PRESTON & JARDINE

[2016] FamCA 347

FAMILY COURT OF AUSTRALIA

PRESTON & JARDINE [2016] FamCA 347

FAMILY LAW – BEST INTERESTS – Where the child has meaningful and established relationships with both parents – Where the parties agreed the child should continue to live with the mother –Discrete Issue – Where the mother wishes to relocate to New Zealand with the child – Where the mother is a New Zealand citizen and the maternal family live in New Zealand – Where the mother is the child’s primary carer – Where the mother will support and encourage a relationship between the child and the father – Where the best interests of the child are promoted by permitting the mother to establish a residence in New Zealand for the child with herself – Child to live with the mother – Mother to establish a residence for the child and herself in New Zealand not before  the child turns four years of age – Child to spend time with the father in Australia during school holiday time and at times if and when the father travels to New Zealand

FAMILY LAW – BEST INTERESTS – PARENTAL RESPONSIBILITY – Where the parties agreed they should share equally in parental responsibility – Parties to have equal shared parental responsibility

Family Law Act 1975 (Cth), ss 60CC, 64B

APPLICANT: Mr Preston

RESPONDENT: Ms Jardine

FILE NUMBER: NCC 3025 of 2013

DATE DELIVERED: 9 June 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 7-8 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bithrey

SOLICITOR FOR THE APPLICANT: Adams & Associates

COUNSEL FOR THE RESPONDENT: Mr Graham

SOLICITOR FOR THE RESPONDENT: Turnbull Hill Lawyers

Orders

1. That all prior parenting Orders relating to the child B born … 2013 (“the child”) are discharged.  

2. That the parties have equal shared parental responsibility for the child.

3. That the child live with the mother.

4. That the mother may establish a residence for the child in New Zealand at any time after the child has reached the age of four (4) years, provided that:

   (a)The mother gives the father 42 days’ notice of her intention to do so, including the date and time of her departure; and

   (b)That the mother registers these Orders in New Zealand prior to the giving of that Notice.

5. That the child spend time with the father as agreed between the parties and, failing agreement, as follows:

   (a)       From the date of these Orders until January 2017:

   (i)Each alternate weekend from 5:00 pm Friday to 4:45 pm Sunday;

   (ii)Each Wednesday from after day care (or 3:30 pm if the child does not attend day care on that day) to 6:45 pm;

   (iii)From 2:00 pm on 25 December 2016 to 2:00 pm on 26 December 2016;

   (iv)

   The father’s time will be suspended and the mother will spend time with the child from 2:00 pm on 24 December 2016 to

   
   

   2:00 pm on 25 December 2016;

   (v)The parties will implement changeover of the child at the commencement and conclusion of the time the child spends with the parents as agreed between the parties, and in the absence of agreement, at Aldi Supermarket at Suburb C.

   (b)       From January 2017 until the child commences school:

   (i)From 1 March 2017 to 15 March 2017;

   (ii)From 1 June 2017 to 15 June 2017;

   (iii)From 1 September 2017 to 15 September 2017;

   (iv)From 12 December 2017 to 2:00 pm on 25 December 2017;

   (v)The parties will implement changeover of the child at the commencement and conclusion of the time the child spends with the father pursuant to Orders 5(b)(i) to 5(b)(iv) as agreed between the parties and in the absence of agreement at the Sydney International Airport at a time designated by the arrival/departure of the child’s flights;

   (vi)Upon 56 days’ notice being provided by the father to the mother on two (2) occasions for a period of two (2) weeks per calendar year (or as otherwise agreed between the parties) in New Zealand and the parties will implement changeover of the child at the commencement and conclusion of the time the child spends with the father at the mother’s residence, with the father to be permitted to reside at the second residence on the maternal grandparents’ property when spending time with the child should he choose to do so.

   (c)       From the child commencing school:

   (i)From the second day to second last day of each Term 1 and 3 school holiday period as prescribed by the school the child attends:

   (ii)During the Term 4 (Christmas) school holiday periods by agreement, but failing agreement as follows:

   A.The first half with the father in odd numbered years commencing on the second day of the school holidays and concluding on the ‘middle’ day of the holiday period and, the second half with the mother in odd numbered years commencing on the ‘middle’ day of the holiday period and concluding at the commencement of the child’s first day of the new school term.

   B.The first half with the mother in even numbered years commencing at the conclusion of the child’s last day of the school term and concluding on the ‘middle’ day of the holiday period and, the second half with the father in even numbered years commencing on the ‘middle’ day of the holiday period and concluding on the second last day of the school holidays.

   (iii)The parties will implement changeover of the child at the commencement and conclusion of the time the child spends with the father pursuant to Orders 5(c)(i) and 5(c)(ii) as agreed between the parties and in the absence of agreement at the Sydney International Airport at a time designated by the arrival/departure of the child’s flights.

   (iv)Upon 56 days’ notice being provided by the father to the mother on two (2) occasions for a period of two (2) weeks per calendar year (or as otherwise agreed between the parties) in New Zealand and the parties will implement changeover of the child at the commencement and conclusion of the time the child spends with the father at the mother’s residence, with the father to be permitted to reside at the second residence on the maternal grandparents’ property when spending time with the child should he choose.

6. That notwithstanding any other Order, between the date of these Orders until January 2017, the mother is permitted to travel with the child from the Commonwealth of Australia to New Zealand for a period of up to three (3) weeks, on two (2) occasions, provided she provide the father with at least

   
   

   42 days written notice prior to such travel occurring, with the parties to ensure that the father is to spend make up time with the child upon the mother’s return as agreed between the parties and upon the mother providing notice to the father of her intention to travel, she will contemporaneously provide the father with a written itinerary and contact details of all locations that the child will stay during the child’s travel to New Zealand.

7. That the non-resident parent shall be entitled, at their discretion, to skype or telephone the child each Monday, Wednesday and Friday between 5:30 pm and 6:00 pm, or whenever reasonably requested by the child, with the parent who is not residing with the child (or the child at their request) to initiate skype or telephone call and each parent will facilitate the child speaking on the telephone with the other parent by ensuring the child is ready to take the call at the designated time, ensuring the telephone is turned on and is in the possession of the child to receive the call.

8. That the father is restrained from allowing the child to remain in a location where alcohol is being consumed or where anyone is affected by alcohol.

9. That each party is to ensure the child has age appropriate sleeping arrangements.

10. That the father is to be present in the same home as the child at all times that the child is to spend time with the father in accordance with these Orders between the hours of 7:00 pm and 6:00 am.

11. That on a without admission basis, the parties are restrained from allowing the child to spend any unsupervised time with the paternal grandfather, Mr A Preston.

12. That for the purposes of relaying important information about or pertaining to the child including, but not limited to, health, welfare, religion, or school matters, each party will communicate the information by email and/or SMS.

13. That each parent will notify the other, in writing, of any change in telephone contact details, email address or residential address as soon as possible, but not less than 48 hours subsequent to any such change.

14. That in the event that the child is in need of urgent medical attention each party will notify the other of the location of the treating professional and details of medical emergency and proposed treatment as soon as practicable.

15. That a copy of these Orders shall be sufficient authority for the parents to discuss with the school attended by the child and to speak to the teachers and principal about the academic and sporting progress and performance of the child.

16. That the parents are to authorise the child’s school to provide school notices, information, newsletters, school reports and school photographs directly to each party at the expense of the parent receiving such documents.

17. The parents are restrained from:

    (a)Involving the child in decisions or discussions about the future living arrangements of the child and the amount of time he spends with the other parent or permitting any other person to do so;

    (b)Criticising or making derogatory statements about the other parent or parent’s family in the presence or hearing of the child or permitting any other person to do so; and

    (c)Questioning or conversing with the child about where the child wants to live or permitting anyone else to do so.

IT IS NOTED that publication of this judgment under the pseudonym Preston & Jardine is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3025 of 2013

Mr Preston

Applicant

And

Ms Jardine

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are applications for parenting orders in respect of one child, a boy, now aged three years and four months old (“the child”).

2. There was a relationship between the parties for slightly less than two years of which they lived together for a year. Final separation took place in

   
   

   November 2013 when the child was 10 months old.

The Father

1. The father, aged 29, is the applicant. He was born in Australia and lives with his parents in their home in D Town, a town south of Newcastle.

2. He is a tradesman by occupation. He is presently doing casual work as it becomes available in building projects using his skills, at least to some extent. The father quit his full-time employment in August/September 2015. He intends to return to full-time employment.

3. The father has not formed any new relationship since separation from the mother two years ago.

4. The father proposes that:

   a)The parties have equal shared parental responsibility;

   b)The child continue to live with the mother; and

   c)The child spend time with him each alternate weekend, all day on Tuesday until he starts schools, and at special times.

5. The father seeks a restraint on the mother relocating the residence of the child to New Zealand.

The Mother

1. The mother, aged 26, is the respondent. She was born in New Zealand and moved in 2006 to live and work in Australia, aged 17 years. The mother is working in administration.

2. The mother has a current partner, Mr E, aged 25 years. That relationship began in mid-2015.

3. The mother, her partner and the child live in a rented property in Suburb F; a suburb west of Newcastle, approximately 32 kilometres from D Town.

4. The mother wishes to return to live, and establish a residence for the child, in the G Town area of New Zealand where her parents live and run an orchard. Mr E is willing to move to New Zealand with the mother and child. The mother proposes moving, if orders permit, in January 2017, after the child has turned four years.

5. Her proposed orders define time between the child and the father in three stages:

   a)   In Australia until January 2017;

   b)     In New Zealand until the child starts school; and

   c)     From the time the child starts school (probably in 2018) and thereafter.

The Issues

1. The parties agreed they should equally share parental responsibility and that the child should live with the mother.

2. The issue unable to be resolved was whether the child should live with the mother in Australia or New Zealand.

3. Arrangements for time and communication between the child and the father depend on the determination of the relocation dispute.

Short History of Relevant Events

1. In early 2012 the parties formed a relationship and within a matter of weeks, conceived the subject child.

2. In July 2012 the father was part of a violent melee in a hotel. He was intoxicated and violent. He joined in kicking a security guard, head-butted a police officer, and refused to cooperate with police on arrest.  It is unclear how much the mother knew about this incident at the time.

3. By October 2012 the father was living most of the time in the property rented by the mother at H Town and otherwise with his parents.

4. In November 2012 the father was sentenced to a Good Behaviour Bond and 50 hours Community Service in respect to the July 2012 incident.[1]

   [1] Exhibit 3 and affidavit of the mother filed 05/02/2016, Annexure B

5. Early in January 2013 the parties began living in the home of the paternal grandparents.

6. On 25 January 2013 the subject child was born. The maternal grandmother travelled to Australia from New Zealand to be present.

7. In March 2013, when the child was a few weeks old, the parties moved into a rental property of their own at I Town, about five kilometres north of the home of the paternal grandparents.

8. In June 2013 the parties travelled to New Zealand with the child to visit the maternal family.

9. On 13 July 2013 there was an incident.[2] The mother alleges, and the father denies, that he smashed and threw a rubbish bin which travelled close to the mother as she bathed the child. Police were contacted by the mother.

   [2] Exhibit 3 (entry of 14/07/2013)

10. In her oral evidence, the mother said she told police of the bin being thrown.  However, the report does not reflect the facts alleged. Rather, it refers to recent separation, a verbal argument, and a refusal (for a period) by the father to leave when asked.

11. I conclude that an incident did occur in July 2013 which upset the mother sufficiently for her to call the police, but I am unable to conclude what happened on that day.

12. The parties remained together for about four months after this incident.

13. On 24 November 2013 the parties separated. The mother rang the police who spoke to the father on the phone and directed him to leave. He did. The father ultimately moved back to live with his parents.

Events since litigation commenced

1. On 27 November 2013 the father filed an Initiating Application in the Federal Circuit Court seeking orders that the child remain living in the Newcastle area with the mother and that she be restrained from removing the child from Australia. It is clear that the father anticipated and feared that the mother would go home with the child to New Zealand.

2. On 10 January 2014 the mother filed her Response, which reflected her wish to live in New Zealand with the child.

3. On 14 January 2014 the proceedings were transferred to this Court.

4. On 17 January 2014 interim parenting Orders were made by consent. There was provision for the mother to travel with the child to New Zealand for a family wedding, as well as parenting Orders including time for the child with the father, each Sunday to commence just prior to the mother’s departure for New Zealand.

5. On 24 July 2014 further interim Orders were made expanding the time between the child and the father and directing the preparation of a Family Report.

The Family Report

1. On 30 October 2014 the Family Report was released.

2. The Family Consultant noted that after the 17 January 2014 Orders were made, the co-parenting relationship improved and that it was common ground that the child had spent additional time with the father, typically with the mother present as well, such as the parties sharing a meal after the child’s swimming lessons or going on an outing together.[3]

   [3] Family Report dated 28/10/2014, par 10

3. I note that the parties’ interpretation of this period differed. The father stating that the parties had reconciled and separated a few times during that period; the mother stating that she preferred to be present during contact as she was particularly concerned about the risk of the child being exposed to alcohol abuse and violence in the home of the paternal grandparents. The mother also stated:[4]

   … the father repeatedly pestered [her] for sex which she always declined and at various times the father refused to leave [her] home when [she] repeatedly asked him to do so including staying overnight on occasion.

   [4] Family Report dated 28/10/2014, par 10

4. The Family Consultant also noted the parties’ agreement that the July 2014 Orders were implemented without incident.

5. At the time of interview in October 2014 the father was planning to move out of his parents’ home, to purchase and live in his own home, reporting that he had a substantial deposit saved for that purpose. At the time of hearing in March 2016, some 18 months later, the father was still living in his parent’s home.

6. At the time of interview, the mother was living in privately rented accommodation in Suburb J, a suburb of Newcastle, working to support herself and the child (she was ineligible for Centrelink benefits not being an Australian citizen).

7. Her strong wish was to return home to New Zealand where she would have the support and financial assistance of her parents. I note that at that time the father was paying $9.00 per week in child support. The mother was struggling financially and was forced to rely on her family in New Zealand for financial assistance.

8. At the time of interview, the mother’s main concern was alcohol abuse and associated violence by the father and the paternal grandfather. The Family Consultant noted that subpoenaed material from the NSW Police indicated that the father was exposed to significant alcohol use and violence by the paternal grandfather throughout his childhood.

9. The Family Consultant set out in some detail his challenge of the paternal family, all of whom appeared to, at least initially, minimise the extent of that violence and then once acknowledged, to be dismissive of that violence as having had any serious negative impact on the family. The father’s own history from subpoenaed material from the NSW Police is of aggressive conduct in public and in hotels when intoxicated.[5] 

   [5] Family Report dated 28/10/2014, pars 45-46

10. The Family Consultant noted the mother’s financial stress, “would have negatively impacted upon her psychological health and functioning and will continue to do so into the future”.[6] The mother had in mid-2014 been diagnosed with anxiety and depression and took prescribed medication. I had the impression reading the report that the Family Consultant considered that the financial strain the mother experienced providing for the child alone amplified her concerns about the father’s drinking. 

    [6] Family Report dated 28/10/2014, par 50

11. The view of the Family Consultant was that the mother’s proposal to relocate back to New Zealand would significantly reduce the opportunity for the child to spend time with the father and to develop a meaningful relationship with both the father and the extended paternal family. He considered the proposal to not be developmentally appropriate and highly unlikely to be sustainable or successful. The child was at the time of interview about 21 months old.

12. The Family Consultant went onto say that there was a much greater likelihood of success if the geographical separation occurred after the child had cemented psychological attachments and developed independent relationships with both parents and significant others. He noted that the critical period for psychological attachment is between six months and three-and-a-half years. 

1. More generally, the Family Consultant advised that the older a child is the more likely that they are able to cope with being separated from a parent and with being away from their primary caregiver, such as when spending time with a parent with whom they do not usually live.

2. The recommendations in the Family Report were that the parents share parental responsibility, that the mother and child remain in the Newcastle area until the child was at least three-and-a-half years old, ideally much older, that the child continue to live with the mother and spend significant and substantial time with the father, with overnight time to immediately commence.[7] 

   [7] Family Report dated 28/10/2014, pars 55-65

3. The Family Consultant recommended that the father be restrained from allowing the child to remain in a location where alcohol was being consumed or where anyone was affected by alcohol. Further recommendations were for the mother to have the opportunity to have up to two weeks overseas with the child twice per year, that the parents seek a review of the father’s child care liability and that each parent undertakes counselling.

4. On 26 November 2014 further interim consent Orders were made, which reflected the parties’ careful consideration of the recommendations in the Family Report. The time for the child with the father was again expanded, overseas trips for the mother and child were provided for, and there were appropriate restraints around the child being brought into contact with third parties affected by alcohol, including, without admissions, the paternal grandfather.

5. It is apparent that there was compliance with the Orders and the relationship between the child and both parents continued to develop well.  In June 2015 the mother began her relationship with her current partner, Mr E. 

6. On 6 August 2015 the matter was set down for final hearing in March 2016. 

7. On 7 and 8 March 2016 there was a hearing before me which concluded within the allocated time.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Father

   (a)Amended Initiating Application filed 05/02/2016;

   (b)Affidavit of the father filed 05/02/2016;

   The Mother

   (c)Amended Response filed 01/10/2015;

   (d)Affidavit of the mother filed 05/02/2016;

   (e)Affidavit of the maternal grandmother, filed 05/02/2016;

   (f)Affidavit of Mr E, the mother’s partner, filed 19/02/2016; and

   Reports

   (g)Family Report dated 28/10/2014.

Oral Evidence

The Father

1. I formed the impression that the father is very much committed to the child and feels criticised and undervalued as a parent. 

2. On 4 March 2016 on social media the father endorsed “Kids Need Dads Not Child Support” by posting on Facebook and commenting, “Nailed it!!!!” I do not accept that the father was making a statement about child support not being important or necessary. Rather, I conclude that he was protesting the notion that the main significance of a non-resident father was to financially provide.

3. In accordance with the recommendation of the Family Consultant, the father had attended for alcohol and depression counselling between 11 March 2015 and 1 July 2015. He had not, however, attended a Parenting after Separation course and was unable to explain why he had only expressed interest in doing so “on the eve of the trial”. Likewise, he was unable to explain why he had only given the mother a copy of the report of his attendance on a psychologist in 2015 on the morning of the hearing. 

4. The father conceded that the incident in July 2012 where he had been intoxicated, fought with a security guard, kicked him, and, when the police were called, head-butted a police officer, was a serious incident.[8]  He agreed that he had difficulty dealing with police when drunk; in fact, with anyone in authority. 

   [8] Exhibit 3

5. The father was certainly offended, at least to some extent, by the mother providing him with a summary of the child’s routine soon after separation. 

   
   

   I conclude that he objected to being told what to do rather than understanding that the mother was letting him know how she managed the child’s needs.

6. The evidence of the father on his financial support for the child was unimpressive. When taken to his own statement to the Family Consultant that he had saved a cash deposit to buy a house, the father rejected the proposition that it might have been a good idea to give the mother some of that money for the support of the child.[9]

   [9] Family Report dated 28/10/2014, par 49

7. The father’s resentfulness over money has led to the mother struggling financially, working in order to support the child and paying high child care fees.

8. The father was cross-examined about the sale of various items, such as a motorbike, an excavator and some tools, without providing any of those funds to assist the care of the child.  He denied prioritising his interests over those of the child’s but I conclude that he did. 

9. It may well be that the father was and still is planning to buy a home that will be a suitable and enjoyable place for the child to spend time with him over the coming years. However, he failed to recognise that the mother needed financial support for the care of the child from the day of separation and he did not meet his obligations in that regard.

10. The father loves the child and referred to him as “daddy’s best friend in the whole wide world”[10], but there was an immaturity in his responses. If the father had considered the potential benefit to the child of the mother being well supported emotionally and financially in New Zealand, then it was not revealed during his cross-examination. He had made no inquiries about flying from Sydney to New Zealand, stating, “It was not of interest to think about it”. Nor had he considered living and working in New Zealand himself. 

    [10] Exhibit 4

11. He agreed with the proposition that since he had no current relationship and was living with his parents, he could “go to New Zealand tomorrow and work as a [tradesman]”. His response, “I could if I wanted”, was easily able to be interpreted as, “I don’t want to and so I won’t”. Of course the father cannot be compelled to live in New Zealand but the fact that he did not give it any consideration, look into the cost of it, or discuss it with the mother, is a reflection of his emotional pain at the thought of spending less time with the child but not of his consideration of what might promote the best interests of the child, whether or not it was upsetting for him.

12. The father agreed that he had told the mother shortly after separation that if she did not agree to alternate weekends for him with the child that he would not consent to her travelling with the child to New Zealand for the family wedding.  The father denied that his attitude was “do as I want or there will be trouble”. 

    
    

    I conclude that he saw himself as fighting for as much time with the child as he could have but that he did not step back and consider the significance of a co-operative parenting relationship for the benefit of the child. 

13. That immaturity was also in display in relation to the father’s evidence about the child’s first birthday in 2014. The mother was in New Zealand pursuant to consent Orders. She had told the father that he could skype the child whenever he wanted to, including on the day of his first birthday. On return to Australia, she asked the father why he had not made any contact with the child and was told that it had been too upsetting:

    You have no idea … how I felt not being able to be with him for his birthday and you have no clue how I kept my head up and tried not to be upset. I counted the days down and then spent the day of his birthday in my room looking at his photos because that’s all I could do.

14. In fact, the father was at the cricket with a group of friends on that day and the mother learned that through seeing photos posted on Facebook of the father drinking with his friends at the cricket.

15. The proposition was put to the father that he was trying to make the mother feel sorry for him with what he had said to her.  The father denied that was true and said he just did not think he had to tell the mother that. However, it is almost inescapable that, at least, the father was being self-pitying and looking for sympathy and, at worst, being manipulative. 

16. The only significant matter is that he did not make the effort to contact the child and give him the pleasure of seeing the father’s face and hearing his greetings on his first birthday.

17. Overall, I conclude that the father will be extremely distressed if the mother is able to take the child to live in New Zealand, however, he has the capacity, financially and intellectually, to work out a way of maintaining the relationship by travelling to New Zealand himself, maintaining regular communication electronically by phone, with cards and gifts, and making the time that the child spends with him in Australia enjoyable, fun and worry free.

The Mother

1. The mother has shown considerable maturity in accepting the advice of the Family Consultant through the Family Report that the child was simply too young to move away from the father after separation and needed to be at least three-and-a-half years old, but preferably older, before that happened. Her proposal is clearly structured around that advice, that she would leave after the child turned four and have different arrangements in his last year before starting school to maximise time with the father before it was restricted by school attendance.

2. The mother conceded that the Orders had been complied with by the father and that the child had developed a good relationship with him, “I am not there to see it one on one but I see him when he gets home and he is okay”.

3. There was some emphasis during cross-examination of the mother on the possibility that she had sent ambivalent mixed messages to the father through text and in conversations about the possibility of reconciliation in the months following separation. I infer that this reflects the father’s disappointment that reconciliation was unable to be effected rather than an attack on the mother’s credit. The mother was restrained in her responses:

   It’s easier to get along but better to go around the subject because he gets upset and then he starts lashing out. 

4. The evidence suggests that the mother was carefully managing the father’s expectations in order to maintain a good relationship for the sake of the child but avoiding confrontation.

5. In her affidavit the mother set out an incident on 1 October 2014 describing sexual aggression by the father towards the mother, followed by prompt apology.[11] The proposition was surprisingly put to the mother that the incident simply did not happen despite the evidence of the father’s apology and his reference to himself as a “horny sook”. 

   [11] Affidavit of the mother filed 05/02/2016, par 120

6. Overall, I am left with the impression that the mother had a difficult task in dealing with the father’s desire for reconciliation and his repeated anger and disappointment when that did not come to pass. I conclude that she was giving absolute priority to the child in maintaining a friendly relationship with the father.

7. The mother readily conceded that since the end of 2014 the father had changed and his correspondence with her had been polite and respectful, at least most of the time. The mother has not undertaken and completed a Parenting after Separation course as recommended. Her evidence was that she had enrolled and found that the course was only on a Wednesday, which clashed with work.  The mother would do well to give priority to undertaking that course, just as the father would.

8. The mother also conceded that the father had paid money into her account between March 2014 and September 2014, a total of about $2,000, during a time when he regularly stayed with the mother, ate in the household and did his washing there.

9. I formed the impression that the mother had really struggled post-separation financially, especially working and having the child in day care, but has kept focused on the possibility of living and working in New Zealand with the ability to stay for as long as she wanted initially with her parents in order to gain some financial traction for the future. 

10. The mother conceded that Mr E is in full-time employment and that after the child started school she would be able to work even more than she presently does. The mother’s evidence was that she was making ends meet but that she had, “No savings or backup. I want a sustainable plan. Backup savings. We’re doing alright at the moment as long as nothing goes wrong”. 

11. The mother was asked about her social connections in Australia. She agreed that she had friends at work and had formed friendships with friends of

    
    

    Mr E. She agreed that she was not socially isolated but her focus constantly returned to the concept of “backup”; that if there was illness for herself or the child, accident or unexpected financial pressure, it would be her family that she would be able to turn to in New Zealand.

12. My overall impression was that the mother is looking for the security, both financial and emotional, that has been missing from her life, probably since the child was born and certainly since the parties’ separation. I am also confident that her focus is on creating a good life for the child and is not directed at depriving the father of his relationship with the child. 

The Maternal Grandmother

1. The maternal grandmother has travelled to Australia since the separation of the parties as often as she could; four times in 2014, twice in 2015 and once this year. She has assisted the mother to pay for tickets to travel to New Zealand.

2. The main restriction on the maternal grandmother travelling to Australia is the serious ill-health of the maternal grandfather, who is unable to travel. He has an unpredictable medical condition. 

3. The mother’s brother works with the maternal grandparents on their property and the maternal grandmother made it clear that the mother, the child and

   
   

   Mr E would be welcome to stay in a house available on the orchard property in New Zealand and that all and any assistance they needed would be on offer.

4. I formed the impression that the maternal grandmother is warmly supportive of her daughter and grandson, willing to welcome Mr E into the extended family and also respectful of the father’s role  and open to assisting him to be present with his son in New Zealand.

Mr E

1. Mr E presented as an honest and candid man. He confirmed that he was happy to move to New Zealand and looked forward to full-time work in the trade in which he is qualified. 

2. He agreed that he had met the father and that it had been a positive meeting:

   Question:      No aggression?

   Answer:         No, nothing like that.

3. There was no challenge to the suitability of Mr E as a step-father for the child and I consider he would likely be a benefit in the physical arrangements for the child travelling to see the father and in helping him to adjust to life in New Zealand.

The Family Consultant

1. The Family Consultant did not resile from any of his earlier expressed views and recommendations. He confirmed that in his view had there been a move for the child at 21 months, his attachment to the father would likely have been disrupted. 

2. The Family Consultant gave his opinion that if there was a move for the child to New Zealand it would best be explained to him jointly by his parents together and next best by each of them, so that he would not be left wondering about why he and the mother had moved leaving the father behind.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.  The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Parental Responsibility

1. The parties agree that they should share equally in parental responsibility for the child, wherever he shall live. They also agree that the child should live with the mother.

2. Arrangements for the child progressed sufficiently well, despite some inter personal difficulties, that but for the wish of the mother to move to New Zealand, it is unlikely that these parties should have been before the Court.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. The child now has a meaningful relationship with each of his parents and I am satisfied on the evidence that that attachment process has been completed in a positive way.

2. Interim Orders were put in place which the father has dutifully complied with to ensure that the child has not been exposed to aggressive and frightening behaviour by any one with whom he is brought in contact .

3. The question is should the mother be able to establish residence for the child in New Zealand. I accept the submission on behalf of the mother that she has lacked support and felt the lack of support, that she wants a supportive environment for herself and the child, that she was adversely affected by having to manage separation from the father over a period of at least 12 months whilst he remained hopeful about reconciliation.

4. The proposition was put to the mother that help was available from the paternal family if she called on it. I have no reason to doubt that the paternal family has a loving interest in the child, but the father called no witnesses as to the actual availability of family members to assist him or the mother with arrangement for the child.

Additional Considerations

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The child has his most important relationship with each of his parents, a developing relationship with Mr E and well established relationships with both sides of his extended family.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. The father has taken the opportunity to spend time and communicate with the child to the greatest extent possible.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. In my view, the father did not act responsibly in relation to financial provision for the care of the child post-separation. The mother worked to support the child and paid child care to do so.

1. The father contributed about $2,000 during a time in 2014 when he regularly stayed with the mother and used the facilities in her household. He has otherwise paid minimal child support. He had financial reserves generated from work which he could have used very differently. He lives with his parents and has not had the fixed costs which the mother has had.

2. The mother’s financial struggle and her sense of insecurity about dealing with emergencies have informed her wish to be in the more secure environment of her parent’s home and property.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. There will be a significant change for the child if he moves away to

   
   

   New Zealand. He will likely see the father less often, although to some extent that is in the father’s hands, particularly when he returns to full-time work and he will be able to afford to travel to New Zealand to spend time with the child there.

2. There will also be a change in a positive way for the child in that he will have the opportunity to develop his relationships with the maternal family particularly his grandfather. He is already well known to the maternal grandmother, and to other members of the maternal family.

The practical difficulty and expense of a child spending time with and communicating with a parent

1. There will be the expense of travel, which will increase when the child is at school and the parents are confined to travelling at peak holiday times. However, each has the capacity to contribute to the costs of the child maintaining his relationship with the father in this way.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The mother has provided for the majority of the needs of the child since his birth, has been attentive to his emotional and intellectual development and has done what she could with some financial limitations.

2. The father has involved the child in all manner of enjoyable activities and has helped him to develop strong relationships with the paternal family.

3. Each parent has the capacity to provide for the needs of the child and the father has done well to be protective of the child by agreeing to restrictions on unsupervised time between the child and the paternal grandfather, in circumstances where the paternal grandfather has had a history of aggressive conduct when affected by alcohol.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The child is a three year old boy. The mother is a New Zealander and he has extended maternal family there. The father is Australian and he has extended paternal family in Australia. The child is likely to maintain contact with both countries throughout his life and is a citizen of both.

2. The child is bright, quiet, observant, enjoys reading, is well behaved, and relates well to people.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. There have been no family violence orders.

2. There has been involvement by the police with the family, assisting the mother by directing the father to leave the home in mid-2013. Other than the possibility of being present during a frightening incident at that time, as a very young infant, the child has not been exposed to family violence.

Conclusion

1. In taking all these matters into account, I conclude that the best interests of the child are promoted by permitting the mother to establish a residence in

   
   

   New Zealand for the child with herself and Mr E.

2. The mother is clearly a hard-working and resourceful person. She arrived in Australia at 17 years old and although she has a sister in Queensland, she has worked to provide for herself and more recently the child. She is keen to create a future with the assistance of her family who offer accommodation and work for as long as she and the child need it. This will meet a need that was expressed in a heartfelt way for back up in the event of emergencies; not simply financial support, but having somebody to immediately turn to in the event of sickness  emergency or emotional need. The move will most likely enhance stability of care for the child by the mother.

3. The child is well attached to both parents and has established relationships with both of them. The parties have been compliant with orders that have been made from time to time and I am satisfied that each party will continue to be compliant with orders that are made.

4. Beyond that, I am satisfied that the mother and her family would welcome the father in the event that he travelled to live in New Zealand or travelled to visit the child in New Zealand in whatever way they could.

5. I am also satisfied that although there was no direct evidence from them, the paternal family is supportive of the father and loves the child and will assist in facilitating whatever orders are made.

6. Orders are therefore made substantially in accordance with the application of the mother.

7. There is a requirement for the mother to register these Orders in New Zealand prior to giving notice to the father of her intention to move with the child to New Zealand. This course is in my view the one least likely to lead to the institution of further proceedings in relation to the child.

I certify that the preceding one hundred and twenty four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 9 June 2016.

Associate:

Date:  6 June 2016