Nowell and Backus

[2019] FamCA 375

FAMILY COURT OF AUSTRALIA

NOWELL & BACKUS [2019] FamCA 375

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – where the mother seeks the children, aged two and six, relocate to live with her in New Zealand – where the father opposes the relocation – where relocation of the children to New Zealand found to be in the children’s best interests.

Family Law Act 1975 (Cth)

AMS v AIF (1999) 199 CLR 160
McCall v Clark (2009) FLC 93-405
Cox v Pedrana (2013) FLC 93-537
Banks v Banks (2015) FLC 93-637

APPLICANT: Ms Nowell

RESPONDENT: Mr Backus

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 647 of 2018

DATE DELIVERED: 6 June 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 10, 11 & 12 April 2019

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous Orders are discharged.

2. The children, X born … 2013 and Y born … 2016, live with the mother.

3. 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)) other than the issues of the children’s names and changes to their living arrangements that make it significantly more difficult for them to spend time with the father.

4. Before making a decision about any major long-term issue, the mother shall:

   (a)inform the father in writing 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 twenty-eight (28) days after the provision by her of the information referred to above to respond to the same in writing; and

   (c)consider the father’s response, if any, when coming to her decision about any such issue; and

   (d)inform the father of the final decision made with respect to that issue as soon as practicable thereafter.

5. Each parent has responsibility for decisions about the day to day care, welfare and development of the children when they are in that parent’s care.

6. The mother is at liberty to relocate the children to live with her in New Zealand from 6 July 2019.

7. The children shall spend time with the father at all reasonable times as may be agreed between the parties but, failing agreement, as follows:

   (a)until the mother gives the father notice in writing of the date on which she will be available in Australia during the June/July 2019 Queensland school holidays to collect the children from his care, with changeover to occur at a public place nominated by the mother in writing; and

   (b)for half of the school holidays at the end of Term 1 in 2020 and each year thereafter, with such time to occur in Australia and only to occur if the father has given the mother notice in writing, no less than thirty (30) days before the end of Term 1, of his intention to spend time with the children during this holiday period and, so as to give effect to this Order:

   (i)the father shall notify the mother in writing, no less than thirty (30) days before the end of Term 1, of the dates in the school holidays during which he wishes the children to spend time with him in Australia (“the holiday period”); and

   (ii)the father shall collect the children from a nominated place at the City M airport on the first day of the holiday period at the time nominated by him in writing to the mother no less than 30 days before the end of Term 1 and the father shall return the children to the mother at a nominated place at the City M airport on the last day of the holiday period at the time nominated by him in writing to the mother no less than 30 days before the end of Term 1;  and

   (c)for all of the school holidays at the end of Term 2 in 2020 and each year thereafter, with such time to occur in Australia, and so as to give effect to this Order:

   (i)the father shall collect the children from a nominated place at the City M airport on the Sunday after school ends for the Term, with the time for collection to be as nominated by him in writing to the mother no less than 30 days before the end of the school Term; and

   (ii)the mother shall collect the children from a nominated place at the  Brisbane airport on the Saturday before school resumes for Term 3, with the time for collection to be as nominated by her in writing to the father no less than 30 days before the end of the school Term; and

   (d)for half of the school holidays at the end of Term 3 in 2020 and each year thereafter, with such time to occur in Australia and only to occur if the father has given the mother notice in writing, no less than thirty (30) days before the end of Term 3, of his intention to spend time with the children during this holiday period and, so as to give effect to this Order:

   (i)the father shall notify the mother in writing, no less than thirty (30) days before the end of Term 3, of the dates during which he wishes the children to spend time with him in Australia (“the holiday period”); and

   (ii)the father shall collect the children from a nominated place at the City M airport on the first day of the holiday period at the time nominated by him in writing to the mother no less than 30 days before the end of Term 3 and the father shall return the children to the mother at a nominated place at the City M airport on the last day of the holiday period at the time nominated by him in writing to the mother no less than 30 days before the end of Term 3.

   (e)for half of the school holidays at the end of Term 4 each year, with such time to occur in Australia and, so as to give effect to this Order:

   (i)such time shall occur for the first half of the school holidays in even numbered years and, so as to give effect to this Order:

   A.the father shall collect the children from a nominated place at the  City M airport on the first Sunday after school ends for the Term, with the time for collection to be as nominated by him in writing to the mother no less than 30 days before the end of Term 4; and

   B.the mother shall collect the children from a nominated place at the Brisbane airport on the fourth Saturday after the end of Term 4, with the time for collection to be as nominated by her in writing to the father no less than 30 days before the end of Term 4; and

   (ii)such time shall occur for the second half of the school holidays in odd numbered years and so as to give effect to this Order:

   A.the father shall collect the children from a nominated place at the City M airport on the fourth Sunday after school ends for Term 4, with the time for collection to be as nominated by him in writing to the mother no less than 30 days before the end of Term 4; and

   B.the mother shall collect the children from a nominated place at the Brisbane airport on the Saturday before school resumes for Term 1, with the time for collection to be as nominated by her in writing to the father no less than 30 days before the end of Term 4; and

   (f)on any occasion that the father travels to New Zealand and provided that he has first given the mother notice in writing, no less than thirty (30) days before his arrival in New Zealand, of his intention to spend such time with the children in New Zealand:        

   (i)if such time occurs during school Term: from after school Friday until 5.00 pm Sunday with the father to collect the children from school at the start of this time and the changeover at the end of this time to occur in a public place nominated by the mother in writing; and

   (ii)if such time occurs during a school holiday period: for half of that school holiday period, provided that the children have not already spent time with the father in Australia during that school holiday period and with changeover to occur in a public place nominated by the mother in writing.

8. For the purpose of the children's international travel referred to in Order (7):

   (a)each parent shall ensure that either they, or another adult known to the children, accompany the children on the flights until Y is 10 years of age, after which time arrangements may be made with the international airline carrier for the children to travel as unaccompanied minors; and

   (b)the mother shall be responsible for paying for the cost of the children’s flights from Brisbane to City M during the school holidays at the end of Terms 2 and 4 each year and the father shall otherwise be responsible for meeting the costs of the children’s flights between New Zealand and Australia; and

   (c)the mother shall deliver the children to the City M airport at the times and on the dates nominated by the father in writing in accordance with  Orders 7(b)(ii), 7(c)(i), 7(d)(ii), 7(e)(i)A and 7(e)(ii)A; and

   (d)the father shall deliver the children to the City M airport at the times and on the dates nominated by the mother in writing in accordance with  Orders 7(b)(ii), 7(d)(ii); and

   (e)the father shall deliver the children to the Brisbane airport at the times and on the dates nominated by the mother in writing in accordance with  Orders 7(c)(ii), 7(e)(i)B and 7(e)(ii)B; and

   (f)each parent shall provide the other with a copy of the children’s flight itinerary no less than thirty (30) days before the date of departure; and

   (g)each parent is at liberty to arrange for a person other than themselves to accompany the children on their travel between Australia and New Zealand provided that such person is known to the children and provided that, if the children are to be accompanied by someone other than a parent on any particular trip, each parent shall keep the other informed of the name and mobile phone contact details of the accompanying adult;  and

   (h)the mother shall retain possession of the children’s passports at all times other than on those occasions when they are required for the children’s travel to Australia, at which time she shall provide the same to the father;  and

   (i)the father shall return the children’s passports to the mother at the conclusion of their time with him.

9. Each parent shall communicate with the children, when they are not in their care, by telephone, Skype or FaceTime at all reasonable times and not less than each Wednesday and Sunday at 5.30 pm (New Zealand time) and on the children’s respective birthdays and on Christmas Day and, in order to facilitate this:

   (a)the parent with whom the children are not spending time shall initiate the telephone or Skype call; and

   (b)the parent in whose care the children are at that time shall make the children available to receive the telephone or Skype call; and

   (c)the parent in whose care the children are at that time shall arrange for the children to telephone the calling parent on the following night if, for any unforeseen circumstance, the children miss the telephone or Skype call from that parent; and

   (d)each parent shall ensure that the children have privacy during the communication.

10. Neither parent shall denigrate or insult the other, or their family to, or in front of, or within the hearing of, the children and each shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of, the children and, failing their compliance with such a direction, shall remove the children from that environment immediately.

11. Each parent inform the other parent as soon as reasonably practicable of any medical emergency, significant health issue or significant illness suffered by the children.

12. By this Order, any treating medical practitioner is hereby authorised to release to both parents such medical information about any medical emergency, significant health issue or significant illness suffered by the children as they are lawfully able to provide about the children.

13. Each parent keep the other informed of the details of the children’s doctors, health care and other treatment providers and, by this Order, those practitioners are authorised to provide each parent with such information as they are lawfully able to provide about the children.

14. Each parent keep the other informed of the details of any school, educational facility or extra-curricular activity provider at which the children attend and, by this Order, such providers are authorised to provide each parent with such information as they are lawfully able to provide about the children and their progress.

15. If there is a cost associated with the provision of any information or documents by the children’s doctors, health care and other treatment providers or school, educational facility or extra-curricular activity provider, that expense shall be borne by the parent requesting the information.

16. Within fourteen (14) days of her receipt of the same, the mother shall provide the father with a copy of each of the children’s school reports.

17. Each parent shall ensure that the other is nominated as a secondary emergency contact with any school at which or medical practitioner upon whom the children attend.

18. For the purpose of email communication between the parents, the email address to be used by each parent is, unless the party concerned advises the other party of any change to their email address, as follows:

    (a)        for the mother:  …;  and

    (b)       for the father:…

19. Each parent shall keep the other parent informed at all times of their residential address, contact telephone number and an email address and shall:

    (a)notify the other as to any change in those details as soon as practicable after such change and no later than after forty-eight (48) hours of the same; and

    (b)notify the other parent at least sixty (60) days prior to relocating their residence beyond a fifty (50) kilometre radius from where they currently reside.

20. Save for in therapeutic counselling, neither parent shall discuss these proceedings, nor the allegations made in them, with the children, nor involve the children in any discussions regarding any issue in dispute between them.

21. The children shall be known by the names registered on their Birth Certificates.

AND IT IS FURTHER ORDERED THAT

1. No party is permitted to use the documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.

2. The Independent Children’s Lawyer is discharged.

3. 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.

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 Nowell & Backus 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 647 of 2018

Ms Nowell

Applicant

And

Mr Backus

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These proceedings require the determination of those parenting orders which are in the best interests of two children: six year old X, who was born in 2013, and nearly two and one half year old Y, who was born in 2016.

2. Each of their parents has another child from another relationship: the mother’s seven and a half year old daughter Z (who was born in 2011) now lives with her in New Zealand, whilst the father and his current partner, Ms D, are the parents of nine month old W (who was born in 2018).

3. Until April 2018, the mother, whom it is accepted was the children’s primary carer during the cohabitation and after the mid-2016 separation, lived with them in Brisbane. At that time, she and Z moved to live in F Suburb, New Zealand, close to other family members.  I accept she left X and Y in the care of their paternal grandparents in Brisbane.

4. It is sufficient to say, at this stage of these Reasons, that it is clear that the paternal grandmother has provided the majority of the care to the children since April 2018.

5. Consideration of the parents competing parenting proposals needs to occur in this context.

The proposals

The mother[1]

[1] Case Information document filed 26 March 2019.

1. The mother proposed that the children live with her in New Zealand. She proposed that they communicate and spend time with their father as follows:

   a)each Wednesday and Sunday afternoons and on the children’s birthdays and Christmas day (if they are not physically in his care) by telephone, FaceTime or Skype; and

   b)for all of the school holiday period at the end of Term 2 each year; and

   c)for half of the school holiday period at the end of each school year, being the first half in even numbered years and the second half in odd numbered years; and

   d)from Friday after school until 5.00 pm on Sunday on any occasion that the father travelled to New Zealand during school terms; and

   e)for up to half of any New Zealand school holiday period, provided that he has first given her at least 30 days written notice of his intention to spend that holiday time with the children in New Zealand.

2. The mother also proposed that she and the father share the costs of the children’s flights equally, on the basis that the father travel to New Zealand to collect the children at the start of their time with him and pay for the children’s flights from New Zealand to Australia and she travel to Australia to collect the children at the conclusion of their time with him and pay for their flights from Australia to New Zealand at the conclusion of their time with him.

3. The mother said she believed it was important for the children that both of their parents share parental responsibility equally, including for any major decisions to be made about them; I take this position to be that, at least initially, she sought that she and the father have equal shared parental responsibility for the major long-term issues relating to the children.

   The father[2]

   [2] Case Information document filed 2 April 2019.

4. Whilst the father proposed that the children remain living with him in Australia, the reality, I think, is that his proposal involved them continuing to live in Australia with his parents and spend such time with him, Ms D and W as can be accommodated by the reality of his commitment to work and the past difficulties he and his mother say that Ms D has had in coping with the care of X, Y and W.  If the children remained living in Australia, their father initially proposed that they communicate and spend time with their mother as follows:

   a)by telephone, FaceTime or Skype every Wednesday and Saturday afternoons and on their birthdays and other significant celebrative days; and

   b)in New Zealand: for half of all school holiday periods, with the mother to be at liberty to select the first or second half of the holidays, on the proviso that her choice about the same be communicated to him at least one month in advance for holidays other than those at the end of the school year and two months in advance for the end of year holidays; and

   c)in Australia: on any occasion that the mother has travelled here, from 4.00 pm on the last school day of the week until 7.00 pm before the next school day.

1. The father also proposed that he and the mother share the costs of the children’s flights equally, on the basis that the mother pays for the children’s flights to New Zealand at the start of their time with her and he pay for their flights from New Zealand to Australia at the conclusion of their time with her.

2. Despite what was outlined in his Case Information document, the father said, when cross-examined, that, if the children remained living in Australia, they should spend time with their mother in New Zealand for all of the school holidays save for two weeks during those which occur at the end of Term 4 each year.

3. He also said that, if the children moved to live in New Zealand, his proposal was that they return to Australia during every school holiday period; whilst he initially said that it would be in their best interests for them to spend all of the school holidays at the end of Terms 1, 2 and 3 in Australia and for half of the school holiday period at the end of each year, he later outlined that he thought the children should spend all of the end of Term 1 school holiday period with their mother.

4. Irrespective of where the children primarily live, the parents agreed that they should share in the costs of them travelling between Australia and New Zealand on two occasions each year; the father said that, as the mother could only afford to share in the costs on two occasions, he would pay for all of the children’s travel to Australia on the other occasion he proposed they travel here. The father also said that, if the children lived in New Zealand with their mother, he would visit them there on, maybe, two occasions each year and that he would discuss these visits with the mother.

   The Independent Children’s Lawyer

5. The Independent Children’s Lawyer ultimately submitted that it was in the children’s best interests for them to move to live with their mother in New Zealand and spend time with their father in Australia for all of the end of Term 2 school holidays and half of the end of year school holidays. When asked why the children should not spend more frequent time with their father if they were living in New Zealand and the father could bear the travel costs associated with the same, Counsel for the Independent Children’s Lawyer submitted that the orders as proposed would permit the children the time to settle back into their mother’s care – particularly Y whose care to date has involved her being cared for by her mother, her paternal grandmother and, for more limited time, in her father’s home. Counsel for the Independent Children’s Lawyer also submitted that, if the Court was satisfied that the father could fund additional flights for the children to return to Australia during more of the school holidays, then orders for the same could be made.

6. The Independent Children’s Lawyer proposed that the mother have sole parental responsibility for the major long-term issues relating to the children and that the children communicate with their father twice per week by telephone/Skype/FaceTime. It was also proposed that, provided he give the mother 30 days prior written notice of his intention to travel to New Zealand, the father spend time with the children from Friday after school until 5.00 pm on Sunday (if he travels during school term) and for half of the New Zealand school holiday period if he is in New Zealand during the same.

Brief overview of past relevant circumstances

1. The parties met in Town G in about March 2012 and started a relationship almost immediately. The mother fell pregnant with X about three months later. In July 2013, the parents and then three month old X moved to live at Town H, so the father could be closer to his family. At about the same time, those members of the mother’s extended family who then lived in Australia moved back to live in New Zealand.

2. During 2015, the mother’s sister (Ms B Nowell) relocated to Brisbane and lived with the parents and X. The mother said that her sister moved to live with them because she (the mother) was struggling to care for both children on her own without family support. I accept her evidence in this respect. I also accept that, from the mother’s perspective, having her sister live with her and help with the children was a great support.  I accept that this was likely the case given that I also accept that the father was then very focused upon his work, worked long hours and, on occasion, was away from the home for consecutive days and nights.  I think it likely that X in particular developed a close relationship with his aunt and likely enjoyed her company.

3. In April 2016, the mother learned that she was pregnant with Y. On the father’s case, the parents separated in June 2016; however, the mother said separation occurred in July/August/September 2016. Little seems to turn on this other than to note that, given that the mother said he started a relationship with Ms D immediately after their separation, it might have proven to be of more significance if Ms D had given evidence in the father’s case. She has not done so.

4. Ms D’s absence from the proceedings is, I consider, particularly relevant given:

   a)the father’s evidence that:

   i)she would be the person from his household who would be providing the primary care to the children if they continued to live in Australia; and

   ii)she had not previously coped well with the burden of caring for X, Y and W given she was a “first-time mother” and, as he described it, “not prepared for it”; and

   iii)the paternal grandmother had said that she was not meeting all the children’s needs when they were living in the house she shared with their father; and

   iv)the contents of an email she sent to the school on 31 October 2018 to advise that X and Y were living with their grandparents and to ask, therefore, that the school stop sending her emails about X were not correct insofar as the assertions about where the children were living; and

   b)a suggestion in the evidence that she may have had a history of past drug use; and

   c)the evidence which suggested that there has been relatively recent disharmony in her relationship with the father – which certainly leaves me with significant doubts about whether their relationship will weather the same; and 

   d)the evidence that, on 25 April 2017, police attended at the home she shared with the father after a report that someone had heard a woman yelling something like “stop hitting me” (which the father accepted had been yelled or shouted, although he said that nothing like that had actually happened)  – an incident which, on the father’s evidence involved nothing more than he and Ms D  engaging in “a little argument”, with their yelling having been, he surmised, overheard by a neighbour whom called the police.

5. Whilst the father said that Ms D was not available to give evidence at the trial because she could not attend in person as she had a funeral to attend on the first day of the trial and was also traveling to City J to be with her family and had enough stress on her plate because of the significant illness of a family member, my general scepticism about much of his evidence causes me to doubt even this aspect of it.

6. Further, given the mother’s assertions that there are (or at least were) difficulties in the father’s relationship with Ms D as a result of his actions – a matter confirmed by the paternal grandmother – Ms D’s absence from the proceedings adds to my lingering concerns that their relationship is not necessarily presently on solid grounds: a matter that is, I think, relevant to the consideration of the children’s likely care arrangements if they remain living with their father in Australia.

7. Whilst the father denied the proposition that Ms D’s failure to give evidence in his case was because her presence as a witness would not assist him in the same, I am persuaded that this is more likely than not. Even if I am wrong in this conclusion, the fact that she is not available to give evidence, despite being the person the father advances as providing most of the care for the children if they moved to live with him, simply means that I am left with very significant doubts about his parenting proposal in so far as it ostensibly advances that X and Y would live with him in the future if remaining in Australia was considered to be it their best interests vis-à-vis joining their mother living in New Zealand.

8. Whilst there was a significant variation in the evidence given by the mother (who said that, after separation she, Z and X first moved to live with the paternal grandparents before moving to live independently) and that given by the paternal grandmother and the father’s brother (that the mother did not ever live with them after the parental separation), the only relevance of this is to the respective credit of the witnesses. Whilst this might, in another case, be particularly determinative vis-à-vis the mother’s evidence, I am not persuaded that this is the case here: even if the mother lied when she said that she and the children lived with the paternal grandparents immediately after separation, this does not mean that her proposal for parenting orders should inevitably fail. What it does mean though, is that I have carefully scrutinised her evidence.

9. In addition, the fact that a witness has not been entirely truthful about one matter does not mean that the entirety of their evidence should be discounted: for example, I accept the mother’s evidence that the paternal grandparents were very helpful to her when she found accommodation after the parental separation and that they looked after Z and X whilst she was in hospital giving birth to Y; I also accept her evidence that the father visited Y in hospital. I also accept her evidence that the paternal grandparents supported her after the parental separation by caring for the children on occasions when she had to attend appointments.

10. Unlike the aspect of the mother’s evidence referred to in paragraph 23, the father’s untruthful evidence went to a fundamental issue in this case: namely, the care arrangements for the children since April 2018.  I consider him to have been a witness of limited credibility: in giving his evidence he was, on occasion, evasive; he attempted to deflect close scrutiny of his actual contribution to the children’s care since April 2018 by using the term “we” (which in fact actually meant that his mother had done something); on other occasions, his evidence was simply, internally contradictory and also significantly contradicted by the evidence given by the paternal grandmother during cross-examination.

11. Where the evidence of the father and any other witness is in conflict, I prefer the evidence of the other witnesses.

12. Whilst I generally accept the evidence given by the paternal grandmother and by Mr C Backus (the father’s brother), I consider that both of them were not entirely truthful in their recounting of the children’s care arrangements after April 2018.  In the case of the paternal grandmother, I accept and prefer the evidence given by her during cross-examination to that recounted in her affidavit.  In the case of Mr C Backus, I do not accept his evidence about the children’s living arrangements after April 2018.

Overview of the children’s time with their father from separation in mid-2016 and 16 April 2018 and the mother’s situation before she returned to live in New Zealand in April 2018

1. I accept the mother’s evidence to the effect that, after the mid-2016 separation, the father did not spend much time with X and, following her birth, Y.  I accept that he cared for X overnight on two occasions and that, whilst he attempted to have Y in his care overnight, he returned her to the mother because she was not coping.  I also accept the mother’s evidence to the effect that, during 2016/2017, X spent time with his father for short day visits on seven occasions.

2. I accept that, after the parental separation, the mother’s perspective was that the father was not then interested in fostering a relationship with the children: I accept her evidence to the effect that it did not appear that he was interested in reaching any consistent arrangement with her about the children’s time with each of their parents and was not interested in reaching agreement with her about how their financial needs would be met.  I think it highly likely that the time the father spent with the children occurred on occasions when he simply “rocked up” to the mother’s home with the expectation that they would be made available to interact with him.  In addition, the combination of the father’s focus upon his work and the fact that he commenced his relationship with Ms D almost immediately after the parental separation makes it easy to conclude that the mother’s recounting of his interaction with the children as somewhat sporadic and inconsistent is accurate. 

3. I accept that the parents reached a private child support agreement by which the father was to pay the mother $100.00 per week.  I accept that the father made a small number of payments to the mother in accordance with this agreement but, after he failed to make any financial contribution to the children’s support for three consecutive months, she lodged an application with the Child Support Agency: I also accept her evidence to the effect that, despite an assessment issuing, the father failed to pay his assessed child support such that, by January 2018, he owed her $1,200.00.

4. During his cross-examination, the father in fact accepted that his child support debt had reached $2,000.00 at one point. He said that he had been unable to make the payments to the mother because, on 13 August 2017, he fell out of a tree at work and was injured such that he did not work again until February 2018. I accept his evidence in this respect.  However, I also note his evidence to the effect that, during the FY2017, his minimum weekly income in the hand was $2,000.00 (during warmer months) and about $1,400.00 in the hand (during cooler/darker months); I also accept his evidence to the effect that his best week in terms of income in FY2017 was when he earned $2,200.00 (after tax).

5. I accept that the father’s injury and its consequences meant that, from August 2017 until her departure for New Zealand in April 2018, the mother was largely left to bear the responsibility for the children’s financial support; in arriving at this conclusion, I also accept her evidence to the effect that, on occasion, she was assisted to meet the children’s financial needs in varying ways by the paternal grandparents.

6. I also accept that, from the mid-2016 separation until April 2018, the mother was almost entirely responsible for the day-to-day care of Z (six years and five months of age as at April 2018), X (about five years of age as at April 2018), and Y (about one year and four months of age as at April 2018); I accept that such obligations meant that she was unable to engage in paid employment. I also accept the mother’s evidence that, during this time, the father did not really help her with practical things like taking the children to school or important appointments. I accept that, as she did not then have a driver’s licence, when the paternal grandparents were unable to assist because of their own commitments, she had to walk the children to and from school.

7. I also accept that, as she is not an Australian citizen, the government benefits to which the mother was entitled were more limited than they would have been had she been an Australian citizen. I accept she initially received special benefits of about $1,100.00 per fortnight but, as a result of a review process, this payment ceased for a period and, when it resumed, resumed in a decreased amount of $880.00 per fortnight. I also accept her evidence that, during this period, the rent for the premises in which she and the children were living was $680.00 per fortnight. I accept that, because the mother’s government benefits ceased for a while and then were paid at a reduced rate, she could not pay the rent, breached her rental agreement and was asked to vacate the premises.

8. I accept that, after this, the mother and children lived with Ms K. I accept that, in about late 2017, the mother approached the father to see if he would agree to her taking the children to New Zealand to live as she could not afford to remain living in Australia with them; I also accept he ultimately told her that he did not want the children to leave Australia with her. Given the roles that each of the father and the paternal grandmother have since taken in caring for the children after April 2018, I think it more likely than not that, as the mother said, the father was initially agreeable to her taking the children to live with her in New Zealand but changed his mind about this after he spoke with his parents.

9. I accept that, after the mother commenced proceedings seeking to be permitted to relocate the children to live with her in New Zealand, the father contacted her on 13 January 2018 and led her to believe that, if she met him at a certain McDonald’s, he would sign the paperwork necessary for the children to obtain passports and that they would sit down and discuss matters about the children.

10. I accept that the mother told the father before meeting him that she did not agree to him taking the children with him at the end of their meeting; I also accept that she took this position because she was concerned he would then retain them in his care. I also think it highly likely that, at the time they met, the father was very concerned that the mother would remove the children from Australia.

11. I accept, therefore, that both parents approached their meeting with likely significantly raised levels of anxiety and mistrust. I am persuaded that neither intended the events that followed to play out as they did; I also accept that, at varying times during this ordeal, both parents acted impulsively and reactively.

12. I accept that Ms K drove the mother and X to the McDonald’s because the mother did not have a driver’s licence and, I suspect, wanted support and, potentially, a witness. I accept that, after the mother, Ms K and X arrived, the father picked X up and started to walk to his car; I accept Ms K’s evidence to the effect that he said ‘he’s mine now’; I accept that the mother panicked and started to try to take X back from his father; I accept that, as part of this, both parents were yelling at and pushing each other whilst X was in his father’s arms and that Ms K was yelling at both of them; I accept that, after the father put X in his car, the mother tried to get to him and he was yelling for her; I accept that Ms K tried to film the event; I accept that, when she called X, he tried to come to her and his father pushed him and he fell back and hit his head on the car door; I accept that the father grabbed Ms K’s wrist, twisted it and told her that he would punch her head in; I accept the father then climbed through to the front seat of the car; I accept that Ms K’s arm became stuck between the seat and the side of the car door and that the father drove off whilst she was still half inside the car and yelling for him to stop; I accept she eventually fell from the moving car and that the back wheels of the father’s car ran over her leg; I accept that police were called and attended, as did an ambulance.

13. I accept Ms K was taken to hospital where she was diagnosed as suffering from a fractured leg: when cross-examined, Ms K explained that she had suffered a fractured knee joint, bone swelling, muscle and tissue damage; she said, and I accept, that her injuries required lengthy rehabilitation and, because her kneecap had been rotated, physiotherapy; she also said that there was still swelling down her leg into her foot. This evidence expanded on that contained in her affidavit, which was to the effect that she required physiotherapy for five months after the incident and had been unable to work because the injuries she suffered made it difficult for her to walk.

1. It is clear that this incident was highly unedifying and highly likely to have been very distressing for X and all involved in it and witness to it. I accept that, whilst the father said that, with the benefit of hindsight, the whole thing was disgusting,[3] he maintained his view that the mother had, in essence, staged the event and he had been set up. I do not accept this to be the case at all.

   [3] Or words to that effect.

2. It is uncontroversial that, after this incident, the children did not see their father for approximately two months: that is, until interim orders were made by consent in March 2018 for the children to live with the mother and spend time each weekend with the father: on one weekend, their time was for a day visit only, whilst on the other weekend it encompassed an overnight visit.

3. I accept that the mother had commenced proceedings rather than participate in a mediation process because she considered that she needed to return to New Zealand urgently. I accept her evidence to the effect that she simply could not afford to live with the children in Australia and care for them in the manner she considered appropriate. That this state of affairs was something that was not beneficial for the children is, I consider, corroborated by the contents of a letter written to the mother by the paternal grandmother: a letter which I accept the paternal grandmother gave her during a visit in April 2018.

4. A copy of this letter is in evidence.[4] In addition to containing the paternal grandparents’ offer to look after all X, Y and Z,[5] the letter pertinently asserts that:

   In my opinion, and it is only my opinion, listen or don’t its up to you if you keep the kids you will have more of the last 18 months. You and the kids will be locked into a life of poverty and between homes with and without electricity and any of the luxuries of life that kids normally have. You will continue to be under enormous stress. Any relationship with a guy you enter into will straight away be stressed, you will still be tied down, not being able to enjoy what is left of your youth. Firstly I don’t think that is fair on you but I also think the kids deserve better.

   [4] Affidavit of the mother filed 8 March 2019, Annexure F.

   [5] To whom they are not biologically related.

5. It is also relevant to record that the paternal grandmother’s letter outlines that she and the paternal grandfather would feel privileged if the mother allowed them to have “temporary custody” of the children; she also expressed her assessment of the father’s likely position vis-à-vis the children, saying that leaving the children with their paternal grandparents might be the mother’s best option:

   …  It looks like its that or [Mr Backus] takes them and we know he will never let them leave Australia. This will give you more freedom to be in their lives and will give them more access to you also. Initially this is hard I know to consider but when you think of the alternative and that is that they go to [Mr Backus] and Ms N I think you will agree this is a better option.

6. I take from these comments made by the paternal grandmother that she assessed that the children would have greater prospects of maintaining a relationship with their mother during the undefined period of “temporary custody” if they lived with her and their paternal grandfather than if they lived with their father. Such assessment supports my conclusion that the mother was truthful in recounting her difficulties in maintaining communications and interaction with the children since April 2018. It also buttresses the opinions proffered by Ms R about the father’s attitude to maintaining the children’s relationships with their mother, formed after interviewing him.

7. I accept that the mother concluded that she was financially unable to live in Australia with Z, X and Y. I also accept that this conclusion was explicitly acknowledged by the paternal grandmother in the excerpt from her letter set out above. Given this, I accept the mother’s evidence about the significant financial difficulty which she faced in Australia between the mid-2016 parental separation and her departure with Z for New Zealand and the support of family in April 2018. There is nothing in the evidence to suggest that the mother’s financial position would be much improved if she now returned to live in Australia and undertook the primary care of the children here.

8. I accept that, absent Australian citizenship, the mother’s financial circumstances in terms of the provision of government support would continue to remain limited in the manner she described; I also accept that the responsibility of caring for three children under seven years of age realistically impacted significantly on the mother’s ability to obtain paid employment and that, given Y’s age, this is likely to remain the case for some time. I also accept her evidence to the effect that, given her status in Australia, she is not entitled to the child care rebate and, consequently, any income she might have been able to earn would have gone to meeting the child care costs she would have incurred in order to be able to work outside the home for remuneration.  There is nothing in the evidence to suggest that this would not be the case now if the mother returned to live in Australia and resumed the primary care of the children here.

9. I accept the mother was honest when she said that, in the circumstances in which she found herself (as outlined above), she felt that staying in Australia would have resulted in her being homeless; I also accept she was honest when she said that, in deciding to take Z and move to New Zealand (where her family lives and works) until these proceedings are determined, she felt that she had no other choice.

10. I accept that the mother was honest in saying that, as part of this decision, she decided that the best option seemed to be to leave X and Y in the care of their paternal grandparents until she established herself in New Zealand and these proceedings were concluded; I also accept that the mother reached a verbal agreement with the paternal grandmother that she and the paternal grandfather would have temporary care of the children whilst she was absent from Australia. I am not persuaded that, in relocating with Z to New Zealand and leaving X and Y with the paternal grandparents whilst the application she had commenced to seek an order that she be able to relocate her two youngest children to live with her in New Zealand was determined, the mother evidenced any intention at all to abandon the children. The contents of the paternal grandmother’s letter – referred to above – also acknowledges the temporary nature of their arrangement.

11. I accept that, when the mother returned to live in New Zealand with Z on 16 April 2018, she left X and Y in the care of their paternal grandparents. I also accept that she did not leave them in their father’s care because of the relatively limited time he had spent with them since the mid-2016 separation, her concerns about his anger and the irritation he had previously manifested in response to their noise and behaviour when the children were in his company.

The children’s care arrangements since 16 April 2018

1. There are a number of different accounts about how long the children were in their paternal grandparents’ care after their mother left for New Zealand before their father took them into his care: the mother said that the father told her that  the children were in his care from 22 April 2018; the paternal grandmother told Ms R[6] that, three to five weeks after the children started to live with them, they moved into the father’s care; it was also said that, at this time, the children  continued to stay at the paternal grandmother’s home for two to three nights a week to allow the father and Ms D to adjust to them living with them. 

   [6] Who authored the Family Report.

2. Doing the best that I can, it seems to me to be more likely than not that, from about mid-May 2018 until about mid-August 2018, the children spent two to three nights per week in the care of their paternal grandparents and the remainder of the week being cared for by the then-pregnant Ms D when the father was at work.  I think it more likely than not that, relatively soon after W’s 2018 birth, the children resumed spending the vast majority of their time in their paternal grandmother’s care.

3. I note that, when she spoke with Ms Q (a psychologist to whom she took X) in March 2019, the paternal grandmother told her that the children had not lived with their father as a new baby (whom I take to be W) had been born into that relationship and his partner (whom I take to be Ms D) struggled to meet the children’s needs. I do not accept the paternal grandmother’s attempts, when cross-examined, to diminish the accuracy of this report of her statements. Whilst I fully accept that she did not foresee Ms Q putting her statements into the report, I am not persuaded that she did not make them or that Ms Q did not accurately report what she was told by the paternal grandmother.

4. I do not accept the father’s evidence that the children spent most of their time with him and Ms D between late April 2018 and 1 December 2019; I do not accept his evidence to the effect that there were only “rare occasions” during this period of time when he was unable to drop the children off to child care in the morning: I consider it much more likely than not that he continued to work the long hours in which he had previously engaged (noting that his usual work hours are from 6.00 am until 5.00 pm and that, in the period from June to December 2018, he was away for work for a number of weeks and only returned on weekends and noting the paternal grandmother’s evidence that he often worked late on Saturdays and, because he had worked such long hours during the week, slept in on Sundays). 

5. I do not accept the father’s evidence that, between April 2018 and 1 December 2018, the children lived during the week with him and Ms D and only saw their grandparents for one day a week; I do not accept his evidence that, during this time, the children did not stay overnight with their paternal grandparents during the week but only spent one overnight per week with them – mostly on a Saturday night – before returning to his household on Sunday.

6. Doing the best that I can, it seems to me that, whilst the children perhaps moved to live with their father and Ms D for a short period of time after their mother left them in the care of their paternal grandparents in mid-April 2018, they have really been cared for by their paternal grandmother for the majority of the time since their mother returned to live in New Zealand.

7. I do not accept the father’s evidence that, from the start of 2019, the children have lived with the paternal grandmother during the week and with him in his household on weekends.

8. I accept that the children have in fact spent significantly less time with their father since their mother returned to live in New Zealand in April 2018 than his evidence and the affidavit evidence of the paternal grandmother and the children’s paternal uncle suggests. 

9. I accept and prefer the evidence given by the paternal grandmother during cross- examination; I consider this establishes that the children’s care arrangements after mid-April 2018 were as follows:

   a)after about three to five weeks: they moved to live with their father and Ms D but continued to spend two or three nights per week with their paternal grandparents; and then

   b)shortly after W’s 2018 birth: they returned to live with their paternal grandparents, after which they have spent time with their father (and, on occasions, Ms D and W) as follows:

   i)on occasions when their father drops in to visit them at their paternal grandparents’ home during the week; and

   ii)for brunch/lunch on Sundays (at which W and Ms D are sometimes in attendance).

10. I accept that Y has not spent any overnight time with her father or in the care of his household since shortly after …August 2018; I also accept that X’s overnight time with his father since then has been limited to one night in February 2019.

11. That this is the case completely contradicts the father’s evidence and the paternal grandmother’s affidavit evidence to the effect that the children started to live with her and their paternal grandfather in December 2018; given that both the father and the paternal grandmother referred to the fact of the father’s ineligibility for the child care rebate because of his income, I was very much left with the impression that their vague and variable evidence about the issue of the children’s actual living arrangements since April 2018 and their respective attempts at explaining their rationale for the same had something to do with that issue.

12. The limited nature of the children’s exposure to their father’s parenting of them explains the paternal grandmother’s evidence about “reintroducing” the children into their father’s family permanently; it also puts his evidence that this reintroduction would occur by the end of this financial year and her evidence that they might have to take things “as they happen” into context. That there is such a difference between the father and the paternal grandmother about the timing of the children moving to live with their father does not persuade that this issue is one which is, in reality, the subject of agreement between them.

The children’s time with their mother since April 2018

1. I accept the mother’s evidence about the difficulties she has had in communicating with the children since April 2018; I accept that, on an occasion she brought Z with her to Australia, the father did not facilitate the children spending time together; I think it much more likely than not that, between mid-April 2018 and about December 2018, it was very difficult for her and Z to communicate consistently with the children as the father changed the days on which and the times at which and the manner by which such communication was to occur; I accept the mother’s evidence to the effect that much of the problem likely arose because he did not actually have the children with him at those times; I also accept her evidence to the effect that the majority of the successful calls she has had with the children have occurred when they have been in their paternal grandparents’ care.

2. I accept that the mother has travelled from New Zealand to Australia on a number of occasions to spend time with the children and participate in various court events. I consider that, in doing so, she has demonstrated her commitment to maintaining a meaningful relationship with each of them.

Principles

1. The statutory framework does not deal differently or specifically with cases involving a proposed relocation of children. Therefore, the well-known statutory provisions provide that, having had regard to the Objects of Part VII of the Family Law Act1975 (Cth) (“the Act”), the principles which underpin those Objects[7] and, subject to s 61DA, s 65DAB[8] and Division 6 of Part VII of the Act, such parenting order as thought proper may be made.[9] 

   [7] s 60B of the Act.

   [8] Parenting plans.

   [9] s 65D of the Act.

2. In deciding whether to make a parenting order, I must regard X and Y’s best interests as the paramount consideration.[10] Such interests should not be viewed in the abstract or separate from the circumstances of X and Y’s parents.[11] Further, the statutory exhortation to regard X and Y’s best interests as the paramount consideration does not mean that the legitimate desires and interests of their parents are to be completely ignored – rather, where legitimate parental interests conflict with X and Y’s best interests, the former must give way.[12] That is, the determination of those orders which are in X and Y’s best interests may well mean that one parent’s “choice” is effectively outweighed in the balance; from a parent’s perspective, the outcome may not be optimal.

   [10] s 60CA and s 65AA of the Act.

   [11] See, for example: AMS v AIF (1999) 199 CLR 160 at 207-208.

   [12] Ibid.

3. The matters to be considered in determining those parenting orders which are in X and Y’s best interests are those prescribed by s 60CC of the Act. However, it is unnecessary for each consideration to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion.[13] Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in X and Y’s best interests. I have considered all of the relevant considerations in arising at my conclusion about those orders which are in X and Y’s best interests.

   [13] Banks v Banks (2015) FLC 93-637.

The benefit to X and Y of having a meaningful relationship with both of their parents

1. 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 v Clark,[14] 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. 

   [14] (2009) FLC 93-405.

2. I consider that X and Y will benefit by having a meaningful relationship with each of their parents. The father identified that the benefits of the children residing with the mother in New Zealand included them getting to know members of the maternal family and learning about their heritage. The mother identified that a benefit of the children staying in Australia with their paternal family was that they would be able to spend more time here with them.

3. Given the proposals advanced by each parent about the time that the children should spend with the other if they lived with them, their respective concerns about issues associated with each other’s parenting cannot be regarded as being so significant as to persuade that the children would be at an unacceptable risk of harm if they spend unsupervised, consecutive-night time in the care of either of their parents.

The mother: the children’s relationship with her; her involvement in the children’s lives; her capacity to meet the children’s emotional, intellectual and other needs; her attitude to the children and to the responsibilities of parenthood[15]

[15] Sections 60CC(3)(b), (c), (ca), (f) and (i) of the Family Law Act 1975 (Cth).

1. As already noted, I accept the mother’s evidence about the factors which resulted in her deciding to move with Z to live in New Zealand and leave the children temporarily in the care of their paternal grandparents; I accept that she did so in order to establish a home for them, to obtain paid employment that would allow her to accommodate their needs and financially support them and to make arrangements so that, if they returned to her primary care, they could have the support of members of their extended maternal family.

2. I accept the mother’s evidence about her employment, the inquiries she has made about the school at which X would attend if he moved to live with her in New Zealand and the support she has available to her in New Zealand. I accept that the funds available to her at present are about $1,000.00/week, comprised of her weekly wage of $300.00 and government benefits of $700.00. I also accept her evidence to the effect that, if the children lived with her in New Zealand, she thought that her weekly government payment might increase to about $1,300.00-$1,400.00 per week. I accept that the mother will be able to support the children financially if they join her in New Zealand. I also accept that, with saving, she is able to afford to pay for the children’s travel between Australia and New Zealand in the manner set out in her proposal.

1. It appeared to me that the criticism about the mother’s failure to manage the children’s dental health ultimately boiled down to it being the paternal grandmother who was the person who was the prime mover in having this issue addressed; I accept that the mother and the paternal grandmother sought out assistance for X through the public health system; I also accept that there were issues about how he could receive the treatment he needed, given his reaction to going to the dentist; I accept that the mother and paternal grandmother took him to a number of dentists in an attempt to have the treatment administered and that he was placed on a waiting list; I accept that, after the mother returned to New Zealand, the paternal grandmother – and not the father – was the person primarily responsible for ensuring that X’s dental health issues were remedied, although I also accept that the father met the costs associated with the treatment he received.

2. I accept the mother’s evidence to the effect that, in 2018, she did not know that the children’s uncle had been convicted of drug use and drug trafficking; he currently lives with the paternal grandparents as a condition of his parole. I accept that the children’s uncle works long hours and is often not at home as a result of this.

3. I accept that, as a consequence of information provided to her by members of the paternal family – to the effect that they were concerned that the children’s uncle was still using illicit substances and had become aggressive toward his parents in the children’s presence – the mother contacted police to request that they conduct a welfare check; I also accept that, because the family members who provided the information to the mother would not provide the same to the police, the check was not carried out. In these circumstances, I am not persuaded that the mother acted other than with the children’s best interests in mind.

4. I accept the mother’s evidence about her accommodation and the details of the employment she has obtained in New Zealand and that the same will enable her to be available for the children outside of school hours; I accept her evidence about how she intends to manage X’s education and that he will attend the same school as Z; I also accept her evidence about how she intends to manage Y’s return to her primary care, her subsequent attendance at day-care and her interaction with her maternal grandmother.

5. The mother denied the father’s assertion that they had a “flexible relaxed” parenting arrangement after separation; she said he was never there and did not find or make time to have consistent visits with the children.

6. I am not persuaded that, save for the period after the January 2018 incident, the mother acted to prevent the father from spending time with or communicating with the children; I think it much more likely than not that any issues about their interactions arose because, as she said, he only ever wanted or expected arrangements to be implemented in the way that he wanted them to be.

7. I accept Ms K’s evidence about her observations of the mother’s parenting of the children, the paternal grandparents’ occasional assistance to her, and the father’s behaviour on an occasion when he attended at the mother’s unit and her observations of the children’s uncle’s behaviour on an occasion when he attended there. Given my assessment of the paternal grandmother as a person with strong views, I also consider that her opinion of the paternal grandmother’s approach to, and interaction with, the mother is likely quite accurate.

The father: the children’s relationship with him; his involvement in the children’s lives; his capacity to meet the children’s emotional, intellectual and other needs; his attitude to the children and to the responsibilities of parenthood[16]

[16] Sections 60CC(3)(b), (c), (ca), (f) and (i) of the Family Law Act 1975 (Cth).

1. The father’s affidavit provides significant insight about who will actually care for the children if they remain living in Australia; it is clear that he works long hours and has the expectation that the children will be cared for by Ms D (if the children live with them) or by their paternal grandmother. In his affidavit he explained that, after the mother returned to live in New Zealand, he had the children “living with me” for a time – which really meant, I think, suddenly being cared for by the then pregnant Ms D.  He explained the children going to live with their paternal grandparents after W was brought home in the following way: bringing home a baby with reflux “proved to be too much for her [Ms D] to handle at the time” and, as a consequence of her saying that she was not coping, the children moved to live with their paternal grandparents.

2. The strongest suggestion from the father’s evidence and the conclusion that I have no hesitation in drawing is that he expected Ms D – then pregnant with her first child – to assume full time care of X and Y whilst he continued to work long hours to support the family unit; when that task was, perhaps unsurprisingly, too much, it was seen by him as being that Ms D was not coping with caring for his children and their daughter, rather than their household simply being unable to manage the care needs of X, Y and W.

3. I was left with the very strong impression that, whilst he is clearly a hard worker, the fact of having children has not necessarily impacted too much at all on the father’s day-to-day life in that he has continued to apply his efforts to working and left it to, first, the mother and, then, Ms D and, then, to his mother (the children’s paternal grandmother) to assume the vast majority of the day-to-day parenting tasks.

4. I am persuaded that, since md-April 2018, the father has failed to ensure that the mother was told about matters such as X’s change of school and subsequent return to his previous school and his attendance on Ms Q (a psychologist) until after these events took place. I accept that the father has not sought to involve the mother in making joint decisions about major long-term issues relating to the children; I accept that the father failed to tell the mother about decisions he has made about the children’s care arrangements; I also accept the mother’s evidence to the effect that he has failed to prioritise the importance to the children of maintaining their relationships with her.

5. I accept the mother’s evidence to the effect that, between December 2018 and February 2019, she had consistently been able to communicate with the children twice a week while they were in their grandparents’ care. I accept, therefore, that the children’s communication with their mother was facilitated more consistently by the paternal grandparents from December 2018 onwards than it had previously been by either them or the father.

6. I accept the mother’s evidence about her lack of knowledge about the father’s decisions to change X’s school and, later, to return him to the school at which he had previously attended; I accept that the father did not provide the school to which he moved X with the mother’s contact details; I also consider it highly likely that the father was simply evasive when the mother asked him to provide her with information such as X’s school report and details about his behaviour: whether because he was unaware of these things because the children were living primarily with their grandparents or because he was concerned that, if he spoke with the mother, she would learn that the children had returned to live with their grandparents.

7. I think it much more likely than not that the father did not fully support the children spending time with their mother when she travelled to Australia on occasions to see them; I also think it highly likely that he unilaterally changed arrangements and, at least initially, attempted to insist that any time between the mother and the children occur at his parents’ home or at his home. I accept Ms K’s evidence of her observation of the father’s behaviour on such occasions and that she had witnessed the father make it difficult for the mother to spend time with the children in Australia; I accept her evidence that he had made excuses about why the mother could not see the children and that he, in essence, provided different accounts of their whereabouts and/or presentation.

8. I accept the mother’s evidence about the father’s response to her request to spend time with the children when she and Z had travelled to Australia in September 2018; I consider that his failure to ensure that the children were afforded the opportunity to see their half-sister to be a demonstration of his underlying attitude to their relationships with her and their mother; namely, that he does not fully appreciate the importance to the children of having the opportunity to see and spend time with both their mother and Z.

9. I generally accept the evidence given by the mother’s sister and prefer it to that given by the father and his brother where their evidence conflicts. I am not persuaded that, in giving the evidence that she did, the mother’s sister was acting in a vengeful way toward the father – a contention I think he inferred was the case given his cross-examination of her about their interactions. I accept her evidence to the effect that, from her observations of her time living with the father and mother (which happened on an on-and-off basis between 2013 and 2017), the father’s attitude was very much that it is a woman’s job to cook and clean and look after the children – an attitude which I consider it more likely than not he has replicated in his relationship with Ms D, as demonstrated by his clear expectation that she would assume the care of X and Y in mid-2018 whilst he continued to work in the same manner as he had when those children were primarily cared for by their mother.

10. I accept the evidence given by the mother’s sister to the effect that the father was often angry a lot of the time and violent toward the mother; I also accept that the paternal grandmother told her and the mother to stay away from the father when he was in a bad mood; I accept as more likely than not that the paternal grandmother also offered to assist the father and mother to mediate the difficulties in their relationship and that she often blamed the mother for the same and told her that it was her fault that the father acted as he did; I also think it highly likely that the paternal grandmother sought to excuse her son’s aggression toward the mother with the explanation that he had not been taking his ADHD tablets and that was why he was acting as he had.

11. Having interviewed the father on 4 September 2018, Ms R had multiple concerns about the father and his capacity to parent the children. I accept her assessment and opinions generally. I accept that she concluded that he had had a minimal role in caring for the children before the mother started these proceedings and that he had been heavily supported by Ms D and his mother to care for the children. I also accept that, at the time of her interview, he had not cared for the children independently: on the assumption that Ms D and W were present when X spent the one overnight he has spent with his father since about mid-August 2018, this remains the case.

12. Given this, I accept Ms R’s assessment that it is impossible to know how the father would discharge the parenting role if it was ever required.

13. I also accept the validity of Ms R’s concerns that, if the father’s relationship with Ms D ended, the children might be placed in the situation of having to adapt to another change. However, the reality of what appears to be the relative paucity of their time with her suggests that the impact on them of such an event may be less than it would have been expected to be if they had lived primarily in their father’s home since late April 2018.

14. I accept the validity of Ms R’s concern that, given the father’s most recent conviction in May 2017 for low range driving whilst under the influence of alcohol and that he presented to a local hospital with a gunshot wound in November 2017, the children may be at risk in his care. Whilst the father’s explanation about the manner in which he was wounded (namely, that he and friends were under the influence of alcohol and he was accidentally shot with an air rifle) and his assertion that he assisted police was, at least in the latter aspect, inconsistent with the contents of the police records, there is nothing to suggest that any minors were present when the father was injured.

15. I accept Ms R’s assessment of those matters which indicated that the father may not support the children in having an ongoing relationship with their mother if they live with him and their mother remains living in New Zealand: I note that he indicated to her that he had not facilitated regular communication between the children and their mother and that her inquiries suggested that he had permitted Y to call Ms D “mum” and that he had identified Ms D as X’s parent on forms for the school. In addition, I accept that, during the interview, he was reluctant to consider the children spending time with their mother in New Zealand. 

16. Whilst the father was at pains to try to convey that he intended to change his work arrangements so that he could be more available to interact with the children, I remain somewhat sceptical about his plans: whilst have no doubt that he intends to change his working arrangements to try to work less, his history of hard work and the financial rewards available to him from such work suggests to me that doing less work may well be something that he struggles with. I take into account and accept his evidence about the income he anticipates earning in the future: I accept that he intends to start his own business as a subcontract tree climber with S Company (based in Suburb L) from 29 April 2019; I accept his contract with that firm is such that he will have consistent work from them at a set daily rate of $550.00 per day: whilst there was no guarantee about the number of days each week S Company would offer him, they wanted him to be a full time subcontractor for them. I accept that he anticipates working three day/week at the set rate and also working one day/week for himself doing work at a daily rate he anticipated was anywhere between $800.00 to $2,000.00. I also accept that he thought that the amount of work he thought he could obtain other than through S Company depended on the season.

17. Given this evidence, it seems to me that the father’s income can confidently be estimated as being no less than $2,750.00 (being for five days working as a sub-contractor for S Company) and up to $3,250.00 (working three days per week for S Company and two days/week for himself at the lower daily rate of $800.00 per day). On these assumptions and once GST is removed, his likely gross income therefore appears to be around $2,500.00 to $2,955.00 per week. Even if this proves to be too optimistic, his evidence was that his income for the FY2019 to date was just over $100,000.00 and that he had previously earned about $1,800.00/week in the hand from his previous employment.

18. Given the father’s past work history, his evidence about his past remuneration and anticipated remuneration and that I accept that he has always been someone who work hard, I am satisfied that, wherever the children live, he is financially capable of meeting more of the costs associated with their travel between Australia and New Zealand than the mother is likely to be in the future.

The children:  their functioning, their views, the nature of their relationships with each of their parents and other significant individuals[17]

[17] Sections 60CC(3)(a), (b) of the Family Law Act 1975 (Cth).

1. When X was interviewed by Ms R in October 2018, he was five years old. He was initially reluctant to speak to her on his own and initiated his sister, Z, coming with him. Once settled and playing, he was willing for Z to leave. Ms R observed that, whilst X appeared to have some difficulties with pronunciation, he was easily understood. She thought he presented as having a good ability to focus on his play; whilst he could be engaged in conversation about this, he did not engage in conversation unrelated to his play and did not seem interested in this. Ms R said that X spoke briefly about his family members: he identified Y and W as his sisters; he identified Z as his friend and did not demonstrate any understanding that she is his sister.

2. When she observed the father, Ms D and W with the children, Ms R noted that the children engaged quickly in play with their father and Ms D: X was inquisitive and engrossed in his play and seemed annoyed at any interruption by Y; Y happily wandered around the room, frequently returning to Ms D; both adults were attentive and animated in their play with the children and the interaction was calm and cohesive.

3. Ms R noted that the children were accepting of the father leaving and their mother commencing time with them. She thought the interactions were less cohesive, as the mother was required to move between the three children. Z, who was also included in the observation, and X demonstrated some problems interacting and bickered, whilst Y tended to roam around the room and required some supervision by the mother. The mother divided her attention between the three children and ensured Y’s safety when required; Y accepted her mother’s assistance, but did not seek it. When it came to say goodbye, X became upset and asked when he could see his mother again.

4. Ms R opined that, given their ages, X and Y’s experience of their mother’s absence from their lives was significantly different. She said that, whilst X had the capacity to remember his mother and had a solid base of experience with her to help him to maintain his relationship with her, Y did not have the capacity to remember her mother without adult support: further, she had not had much, if any, support to maintain her relationship with her mother and had, thus, “forgotten” her.

The likely effect on the children of any change to their current parenting arrangements[18]

[18] Section 60CC(3)(d) of the Family Law Act 1975 (Cth).

1. I accept that, if the children return to live with their mother, they will have to undergo another household transition. I accept Ms R’s opinion to the effect that she thought that X would likely cope well with this, as he would be returning to the primary care of the parent of whom he had the most experience; I also accept her assessment that it would be relatively easy for X to transition to another school, because he has only briefly attended at his current school. I accept her assessment that X could be supported in the more limited relationships with his father and the paternal family by regular FaceTime contact, having pictures of them and visits with them.

2. I accept Ms R’s opinion to the effect that it may well be more difficult for Y to transition back into her mother’s care as she would likely experience this change as another loss of a primary carer. I also accept, though, Ms R’s evidence about the likely amelioration of the impact on Y of such a change as a consequence of the fact that returning to live with her mother would see Y return to the parent whom had provided her primary care before April 2018 and her assessment that, as the mother has a relatively good knowledge of Y’s needs, she will be able to respond attentively to her.

3. I accept that, if the children return to live with their mother– albeit in New Zealand – they will be able to have a meaningful relationship with their half-sister, Z; I accept Ms R’s assessment that, as X and Z had grown up together until April 2018, they had likely shared the same experiences since his birth and that, as they are closer in age, his relationship with her is a potentially supportive one for X. Given the relative paucity of their time and interactions with W and her age, it is unlikely that either X or Y would suffer a significant feeling of loss if they move to live in New Zealand and thereby can only spend time with her less frequently.

1. I accept that, if the children move to live in New Zealand, they will have greater opportunities to explore fully their heritage and culture. Even if, as the father suggested, the mother had not previously prioritised this as much as she advances she will be able to do if the children live with her in New Zealand, I accept Ms R’s evidence to the effect that identification with a culture can be an important aspect of the formation of a child’s identity. I accept also that moving to New Zealand will limit the children’s ability to identify with their Australian culture.

Family violence and family violence orders[19]

[19] ss 60CC(3)(j) and (k) of the Act.

1. I consider it more likely than not that, from the mother’s perspective, the father was controlling of her during their relationship: he certainly presents as a person who is very confident and sure of himself.

2. I accept the mother’s evidence to the effect that, during their relationship, the father yelled at and intimidated her sister; hit the children when they fought over a toy and, when she argued with him about this approach, became agitated and aggressive toward her. I accept that, when the mother’s sister tried to calm the situation, the father pushed her and spat in her face. I am not persuaded that the mother’s sister spat in the father’s face or that his spitting at her was something done in jest or by accident.

Parental relationship and communication

1. On the evidence before me, I am not persuaded that it is likely that the mother and father are able to communicate sufficiently well as to reach joint decisions about major long-term issues relating to the children.  I consider that, since April 2018, the father has failed to provide the mother with relevant information about matters pertaining to the children’s care; I am not persuaded that it is more likely than not that his attitude toward her has significantly changed.

2. I think it highly likely that the events of January 2018 resulted in significant mistrust between the parents; whilst I note that the father said, during his cross-examination, that he would like to engage in a co-parenting course of some kind with the mother, I am not necessarily persuaded that he is more likely than not to put this asserted desire into effect in the future.  I was very much left with the impression that, whilst the father finds it easy to speak of doing things such as this, the reality for him is that other life events are accorded priority.

What parenting orders are in X and Y’s best interests?

Allocation of parental responsibility

1. The presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them must be applied[20] unless the Court is satisfied of the matters prescribed in s 61DA(2) of the Act. However, even if the presumption applies, its application may be rebutted by evidence which persuades that it is not in the children’s best interests for their parents to have equal shared parental responsibility for them.[21]

   [20] s 61DA of the Act.

   [21] s 61DA(4) of the Act.

2. Given that I have accepted the evidence given by the mother and her sister about the father’s actions toward the mother during their relationship and that I accept the mother’s evidence that she and the father pushed and shoved each other and that I accept that there was verbal abuse during the relationship, I am satisfied of the matters prescribed in s 61DA(2) of the Act: consequently, I conclude that the presumption of equal shared parental responsibility does not apply and “the power to make parenting orders pursuant to s 65D of the Act is ‘at large’ (albeit subject always to the best interests of [the children] being the paramount consideration – see s 60CA; s 65AA).”[22]

   [22] Cox & Pedrana (2013) FLC 93-537.

3. Even if the presumption of equal shared parental responsibility applied, the relationship between these parents and their lack of communication is such that I have concluded that it is not in the children’s best interests for their parents to have equal shared parental responsibility for major long-term decisions in relation to them.  I have arrived at this conclusion cognisant of the reality that, if the Court makes an order that parents share parental responsibility for the children and the exercise of that parental responsibility involves making a decision about major long-term issues in relation to them, such order requires the decision to be made jointly by the parents.  I am simply not persuaded on the evidence before me that these two parents would be able to make such decisions jointly. I also consider that any requirement for these parents to reach decisions about major long-term issues relating to their children is fraught with the very real risk of an impasse – which could not be thought to be beneficial for the children or in any way in their best interests.

4. Given these concerns and the history of an absence of informative parental communication – at least since April 2018 – I have concluded that it is not in the children’s best interests for their parents to have equal shared parental responsibility for major long-term decisions about them.

5. Rather, I have concluded that the children’s best interests will be met by an order which accords sole parental responsibility for major long-term issues to the parent with whom they primarily live (subject to exclusions in relation to their names and changes to their living arrangements that would make it significantly more difficult for them to spend time with the parent to whom parental responsibility is not accorded), but which also requires that parent to consult, receive and consider any input from the other parent. In that way, both parents will be able to be involved in the decision-making process, but only one will be empowered to make the final decision.

Living and spending time with orders

1. I accept Ms R’s assessment that, provided the mother has stable accommodation, child care support and an income, there is nothing to suggest that she cannot care for the children appropriately. As noted earlier, I am satisfied that the mother has accommodation, employment and family support in New Zealand; I think it highly likely that, with the benefit of these things, her capacity to parent the children appropriately and to ensure that their physical and emotional needs are met is likely to be enhanced.

2. I accept that, if the children move to live with their mother in New Zealand, they will likely feel the absence of their paternal grandparents – in particular, their paternal grandmother – a great deal. I accept that it is more likely than not that, initially at least, they will miss their paternal grandparents significantly. However, given that the arrangement whereby the mother placed the children into their paternal grandparents’ care was acknowledged as only being one that was temporary and that the paternal grandmother was at pains to say, in effect, that she wanted to be a grandmother and not a mother to the children, I am confident that the children can be supported appropriately as they negotiate the change to their relationship with their grandparents if they live with their mother in New Zealand.

3. I accept Ms R’s assessment of the likely impact on the children’s relationship with their mother if they live with their father in Australia; I accept her opinion that, if the children live with their father, it is unlikely they will have a meaningful relationship with their mother and that, at best, any relationship that they do have with her will likely be superficial. I accept her opinion to the effect that the father’s disparaging attitude toward the mother and her family, reluctance to facilitate communication and time between the children and the mother and possible disregard for authority suggest he is unlikely actively to promote the children’s relationship with their mother. Consequently, I have concluded that it is more likely than not that the children would not be supported by him to have a meaningful relationship with their mother.

4. Conversely, I am persuaded that it is more likely than not that mother will support the children in maintaining a meaningful relationship with their father and their paternal grandparents if they return to live primarily with her. I accept Ms R’s evidence to the effect that, before the dispute about whether the children should be permitted to move to live in New Zealand arose, the father’s only complaint about the manner in which the mother facilitated his time with the children was that she had been reluctant to allow him to take them to spend overnight time at Ms D’s home. I also accept that a further example of the mother’s support for the father’s role in the children’s lives can be seen in her actions in ensuring that he was listed as X’s parent on the child’s school enrolment form.

5. I also accept that the mother’s actions in regularly allowing X to spend time with his paternal grandparents demonstrated that she was capable of facilitating the children’s relationship with members of their extended paternal family when she lived in Australia; I am not persuaded that this is likely to change if the children return to her primary care.

6. Balancing the matters discussed above, I consider that the children returning to their mother’s primary care and moving to live with her in New Zealand is what is in their best interests at present; whilst this will be attended by a further dislocation for them, I am confident that the mother will assist them to manage the consequences of the same. I am also confident that she will support the children in maintaining relationships with their father and their paternal grandparents. I consider it more likely than not that, once settled back into their mother’s care, the children will likely be less at risk of further future disruption than if they remain living in Australia and, perhaps, are ‘reintroduced’ into their father’s care at some yet to be determined time in the future.

7. Whilst given in the context of a discussion about the necessity of the father supporting the children to maintain their relationships with their mother, I adopt and modify Ms R’s opinion about the importance of active promotion of the children’s relationship with the parent with whom they are not living: that is, I accept that, once the children move to live with their mother in New Zealand, her active promotion of their relationship with their father is essential because, without such support, they will be unlikely to be able to enjoy, to the maximum extent possible, spending time with him during their holiday visits to Australia.

The children be known as names on their birth certificate

1. The Independent Children’s Lawyer sought an order that the children be known by the names registered on their Birth Certificates. This arose because the evidence established that the father had enrolled X with Education Queensland using a name other than the name on his Birth Certificate (namely “X Rolfe”).[23]

   [23] Tender Bundle, Tab 1, p. 9: Queensland Government State School Consent Form.

2. When cross-examined, the father gave a somewhat confusing account; doing the best that I can, it seems that he changed his name in October 2018 to “Mr Rolfe” (although his affidavit was sworn using the surname “Backus” and he gave evidence in answer to that name) because his “blood name” is “[Mr Rolfe].” He explained that he had written X’s name on the Education Queensland form in the manner that he did because he was used to writing the surname “[Mr Rolfe].”

3. The father also confirmed that he was not seeking an order for X’s name to be changed; he said that X was not known in his household by the surname “[Mr Rolfe]”. Whilst it was not specifically confirmed with him during his cross-examination, I infer that Y is not known by the surname “[Mr Rolfe]” in the father’s household or elsewhere at this stage. Given these matters, I consider it to be in the children’s best interests that they be known by the names recorded on their Birth Certificates, unless their parents jointly determine that a change to the same is in their best interests.

Final comments about the terms of the orders to be made

1. The orders to be made are intended to provide the children with the maximum time with their father that can practicably be achieved given the reality of cost; the orders will permit the children to spend time with their father during every school holiday period provided that, as he said he could, he meets the majority of the costs of the same.

2. To the extent that any other aspects of the parenting orders to be made are not the subject of particular discussion in these Reasons, I have concluded that the same are in the children’s best interests because such orders will, for example: enable both parents to be kept informed about them and their progress; afford the children the opportunity to maintain communication with each parent in the time between face to face interactions; ensure, as far as possible, that the children are protected from the harm which may be caused to them as a consequence of exposure to derogatory comments about each of their parents and, hopefully, ensure that neither of them are exposed to a repeat of the unseemly and, I suspect, frightening behaviours to which X was exposed in January 2018.

3. I fully accept that the orders to be made will cause the father and the paternal grandmother distress and upset. However, all of the adults involved in returning the children from their paternal grandmother’s care into their mother’s care should have no doubt that their behaviours toward each other in the children’s presence will be significantly responsible for the manner in which the children manage this transition: each adult has the choice, it seems to me, to either support the children in making this transition or to undermine them in making it. Negative comments or retaliatory actions during this period will, without doubt, expose the children to a harm that is preventable by the decisions of the adults.

4. For the children’s sake, I can only express my hope that all adults will ensure that the children are supported in returning to their mother’s care, secure in the knowledge that they will soon communicate with and spend time with their paternal grandparents, father and half-sister in Australia.

5. To the extent that the orders made do not include orders sought by either parent or the Independent Children’s Lawyer, that is because I have not been persuaded that the same are in the children’s best interests.

6. For the reasons outlined above, I consider that the orders set out at the commencement of these Reasons are the orders which are in X and Y’s best interests. 

I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 6 June 2019.

Associate: 

Date:              6 June 2019