Samworth & Grady & Anor - [2010] FMCAfam 750

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAMWORTH & GRADY & ANOR

[2010] FMCAfam 750

FAMILY LAW – Final parenting orders – relocation – mother withdrew from proceedings – child living with second respondent maternal grandmother – application to relocate to New Zealand – child to live with second respondent in New Zealand – child to spend time with applicant.

Family Law Act 1975 (Cth), s.60CC

Goode & Goode [2006] FamCA 1346
Lansa & Clovelly [2010] FamCA 80
Chappell & Chappell (2008) FLC 93-349
Pitkin & Hendry [2008] FamCA 186
Taylor & Barker [2007] FamCA 1246
Starr & Duggan [2009] FamCA FC 115
Hall & Hall [1979] FLC 90-713
Mazorski & Albright (2008) 37 FamLR 518
Collu v Rinaldo [2010] FamCA FC 53
Fitzroy & Fitzroy [2009] FamCA 954
McCall & Clark (2009) FamCA 92
Marvel & Marvel (No.2) [2010] FamCA 101
Saunders & Saunders (1976) FLC 90-078
Aldridge & Keaton [2009] FamCA 229
Potts & Bims [2007] FamCA 394
Donnell v Dovey [2010] FamCA FC 15
Carlson and Ors & Bowden [2008] FamCA 1064

Applicant:

MR SAMWORTH

First Respondent:

MS J GRADY

Second Respondent:

MS O GRADY

File Number:

DGC 3382 of 2007

Judgment of:

O’Sullivan FM

Hearing dates:

7, 8 & 9 June 2010

Date of Last Submission:

9 June 2010

Delivered at:

Melbourne

Delivered on:

3 August 2010

REPRESENTATION

Counsel for the Applicant:

Mr I. Brewer

Solicitors for the Applicant:

Victoria Legal Aid

The First Respondent:

No appearance

Counsel for the Second Respondent:

Ms B. Phelan

Solicitors for the Second Respondent:

Robert Halliday & Associates

Counsel for the Independent Children’s Lawyer:

Mr N. Eidelson

Solicitors for the Independent Children’s Lawyer:

Westminster Lawyers

ORDERS

That the child [X] born [in] 2006 (“the child”) live with the maternal grandmother.
That the maternal grandmother have sole parental responsibility for the said child, subject to paragraph 3 below.
That the maternal grandmother provide to the father without undue delay information in relation to:
(a)the child’s health and medical needs as they may arise;
(b)photographs of the child no less than once per month; and
(c)copies of any printed information concerning the child’s social and academic progress, produced by any kindergarten or school the child may attend, and which is normally made available to parents.
The said child be permitted to relocate her primary residence to New Zealand.
That the maternal grandmother keep the father appraised at all times of her current:
(a)contact telephone number;
(b)email address;
(c)residential address; and
(d)the details of any kindergarten or school the child may attend.
The father spend time with and communicate with the said child as follows:
(a)by telephone once per week on a day and time to be agreed, and the grandmother ensure that the said child is available to received the call and facilitate same, at the cost of the father;
(b)by Skype, and the grandmother use her best endeavours to arrange such facility in her home for the child to use without undue delay;
(c)upon the provision of one month’s notice, the father may spend time with the said child in New Zealand for a period up to 5 days, away from the home of the maternal grandmother but in the vicinity of same;
(ci)during any period of contact referred to in sub paragraph 6(c) above, the child shall communicate with the maternal grandmother once per day by telephone and the father shall facilitate same;
(d)on 3 occasions in each year the father may upon the provision of two month’s notice to the maternal grandmother, require that she travel with the said child from New Zealand to Melbourne and to facilitate same, he shall provide a return airfare prepaid for the maternal grandmother and the child, such contact to be for a period of one week in the absence of the maternal grandmother; and
(e)upon the said child turning 4 years of age, subparagraph 6(d) may operate on the basis of the child returning to Australia accompanied by an airline officer in the absence of the maternal grandmother.
The Australian Federal Police do remove the name of the child [X] born [in] 2006 from the Airport Watch List currently in force at all points of arrival and departure in the Commonwealth of Australia.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.
Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
That all extant applications are otherwise dismissed and removed from the Pending Cases List.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DANDENONG

DGC 3382 of 2007

MR SAMWORTH

Applicant

And

MS J GRADY

First Respondent

MS O GRADY

Second Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern a dispute over parenting orders under the Family Law Act 1975 (“the Act”) for [X] born [in] 2006 (“the child”). The applicant, Mr Samworth is the child’s father and is now 20 years of age (“the father”). The first respondent, Ms J Grady, the child’s mother is also 20 (“the mother”). The mother sadly has taken no meaningful part in these proceedings for over 12 months.
This matter has an unfortunate history. By the time of the final hearing the proceedings, had been on foot almost 3 years. That history is explicable, at least in part, as the case involved a proposal by the second respondent Ms O Grady (“the maternal grandmother”) with whom the child has been living, to relocate with the child to New Zealand.
This case concerns the parenting arrangements for a very young child who has been cared for by the maternal grandmother for most of her life. The maternal grandmother is unable to financially support herself and the child in Australia, can’t get residency or citizenship here and wishes to return to New Zealand. The dilemma facing the Court is that none of the options in this case is going to be an ideal solution for a child who is not yet 4 years old and that only compounds the tragedy.
In the second of the family reports which were prepared in this case it was said:
“48.…the relocation of children is amongst the most difficult and complex of issues addressed in the Family Law context. The driving adult narratives of such disputes often become linear and reductive, and are often centered on the perceived existential and practical needs of the adults involved. This rarely reflects the complexity of the issues and needs faced by the children. Inevitably the perceptions and positions taken by the adults in the dispute have a cogent and persuasive logic, and often one is confronted with ordinary people struggling for autonomy over their lives…”
Having had the benefit of hearing all of the evidence over 3 days and read the material filed by the parties and considered the submissions made on their behalf, those comments in the context of this matter are apposite.

Background

The father and mother met in 2005 when they were 15 and 16 years respectively. Their relationship ended in early 2006 in circumstances which continue to vex their respective families.
The child was born [in] 2006.
On 8 January 2007 the mother, the maternal grandmother and the child went to New Zealand without telling the father.
There were proceedings under the Hague Convention in the Family Court of New Zealand at [R] on 27 July 2007. The following orders were made:
“1.That [X] be returned to Australia before 24 August 2007.
2.That [X] be accompanied by the Mother.
3.That the father meet all costs of [X]’s air travel to Australia and the costs of the Mother’s air travel to Australia.
4.That the parties, together with the respective State Central Authorities in Australia and New Zealand, liaise to ensure that a particular date and flight is allocated for the travel referred to herein. When those details are determined they are to be notified to the Court by way of further memorandum.
5.That the memorandum together with the Order be advised to Interpol to facilitate the return of the child.
6.Upon the return of the child to Australia, Orders be made in this Court preventing the removal of the child from New Zealand be discharged.
7.No order as to costs.”
The father filed an application for parenting orders in this Court on

16 August 2007. At or around this time the child, the mother and the maternal grandmother returned to Australia.
On 22 October 2007, and after the mother had filed a response, the matter was transferred to the Family Court of Australia because it involved a dispute over international child relocation.
On 1 November 2007 the matter came before Senior Registrar Fitzgibbon in the Family Court of Australia. For reasons which are not clear (and in a case concerning a dispute over international child relocation) there were interim orders made and the Senior Registrar transferred the matter back to this Court.
After an Independent Children’s Lawyer had filed a notice of address for service in December 2007 and the child had been returned to Melbourne and was living with the mother and maternal grandmother, the father commenced spending time with the child.
The matter came before Turner FM on 13 January 2008. There were interim orders made and the matter was adjourned to 21 May 2008.
In early 2008 the mother returned to New Zealand and effectively withdrew from the proceedings. The child continued to live in Melbourne but with the maternal grandmother and the child spent time with the father for two hours each Saturday and Sunday.
The matter came back before Turner FM as a result of an interlocutory application on 29 February 2008. Orders were made for the child to continue to spend time with the father. There was a request for the Department of Human Services to intervene, the maternal grandmother to be joined as a party and the matter was adjourned to 21 May 2008.
The father filed an amended application seeking that the child reside with him on 20 May 2008.
On 21 May 2008, by which time the maternal grandmother had filed a response Turner FM made further interim orders by consent and transferred the matter to the Dandenong Registry of this Court.
Procedural orders were made by a Registrar on 30 June 2008 and the matter was listed for final hearing in 2009.
The first family report that had been ordered was released to the parties in January 2009.
On 12 March 2009 Monahan FM discharged all existing parenting orders (save for the watch list) ordered until further orders that the child to live with the maternal grandmother and spend time with the father each alternate weekend, ordered an updated family report, and the matter was adjourned to 2010.
The mother returned to Australia briefly and gave birth to a second child, in June 2009. In September 2009 the mother went back to New Zealand with her second child. The child the subject of these proceedings remained living in Melbourne with the maternal grandmother.
In August 2009 the matter was listed for a final hearing on 25 March 2010.
In October 2009 the father moved out of his mother’s home and into accommodation in [F] with his new partner. By this time the father was spending time with the child from 5pm Friday until 5pm Sunday each alternate weekend.
An updated family report was released to the parties on 12 January 2010.
On 25 March 2010 the matter came before the Court as currently constituted but was not ready to proceed. Whilst the matter concerned a dispute over international child relocation, all parties requested the matter remain listed for final hearing in this Court. As all parties were funded by legal aid the following orders were made for an early final hearing:
“1.The matter be adjourned to 7 June 2010 at 10.00 a.m. for final hearing (with an estimated hearing time of 3 days) at the Federal Magistrates Court of Australia at Dandenong.
2.By the 16 April 2010 the Solicitor for the father confirm in writing to the other parties they are satisfied the maternal grandmother is unable to access any other social security benefits in Australia or New Zealand.
3.The applicant do file and serve all further affidavits and other material to be relied upon by not later than 3 May 2010.
4.The second respondent do file and serve all further affidavits and other material to be relied upon by not later than 10 May 2010.
5.The Independent Children’s Lawyer do file and serve all further affidavits and other material to be relied upon by them not later than 17 May 2010.
6.The parties prepare an agreed chronology of events and file this with the Court by 24 May 2010.
7.Each party to file and serve a minute outlining the orders they seek if the child is allowed to relocate or if the child is not allowed to relocate by 24 May 2010.
8.The Independent Children’s Lawyer provide in writing to the other parties an outline of their initial view by 31 May 2010.
9.The Independent Children’s Lawyer put the first respondent on notice of the final hearing date.”
Pursuant to orders made on 25 March 2010 the Independent Children’s Lawyer prepared and filed a chronology which was marked Exhibit “ICL1”. The parties agreed that chronology prepared by the Independent Children’s Lawyer accurately set out the background to the final hearing. That chronology is Attachment A to these reasons.
By the time this matter proceeded to hearing the father, who had been living with his mother, was living with his partner Ms F and they are expecting a child. The father is working as a third year apprentice in the building industry.
The mother had left her child with her mother in Australia, fled the country, become pregnant, returned to Australia where she had her second child and then returned to New Zealand again taking no further part in proceedings, despite being given notice of the need to do so by the Independent Children’s Lawyer.

The hearing

The Court has been assisted in this case by an Independent Children’s Lawyer and the evidence of a family consultant who prepared two family reports pursuant to s.62G of the Act.
The final hearing commenced on 7 June 2010 and ran over the course of 3 days. As noted earlier the mother had taken no meaningful part in these proceedings for sometime and given the need to finalise the matter for the child’s sake it was not suggested the hearing shouldn’t proceed in the absence of the mother. It did so. The father was represented by Mr Brewer of Counsel. There was no appearance by or on behalf of the mother. Ms Phelan of Counsel appeared for the maternal grandmother. Mr Eidelson of Counsel appeared on behalf of the Independent Children’s Lawyer.

Material relied on at hearing

At the commencement of the hearing the parties identified the material they relied on.
The father relied on:
·his Affidavit sworn 18 January 2008;
·his Affidavit sworn 17 May 2008;
·his Affidavit sworn 26 June 2008;
·his Affidavit sworn 4 March 2009;
·his Affidavit sworn 15 March 2010;
·his Affidavit sworn 14 May 2010;
·
the Affidavit of Ms G (the paternal grandmother) sworn

18 January 2008;
·the Affidavit of Ms G sworn 16 May 2008;
·the Affidavit of Ms G sworn 4 March 2009;
·the Affidavit of Ms G sworn 15 March 2010;
·the Affidavit of Ms S sworn 27 February 2008;
·the Affidavit of Ms S sworn 15 March 2010;
·the Affidavit of Ms A (estranged daughter of the maternal grandmother) sworn 28 February 2008;
·the Affidavit of Ms F (his partner) sworn 4 March 2009;
·the Affidavit of Ms F sworn 15 March 2010;
·the Affidavit of Ms M sworn 5 March 2009; and
·the Summary of Argument.
The maternal grandmother relied on:
·her Affidavit sworn 26 February 2008;
·her Amended Response to Initiating Application filed 20 May 2008;
·her Affidavit sworn 20 May 2008;
·her Affidavit sworn 9 March 2009;
·her Financial Statement sworn 7 May 2010; and
·her Affidavit sworn 7 May 2010.
The Independent Children’s Lawyer relied on:
·Exhibit ICL1 - Agreed Chronology;
·Exhibit ICL2 - initial orders sought by the Independent Children’s Lawyer;
·Exhibit ICL3 - letter from Independent Children’s Lawyer dated 31 May 2010;
·the Family Report dated 30 January 2009; and
·the Family Report dated 9 January 2010.

Family Report

Pursuant to orders made 30 June 2008 a family consultant was appointed to prepare a family report pursuant to s.62G(2) of the Act and to interview each of the parties and the child (“the report writer”).
In the first family report prepared in early 2009 it was said:
“2.[X] lives with her maternal grandmother Ms O Grady and spends time with Mr Samworth each Saturday and Sunday from 11.00 am to 3.00 pm. The biological mother Ms J Grady lives in [R], New Zealand and has not spent time with [X] for approximately 12 months.
3.Both parties’ are seeking the full time care of [X], and in addition Ms Grady is seeking to relocate to New Zealand with [X] to live with her daughter Ms J Grady the child’s biological mother. However, these positions shifted significantly during the course of the interview process when the parties’ were given a developmental and psychological overview of [X]’s position and the parties were able to come to agreement…”
In that first report the report writer concluded:
“18.The allegations, claims, and counter claims of the parties’ are numerous and have the impact of obfuscating the fundamental issues involved in the case. After reviewing the material provided the report writer concluded that the identified risk factors to [X]’s over all psychological and emotional well being are, the disruption to her relationships with significant others, and the ongoing instability caused by the current dispute.
19.The trajectory and circumstances of the dispute have seen Ms Grady (mgm) become the primary care giver and attachment figure to [X]. In this context the role of primary attachment is pivotal to the discussion; it is a critical developmental phase and relationship in the first years of a child’s life, on which the child’s future psychological and emotional health is largely based. It is from this relationship that the child explores the world and develops the required capacities to incrementally and successfully move through the developmental challenges of childhood.
20.The research and literature on attachment is well established and unequivocal in its findings. Premature disruption or severing of this relationship has the potential to precipitate a variety of emotional and psychological difficulties for children. Outcomes such as heightened anxiety, depression, and developmental delay are over represented in this group.
21.[X], in her short life, has experienced significant disruption to her primary relationships and has fundamentally been in the care of Ms Grady (mgm) since relocating. This was evident in the observations and [X] clearly identifies Ms Grady as her primary care giver. To disrupt this relationship in any significant way at this point in her development would place her at further risk of psychological and emotional harm. To Mr Samworth and Ms G credit they were able to acknowledge this and a plan for an incremental build of substantial time was discussed and agreed with the parties’ in this case.
22.Due to the time limitations and complexity of the dispute I was unable to clarify the exact details of the agreement. The report writer informed the parties that the parameters of the agreement would be identified in this report as recommendations. I outlined in detail to all the parties the theoretical and developmental principles that the recommendations were based on and all the participants were in agreement.”

The report then recommended the following:
“1.The child [X] to live with Ms Grady (mgm) and to remain resident in Victoria.
2.[X] to spend time with Mr Samworth each alternate weekend from Saturday 10.00 am to Sunday 5.00 pm, and each alternate Wednesday from 5.00 pm to Thursday 9.00 am, or times agreed between the parties for a period of 3 months.
3.At the successful completion of recommendation 2,

Mr Samworth to spend time with [X] each alternate weekend from Friday 5.00 pm to Sunday 5.00 pm and each alternate Wednesday from 5.00 pm to Thursday at 9.00 am, or times agreed between the parties for a period of 6 months.
4.At the successful completion of recommendation 3,

Mr Samworth to spend time with [X] each alternate weekend from Friday at 5.00 pm to Monday at 9.00 am and each alternate Wednesday from 5.00 pm to Thursday at 9.00 am, or times agreed between the parties for a period of 12 months.
5.At the successful completion of recommendation 4,

Mr Samworth to spend time with [X] each alternate weekend from Friday at 5.00 pm to Wednesday at 9.00 am.
6.The parties to have a total of 2 weeks holiday time with [X] in any 1 year taken in 1 week blocks up until the successful completion of recommendation 4, at which time the holiday arrangements change to half of all school holidays taken on a week about basis.
7.It is further recommended that advance notice be given in writing of any intention to take [X] out of the state, and the requisite assurances, return tickets, itineraries, and contact phone numbers be provided. Other conditions as agreed between the parties.”
Given the course these proceedings have taken the initial agreement that was referred to in the recommendations of the first report was, it appears, driven more by the needs and resources of the parties at the time than the needs of the child.
Twelve months later when there continued to be a dispute over where the child should live, in the second report it was said:
“…
2.[X] lives with her maternal grandmother Ms O Grady and spends time with her father Mr Samworth each alternate weekend from Friday pm to Sunday pm, and each alternate Monday from 5.00 pm to Tuesday at 10.00 am.
3.Ms Grady is seeking to relocate to New Zealand with [X], and explained that she is experiencing increasing financial hardship as a result of the Orders requiring her to stay in Australia with [X]. Ms Grady deposes that she is not eligible for citizenship in Australia which deprives her of a wide range of benefits and advantage, and her ability to work is restricted by her inability to fund day care or have family members care for [X]. Ms Grady stated that she is struggling to establish a sound financial base for her and [X] in Australia.
…
6.Mr Samworth stated that he was unaware of the proposals in the current application, and I explained that Ms Grady is seeking to relocate to New Zealand. He stated that he was categorically opposed to any relocation of [X] and indicated his response would be to seek the full time care of [X] under these circumstances.”
The further report dated 9 January 2010 concluded:
“32.The history of the case is well documented and known to the Court, the thrust of the previous agreement was to provide sufficient time, and an incrementally increasing structure of contact, to allow [X] to establish a relationship and secondary attachment to Mr Samworth after her return to Victoria.
33.At the time of the last report there was an obvious antipathy and resentment between the two families and this, to some extent, remains largely undiminished, but is more apparent on this occasion in the narrative of Ms Grady.
34.Ms Grady reports that the biological mother Ms J Grady continues to keep in contact with [X] via phone, and the sending of photographs and other mail. Ms J Grady visited Victoria this year ostensibly to finalize a Court matter and gave birth to her second child while here. She returned to New Zealand soon after and I have been unable to contact her by phone for the purpose of this report.
35.Ms Grady stated at interview that if she is allowed to relocate to New Zealand she will continue as the primary care giver to [X], and it is clear that Ms J Grady has relinquished the full time care of [X] to her mother.
36.Mr Samworth’s belief that his relationship with [X] will be diminished by a relocation that significantly reduces his time and access to her is somewhat born out in the literature. The literature and research in this area is limited but indicates that children in this cohort tend to suffer a greater range of negative psychological, emotional, and social outcomes, than those children whose parents stay closely located after separation.
37.Resilience factors to these negative outcomes and the diminution of quality in the relationship with the non resident parent are identified as, the child’s developmental stage at the time of relocation, the level of attachment formation to the non moving parent, commitment of the moving parent to maintaining the relationship and consistently refreshing the image of the other parent in the child’s mind, and the frequency and duration of the time spent with the non moving parent after relocation.
38.For the purposes of this report Ms Grady (mgm) is indentified as the primary care giver and attachment figure to [X]. [X] is at an age and stage that make it unlikely that she will be able to sustain a coherent internal construct of her relationship with her father if it is interrupted by prolonged and significant absences. The attachment between Mr Samworth and [X] is much improved but still in the process of forming, and will require further time if it is to be consolidated in a meaningful and sustained way.
39.Ms Grady’s plan for contact if she relocates is ill defined and ad hoc, and finances for both families are likely to be an ongoing issue in terms of the extensive travel required. The level of antipathy between the parties is undiminished, and the report writer does not have confidence that the relationship between Mr Samworth and [X] will be supported and sustained at a psychological level if [X] relocates to New Zealand.
40.The potential psychological damage of disrupting the attachment of young children is clearly articulated in the research, and given prominence as a clinical marker for the future psychological health of the child. The sensitivity of the attachment relationships for [X] was clearly visible in the observations during the interview process, and the more continuity and stability around these important relationships the better the psychological and emotional outcomes for the child into the future.
41.If the Court determines the hierarchy of [X]’s primary and secondary attachment relationships as more significant than the financial, extended family, and cultural considerations outlined by Ms Grady, then the relocation of [X] to New Zealand is contraindicated and not recommended at this point in time. Similarly, the change of the primary care living arrangements to Mr Samworth are contraindicated and not recommended for the same developmental and attachment considerations.
42.Ms Grady has put forward an alternative proposal should the Court rule against her application, and is seeking liberal travel arrangements in an effort to maintain her extended family relationships and contact with Ms J Grady. The proposal for two trips a year to New Zealand is not unreasonable in these circumstances.
43.However, the report writer is of the opinion that three weeks is too long a duration in developmental terms for [X] to be away from either party at this point in time, and a compromise solution maybe three trips a year of two weeks duration, or some other combination whereby Mr Samworth joins [X] in New Zealand and holidays with her for a period of time during the three weeks. This could be modified when [X] is four and developmentally more capable of such sustained absences.
44.These are only suggestions and Mr Samworth indicated that he would be prepared to enter into negotiations with

Ms Grady around her travel needs. There will need to be provision made for both parties to experience holiday time with [X], and as a general rule of thumb [X]’s absence from Mr Samworth should not exceed two weeks, and her absence from Ms Grady should not exceed one week until she turns four.
45.Ms Grady is proposing that the Court award her the full responsibility for [X] if she is not allowed to relocate. In general, changes to the joint responsibility provisions of Family Law Orders are seen a measure of last resort when the conflict between the parties is viewed as intractable.
46.Despite some difficulties leading up to the current application the parties have conducted themselves reasonably well over the intervening period since the Orders of the 12 March 2009. This is in the context of previous high levels of animosity which appears to have diminished some what over time. The awarding of sole responsibility has the potential to undermine this gradual improvement and risks the parties falling back into a struggle for initiative and control of the arrangements, and precipitating further applications as they seek to resolve their differences through the Court. In this context Ms Grady’s proposal for sole responsibility is contraindicated and not recommended.
47.Given that change over’s are the most likely point of [X]’s exposure to conflict, and in the context of [X] now being three years of age. It is recommended that the current arrangement be amended and [X] spend each alternate weekend with Mr Samworth from Friday pm to Monday am for a period of four months, at which time it is recommended the arrangement change to each alternate weekend from Friday pm to Tuesday am.
48.In conclusion, the relocation of children is amongst the most difficult and complex of issues addressed in the Family Law context. The driving adult narratives of such disputes often become linear and reductive, and are often centered on the perceived existential and practical needs of the adults involved. This rarely reflects the complexity of the issues and needs faced by the children. Inevitably the perceptions and positions taken by the adults in the dispute have a cogent and persuasive logic, and often one is confronted with ordinary people struggling for autonomy over their lives and the maintenance of meaningful relationships.
49.The recommendations in this report seek to prioritize the two most significant relationships in [X]’s life at this point in time. Her developmental context requires that she maintain consistency and continuity with both these significant relationships in the medium term if possible. While some level of ongoing relationship with the biological mother will also be important, Ms Grady’s ability to travel back to New Zealand, and [Ms J Grady’s] ability to travel to Australia, should see this relationship maintained at its previous levels.”
The second report then recommended that:
“1.The child [X] to live with Ms O Grady in Victoria, and the parties to have shared parental responsibility.
2.Mr Samworth to spend time with [X] each alternate weekend from Friday pm to Monday am for a period of four months.
3.Subject to the successful completion of recommendation 2, Mr Samworth to spend time with [X] each alternate weekend from Friday pm to Tuesday am.
4.Holiday time to be negotiated between the parties taking into account the recommendations of paragraph 44 in this report.
5.Change over’s as agreed between the parties.”

Position of parties

Pursuant to orders made on 25 March 2010 each of the parties were directed to provide a minute of proposed orders reflecting their initial positions.
In the event the child was to remain in Australia, the father sought:
“1.That the Applicant Father have sole parental responsibility of the child, [X], born [in] 2006 (“[X]”).
2.That the child [X] live with the Applicant Father.
3.That the Respondent Maternal Grandmother spend time with and communicate with [X] as follows:
(a)each alternate Friday from 5.00pm to 5.00pm Sunday;
(b)that the Grandmother spend time with the child not less than one week during school term holidays and for two weeks during the summer holiday period when the child, [X], commences school;
(c)by telephone each Tuesday and Thursday between 6pm and 7pm and at other times as agreed by the parties.
4.That the parties advise each other of their current address and telephone details and advise each other of same within two days of change.
5.Such other or further orders this Honourable Court deems appropriate.”
The father proposed if the child was allowed to relocate to New Zealand that:
“1.That the parties have shared parental responsibility of the child, [X], born [in] 2006 (“[X]”).
2.That the father spend time and communicate with [X] as follows:
(a)at any time within 48 hours written request to the Respondent.
(b)by telephone on any day between the hours 6.00pm and 8.00pm.
3.That the parties advise each other of contact details, including telephone and address and advise each other of change of same within 48 hours with in any proposed change and any other orders the court thinks fit.
4.Any other orders as this Honourable Court sees fit.
The maternal grandmother’s position if the child remained living in Australia was as follows:
“1.That the Second Respondent Maternal Grandmother have sole parental responsibility of the child [X], born [in] 2006 (“[X]”).
2.That the Father spend time and communicate with [X] as follows:
(a)each alternate weekend from 5:00pm Friday to 5:00pm Sunday;
(b)upon [X] commencing school, for a minimum of two periods of a maximum of one week during the gazetted school term and summer holidays. One of these visits shall incorporate from 4.00pm Christmas Eve until 2.00pm Christmas Day in odd-number years;
(c)by cards, letters and electronic means at all reasonable times; and
(d)when [X] is able to do so, by telephone each Monday and Thursday between 5.00pm and 5.30pm.
3.That Ms M and Ms G be prohibited from spending time with [X].
4.That the parties advise each other of their telephone contact details and advise each other of any change within 2 days of such a change.
5.Such other or further order as this Honourable Court deems appropriate.”
The maternal grandmother’s position in the event the child was allowed to relocate to New Zealand was as follows:
“1.That the Second Respondent Maternal Grandmother have sole parental responsibility of the child [X], [in] 2006 (“[X]”).
2.That the Father spend time and communicate with [X] in New Zealand as follows:
(a)at all reasonable times upon the giving of one month’s written notice;
(b)by cards, letters and electronic means at all reasonable times; and
(c)when [X] is able to do so, by telephone weekly at times to be agreed.
3.That the parties advise each other of their telephone contact details and advise each other of any change within 2 days of such a change.
4.Such other or further order as this Honourable Court deems appropriate.”
The Independent Children’s Lawyer’s initial position if the child remained living in Australia was as follows:
“1.That the Father and the Maternal Grandmother have shared [in] December 2006 (“[X]”).
2.That [X] live with the Maternal Grandmother.
3.That [X] spend time and communicate with the Father as follows:
(a)each alternate weekend from 5pm Friday to 9am Monday for a period of 4 months commencing Friday 11 June 2010.
(b)commencing 8 October 2010 from 5pm Friday to 9am Monday for a period of 4 months commencing Friday 11 June 2010.
(c)upon [X] commencing school, for one week in each school term vacation and for two one week blocks during the long summer vacation.
(d)such further or other times as agreed between the parties.
4.Pursuant to s.65DA(2) and s.62B, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.”
The Independent Children’s Lawyer’s initial position if the child was allowed to relocate to New Zealand was as follows:
“1.That the Father and the Maternal Grandmother have shared parental responsibility for the child [X] born [in] 2006 (“[X]”).
2.That [X] live with the Maternal Grandmother.
3.That the Father spend time with and communicate with [X] in New Zealand as follows:
(a)at all reasonable times upon the giving of no less than 21 days written notice.
(b)by cards, letters and electronic means at all reasonable times.
(c)by telephone each week at a nominated time.
4.That the parties forthwith keep the other informed of their telephone contact details and forthwith advise the other of any change.
5.Pursuant to s.65DA(2) and s.62B, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.”

Evidence before the Court

In Saunders & Saunders (1976) FLC 90-078 it was said:
“[R]estraint is called for in expressing views about the parties because the need to have regard to the p[reservation of the ongoing relationship between the parties and between the parties and children.”
However, in order to be able to determine this application for parenting orders for a child, where those otherwise responsible have asked the Court to make decisions affecting that child, it is necessary to form an assessment of the character and personality of the parties in this case.
I had the opportunity to carefully observe the father and the maternal grandmother along with the other witnesses whilst they gave their evidence and throughout the duration of the hearing. There were few occasions where the evidence of the father and the maternal grandmother conflicted over a factual issue. That was in large part because of the way the father conducted his case at the hearing.
A significant focus of the parties, who were all funded by legal aid, were concerns about relationships between and amongst members of each of the respective families. Those concerns in turn were alleged to drive concerns they each held for the child in light of events which by and large were, from the point of view of these proceedings by the time of the final hearing, of historical interest only.
A number of the witnesses called by the father had been involved with members of the maternal family and one of his witnesses was an estranged daughter of the maternal grandmother. Almost all of the affidavit evidence given by these witnesses related to historical disputes and allegations of wrongs said to have been visited on them by the maternal grandmother or members of her family.
Save for the report writer, none of the witnesses left the Court with the impression that they were entirely candid in their evidence.
The father was not a good witness. Apart from his evidence being of little forensic assistance, it was clear he and the witnesses called on his behalf were on a mission to damage the maternal grandmother. In particular, his aim appeared to be to damage her credibility such that I could not believe any evidence she gave. In this case however, I find his evidence more unreliable than that of maternal grandmother.

The conflict between his affidavit material and his evidence before the Court on issues regarding the maternal grandmother’s care of the child and his attitude to his child support obligations was particularly damaging to his credibility as a witness given inter alia what had been said in his affidavits.
As noted earlier the maternal grandmother (who affected a taciturn manner in the witness box) maintained her status as a New Zealand citizen did not allow her to access appropriate social security benefits in Australia and her inability to support herself and the chid would be resolved were she permitted to relocate with the child back to New Zealand.
In contrast up and until the final hearing the father and his supporters denied this was the case.[1] Ultimately, and in light of evidence from inter alia the Independent Children’s Lawyer,[2] the father was unable to maintain his claim that the maternal grandmother could access social security benefits in Australia sufficient to support herself and the child without working. As noted earlier, and for all of the above reasons where it is necessary to do so, I prefer the evidence of the maternal grandmother where it is in conflict with the father on issues relevant to determining the child’s best interests.
[1] It is a matter of regret that the father’s solicitor could not have accessed earlier the correct and publically available information on visa categories and entitlements that the Independent Children’s Lawyer so easily obtained when asked to do so. Had that information been available to the father earlier and with the benefit of sensible legal advice, the parties’ positions may not have been so intransigent.
[2] see exhibit “ICL4”

Evidence of the father

The father adopted his affidavits identified above, gave oral evidence and was crossed examined.
In his affidavit filed 17 May 2010 the father had deposed to his version of the events leading up to these proceedings:
“5.In March, 2006 the mother fell pregnant and I was shocked by the news. When we discussed the fact that she was pregnant I told her that I wanted to be involved with the baby. I was 15 years of age at the time and the mother was 16. Our families were involved in discussions about the baby from the time the mother decided to continue with the pregnancy. I say I was supportive and deny any assertions that I did not want [X].
6.About 2-3 weeks after finding out she was pregnant, the mother separated from me. She called me and told me she didn’t want to see me any more and I was upset about this but still wanted to be involved with the baby. Over the next few months I attempted to contact her to find out how the pregnancy was going. On each occasion I was only able to speak to her mother, the grandmother who told me that she didn’t want o speak to me. I was not told anything about the pregnancy or the due date of [X]. I was not informed by the mother about [X]’s birth, I was informed by a friend who told me she had given birth to a baby in the [F] hospital, a few days after [X] was born. I was not aware of the name of our daughter.
7.…
8.In January, 2007 I became aware the maternal grandmother had moved from her address to[omitted in [F]]. On 31^stJanuary, 2007 I was told by a family acquaintance, Ms M, that Ms J Grady had moved to New Zealand with [X]. I then sought legal advice and requested the Central New Zealand authority file an application in the Family Court New Zealand for the mother’s return to Australia. Despite the other opposing this application, a hearing was set down regarding these matters and on 27^th July, 2007 orders were made by the Family Court of [R] requiring the mother to return to Australia by 24^th August, 2007.”
In his affidavit filed 17 March 2010 the father had deposed:
“15.Ms Grady’s concerns that she can not receive full benefits in Australia are, to me, unfounded. I have been made aware that a New Zealand citizen must be a resident in Australia for 2 years after applying for permanent residency, before being able to claim full Centrelink entitlements. Ms O Grady has now resided in Australia since 22^nd August 2007. I believe her claims that she can not be supported in Australia are false and a further attempt to persuade the Court to allow her to return with [X] to New Zealand. I believe that she would not have applied for permanent residency in a further attempt to persuade the court of her financial hardship instead of making an attempt to change her circumstances and improve the quality of lifestyle of her and her family.”
Contrary to the claims in his affidavit material in his evidence before the Court the father confirmed he accepted that the maternal grandmother had no ability to find work given her responsibilities for the child and accepted that unless she could get child care the maternal grandmother could not obtain employment.
In cross examination the father also accepted the material attached to the maternal grandmother’s affidavit and in particular exhibit “JG12” to the affidavit and that she is not eligible for Centrelink benefits.
In cross examination the father when asked to acknowledge the difficulties the maternal grandmother had faced in the last 2 years looking after the child without other financial support said “that’s not my problem”. The father confirmed this evidence in cross examination that he didn’t really have a compliant as to the care of the child received when child was with the maternal grandmother.
The father confirmed that he was in arrears with respect to his child support obligations for the child. When asked what his proposal was to pay for child care so the maternal grandmother could look for and get a job, he explained that he would pay for the days that the child was supposed to be living with the maternal grandmother. He also said the child would be cared for by other members of his family when the child was supposed to be with him.
The father confirmed he had not investigated the cost of flying to New Zealand to visit the child if the maternal grandmother was allowed to relocate. His answer in cross examination “why should I have to do that” illustrated his attitude to this case. This answer was consistent with other answers he gave in cross examination when asked to confront or think about the prospect of the child relocating to New Zealand. His answers were inter alia “why don’t they just stay here”.
It was put to the father in cross examination that it was impossible for the maternal grandmother to stay here and care for the child without financial assistance. The father at various times in his evidence asserted that the maternal grandmother could find work as she had worked in the past. The father acknowledged that he had not offered to pay for the child care when the parties were last at Court in March 2010 and an offer had only been made a matter of weeks before the final hearing.
In answer to questions from Counsel for Independent Children’s Lawyer the father acknowledged that in his affidavits he had deposed that his child support payments were up to date but this was not the case. He reluctantly acknowledged that financial issues were critical to the determination of this matter. This acknowledgement is difficult to reconcile with the father’s position when he asked the Court to accept his statement he didn’t know why he hadn’t paid child support as currently assessed on a monthly basis.
When pressed in cross examination he stated that he paid child support but only annually when the Child Support Agency in conjunction with the Australian Taxation Office garnished his taxation return to secure payment of child support arrears. When asked by Counsel if it was acceptable that the maternal grandmother only received financial assistance annually and not monthly he said glibly, “I thought it would be better in one lump sum.”
The father seemed puzzled and didn’t appear to comprehend the difference in the context of this matter (where the maternal grandmother was reliant on financial support from others to care for the child) between meeting his obligations of paying child support as assessed on a monthly basis and not meeting his obligations with the result that the Australian Taxation Office had to garnish his taxation returns. Sadly the overwhelming tenor of the evidence the father gave in relation to child support evidenced an attitude that he believed it was not his problem.
In answering questions from the Independent Children’s Lawyer the father confirmed that he accepted that the maternal grandmother was not entitled to any social security benefits. He also accepted that if the maternal grandmother was not allowed to relocate then the child should remain living the maternal grandmother. The father confirmed in answer to questions from the Independent Children’s Lawyer that he accepted that the maternal grandmother could get nothing by the way of meaningful financial support from Centrelink.
Also, in answer to questions from Counsel for the Independent Children’s Lawyer the father made plain that despite his earlier evidence he did not want the child to live with the maternal grandmother[3] but hadn’t thought through what that would involve practically. His evidence also made plain he had clearly not thought through what arrangements could be made for this to work (including in relation to offers made shortly before the final hearing to obtain and/or pay for child care) or indeed identified with any degree of necessary particularity what the actual costs of his offer to pay for child care would be and whether he could afford it. Indeed what evidence there was made plain he could not afford to fund such an offer and also hadn’t thought that through.
[3] As will become clear presently the father’s final position acknowledged the child should continue living with the maternal grandmother.
Finally the father exhibited on air of resignation when it was put to him by Counsel for the Independent Children’s Lawyer that the Court could have no faith in him, as a parent, given his attitude to his failure to pay child support even at the minimum assessed rate which was in arrears. Whilst this may have been due to the length of cross examination he had endured, his demeanour in the witness box in my view made plain his evidence had not gone as he had expected.

Evidence of paternal grandmother

The paternal grandmother gave evidence and was crossed examined. She adopted her affidavits referred to earlier.
In answer to questions in cross examination the paternal grandmother confirmed that she had no complaints as to the child’s development. The paternal grandmother acknowledged that the maternal grandmother must be doing something right for the child.
The paternal grandmother acknowledged that the child was primarily attached to the maternal grandmother. However she gave evidence (in the context of the proposed move to New Zealand) she believed that any change in the child’s living arrangements, would be detrimental. The paternal grandmother’s evidence was that the paternal family should share in the care of the child and that the child should not be taken to New Zealand. When confronted with the recommendations of the report writer the paternal grandmother’s evidence was “that’s what he says”.
The paternal grandmother was asked whether she appreciated the financial difficulties confronting the maternal grandmother remaining in Australia and continuing to care for the child. Her answer was that she thought the maternal grandmother could get a job and work. When asked what her understanding of the offer of assistance towards child care had been made the paternal grandmother’s evidence was “we will all chip in”.
When asked in cross examination what her complaints were of the maternal grandmother, the paternal grandmother said that she didn’t like the way the maternal grandmother thinks she is the mother of the child. She gave evidence that she didn’t like the history the maternal grandmother had with raising her own biological children. When confronted by Counsel for the Independent Children’s Lawyer with the father’s history of failure to meet his child support obligations the paternal grandmother’s evidence and demeanour in the witness box when confronted with those questions made clear she didn’t believe he had done anything particularly wrong.

Evidence of Ms F

Ms F gave evidence and was crossed examined. Ms F adopted her affidavits referred to earlier.
In answers to questions in cross examination Ms F confirmed that she had only worked for 6 months in the child care industry on a casual/part time basis. She accepted the evidence in her affidavits on the availability and cost of child care had to be seen in that light. She gave evidence that she was pregnant and due to give birth later this year. In answers to questions from Counsel for the maternal grandmother Ms F’s evidence made clear that she had only made very limited enquires on behalf of the father as to the availability of child care for the child in the event the maternal grandmother was not able to relocate with the child.
Overall Ms F’s evidence as well as that given by the father and paternal grandmother made clear, to the extent that any offer of financial assistance for child care had been made it was not only very late in the piece, and had clearly not been thought through. It was also clear that offer was not realistic in context of the father’s financial circumstances and commitments.

Evidence of other witnesses

Ms A (the maternal grandmother’s estranged daughter) adopted her affidavits referred to earlier.[4] Ultimately Ms A was not required for cross examination given no doubt her affidavit evidence related to events long ago.
[4] A DVD of a current affairs program detailing Ms A’s allegations against her mother was excluded for reasons given ex tempore
The evidence of Ms M went to issues concerning claims made against the maternal grandmother that occurred years ago and she also was not required for cross examination. Having regard to the fact that there was no criticism of the care the maternal grandmother gave to the child over the last 2 years, the Court was not satisfied the evidence of either witness was particularly relevant for the task before the Court. Sadly the focus of a lot of the evidence from these witnesses was on intra or inter family struggles for control over their own lives rather than what was best for the child.

Evidence of maternal grandmother

The maternal grandmother gave evidence and was crossed examined. She adopted her affidavits referred to earlier.
In her affidavit filed 10 May 2010 the maternal grandmother had deposed to her understanding of events leading up to the commencement of these proceedings:
“11.To my knowledge, Mr Samworth did not contact Ms J Grady throughout the pregnancy or offer any kind of assistance or support.
12.[X] (“[X]”) was born [in] 2006. Mr Samworth was not present at the birth. I received a telephone call from

Mr Samworth approximately two weeks after [X]’s birth asking me “what about my kid?” We had no further contact with Mr Samworth until Ms J Grady received a letter from Roundtable Dispute Management in or around January 2007. Ms J Grady sought legal advice and was told as there were no orders in place, she was free to leave Australia to return to New Zealand with [X].
RETURN TO NEW ZEALAND
13.Ms J Grady and [X] returned to New Zealand on or about 21 January 2007. [Z] and I returned to New Zealand on or about 3 February 2007. The decision to return to New Zealand was based on a number of factors.
(a)Mr Samworth’s eldest brother, Mr S had made threats towards myself and my family. [Z] told me and I verily believe that he was approached by Mr S who said he was “going to get someone to kill your mother and Ms J Grady.” Mr S had a violent criminal history and had only recently been released from prison at the time. I was terrified that Mr S would carry out his threats because I firmly believe that he is capable of executing such threats.
(b)I had been experiencing difficulties with my ex-partner’s current partner Ms M (“Ms M”). Ms M had threatened me and attempted to punch Ms J Grady in the stomach when Ms J Grady was pregnant.
(c)My mother (ho lives in [R], New Zealand) was diagnosed terminally ill with breast cancer. She was receiving chemotherapy and radiation treatment. I wanted to be at home with my mother to support her through this serve illness.
(d)Ms J Grady and I were experiencing financial difficulties. We did not qualify to receive government financial assistance except for Family Tax Benefit at $130.00 per week. I was not employed at that stage and were struggling financially.
14.Ms J Grady was still a minor at the time we returned to New Zealand. She was emotionally and financially dependant on me. [X] is a New Zealand citizen and travelled on a New Zealand passport.
HAGUE CONVENTION ORDERS
15.Orders were made in the Family Court of New Zealand at [R] on 27 July 2007 directing that [X] be returned to Australia. …
16.Ms J Grady, [Z], [X] and I returned to Australia on 22 August 2007. Due to the threats made by Mr Samworth and his family, I decided it was safer for my family if we lived in Queensland where we had family and friends rather than returning to Victoria where we had no support.
PROCEEDINGS
17.On 1 November 2007 Senior Registrar Fitzgibbon ordered inter alia that [X] be returned to Victoria (amongst other orders) and made other orders for Mr Samworth and Ms J Grady to comply with regarding [X]. I was employed part time in Queensland and had to resign as Ms J Grady relied on me both emotionally and financially to support her with [X]. [Z] had to leave school. We arrived in Victoria on 21 November 2007. We stayed with a friend of mine in [N] until alternative accommodation through Hanover Housing was found.”
In the face of what was clearly a dispute between the families when her daughter became pregnant, the maternal grandmother’s evidence made plain that in 2007 she had been determined to keep the whereabouts of herself, her daughter and the child a secret. She claimed to have received advice from a solicitor that it would not be unlawful for her, her daughter and her granddaughter to return to New Zealand without the father’s permission.
The maternal grandmother denied not including the father’s name on the child’s birth certificate so that she would be able to return to New Zealand with her daughter and granddaughter without his permission.
The maternal grandmother denied returning to Queensland after the proceedings in New Zealand in an effort to delay the father’s time with the child or to frustrate the development of a relationship between the father and the child.
In her affidavit filed 10 May 2010 the maternal grandmother had deposed:
“MY FINANCIAL CIRCUMSTANCES
39.I am a New Zealand citizen visiting Australia under the provisions of the immigration guidelines permitted to New Zealanders residing in Australia. Under my current visa status I am unable to obtain financial government assistance for caring for [X]. One of the requirements for obtaining a government benefit is citizenship or permanent residency status. I do not have and am not eligible to obtain either of these. I am not eligible to obtain government benefits to financially assist in the care of [X].
40.I am the holder of a Special Category Visa (“SCV”) which is the immigration status granted to all New Zealand citizens on entering Australia. I am not eligible to obtain Australian citizenship or permanent residence as an SCV holder as I do not meet the requirements under the transitional Permanent resident visas were automatically granted to SCV holders who were in Australia on 26 February 2001 and did not spend 12 months in Australia period to that date. I was in New Zealand on 26 February 2001 and did not spend 12 months in Australia prior to that date. New Zealand residents who arrived in Australia on or after 27 February 2001 must be granted permanent residence in order to obtain certain social security benefits. Without citizenship or permanent residency I am unable to obtain social security benefits to assist in my care of [X]. …
41.SCV holders may be eligible to obtain a reduced benefit from Centrelink if they meet additional criteria. As an SCV holder I would only be eligible for government benefits where I can demonstrate that I have strong and permanent ties to Australia. This would require evidence including that I have fixed a permanent ties to Australia. This would require evidence including that I have fixed and permanent accommodation, that I have strong family ties, whether I have assess to assets, whether I have long term employment or the prospect of same, and the purpose and duration of my residence in Australia. I do not meet these requirements as an SCV holder for the purpose of obtaining government benefits for [X]. …
42.[X] receives a Special Benefit from the government which is deposited into my account as her nominee. I am entitled to gain full time employment without applying for a work visa. …
43.There is no-one that can assist me financially for the care and welfare of [X]. Mr Samworth is assessed to pay child support at the minimum rate of $98 per month.

Mr Samworth does not pay regular child support benefits for [X] however the Child Support Agency intercepts his arrear payments when he lodges his annual tax return. …”

The maternal grandmother was asked a number of questions in cross examination by Counsel for the father about her expenditure over and above what was included in her financial statement. However that questioning failed to advance matters or change the evidence before the Court that the maternal grandmother could not support herself and the child here without more outside financial support which was not forthcoming.
The maternal grandmother was asked questions about what arrangements would be made if she was permitted to relocate with the child to New Zealand. Her evidence made plain that she believed she could afford to live modestly and provide for the child’s needs in New Zealand with the assistance of government benefits which she could not access in Australia.
In her affidavit filed 10 May 2010 the maternal grandmother had deposed to the circumstances surrounding and the reasons why she believed her daughter had left Australia and left the child with her:
“20.Ms J Grady was suffering emotionally with the stress brought about by the Court proceedings. She told me that she was ‘stressed out’ and that she just wanted to return to New Zealand and resume a normal life again. After the hearing in January 2008 Ms J Grady’s depression worsened. I tried to persuade Ms J Grady to stay in Australia and seek counselling but she was adamant that she just needed to get away from the entire situation. …
21.On or about 15 February 2008 Ms J Grady gave me a Statutory Declaration declared at [D] Police Station stating that in effect she was returning to New Zealand on 23 February 2008 and that she was leaving [X] behind with me. Her reasons for leaving were that she was extremely depressed and stressed due to the ongoing Court proceedings. …
22.Ms J Grady left Australia on 23 February 2008. I believe that her father in New Zealand paid for her ticket. [X] remained in Australia with [Z] and myself and has remained in my care since. We live in temporary housing organised through Ways Emergency Accommodation and Hanover House.”
The maternal grandmother denied that if her daughter recovered from the problems she had referred to that her daughter would resume responsibility for the child. The maternal grandmother gave evidence that in large part, (save for occasions over the last 2 years when the father had occasionally been late to changeover) parenting arrangements for the child in the interim orders had progressed relatively smoothly.
In cross examination the maternal grandmother confirmed that she owed money to various organisations in Australia. She confirmed she had previously been bankrupt and that she intended, if she was permitted to relocate with the child, to finance the necessary travel arrangements for that move from her tax return which she understood was due in July. In her evidence the maternal grandmother said when she returned to New Zealand she would “get on the benefit”. As I understood it this was a reference to her accessing social security benefits in New Zealand.
In cross examination the maternal grandmother indicated that she could try and find employment in Australia but there was still the problem of needing to make arrangements to care for the child, pay rent for a property where she and the child could live, child care for the child if she was able to find work, food and other debts and there was just no financial assistance available to her necessary to meet all of those expenses.
In answer to questions from the Independent Children’s Lawyer the maternal grandmother made clear that she did not believe the mother had totally abandoned the child. She gave evidence that the mother had left Australia only because of a crisis in her life. Her evidence was that she believed the child’s maternal grandfather’s Maori background would be important to the child. Her evidence was that if her proposal to relocate was successful, she would live in the [R] area and this would be beneficial to the child.
In her affidavit filed 10 May 2010 the maternal grandmother had deposed:
“PROPOSAL 1 – IF [X] IS ALLOWED TO RETURN TO NEW ZEALAND WITH ME
70.If I am permitted to relocate, I will enrol [X] in kindergarten as soon as we arrive as kindergarten in New Zealand commences at age 3 years. I would like to send [X] to [H] Kindy in [R], which is the same kindergarten my three children attended. When [X] id 5 years I would send her to [W] Primary School, which is the same primary school Ms J Grady attended.
71.[X] has a half-sister, [Y] whom she adores. Ms J Grady stayed with [X], [Z] and myself for several months, during which time [X] formed a close attachment to her half-sister. Ms J Grady has now returned to New Zealand with [Y]. I am permitted to relocate, I intend to rent a house in [R] for Ms J Grady, [Z], [X], [Y] and myself. [X] will have the advantage of living in a close-knit family and be raised with her younger sister whom she adores. …
72.[X] has uncles, aunts, cousins and other extended maternal family in New Zealand. Our family has ties to the Maori culture and I believe it is important for [X] to learn about her heritage. Ms J Grady is especially proud of here Maori culture on her father’s side.
73.I would support Mr Samworth spending time with [X] in New Zealand as often as he is able to travel to New Zealand, subject to him giving me on month’s notice if these times. Mr Samworth would be able to telephone [X] on a weekly basis and I would send photos of [X] to

Mr Samworth. I would also arrange for [X] to receive letters, cards and gifts sent by Mr Samworth. I would also provide Mr Samworth with copies of kinder and school reports as well as any other information in regards to [X]’s activities. In due course if Mr Samworth wanted to arrange same I would organise for him to speak with [X] by Skype or similar internet webcam system.”
In answer to questions from the Independent Children’s Lawyer the maternal grandmother gave evidence of her understanding of the financial assistance she would get in terms of housing and other financial support under New Zealand social security system.
The maternal grandmother confirmed that she would encourage the child’s relationship with the father, that she would ensure that the child was available to spend time with the father if he visited the child in New Zealand, that she would make arrangements in New Zealand for the child to have access to a telephone line and internet facilities and that she believed that the child needed to know both of her parents.
The maternal grandmother’s evidence in answer to question from Counsel for the Independent Children’s Lawyer indicated that she believed she had a good track record encouraging the child to see the father whilst she had been responsible and caring for the child and she had done the same for her own son when she had separated from her former husband. The maternal grandmother’s evidence was that she had never stopped her own son’s father from seeing him.
The maternal grandmother confirmed in answer to questions from the Independent Children’s Lawyer that her position was that she could not afford to live in Melbourne with the child. It was clear it was the maternal grandmother’s position that financially she was therefore forced to seek to be able to return to New Zealand with the child. It was clear that this position was put cognisant that the child was primarily attached to her, that she had been the child’s primary carer for almost the whole of the child’s life, that it would be damaging for the child if she was separated from her and it was her belief that it was not in the child’s best interest for her to stay in Australia and live with the father given the primary attachment the child had to her.
Lastly, the maternal grandmother made clear that she would not leave Australia without the child even if that meant she was going to continue to struggle financially.

Evidence of report writer

The report writer gave evidence and was crossed examined. He confirmed the details of his reports dated 28 January 2009 and

9 January 2010. He also confirmed that he had seen and considered each of the proposals put to the Court by the parties.[5]
[5] see paragraph [44] to [50].
The report writer confirmed his conclusion was that the child was primarily attached to the maternal grandmother and that even at its best the child’s relationship with the father was a secondary attachment. However, in light of the evidence at the hearing and the proposals of the parties, the report writer refined and changed his recommendations in his evidence before the Court.
The report writer confirmed his understanding that the maternal grandmother and the child were living in poverty in Australia because of inter alia restrictions on her ability to access social security that were imposed on the maternal grandmother under her visa, her inability to obtain permanent residency or citizenship and her inability to obtain suitable employment. Further the report writer confirmed he understood the maternal grandmother’s proposal was made on inter alia the basis that she was not able support herself and the child financially in Australia.
The report writer acknowledged that under either party’s proposal it was likely that the child was going to suffer from some form of adjustment (to and as a result of the changes contemplated in those proposals) either psychologically or emotionally or perhaps both. In that context it was the report writer’s view that the approach of the Court should be focused on the least damaging option for the child, that is, the least damaging proposal both psychologically and emotionally.
The report writer confirmed that children, when separated from their primary carer at a young age were over represented in terms of adverse developmental and emotional outcomes. It was the report writer’s evidence that interruption or separation from the primary attachment figure could lead to developmental difficulties. It was the report writer’s evidence this could lead to educational and psychological problems in terms of learning and behavioural difficulties and all those issues would impact on and continue to impact on their development into the child’s adult life.
The report writer confirmed that his view was the child was primarily attached to the maternal grandmother and his view was that this relationship was fundamental to the child’s best interests. It was the report writer’s evidence that if the child was separated from the maternal grandmother it was likely the child would suffer emotional disturbance, depression, possibly manifesting symptoms like nocturnal bed wetting, and there would be an interruption to her developmental progress for a long period of time all of which would have significant impacts on the child’s future psychological health.
The report writer confirmed that it would be beneficial to the child, (notwithstanding that he had not opportunity to comment on the relationship between the child and the mother) if the maternal grandmother was permitted to relocate with the child to New Zealand as the opportunity for reunification with the mother would be of benefit to the child and would enable some development or formulation of attachment to the mother.
The report writer acknowledged that separation from the father would lead to a negative impact on the child and given what had developed over the last 2 years the child’s relationship with the father would be diminished. However, the report writer’s evidence was any damage to (or diminishing of) that relationship could be ameliorated. The report writer’s evidence was the extent of that amelioration would depend on arrangements made for time spent between the child and the father if the maternal grandmother was permitted to relocate with the child. The report writer’s evidence made clear a relationship with the father could be maintained if the maternal grandmother was permitted to relocate with the child to New Zealand.
Notwithstanding the recommendations in each of the reports, the report writer gave evidence that adopting a more cautious, sensitive and conservative approach it would be better and in the child’s best interests if the child was allowed to relocate with the maternal grandmother.

Final position

At the conclusion of the oral evidence each of the parties made submissions. Before doing so, Counsel for each of the parties provided the Court with their respective final positions on what orders would be in the child’s best interests.
At the conclusion of the hearing and in light of the evidence the Court was told the position of the father was as follows:
“1.That all previous parenting order be discharged.
2.That the child live with the second named respondent maternal grandmother.
3.That the Father and the Maternal Grandmother share equally the parental responsibility for the child [X] born [in] 2006.
4.That the child spend time with and communicate with the Father as follows:
A.for a period of 3 months (from this date):
(i)     each alternate weekend from 5.00pm Fri until 5.00pm Sunday commencing 18 Jun 2010.
(ii)    each alternate Monday from 5.00pm until 10.00am Tuesday commencing 14 Jun 2010.
B.from the first weekend in September 2010:
(i)     each alternate weekend from 5.00pm Friday until 10.00am Tuesday.
C.Christmas period:
(i)     in years ending in an even number from 2.00pm 24 December until 2.00pm 25 December.
(ii)    in years ending in an odd number from 2.00pm 25 December until 2.00pm 26 December.
AND should the child be in the care of the Father on 24-25 and or 26 Dec then such period be suspended in an appropriate manner for the child to spent time with the respondent maternal grandmother 2.00pm 25 Dec to 26 Dec in years ending in an even number and 2.00pm 24 Dec until 2.00 25 Dec in years ending in an odd number.
D.from the first weekend in the month of March 2011.
(i)     each alternate weekend from 5.00pm Friday until 10.00am Monday.
E.At such other times as might be agreed between the parties.
5.That changeover occur at the homes of the parties.
6.That the Respondent be at liberty to travel interstate with the child for periods of no more than 2 weeks upon one months notice in writing to the Father wherein the Respondent details an appropriate itinerary.
7.That the Respondent do all acts and things and sign all documents necessary to have the fathers name included on the child’s birth certificate.
8.That the father cause to be paid all reasonable child care expenses necessary to facilitate the maternal grandmother obtaining gainful employment.”
At the conclusion of the final hearing and in light of the evidence the Court was told the Independent Children’s Lawyers position was as follows:
“1.That the child [X] born [in] 2006 (“the child”) live with the maternal grandmother.
2.That the maternal grandmother have sole parental responsibility for the said child, subject to paragraph 3 below.
3.That the maternal grandmother provide to the father without undue delay information in relation to:
a)the child’s health and medical needs as they may arise;
b)photographs of the child no less than once per month; and
c)copies of any printed information concerning the child’s social and academic progress, produced by any kindergarten or school the child may attend, and which is normally made available to parents.
4.The said child be permitted to relocate her primary residence to New Zealand.
5.That the maternal grandmother keep the father appraised at all times of her current:
a)contact telephone number;
b)email address;
c)residential address; and
d)the details of any kindergarten or school the child may attend.
6.The father spend time with and communicate with the said child as follows:
a)by telephone once per week on a day and time to be agreed, and the grandmother ensure that the said child is available to received the call and facilitate same, at the cost of the father;
b)by Skype, and the grandmother use her best endeavours to arrange such facility in her home for the child to use without undue delay;
c)upon the provision of one month’s notice, the father may spend time with the said child in New Zealand for a period up to 5 days, away from the home of the maternal grandmother but in the vicinity of same;
c(i)during any period of contact referred to in sub paragraph 6(c) above, the child shall communicate with the maternal grandmother once per day by telephone and the father shall facilitate same;
d)on 3 occasions in each year the Father may upon the provision of two month’s notice to the maternal grandmother, require that she travel with the said child from New Zealand to Melbourne and to facilitate same, he shall provide a return airfare prepaid for the maternal grandmother and the child, such contact to be for a period of one week in the absence of the maternal grandmother; and
e)upon the said child turning 4 years of age, sub paragraph 6(d) may operate on the basis of the child returning to Australia accompanied by an airline officer in the absence of the maternal grandmother.
7.Dismiss all extant proceedings.
8.Certify.
9.S.65DA(2) and s.62B provisions apply hereto.”[6]
[6] Exhibit “ICL5”
Counsel for the maternal grandmother told the Court that in light of the evidence led during the final hearing her client sought orders in the same terms as those sought by the Independent Children’s Lawyer.[7]

Submissions on final position(s) in light of evidence

[7] see para [116]

Submission of the father

Counsel for the father acknowledged that many of the matters raised by Counsel for the Independent Children’s Lawyer were persuasive and may lead the Court to making final orders in accordance with those recommended by the Independent Children’s Lawyer on a final basis and marked as Exhibit “ICL 5”.
In light of the evidence at the hearing Counsel for the father acknowledged that this was a difficult matter. To the extent that submissions were made by Counsel for the father they appeared to proceed on the basis that it was acknowledged in light of the evidence that his client would face difficulties in opposing orders if final orders were made in terms of Exhibit “ICL5” which were the final orders sought by the Independent Children’s Lawyer.
Nonetheless Counsel for the father claimed that the Court could have no confidence the maternal grandmother would honour her obligations under orders if they were made in those terms when it was submitted she would escape monitoring or the prospect of enforcement. Counsel for the father claimed that enforcing orders overseas was not simple and may lead to further Hague Convention proceedings. In light of those concerns Counsel further submitted that the orders as recommended by the Independent Children’s Lawyer were a farce. As I understand this submission it was directed more to the likelihood that the father could successfully enforce any such orders rather than a reflection on the substance of the orders recommended by the Independent Children’s Lawyer in light of the evidence particularly given his clients concession that the child should remain living with the maternal grandmother.
Counsel for the father in final submissions sought to contrast his client’s work ethic with the attitude of the maternal grandmother to getting on the “benefit.” Counsel for the father asked rhetorically how would such an attitude on behalf of the maternal grandmother help the child in the long term if that was the example she was shown.
Counsel for the father said to the extent that the maternal grandmother had embraced orders sought by the Independent Children’s Lawyer on a final basis these were just “platitudes”. In the ultimate, Counsel for the father claimed that child would be the “loser.”

However, the father and the witnesses called on his behalf were scathing in their criticism of the maternal grandmother at least in their affidavit material. Whatever misgivings the father may have harboured as a result of the brief relationship he had with the mother and the events that followed, a moment’s reflection should have been sufficient to indicate how unfair the criticism that was made of the maternal grandmother in the affidavits was, at least so far as the issues concerning the child were concerned particularly given none of that was made out in their evidence before the Court.
The maternal grandmother, despite her failings (perceived or otherwise) as far as her own children are concerned, has been a rock or the foundation stone for this child when her parents (who possibly were too young) have been unable to cope.
In light of the above discussion and the discussion of the relevant s.60CC factors I now turn to consider parenting orders in the child’s best interests. As noted earlier and in light of the evidence each of the parties put different positions on the issue of parental responsibility to that included in their earlier proposed orders.[19]
[19] see paragraphs 115-117
In Chappell & Chappell [2008] FamCA FC 143 it was said:
“75.In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss60CC(2) and (3), one of which requires the Court to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two.”
More recently the Full Court in Marvel & Marvel (No.2) [2010] FamCA FC 101 said:
“103.It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.”
Given the mother has taken no meaningful part in these proceedings and having regard to the position of the parties it is important to first consider whether an order for equal shared parental responsibility between the father and the maternal grandmother could be made in a case such as this. In Carlson and Ors & Bowden [2008] FamCA 1064 at para 177 Murphy J considered the issue of parental responsibility in the context of a dispute between parents and a grandparent and said:
“177.Counsel for the mother argues that the mother, father and grandmother should together have equal shared parental responsibility. Such a submission calls into question what the Act means by the undefined “equal shared parental responsibility”.
178.At first blush the Act would appear to give no power to make an order for non-parents to receive the benefit of such an order. First, s 61DA – the section containing the presumption - speaks only of “parents” having equal shared parental responsibility. Further, the power to make parenting orders (s 65D) is made subject to s 61DA. And, s 65DAA, which mandates the consideration of equal time upon the application of the presumption, applies when an order provides that “the child’s parents” are to have equal shared parental responsibility.
179.But, the picture is not that simple. Section 64B defines parenting orders to include orders whereby the court allocates parental responsibility. Section 64B(2)(d) contemplates, in terms, the possibility of “two or more” people sharing parental responsibility and also refers to “persons” sharing parental responsibility as distinct from parents.
180.Further, an application for a “parenting order” which, by definition, can include an application for an order for parental responsibility by “two or more persons”, can be made not only by a parent, but by any person concerned with the care, welfare and development of the child (s 65C) and can be made in favour of a parent or “some other person”.
181.The position is, then, it seems to me, that an order allocating parenting responsibility can be applied for by a non-parent concerned in the care welfare and development of the child and an order can be made between two or more persons including persons who are not a parent. However, the presumption of equal shared parental responsibility applies only as between parents.
182.Further, where an applicant, or applicants, other than the parents apply for a parenting order allocating parental responsibility, the presumption would operate such that it would be presumed that the parents would have equal shared parental responsibility to the exclusion of the non-parents. Expressed another way, the presumption that the parents share parental responsibility equally would need to be rebutted by reference to the matters enumerated in s 61DA(2) or (4) before an order allocating parental responsibility to non-parents could be made.”
In this case whilst the presumption of equal shared parental responsibility could apply, the parties submissions (appeared to assume and) proceeded on the basis that it did (at least so far as the father and the maternal grandmother were concerned). However given what the authorities say, and disregarding the allocation of parental responsibility in the interim orders, in light of my discussion of the relevant s.60CC factors the evidence in this case satisfies me the father and the mother would be unable to consult and make a genuine effort to reach agreement about major long term issues affecting the child. In light of the evidence there should not be an order for equal shared parental responsibility between the father and the mother.
Pursuant to s.64B(2) of the Act the Court can make an order for the maternal grandmother to have parental responsibility for the child. On the evidence before the Court the father and the maternal grandmother have not been required to communicate about any long-term or major decisions affecting the child. Given my discussion of the relevant s.60CC factors and in light of the evidence. They are not able to do so in my view and such an order would not be in the child’s best interests. That is not to say the father does not have a valid perspective. He would have but that is not the determining factor of what is in the child’s best interests.
I am mindful that a decision on this issue involves potentially a serious interference with fundamental rights but having considered the matter in the context of all the evidence and the discussion of the s.60CC factors I have no confidence the father and maternal grandmother would be able to communicate and co-operate on long term issues for the child. I am satisfied it is in the best interests of the child that the maternal grandmother has sole parental responsibility coupled with an obligation on the maternal grandmother to keep the father informed as the Independent Children’s Lawyer’s draft order suggests.[20]
[20] see Exhibit “ICL5” at paragraph 116
In these circumstances, where the Court does not propose to make an order for the parties to have equal shared parental responsibility, s.65DAA does not apply. For completeness, I find it would not be in the best interests of the child to have equal time with the father.
If the maternal grandmother is not allowed to relocate with the child in my view the evidence makes clear and the parties positions reflected this it is still not in the child’s best interests or reasonably practicable for the child to spend equal time. To the extent that substantial and significant time could be considered in such a situation I am not satisfied anything other than a continuation of the extant alternate weekend blocks could work or would be in the child’s best interests.
Given the above the issue that squarely arises for determination is whether it is in the best interests of the child to remain in Australia in the hope that over the next few years the father will take advantage of opportunities to see her. The final proposal put by the Independent Children’s Lawyer and the maternal grandmother does raise for consideration the opportunity for the child to have a meaningful relationship with the father. However, as noted earlier the evidence is the child is primarily attached to the maternal grandmother and the relationship with the father can be maintained if that proposal is accepted.
Having regard to the various factors under section 60CC, I find that the child’s best interests are served by continuing to live with the maternal grandmother. In light of my findings about the financial limitations on the maternal grandmother’s capacity to parent I consider that an order providing for the child to live with the maternal grandmother in Melbourne and spend time with the father would result in much instability in the future with her living arrangements and continued financial insecurity and is most likely to result in further litigation and not be in her best interests. I am not satisfied that any counter balancing considerations in favour of the father’s proposal were either reasonably practical, realistic, child focused or ultimately sustainable.
Family reports and the evidence of family report writers are valuable and relevant material in assisting the Court to form an ultimate conclusion on orders in the child’s best interests (see Hall & Hall [1979] FLC 90-713). I am conscious that it is the task of the Court to decide the issues in this case and that the opinion of a report writer is but part of the evidence that must be accounted for against the matters set out in s.60CC of the Act. However, when one does consider all of the evidence, the conclusion that I am driven to is that the child would suffer deep seated psychological and emotional damage if she were separated from the maternal grandmother. Therefore “the least damaging” or “least worst” option for the child given the sad circumstances confronting each of the parties and the poverty like conditions in which the maternal grandmother in particular finds herself would be for the maternal grandmother to be permitted to relocate with the child to New Zealand.
Given that I am of the view and am satisfied that the evidence establishes that the child can maintain a meaningful relationship with the father in accordance with the Independent Children’s Lawyer’s final proposal then I believe her best interests are served by allowing the maternal grandmother to relocate with the child to New Zealand as compared to her remaining living with her in Melbourne.
Given the position of the parties and the orders sought by the Independent Children’s Lawyer in light of the evidence and my discussion of the relevant s.60CC factors neither equal time nor substantial and significant time with the father is in the child’s best interests or reasonably practicable on the facts if the maternal grandmother is permitted to relocate.
In that light the only real option at this time, and for the foreseeable future, so far as physical time is concerned, is that the father’s time be spent in New Zealand and otherwise in the terms of the Independent Children’s Lawyer proposal.[21] It was not suggested in final submissions that in those circumstances anything else was reasonably practicable or in the child’s best interests. For completeness in that event I would find in light of the discussion of the s.60CC factors it would not be in the child’s best interests for equal time or significant or substantial time with the father.
[21] see paragraph 116 above
In light of the objects and principles in s.60B, and the consideration of the s.60CC factors, having had an opportunity to see both the father and the maternal grandmother give evidence and having considered the submissions made on their behalf I am satisfied that orders in terms of those sought by the Independent Children’s Lawyer are necessary (including discharging the watch list) reasonably practical (given the parties respective circumstances) and in the child’s best interests.

Conclusion

As was noted at the commencement of these reasons, issues of relocation are amongst the most difficult matters dealt with by the Court. The competing proposals of the parties are usually dramatic and the effect on an unsuccessful litigant can be devastating. However the task for the Court as always is one of balancing a number of considerations and making orders in the child’s best interests.
In McCall & Clarke (2009) FamCA 92 the Full Court said at paragraph 135:
“We accept that the availability of family support including such things as reliable quality child care, financial assistance, and emotional support for a parent and a child, can be very important considerations in any parenting case particularly one involving relation, and are all matters to be balanced and weighed when considering competing proposals. But those factors, or a lack of them, do not automatically support a finding that a party’s parenting capacity will be compromised particularly when they may be counterbalanced, at least in part, by other benefits, including the sharing of day to day care of a child,”
As I have endeavoured to make clear in these reasons this case has involved a balancing of all of the relevant factors in s.60CC and consideration of the competing proposals.
In my view the result of the delicate balancing exercise in this case falls in favour of permitting the maternal grandmother to relocate to New Zealand with the child.
For the reasons set out above the Court is satisfied that the orders set out at the beginning of these reasons for judgment are in the child’s best interests.

I certify that the preceding two hundred and thirty-four (234) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM

Date: 3 August 2010

ATTACHMENT A

AGREED CHRONOLOGY

Date	Event
1963	Maternal Grandmother born.
1989	Mother born.
1990	Father born.
28.01.2005	Mother and Maternal Grandmother arrive in Australia.
2006	[X] born at [F] Hospital.
08.01.2007	Ms J Grady, Ms O Grady and the child [X] return to New Zealand.
27.07.2007	Application made under the Hague Convention, Family Court [R]. Orders made, inter alia as follows: 1. That [X] be returned to Australia before 24 August 2007. 2. That [X] be accompanied by the Mother. 3. That the Father meet all costs of [X]'s air travel to Australia and the costs of the Mother's air travel to Australia. 4. That the parties, together with the respective State Central Authorities in Australia and New Zealand, liaise to ensure that a particular date and flight is allocated for the travel referred to herein. When those details are determined they are to be notified to the Court by way of further memorandum. 5. That the memorandum together with the Order be advised to Interpol to facilitate the return of the child. 6. Upon the return of the child to Australia, Orders be made in this Court preventing the removal of the child from New Zealand be discharged. 7. No order as to costs.
16.08.2007	Father files Initiating Application seeking interim and final orders.
16.08.2007	Ex-parte Watch List Order made by Federal Magistrate Phipps.
22.10.2007	Orders made by Federal Magistrate O'Sullivan transferring the proceedings to the Melbourne Registry of the Family Court.
22.10.2007	Mother files Response to Initiating Application for interim and final orders.
01.11.2007	Orders made by Senior Registrar Fitzgibbon, inter alia that the Mother and child return to Melbourne on or before 21 January 2008. Orders appointing an Independent Children's Lawyer.
15.11.2007	Independent Children's Lawyer files Notice of Address for Service.
12.2007	Father commences spending time with [X].
08.01.2008	Independent Children's Lawyer files subpoenae to Vic Police, DHS and Department of Child Safety.
13.01.2008	Orders made by Federal Magistrate Turner, inter alia; to adjourn all matters to 21 May 2008.
14.02.2008	Father issues Subpoena to [F] Hospital seeking records relating to the birth of [X] and also the father issues a Subpoena to the proper officer of Admin and Domestic Law seeking documents relating to the Passport Application for [X].
23.02.2008	Mother returns to New Zealand. Child continues to live with the Maternal Grandmother in Melbourne and spends time with the Father for two hours on each Saturday and Sunday.
28.02.2008	Notice of Risk for Child Abuse and Application in a Case filed by the Father.
29.02.2008	Orders made by Federal Magistrate Turner providing for inter alia: 1. The Father to spend time with [X] each Saturday between 10am and 12 noon with changeover to occur at [C] Police Station. 2. All extant applications adjourned to 21 May 2008.
15.04.2008	Father issues Subpoena to New Zealand passport office seeking copy of Application for Passport completed by the Mother for the issue of a Passport for [X] and confirmation of the issue of such Passport.
15.04.2008	Father issues Subpoena to Hanover seeking records in relation to emergency housing for the Mother and the Maternal Grandmother.
15.04.2008	Father issues Subpoena to DHS seeking records relating to [X].
20.05.2008	Father files Amended Application seeking inter alia that [X] live with him.
21.05.2008	Orders made by Federal Magistrate Turner inter alia that all extant applications be transferred to the Dandenong Registry of the Court and that until further Hearing, [X] live with the Maternal Grandmother. The Father spend time with and communicate with [X] each Saturday and Sunday from 11am to 3pm with changeover to occur at the [D] Police Station. Matter listed for mention on 30 June 2008.
30.06.2008	Procedural Orders made by Registrar Windebank for a Family Report and the listing of the matter for Final Hearing on 11 March 2009 for 2 days.
17.02.2009	Father issues Subpoena to the Chief Commissioner of Police seeking complete criminal history for the Maternal Grandmother.
09.01.2009	Parties attend upon Mr H for the preparation of a Family Report.
12.03.2009	Orders made by Federal Magistrate Monahan adjourning proceedings to Final Hearing not before 12 March 2010 and an Order for an updated Report to be prepared by Mr H. Further Orders made for the Father to commence spending time with [X] on alternate weekends from Friday to Sunday after an 8 week incremental increase and also from 5pm Monday to 10am Tuesday in the alternate week. Orders conditional upon the Father obtaining a Lease for a four bedroom property in his name or the paternal grandmother's name.
2009	[X]'s half sister, [Y], born at [D] Hospital. Mother returns to New Zealand with [Y] in September 2009.
31.08.2009	Proceedings listed for a two day trial commencing 25 March 2010.
05.10.2009	Father moves to new accommodation at [F]. Father begins to spend time with [X] from 5pm Friday to 5pm Sunday.
15.12.2009	Parties attend upon Mr H for Family Report.
25.03.2010	Orders made by Federal Magistrate O'Sullivan adjourning all proceedings to 7 June 2010 for 3 days. Independent Children's Lawyer to indicate his preliminary views of the parties by letter prior to the case commencing by 31 May 2010. By 16 April 2010 the Father to indicate whether he acknowledges that the Maternal Grandmother cannot meet her financial requirements in Australia from the social security she receives from Centrelink or from the Centrelink equivalent of New Zealand. Further procedural Orders made.

see, for example, Hungerford & Tank (2007) FamCA 637 and M & S (2006) FamCA 1408 at
paragraph 36