his father are continuing to develop their relationship: as Ms G said, given the differences in her observations of the child’s interactions with his father on the two occasions she observed them interact, their relationship has started to solidify.
I am not persuaded that the improvement and solidification in the child’s relationship with his father is likely to have occurred without the mother’s support of their relationship. After all, between December 2014 and February 2016, the child was spending only four hours per fortnight with his father. Had the mother been as undermining and/or unsupportive of the relationship between the child and his father as the father contends, I think it highly unlikely that there would have been the improvement in their relationship and interaction seen by Ms G in her second observation session.
I accept Ms G’s evidence to the effect that, in the six to 12 months after June 2016, the child’s capacity to remember his father during absences from him will increase or improve and that he will be able to rely on these recollections to support his connection with his father when they are apart. I accept, therefore, that the child’s capacity to retain and maintain a cognitive representation of his father during their absences will improve and that this will continue to make his transition to his father’s care easier.
I also accept Ms G’s evidence that, in essence because of the above, delaying any relocation to New Zealand until about the beginning of February 2017 will improve the child’s prospects of being able to have a meaningful relationship with his father in the event that such relocation is found to be in his best interests.
The Father: his functioning and the relevant s 60 CC considerations[22]
[22] ss 60CC(3)(c), (f), (g) and (i) of the Act.
The father was not an impressive witness.
Despite only minutes earlier having confirmed that the contents of his affidavit were true and correct, he then accepted, after cross-examination by Counsel for the mother, that, at least as it related to his progress with his apprenticeship, the contents of the same were not in fact true and/or correct.
When the father was asked in cross-examination whether he had extended family living in New Zealand, he said “No”. When he was asked what family he had living in New Zealand, he said “None”. He repeated this response. This is contrary to his affidavit evidence which is to the effect that he has some extended family in New Zealand but he is not close to them and they live far from the mother’s intended location.
Further appreciation of him as a person can be gained by reference to two aspects of his cross-examination which, in my view, clearly demonstrate his general demeanour and attitude. The first is that, when Counsel for the mother asked him whether he had any other children – a matter obviously relevant to any consideration of parenting orders for the child – he responded by saying words to the effect of: “No, have you heard something?”
The second arose during Counsel for the mother’s exploration of his current income. Having been told it was $36,000.00 per year, Counsel asked whether he received any additional payments. The father said he could take out an interest free loan for a total amount of $20,000.00 over the four years of his apprenticeship, with payments of this amount to be made on a weekly basis (presumably to supplement his weekly income). He said he could receive $8,000.00 of this in the first year and $6,000.00 in the second year. When Counsel asked him whether it was then payable in the amount of $3,000.00 per year for the last two years of his apprenticeship, the father responded: “Good man”. His tone was clearly condescending.
The content and tone of the father’s responses to questions asked during cross-examination lend significant credence to the mother’s account of his attitude and behaviours toward her during their relationship. They also persuade me that it is more likely than not that the father’s style of communication is attended by an air of superiority, condescension – whether justified or not – and combativeness.
Whilst Counsel for the father attempted valiantly to emphasise the degree of stress under which the father operated at various times - so as to attempt to place his behaviours in a more favourable context - I consider the father is a person who likely has significant difficulties restraining his aggression when challenged; his demeanour at times during his cross-examination was very much as Ms G describes[23] his interaction with her.
[23]21 June 2016 Family Report at [26].
That he acted as he did toward a Family Consultant engaged in interviewing him in the Court precincts to prepare a Family Report, the sole purpose of which is to assist the Court to determine those parenting orders in the child’s best interests, supports my conclusion that, on occasions, he is more likely than not to behave in an unrestrained and uncontained manner during interactions with the mother. As already noted, I do not accept his denials of aggression toward the mother both during their relationship and after their separation.
I found that the father’s tone and demeanour during cross-examination mirrored that which Ms G observed and reported: that is, his behaviour demonstrated an undercurrent of anger and/or frustration and, in fact, could best, on occasion, be described by the word ‘bristling’. It is not at all difficult to imagine that it would not take much opposition from any person with whom he did not agree for the father’s bristling to transform into full-blown anger - as has been described by the mother.
Additionally, he approached his time as a witness with a high degree of arrogance; his tone in answering the questions asked of him by Counsel for the mother was dismissive, cocky and self-assured: he was very much the ‘smart aleck’ in the manner in which he chose to respond to questions asked of him in an appropriately respectful manner by Counsel. That he decided to present himself in such a manner in Court gives further credence to Ms G’s description of his interactions with her and also provides some further corroboration for the mother’s account of his demeanour toward her during their relationship.
I certainly accept that attempting to communicate and/or negotiate with the father to try and reach agreement would likely be a difficult task: he does not strike me as someone who is easily capable of compromise.
Given that the father has continued on occasion to communicate inappropriately with the mother during the weekly Skype communications he has with the child, I am not persuaded that his attendance at the one day Triple P Parenting course in September 2015 has necessarily resulted in any improvement in his understanding of the importance for the child of respectful communication between his parents.
The father self-referred to the Suburb I Alcohol and Drugs Service on 13 March 2013. He said he attend his first appointment in March 2014 and addressed his previous use of marijuana. Whilst the mother remains sceptical about this assertion, there is no independent evidence to establish either abstinence from marijuana use or the continued use of it.
I accept that, particularly since about December 2014, the father has made the effort to spend time with the child. I accept he has expressed a desire and willingness to be involved in making decisions about major long-term issues relating to the child.
Whilst it appeared he regarded his payment of $40.00 per week by way of child support for the child as significant, the reality, in my view, is that the child’s father has made minimal financial contribution to his son’s maintenance. Whilst I accept, in part, that this is the consequence of his current employment as an apprentice, it is clear he already holds the skills, training, experience and qualifications to permit him to work at something other than training to be a tradesman and, thereby, make greater contribution to the child’s financial support now.
It seems that the father had a debt of about $30,000.00 not long before the child was born. Whilst the extent of this at separation is unclear, by paying $100.00 per week he has reduced this to $5,000.00. He anticipates he will have repaid the entirety of the outstanding amount by about January 2018. Therefore, from this time on, he is likely to be able to apply funds of $100.00 per week (about $5,200.00 per year) to meet other costs which, if the child is permitted to move to live in New Zealand, could include those associated with travel.
Whilst the father also said he is paying his mother $100.00 per week to repay the about $80,000.00 he has borrowed from her to fund this litigation and meet his general living expenses, he has been able to make this regular payment whilst simultaneously repaying the debt referred to earlier.
I accept that the father loves the child and wants to have an ongoing and meaningful relationship with him. I also accept that the father wants to be an involved participant in the child’s life, rather than an observer or infrequent participant. I also accept that a relationship with the child is so important to him that, as he said to Ms G and confirmed during his cross-examination (before saying in re-examination that he had no current plan to relocate) if the mother is permitted to relocate the child to live in New Zealand, he will likely return to that country so he can continue to develop this relationship.
The father’s comments to Ms G and repeated during cross-examination are at least consistent with an earlier communication from the father to the mother in which he appeared to have been at least a little equivocal about the idea that the child might attend school in New Zealand – the email he sent the mother on 28 June 2015 proposed that the parties address this issue closer in time to when the child was four years of age and focus on reaching agreement about the immediate ‘custody’ arrangements.
The father’s work history has involved relatively constant employment.[24] He has been employed for most of the last 21 years, albeit in different vocations and for different employers. He has demonstrated the capacity and ability to gain employment. He has undertaken significant training and has experience working in many areas[25] and with many different types of machinery.[26] He has been involved in the construction industry for more than 20 years and, through that involvement, has learned many skills for which he has been able, successfully, to claim recognition for prior learning in his current apprenticeship.
[24]Having been unemployed for no longer periods than 6 months in his 21 or so years of engagement in the paid workforce.
[25]For example: ….
[26] For example, …
He is confident about his work skills. He has previously been considered to be a highly regarded employee and has previously been required to take on additional responsibility. He is a person who has demonstrated that he is capable of gaining employment and capable of keeping the same: he regards himself as a valuable asset to any employer.
Given these matters, it certainly seems to me to be highly likely that the father will not necessarily experience any particular difficulty in obtaining employment in New Zealand if the child was permitted to relocate there and he (the father) chose to return to that country. However, even if this conclusion is incorrect, his status as a citizen of New Zealand means that he is eligible for government provided financial support whilst looking for employment.
The father’s affidavit evidence is that he has a close and supportive relationship with his family and that all of his immediate family live in Queensland. It was apparent from the father’s cross-examination that his brother had lived interstate for a number of years before returning to live in J Town about six to 12 months ago. When he lived interstate he and the father did not see each other for months but maintained contact. Since his return to J Town, they catch up when the brother travels to Brisbane on a monthly basis.
The paternal grandfather has lived in Australia for a year. He previously lived in New Zealand. During his residence in New Zealand, the father maybe saw him once per year.
Whilst his evidence in his affidavit certainly suggested very close and frequent familial interactions, some of his evidence during cross-examination cast some doubt on this. For example, when he was asked where his sister lived, he was unable to nominate the street name. He similarly could not recount his aunt’s address nor could he remember the names of her two flatmates. He could not remember the name of the street in which his cousin lives or the name of one of his cousin’s children.
Further, when asked about other relatives in Queensland, it was clear that the father does not maintain any real relationship with them – as he said, he could not name any of them and they are all thirty years older than him.
Irrespective of these issues, I am prepared to proceed on the basis that, if the child moved to live in New Zealand, his opportunity to spend time with members of his extended paternal family is likely to be curtailed to some extent.
The mother: the relevant s 60CC considerations[27]
[27] ss 60CC(3)(c), (f), (g) and (i) of the Act.
Nothing in the mother’s interactions with the child suggests other than that she has met all of his needs. That she has the demonstrated capacity to do so is clearly accepted by the father, given his proposal that the child continue to live primarily with her.
I accept that, with her family’s assistance and that of those government provided benefits for which the child is eligible, the mother has met all of the child’s financial needs other than those met by the relatively minimal financial contribution made by the father. I also accept that, as she is not an Australian citizen, she is not eligible to receive some government provided financial assistance herself.
I do so in part because I am confident that, if the mother is in fact eligible for more government provided financial assistance than she claims, the father would likely have sought to obtain official confirmation of this fact.
I accept that the mother has demonstrated a commitment to parenting the child and has assumed responsibility for discharging the majority of those responsibilities associated with parenting him. Save for the issue of her capacity and/or willingness to support the child in having an ongoing relationship with his father, there is nothing in the evidence to suggest other than that the mother is capable of meeting all of the child’s ongoing physical, emotional and intellectual needs.

The father said[28] that, when he asked to spend additional time with the child on a number of occasions - his birthday in 2013/2014 and 2015, the child’s birthday in January 2016, Fathers’ Day in 2013 and 2014 and Christmas Day 2015 – the mother refused these requests.
[28] Father’s affidavit filed 20 July 2016, par [62].
The mother accepted she had not agreed to the child spending additional time with his father on these occasions. She said she had been prepared to facilitate time on these special occasions in lieu of the time the child and his father were to spend together (pursuant to either the operative Parenting Plan or the operative Order) but could not afford to do the travel associated with additional visits. Given the mother‘s relatively strained financial circumstances, I accept her evidence in this respect.
It also needs to be remembered that the parties did not separate until November 2013. If Father’s Day 2013 occurred during the month long period the child was with his mother in New Zealand – with the father’s agreement – she can hardly be criticised for failing to ensure the child and his father spent time together on that occasion.
The particular issue about the mother’s parenting of the child with which the father takes real issue is her willingness and/or capacity to support the child in his ongoing relationship with him.
Reference to the content of the first Family Report certainly suggests that the mother did not acknowledge how important it might be for the child to have the opportunity to have an ongoing relationship with his father. In fact, she did not initially consider that the child would, in fact, benefit from the opportunity to have a meaningful relationship with his father. Given her evidence of the father’s threats to her – which I accept - and the derogatory and denigrating comments contained in the text message the father sent to her (as set out in paragraph 61) such an approach is, in my view, understandable.
Whilst the mother was certainly criticised about her attitude at that time – and much reliance is certainly placed upon this as providing a basis for concern that, if the child lives with her in New Zealand, she is unlikely to support him in maintaining a relationship with his father – it is necessary to remember that her actions and attitude toward the father arises, at least in part, in circumstances where he behaved toward her in a threatening, aggressive and belittling manner during their relationship and, on multiple occasions, threatened to hunt her down and gut her like a pig if she left him.
It is relevant to record that, despite presumably holding the views she expressed to Ms G (in January 2016) when she and the child returned to Australia (in June 2014), the mother and the father agreed the terms of a number of parenting plans. There is no suggestion the mother failed to implement the terms of the December 2014 Plan in particular, or that she failed to follow the Orders made in February this year.
The father accepts that, as the mother is not an Australian citizen, she is unable to receive some government provided benefits in this country. He also accepts this differs to the position in New Zealand, where both of them – as citizens of that country – remain eligible to receive government provided financial support. Given his apprenticeship and the manner in which he has previously provided financial support to the mother for the child, it is unlikely he will provide more financial support to the mother in the near future for the child than he currently does.
The mother said that she remained scared the father would hurt the child because he was a little bit unstable and she thinks everything/anything is possible. When challenged about how she could possibly suggest the child spend holiday time with his father if she held such a view, the mother said that their time together had increased - she was not really 100 per cent sure about whether the father would harm the child or not, but held her concerns because of his comments to her which made her think he was unstable.
I do not accept that the mother had thoughts of returning to Australia when she took the child to New Zealand in November 2013. I think it much more likely than not that she intended to take the child ‘home’ and remain there. She attempted to put this intention into effect by opposing the application for a return order. I accept that, in her attempts to remain with the child in New Zealand, she asserted, wrongly, that he was not habitually resident in Australia when she left this country. I accept it was false when, in opposing the application for a return order, she asserted that the father had acquiesced or agreed to the child remaining in New Zealand.
When the mother was challenged that she lied in the Hague Convention proceedings in New Zealand, she responded that she feared for her life. Given the contents of the father’s text to her and his threats to kill her, I accept there is a basis for her expressed fear.
When the mother was asked why the Court should have any confidence that, if the child lived in New Zealand, she would facilitate time between him and his father, she said it was because she had followed every parenting plan and order. As already noted, this seems to me to be correct.
I accept that the mother sought the temporary protection order in New Zealand because she feared for her safety. Given his threat to hunt her down and gut her like a pig if she left, I accept that the fact the father was not then in New Zealand did not assuage her fears.
The mother tapes all of the Skype communications between the father and the child. I accept that she does this because she wants to protect herself against accusations from the father that she is a liar. I also accept her admission against interest that she has – to use her term – ‘arced up’ on occasions in speaking with the father in the course of these Skype interactions. I accept her evidence that she has told the father on many occasions that, if he continues to speak to her in an abusive manner, she will hang up and I also accept that she has done this.
Contrary to the suggestion that was made to her, I do not accept that she has remained oblivious to the father’s abusive behaviour at these times so that she can capture it for evidentiary purposes and regardless of its impact on the child.
Given the father’s verbally abusive behaviour toward the mother during what is supposed to be his Skype communication with the child, I accept that the mother is justified in her concern that he has not addressed his anger management issues and may not have addressed his previous admitted history of cannabis use. I also accept her evidence – and that of the maternal grandmother – about their observations of the father’s presentation during one Skype call. Given his threat to hunt her down, I also accept that, on occasion, she may well feel he is maintaining these proceedings to ‘get back’ at her.
I also accept her evidence that, when she wrote in her affidavit to the effect that the father has not got the child’s best interests in the forefront of his mind, she made this comment because sometimes his actions were such that it did not feel to her like this was the case.
I accept that, since their return to Australia, the mother has encouraged the child to have a good time with his father. I also accept the child has not missed any occasion of agreed time with his father. I accept that, after the opportunity to reflect on the contents of the first Family Report, the mother accepts it is important for the child to have a relationship with his father. Absent this acceptance, the father’s conduct is such that some may wonder about the benefits that the child will actually obtain from his interactions with the man who threated to hunt his mother down and gut her like a pig.
I accept that after the first Family Report recommended that the child needed to strengthen his relationship with his father before any relocation to New Zealand, the mother agreed to them spending increased time together. I accept that after she received the first Family Report, she went away and looked at things and had a good think about its contents.
I accept that the mother’s presentation to Ms G and the views she expressed during her interview for the first report occurred in the context that she was then struggling to live with the child in Australia. Her attitude must, as I have already commented, also be seen within the context of the father’s previous behaviour toward her, as I have accepted it to have been.
I am not persuaded that the mother is likely to put up barriers to the child’s ongoing relationship with his father in the event she is able to take him to live in New Zealand. She can only know all too well that the father is more likely than not to take action in the event of any non-compliance with orders for the child’s time with him.
I accept the criticism made by Counsel for the father about the lack of evidence in the mother’s material about her capacity to fund the child’s travel to Australia to visit his father if he lives in New Zealand. I also accept that whether this is likely to be financially possible is a very important consideration.
However, I note that the mother said that, as she would be the person who had to bring the child back to Australia to spend time with his father, she would be the person paying for his travel. Her evidence is that she will be able to do this as she will work part-time initially and then fulltime in New Zealand after he starts at school.
An assessment of the mother’s likely capacity to fund at least some of the child’s travel to Australia if he lives in New Zealand needs to take into account the fact that the maternal grandmother and her husband will make a home and a vehicle available to the mother for her use until she is able to establish herself financially and that she has paid employment to return to: Mr K, her previous employer (whose evidence I accept) said that the time from about January until May each year is one of the busiest times of the year for his business. Consequently, it seems to me to be more likely than not that, if she is able to tell Mr K that she will be available to start work at the end of January next year, she will likely be able to start work almost immediately if she returns to New Zealand. It seems, therefore, that, if the mother is able to return to live in New Zealand and to take the child to live there, she is more likely than not to be able to afford to pay for a significant amount of the child’s travel to Australia.
Counsel for the father criticised the mother for continuing to live in the relatively remote place where she and the child continue to live since their return to Australia in mid-2014. Counsel submitted, in essence, that the mother had not done anything to improve her financial position since her return to Australia. Whilst it is clear the mother has remained living at the relatively remote county location, she has been able to obtain accommodation there on the basis that she works for 10 hours per week for the owner of the house in which she and the child live. She also said – and I accept as more likely than not – that she has a sense of community there and, also, that, if she worked fulltime, all of the funds she earned would be spent on paying for the child’s childcare costs. She accepted that she told Ms G during her interview for the first Family Report that she did not want to put the child into day care more than he was then attending, that she had limited employment opportunities where she lived but did not want to move to live in the city because she is a country girl. When challenged about the latter assertion with the fact that she lived in Brisbane with the father, the mother replied that she had hated it.
In responding to the assertion that she was the author of her own financial hardship, the mother said that it was not that she did not want to work; it was that she did not want to move to live in Brisbane because she thought she would not be able to afford to live here – she said she could only just afford to live in her current location where she worked in lieu of rent and with the assistance of her mother and step-father, to whom she had a hefty debt. I accept her evidence in this respect.
The mother accepted that, given she will remain living with the child wherever he lives, if the Court concluded it was in his best interests to remain living in Australia, she would have to take steps to improve her financial situation. When asked to particularise what these might be, it was apparent that she did not really have any particular plan: she said that ‘obviously’ there would be steps she could take, but she did not have anyone to support her so she did not have access to babysitters; she also said she did not have a lot of friends and that she did not have family to support her. She also said that she had already been trying to improve her financial situation – by finding somewhere to live where she could work in lieu of paying rent.
I accept that the mother has struggled to improve her financial situation with all of the litigation going on.
I accept the maternal grandmother’s evidence that the father spoke dreadfully to the mother. I also accept that, given the comments she has heard him make, she regards him as a bully. She said that she was physically scared of him. I accept that she thinks on some occasions he has been under the influence of alcohol or illicit substances during Skype communication with the child. I also accept that, given her observations of him during these calls and the threat he made to the mother, there is nothing of a positive nature she could say about him.
The maternal grandmother also challenged the evidence given by Mr L, who gave evidence in the father’s case. She said she spoke with Mr L on two occasions in New Zealand. She denied making a communication other than for the purpose or with the intention of keeping the mother and the child safe. She said that Mr L had agreed with her that the father was a violent drunk and told her that he was having nothing to do with him. She was upset and disgusted with Mr L for giving evidence for the father – she said he had spoken to the mother’s lawyer in New Zealand and then did a complete about turn to give evidence for the father. She said he had told her during a conversation at the golf club that the mother needed to be “out of there”, that the father was a “complete waste of space” and needed to “get off his bum”.
She said she hoped the father would get his life together and it was not her view that he was a complete waste of space.
I accept that the maternal grandmother will continue to travel to Australia to assist the mother if she remains living here with the child. I therefore accept that she will travel here regularly and help with those bills which her daughter struggles to pay. I also accept, however, that whilst she can visit, there may be some difficulties for other members of the mother’s extended family in doing so.
I accept the evidence given by Mr K, who has previously employed the mother over many years. I also accept that, as he outlines in his affidavit, he is willing to support the mother in permitting her to take reasonable time away from her employment so she can bring the child to Australia. I accept he would not support her travelling between January and the end of May and in October and November in any year because these are the peak times for his business operations.
I accept, though, that if the mother returns to New Zealand, he will offer her part-time work to start and then increase this to fulltime work. His evidence certainly suggests that, all being well, the mother has a very good prospect of long term future work in his business: he clearly thinks highly of her and has plans to train her further.
Likely effects on the child of any changes in his circumstances[29]
[29] ss 60CC(3)(d) of the Act.
If the child moves to live with his mother in New Zealand, his opportunity to spend frequent face-to-face time with his father will be significantly reduced if his father remains living in Australia.
Additionally, his opportunity to spend time with his paternal cousin Jesse (who is of similar age) and other members of his extended paternal family will also be diminished. However, as outlined earlier, the extent of these interactions may not be as frequent as the father originally contended. For example, the child’s paternal uncle and his two children live in J Town. Whilst the paternal grandfather now lives in Australia, he too lives in J Town. He also regularly visits New Zealand to spend time with his 8 year old daughter. Further, I accept the mother’s evidence that the father often told people he did not want anything to do with his “fucked up family”.
A move to New Zealand will mean that the child has less frequent opportunity to share those special events and occasions which are important to the Maori culture with his father and members of his extended paternal family.
However, I accept - as the father did – that the mother takes the child’s indigenous heritage very seriously, is respectful of it and thinks it is very important to him. Living in New Zealand would also mean – obviously – that the child would live in the country of his ancestors.
While Skype communication may assist in maintaining memory of the father, I accept that it obviously will not allow the child to exchange physical affection with his father. It will, however, provide a means for him to continue to see his father on a regular basis – as it does now, given the geographic distance between his parents at present.

Family Violence and family violence orders

I accept the mother’s evidence that a few months into her pregnancy the father started to behave aggressively toward her. She acknowledged that both parties were under significant stressors. She accepted that, during arguments between them, she said offensive things to the father as well but denied ever calling him “a stupid kiwi”. She accepted they had both sworn at each other and that she started a few of the arguments between them.
The mother said she was in fear of the father. When asked whether she thought he would physically attack her, she said that he had before. When challenged that that was not what she had said in her application for a Protection Order in New Zealand, the mother said that she had and that she had kicked him away from her when he was coming toward her. However, she then conceded that she did not allege in that application that the father had physically harmed or threatened her. She said the father had not hit her. She agreed she had not made an allegation or relied on any physical threat by him to her in her Application for a protection order in New Zealand.
She also accepted that, in New Zealand, a finding was made that the parties had accepted making reciprocal verbal abuse, had engaged in reciprocal name calling and that she also accepted that the father had not physically or sexually abused her.
Counsel for the father challenged the mother about the contents of her affidavit wherein she alleged that the father tried to punch her with a fist when he tried to watch the rugby after coming home intoxicated. She maintained this event happened but accepted she had not mentioned it in the proceeding in New Zealand – she said she did not do so because she had a lot on her mind then.
When she was challenged that the father had not put a knife to her throat, the mother maintained that he did; when she was challenged that she had not included this in her application for a protection order in New Zealand, she responded that she had made a statement to police at M Town about this. She was not challenged about the accuracy of this latter assertion.
The mother denied that she had fabricated her evidence that the father threatened her in this manner and I accept her denial.

When the mother arrived in New Zealand with the child on about 18 November 2013, she obtained a Temporary Protection Order. She also sought and obtained a parenting order in that country. The father travelled to New Zealand to contest the Protection Order being made on a final basis and, after a contested hearing, the temporary order was discharged.
I accept the mother’s evidence that the father and his mother had many screaming arguments when they lived with her. I also accept that, when she was a few months pregnant, the father started yelling and screaming at her: reducing her to tears; she locked herself in the bedroom; he yelled at her to unlock the door or he would break it down. I accept there was a further occasion when she was lying on the bed, crying, when the father picked up the PlayStation remote and smashed it on the floor, screamed at her that it was her fault and she was lucky it was not smashed on her face.
I accept as more likely than not that, the parties continued to argue about the father’s excessive alcohol and marijuana consumption and his ongoing family issues. I accept that on occasions, when the father came home drunk and when she asked him where he had been, he replied: “all you need to know is that I’m at work until I tell you differently”.
I accept as more likely than not that the father was derogatory of the mother after the child’s birth in the manner she alleges in her affidavit. I accept, therefore, that on occasion he told her that she did not want the child, that he would get her “committed” and that she was a “useless bitch”. I also accept that, on occasion, he threatened to cut her face off, called her a “fuckwit” and told her she was stupid.
Whatever doubts may exist about some aspects of the mother’s evidence, I accept her evidence about the father’s behaviours toward her during their relationship and after separation.
Two events are particularly significant and, in my view, place the mother’s initial attitude toward the father and his relationship with the child in context.
The alleged behaviour with a knife
I accept that, toward the end of March 2013, the mother went downstairs to tell the father and Mr L, who were drinking alcohol and using marijuana, that dinner was ready. I accept she told him this a second time and that, when he came upstairs, the father said to her: “you don’t tell me what to do. You are not my fucking mother. I will have tea when I am ready, not when you fucking tell me”. I accept he was holding a serrated steak knife in his hand at the time and that he pointed it at her and stabbed it hard into the table so that it stood upright. I accept that, as he did this, he said: “I will cut your fucking face off so stop trying to control me and telling me what to do”.
The alleged threat to hunt the mother down and gut her like a pig
The father initially denied he had ever threatened the mother that he would hunt her down and gut her like a pig if she left. However, he subsequently admitted – to some extent – that he had admitted this to her during a telephone conversation between them on 15 September 2013 (when she was in New Zealand).
I accept that, during that telephone conversation,[30] the father agreed he had told the mother that if she took the child away he would not only gut her but kill her as well. He made what I regard as an admission in the context of a discussion during which she told him she did not know why he said horrible things to her. When the father asked her what she would do if he took the child from her, she replied that she would not kill him.
[30]which the mother had recorded without the father’s knowledge.
The Skype communications
The father accepted he had said inappropriate things to the mother during his Skype conversations with the child. He said he was not proud of this and was working towards fixing that. However he also said that, whilst he had enrolled in an alcohol and drug misuse course, he did not complete this because the counsellor he saw told him he did not have severe enough issues for that service to deal with. Therefore, he has never completed an alcohol or drug misuse course.
When it was suggested to him by Counsel for the mother that, if he had spoken inappropriately in front of the child about the mother it would take more than attendance at a course to fix this, the father replied: ‘Does it?” When it was suggested to him that he would have to change his attitude in speaking about her in the child’s presence, he accepted that proposition. Whilst he said he had recently enrolled to see a counsellor, he had only been to see her once before the trial started and could not remember her name. When he was asked why he had not started the counselling process much earlier, he said that he thought he was fine but he subsequently was not; but was unsure when it crystallised for him that he needed help to learn to deal with the situation in which he finds himself.
The father accepted becoming so angry during Skype sessions with the child in June 2015 that the mother asked him to stop or she would hang up. He accepted he told her that he was going to come and take the child from her because she was abusing the child and that she would not see him again and that he would get ‘the government’ to see that she was not right in the head.
Whilst the father cannot remember telling the mother during a Skype call in July 2015 that what she was doing to the child was child abuse and parental alienation, I accept that it is more likely than not that he did make these comments.
The father admitted that, during a Skype call at which the child was present in May 2016, he told the mother that he would get full custody of the child, the child would live with him and that she should be prepared to spend the next 16 years in Australia. Whilst he could not remember whether he yelled at her during this conversation, I think it more likely than not that he did. He also told her that he was going to subpoena her address (which he did not know) and the people she lives with. He accepted that she told him to stop talking like that or she would hang up.
I also accept that during a Skype call in late May 2016, the father told the mother he was the only one looking after the child’s best interests. I also accept he told the child that he was the only one who loved him. I also accept he told the mother that he was allowed to tell the child that he was the only one looking after his best interests.
Whilst the father agreed with the suggestion made by Counsel for the mother that it was extremely inappropriate for him to speak to the mother as he had during these Skype conversations, I was not left with the impression, from the manner in which he answered the question, that he in fact thought that. I do not accept that his lack of control about what he is saying during Skype calls is something that has only occurred on a single occasion. Rather, I suspect it is a relatively common occurrence. I do not accept that the father is in any way justified in speaking to the mother in the manner that he chooses to do so in front of the child.
I also accept that during a Skype call on 29 June 2016, the father told the mother that he should just go and kill himself. Whilst it is clearly inappropriate to make such a comment in front of the child, his age means it is unlikely to have had any impact on him. I accept that the father was very upset at the time and I also accept it is likely he berated the mother during this call.

Practical Difficulties

It is an approximately three hour flight between Brisbane and New Zealand. It takes each of the parties about two hours to travel from their respective residences to C Town for changeover. Putting the costs of facilitating the child’s time with his father if the child lives in New Zealand to one side, there are no major practical difficulties other than the time associated with travel between Australia and that country.
If she is permitted to relocate with the child to New Zealand, the mother will return to work for Mr K, who clearly values her as an employee; he is someone with whom she has an established work history and a good reputation as a worker. As already noted, I accept that, to the extent that it possible, Mr K will accommodate the mother’s need to travel to Australia on occasion to support the child’s relationship with his father. During times when he is unable to accommodate the mother being absent from work, there is no reason the maternal grandmother would be unable to accompany the child to Australia.

Parental relationship and interaction

By email dated 21 July 2014, the mother responded to an earlier email from the father asking for information about the child. She also asked the father whether he was still attending his drug rehabilitation programme, whether he had attended an anger management programme and whether he had his driver’s licence back. Relevantly, the father responded as follows: “With regard to your questions in your email below in relation to my personal circumstances, may I ask that our communications be in relation to the child only. I ask that you respect my privacy given we are no longer in a relationship”.
The mother replied to this email on 23 July 2014. Included within her response are the assertions that the father’s drinking and drug taking are not his “private life” but rather “reflected” (perhaps, impacted) on the father’s capacity to parent the child. She also outlined that she found his email to be of an intimidating and bullying nature and that she was not prepared to answer any more that were of the same nature.
Given the communications between the parties after July 2014 – some examples of which are outlined above – I consider it clearly established that the child’s parents continue to have a fractured and difficult co-parenting relationship.

Parental Responsibility

The father’s conduct in threatening to gut the mother like a pig if she left their relationship, sending her the text message referred to above and in making the comments during his Skype communication with the child means that the presumption contained in s 61DA of the Act does not apply.
Thus, the power to make parenting orders pursuant to s 65D of the Act is ‘at large’, subject always to the child’s best interests being the paramount consideration.[31]
[31] see s 60CA; s 65AA.
If the Court makes an order that the parties are to share parental responsibility for the child and the exercise of that parental responsibility involves making a decision about major long-term issues in relation to him, such order requires the decision to be made jointly by the parties.[32]
[32] s 65DAC(2) of the Act.
An email sent by the father to the mother on 22 July 2014 included his view that, from recent communications from the mother, it appeared that, on the surface, they were both on the “same page” with regards to putting the child’s best interests first. However, he also expressed his concern that he did not then have comfort about her sincerity in relation to that. He concluded by saying: “In addition to this I’m afraid we both have a different view on what the child’s best interest is”.
Such sentiment provides little support for a conclusion that these parents will be able in the future to exercise parental responsibility for the child jointly. I consider that the father’s attitude and approach to interactions with the mother if she does not agree with his view of things is highly likely to be confrontational and aggressive.
Given this conclusion and my assessment of these parties’ likely future communications, I am not persuaded that an order for equal shared parental responsibility for major long-term issues relating to the child is an order which is in his best interests. Rather, I consider that an order which accords to the mother sole parental responsibility, but with an obligation to seek the father’s input into those decisions about major long-term issues, is that which is in the child’s best interests. In this way, both of his parents will be able to have input into decisions about such issues but the mother will be able to make the necessary decision; the significant potential for both future conflict and an impasse will be avoided.
I have arrived at this conclusion even taking into account that the mother’s stated opposition to an order for equal shared parental responsibility seemed to be significantly based upon the practical difficulty of joint decision-making if she and the child lived in New Zealand and the father continued to live in Australia and that the parties had previously agreed, under the terms of the Parenting Plan, to joint decision making.

The terms of the other Orders to be made in the child’s best interests[33]

[33]Whether the subject of specific discussion in these Reasons or not, I have considered all of those legislative provisions required to be considered so as properly to determine the issues in this case: Banks & Banks (2015) FLC 93-637

It must be remembered that the legislature has not explicitly prohibited the relocation of a child away from one parent nor has a specific presumption against moving away been introduced. Further, the fact that the relationship between a parent and a child will inevitably be affected by a child relocating does not of itself prevent such a move being permitted if it is otherwise in the child’s best interests.
The mother, who has always been the child’s primary carer, will not move to live in New Zealand without him. There is no doubt that she has a meaningful relationship with him. Clearly, it is in his best interests that this relationship continues to develop as he develops. I do not accept the submission made by Counsel for the father to the effect that all of the advantages of the relocation were for the mother’s benefit because, in my view, this fails to recognise the likely direct and indirect benefits to the child of the same given that his mother, his uncontested primary parent, has employment and familial support available to her in New Zealand.
B’s relationship with his father appears to be loving. As long as he is able to contain himself, I accept that the child should have a meaningful relationship with him into the future. Whilst the ‘best’ outcome for the child may well be that his parents live in close proximity to each other, they already live no less than about three to four hours travel apart. Additionally, if a move to live in New Zealand is determined as being in the child’s best interests, this ‘best’ outcome can also be achieved if the father implemented what he has said is an option and returned to live in New Zealand.
B currently spends time with his father each alternate weekend. Whilst the father’s proposal is to increase the frequency of this time (to three out of four weekends per month), any increase will obviously increase the amount of travel the child has to do.
I accept that one of major considerations in this case is whether the child is likely to be able to maintain a meaningful relationship with his father if he moves to live in New Zealand where the combination of cost and time mean that the frequency with which they can spend face to face time is likely to be diminished. Given this, as I have already noted, it is also very important to consider whether the mother is likely to support and encourage the child in maintaining his relationship with his father across the distance.
I accept that the more positive a parent in the situation of the mother is about a child’s relationship with the parent in the father’s situation, the greater confidence there can be about the maintenance of the relationship between a child and the non-residential parent. However, the responsibility does not fall solely with one parent: here, whilst the mother is required to support the child’s relationship with his father, his father is required to support her in supporting it; his obligation, in my view, is to ensure that his behaviours toward her do not undermine this capacity or cause her to doubt the importance of his relationship with the child - it is simply unrealistic to attempt to separate the actions of a supporting parent from the actions toward that person by the other parent.
I accept that, at the time of the first report with Ms G, the mother presented as someone who did not value the child’s relationship with his father, or prioritise the same. I accept that after her first interview of the mother, Ms G had serious misgivings about her willingness to support the child’s ongoing relationship with his father. I also accept, however that, by the time of the second interview, the mother’s position toward the father appeared to have shifted.
Whilst – as Counsel for the father suggested – it might have been that the mother realised she needed to demonstrate such a change, this proposition was not adopted by the mother.
On balance, I accept that the mother is more likely than not to support the child’s ongoing relationship with his father wherever he lives. I accept that she appreciates the importance of the same for the child and that she has reflected upon the attitudes she first expressed when she spoke with Ms G. I also accept that it is important to make the distinction that Ms G made when she assessed the mother’s support of the child’s relationship with his father in her two interviews: that is, whilst the mother’s attitude toward the father personally had not changed, her attitude toward him as the child’s father had. That is, I accept her assessment that the mother had changed to accept that the father should be a part of the child’s life and that it is important for the child to have an ongoing relationship with his father and to spend time with him.
I accept that the child’s cultural heritage is very important to both of his parents and that both of them very much want him to know and understand this. I accept that the mother is likely to support and encourage the child in learning about his culture. I also accept that moving to live in New Zealand is more likely than not to increase the child’s opportunity to engage in and with his Maori culture. For example, there is a Maori meeting house close to the mother’s home town. Given that, as the father acknowledged, the mother respects the Maori culture very much, there is no reason to conclude other than that she is more likely than not to support the child as he develops an awareness of his Maori heritage.
I also accept that, at least at some stage during their relationship, both parents wanted the child to have the same upbringing they had had as children in New Zealand. I also accept that during their discussion about them both moving back to New Zealand with the child, the father was keen to return to that country.
The father says he has a good relationship with the child and that he has worked hard to build this. He accepts that the mother has facilitated their time together and that, since the February Order was made, he and the child have spent regular and frequent time together. I accept that the father believes his relationship with the child is so important that he would be prepared to move to New Zealand if the child moved to live in that country. He would be prepared to change where he lives and his job in order to maintain his good quality relationship with him. I accept that he would be able to maintain his other familial relationships even if he returned to live in New Zealand. I also accept that, if the child lived in New Zealand and his father moved to live there also, the child would be able to maintain his relationship with members of his extended paternal family by visiting them in Australia with his father.
I accept, as the father did, that the child has a close connection with his maternal grandmother. A move to live in New Zealand will afford him the opportunity to spend more frequent time with her and other members of his extended maternal family.

Whilst I accept that there is no evidence that the mother will mentally disintegrate if she remains living with the child in Australia, I also accept that living here contrary to her wishes and apart from her family and the place in which she had lived her life until the end of 2011 may well cause her stress and have some generalised adverse impact on her general wellbeing.
I accept Ms G’s evidence that the relationship between the child and his father – whilst still in its early stages – now looks like it is progressing positively. I am not remotely persuaded that, wherever the child lives, his father would permit him to think he has been rejected or abandoned.
Whilst Ms G agreed with the proposition that the potential negative impacts for the child may be amplified if the environment which surrounds him is one in which there is not a positive promotion of his father as a good person, the father’s contribution to such situation should not be overlooked or airbrushed away.
Given my acceptance of her evidence about his behaviour toward her, both during their relationship and after their separation, I am not persuaded that the mother should be so wholly criticised for her initial attitude to the child’s relationship with his father. After all, there can be little doubt that, once the child is at school, he will be clearly told that it is unacceptable for children to speak badly to each other – is he to be told by his mother that it is acceptable for, and when, his father speaks badly to her in front of him or vice versa?
I accept that, for a child of the child’s age, Skype is not a substitute for face to face interaction. I also accept that such communication may well currently be attended with some difficulties arising out of his inability to concentrate for long periods of time. However, I also consider that the child’s capacity to engage in such communication will likely improve and he is more likely than not to gain more from this method of interaction as he grows older.
I accept that the father’s financial situation – as a consequence of his choice to embark on an apprenticeship rather that use his extensive skills and experiences – is that he is unlikely to be in a position to assist the mother financially to make things easier for her financially in Australia. Whilst this also has an obvious impact on his capacity to fund travel to New Zealand and/or the child’s travel to Australia to spend time with him, the latter can be offset by the mother paying somewhat more toward these costs - which she is more likely to be able to do given the employment to which she is going to return in New Zealand.
I accept Ms G’s evidence that, at a minimum, the child should not move to live in New Zealand before about February 2017. At this time he will be four years of age.
I do not accept the submission that it is inappropriate or not in the child’s best interests that a decision is made now about a future relocation because I do not now know what his relationship with his father will be like at some future point in time - such as about six months from now. All parenting decisions involve a certain amount of prediction of likely consequences and behaviours based on the evidence before the Court at trial. Given the difference in the child’s relationship with his father now when compared to what it was like when Ms G first observed them together, I am confident in predicting that it will continue to strengthen and improve between now and the end of January 2017.
I consider that, provided the child is not moved to live in New Zealand before about the end of January 2017 and is afforded the opportunity to spend additional time with his father between now and then, he will have a sufficiently established relationship with his father so that it may withstand the impacts of a move to New Zealand.
I consider that, with this delay in relocating, the support of his mother and the opportunity to spend fairly frequent time with his father for increasingly lengthy periods of time, the child will be able to maintain a meaningful relationship with his father thereafter, even if he lives in New Zealand. I have concluded that this will be the case provided that, after such move, he has the opportunity to spend face to face time with his father every two months or so. It is for that reason that I have concluded that the mother’s proposal for the child’s travel to Australia to see his father does not provide him with enough opportunity to maintain a meaningful relationship with his father.
Rather, as long as he can spend time with his father during each school holiday period (for periods of time the duration of which will be commensurate with his age) and for a weekend once per term in Australia, then the interval between his time with his father is likely to be no longer than about five to six weeks. With the additional opportunity for time in New Zealand if the father can travel there – for example, once per term – and the supplementary interaction of Skype and/or telephone communications, I am confident the child will have the opportunity to continue to have and develop a meaningful relationship with his father, from which he is likely to derive benefit.
As already remarked upon, I also take into account that the child’s capacity to concentrate and hold his memories of his father and their shared experiences will only increase as he grows older and, I suspect, may be likely to exponentially increase in the first few years of his attendance at formal schooling.
In conclusion, I am persuaded that it is in the child’s best interests to relocate to New Zealand after about the end of January 2017. I am persuaded that, with the implementation of the orders for time I have determined to be in the child’s best interests, it will be possible for him to maintain a meaningful relationship with his father. It will also be possible, in my view, for him to know and be cared for by his father on a regular – which is not the same as ‘frequent’ – basis. I am also persuaded that, with the job prospects available to her in New Zealand, the mother’s financial circumstances – and, therefore, the child’s – are likely to be improved, even taking into account the likely financial impost of the cost of the child’s travel to Australia. Further, the mother will have the additional support of her family to assist her in discharging her responsibilities as the child’s agreed primary care-provider.
I also consider that, before he moves to live in New Zealand, it is in the child’s best interests to spend time with his father on those occasions outlined in the Orders set out at the commencement of these Reasons – such time will assist him to continue to develop his relationship with his father.
It is also proper that provision is made for time between the child and his father in the event that his father moves to live in New Zealand so as to minimise the necessity for further litigation between his parents.
In order to reassure the father about the mother’s commitment to implementing the orders for the child’s travel to Australia after she has moved with him to live in New Zealand, I consider it appropriate that she is required to pay $2,500.00 into the trust account of her Australian lawyers and to direct them to provide the father with written confirmation of the receipt of these funds before she is permitted to relocate the child to New Zealand. I am confident that, with the assistance of her extended family and knowing that she has employment to go to, the mother will be able to comply with this requirement.
In that way, the father will know that the mother will be able to pay her share of the costs associated with the child’s travel to Australia to spend time with him during the initial period. She will, of course, be able to use these funds to meet these costs.
Given that the father’s financial circumstances seem likely to improve over time with the elimination of debt after January 2018 and taking into account his commitment to continue his relationship with the child and the fact that the mother will still bear the impost of meeting the vast majority of the child’s financial needs, I consider it appropriate that the parents share in the costs associated with the child’s travel between Australia and New Zealand in the manner provided for in the Orders set out at the commencement of these Reasons.

I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on delivered 5 October 2016.

Associate:

Date: 5 October 2016

[2016] FamCA 853

5 October 2016

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