Sturton and Cellar (No 3) - [2020] FamCA 938

FAMILY COURT OF AUSTRALIA

STURTON & CELLAR (NO. 3)

[2020] FamCA 938

FAMILY LAW – CHILDREN – International Relocation – Where the mother seeks to return with the child to New Zealand – Where the father seeks that the mother remain living with the child in the area in which she currently resides and that the child spend gradually increasing time with him such that the child lives in an equal shared care arrangement once she commences school – Where the mother is the child’s primary caregiver and primary attachment – Where the mother has limited means of financially and emotionally supporting herself in Australia – Where the child has a good relationship with her father but the father has little real insight into her emotional and practical needs – Where the father has been rude, disrespectful and abusive to the mother – Where it is in the child’s best interests that she be permitted to relocate with her mother and spend time with her father in Australia and if he chooses to travel there, New Zealand.

FAMILY LAW – CHILDREN – Parental Responsibility – Where the mother seeks sole parental responsibility and the father seeks equal shared parental responsibility – Where an order for equal shared parental responsibility is not appropriate – Where the mother will have sole parental responsibility, with an obligation to consult the father prior to making her decision.

Family Law Act 1975 (Cth)

Heath v Hemming (No 2) [2011] FamCA 749
U v U (2002) 211 CLR 238

APPLICANT:

Ms Sturton

RESPONDENT:

Mr Cellar

INDEPENDENT CHILDREN’S LAWYER:

Julie Harrington

FILE NUMBER:

BRC

6743

2018

DATE DELIVERED:

11 November 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

10, 11 & 12 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Oakley

SOLICITOR FOR THE APPLICANT:

Piper Craig Lawyers

THE RESPONDENT:

Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Harrington
Julie Harrington Solicitor

Orders

That all previous Orders and parenting plans be discharged.

Parental responsibility & where the child shall live

That the child, X born … 2017, (“the child”) shall live with the mother and the mother is permitted to relocate the child’s residence to New Zealand any time after the father is no longer living full-time in the B Region or after 1 January 2021, whichever is the earlier.
That the mother shall have sole parental responsibility for the child save for decisions about changing the child’s family name about which the father and the mother shall have equal shared parental responsibility.
That when the mother is considering making a decision in relation to a “major long-term issue” in respect of the child (as that term is defined in s 4 of the Family Law Act 1975 (Cth)), save for decisions about changing the child’s family name, the mother shall inform the father in writing of that and seek his views as to the decision to be made and, although she has the sole right to make the decision herself, she shall give due consideration to any views expressed by the father and when she has made any such decision she shall notify the father in writing of that decision within three (3) days of such decision being made, giving her reasons for making that decision at the same time.

The time the child shall spend with the father until she leaves to live in New Zealand

That the child shall spend time with the father at all reasonable times as may be agreed in writing between the parents, but in default of agreement, then as follows:
(a)from 4:00 pm on Fridays until 4:00 pm (Queensland time) on Sundays commencing on Friday, 13 November 2020 and then each alternate weekend thereafter;
(b)from 8:00 am to 4:00 pm (Queensland time) on Sunday, 22 November 2020 and each alternate Sunday thereafter;
(c)from 3:00 pm until 5:00 pm each Tuesday commencing on Tuesday, 17 November 2020;
(d)that save for each Tuesday, where the father shall collect the child at the commencement of her time with him from her childcare centre, H Childcare, all other transition of care for the child between the mother and the father shall take place, unless otherwise agreed in writing between the mother and the father, outside the F Town Post Office.

The time the child shall spend with the father after she leaves to live in New Zealand

That after the mother and the child have moved to New Zealand, then the child’s time with the father shall take place as follows:
Until the child starts school (once travel between the two countries is once again permitted without quarantine requirements)
(i)In the event that the father travels to New Zealand at his own expense and on the giving of three weeks’ notice in writing to the mother, during no more than one week in each four week period:
(a)from 9:00 am on day one of a week long period until 5:00 pm on day three, with the father to collect the child from the mother at the mother’s residence at the commencement of that time and return her to the mother’s residence at the end of that time;
(b)the child shall remain in the mother’s care for two nights after being returned by the father to the mother before the father can collect her again from the mother’s residence at 9:00 am on the fifth day of the same week long period having her in his care until 5:00 pm on the seventh day of that week long period when he shall return the child again to the mother’s care at the mother’s residence;
(c)the father shall inform the mother where he will be staying with the child for each of the nights she is in his care during that week;
(ii)The mother shall return the child to the B Region at her own expense for at least one whole week each four calendar months on the giving of four weeks’ notice in writing to the father, conditional on the father immediately responding and confirming that he will be available to spend time with the child as follows during that week:
(a)from 9:00 am on day one of a week long period until 5:00 pm on day three, with the mother to deliver the child to the father outside the F Town Post Office at the commencement of that time and the father to return the child to the mother at the same location at the end of that time;
(b)the child shall remain in the mother’s care for two nights after being returned by the father to the mother before the father can collect her again from the mother outside the F Town Post Office at 9:00 am on the fifth day of the same week long period, having her in his care until 5:00 pm on the seventh day of that week long period when he shall return the child again to the mother’s care outside the F Town Post Office;
(c)the father shall inform the mother where he will be staying with the child for each of the nights she is in his care during that week;
After the child starts school
(iii) In Australia:
(a)the mother shall return the child (at her expense and whether or not she travels with her or has her travel unaccompanied) to the B Region for three weeks during each of the New Zealand summer school holidays, for two weeks during the New Zealand winter school holidays and for one week during the New Zealand autumn school holidays each year with the three weeks of the summer school holidays to include Christmas Eve, Christmas Day, Boxing Day, New Year’s Eve and New Year’s Day at the end of the first year the child starts school and in alternate years thereafter, otherwise to be weeks selected by the mother after consultation with the father, and with the week of the autumn school holidays to be the first week in the child’s first year of school and each alternate year thereafter and the second week in the other years;
(b)the father shall inform the mother where he will be staying with the child whilst she is in his care during those weeks;
(c)handovers of the child to the father and then back to the mother shall be as arranged and agreed upon by the parents in advance;
(d)the mother shall give the father as much notice in writing of the details of the arrangements to get the child to and from Australia for each of those trips, but not less than two months’ notice for the autumn and winter holidays and not less than three months’ notice for the summer holidays;
(e)the father may elect to have any of the school holiday periods provided for in this sub-paragraph for the child to be in his care in New Zealand instead of Australia (at his expense), provided he gives the mother notice of that intention before she has arranged the travel to Australia;
(iv) In New Zealand:
(a)in the event that the father travels to New Zealand (at his expense) and on the giving of four weeks’ notice in writing to the mother, during no more than one whole week during each school term, from 9:00 am on the first day of that whole week until 5:00 pm on the seventh day of that whole week with the father to ensure that the child attends school on each of the school days and with the father being entitled to attend at the school on any of those days as might be agreed between him and the administration of the school;
(b)as provided for in sub-paragraph 6(iii)(e) above;
(c)the father shall inform the mother where he will be staying with the child whilst she is in his care during any such weeks;
(d)handovers of the child to the father and then back to the mother shall be as arranged and agreed upon by the parents in advance.
That the child shall communicate with the father by Skype (or such other online digital video conferencing platform as the parents may agree upon) as follows:
(a)each Sunday, when the child is not in the father’s care, between 5.00 pm and 6.00 pm (New Zealand time);
(b)at such time as is agreed between the parents but, in default of agreement, between 5:00 pm and 6:00 pm (New Zealand time) on the following days:
(i)the child’s birthday;
(ii)the father’s birthday;
(iii)Australian Father’s Day;
(iv)Easter Sunday;
(v)Christmas Day;
with the father to make these calls and the mother to make the child available to take them.
That the child shall communicate with the mother when she is in the father’s care during school holidays (whether in Australia or New Zealand) by Skype (or such other online digital video conferencing platform as the parents may agree upon):
(a)each Sunday, when the child is not in the mother’s care at all that day, between 5.00 pm and 6.00 pm (New Zealand time); and
(b)on any of the following days that she is not in the mother’s care at all on the day:
(i)       the child’s birthday;
(ii)     the mother’s birthday;
(iii)     Easter Sunday; and
(iv)     Christmas Day;
at such time as is agreed between the parents but, in default of agreement, between 5:00 pm and 6:00 pm (Queensland time if the child is in Queensland) on those days, with the mother to make these calls and the father to make the child available to take them.
That the mother shall provide the father with:
(a)a written summary of information concerning the child once each fortnight and that summary shall include an update on the child’s schooling, health and any activities/sports the child is attending as well as photographs of the child; and
(b)after the child starts school, a copy of the child’s school reports when received.
That each of the parents:
(a)shall not criticise or denigrate the other parent or the other parent’s partner or family to, or in the presence or hearing of, the child;
(b)shall encourage and not undermine the child’s relationships with the other parent;
(c)respect the privacy of the other parent and not question the child about the personal life of the other parent and shall speak of the other parent respectfully;
(d)shall refrain from discussing or permitting another person to discuss family law issues, any adult issues and/or any issues in dispute between them with the child;
(e)shall not show to the child any documents connected with these proceedings; and
(f)shall refrain from drinking alcohol to excess and from taking or being under the influence of any illicit drugs at any time the child is in his or her respective care.
That each of the parents shall keep the other informed of a postal address, email address, contact telephone number and Skype address (or the details at which they can be reached on an otherwise agreed digital video conferencing platform) and shall advise the other of any change to the same within seven (7) days of such change occurring.
That both parents are at liberty to attend and/or be involved in any extracurricular activity of the child or school event that parents are invited to attend.
That the parents authorise, by this Order, the child care centre, school and/or after school care centre attended by the child, to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, newsletters, letters and general notices, photographs, certificates and awards obtained by the child (at the request parent’s cost, if any).
That each parent shall inform the other, as soon as is practicably possible, in the event that the child experiences any serious illness or requires significant medical treatment, including any prescription medication whilst in their respective care and each parent shall ensure that prescription medication travels with the child to the other parent’s household at changeovers.
That by this Order each parent authorise the other to obtain medical and health care information in relation to the child and authorises health, medical and education providers to discuss the child’s health and educational needs with each parent.
That for the purposes of these Orders, save in the event of an emergency, the parents shall communicate by email.
That at all reasonable times each parent shall facilitate any request made by the child for telephone contact with the other parent.
That the process to be used for resolving disputes about the terms or operation of these Orders or future parenting matters shall be as follows:
(a)a parent shall notify the other parent in writing of the matter to be resolved;
(b)the other parent shall respond in writing within seven (7) days as to their agreement or otherwise;
(c)when agreement is reached which requires a change to these Orders then the parents will take steps to have their agreement formalised by way of a consent order;
(d)when agreement is not reached the parents shall consult with a Family Dispute Resolution practitioner or Family Relationships Centre to assist with resolving any dispute or reaching agreement about changes to be made;
(e)the parents shall pay the costs of the Family Dispute Resolution practitioner equally;
(f)in the event that they cannot agree on a Family Dispute Resolution practitioner:
(i)the father shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
(ii)the mother shall choose one of the listed practitioners within seven (7) days of receipt of the list;
(iii)if the mother fails to choose then the father may choose.
That unless there are some emergent circumstances, before an application is made to a court for a variation of these Orders to take into account the changing needs of the child or otherwise, each party shall take the steps referred to in the preceding Order.
That before the mother leaves Australia to travel to New Zealand with the child, she shall take all steps necessary to cause a copy of these parenting Orders to be registered as an overseas parenting order with the District Court of New Zealand pursuant to s 81 of the Care of Children Act 2004 (NZ) and she shall provide the father with evidence that these Orders have been so registered.
That the Independent Children’s Lawyer is discharged.
That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6743 of 2018

Ms Sturton

Applicant

And

Mr Cellar

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

X is three years and three months old. Her mother and father separated around two and a half years ago, when X was only a baby. They had only been married for less than a year, and together as a couple for around two years.
Their marriage ended tumultuously. In fact, the mother required legal and police assistance to actually effect a safe separation of herself and baby X from the father. Their post-separation relationship has been almost entirely tumultuous. Ever since their separation, X’s parents have been in dispute about where X should live and how much time she should be spending with her father.
The mother is a New Zealander. The father is an Australian. They met in Country E where the mother was working at the time and the father was sailing. The unplanned pregnancy with X brought about a change to their plans and they married and settled in Perth, where the father had been living and working, for a while before going to Country E. They were not there long before they were headed back to Country E early in 2018. The mother’s own mother, back in New Zealand, fell ill and the mother took baby X with her to spend some time with her mother back home in New Zealand. The father continued to ready their things to be shipped to Country E.
Whilst he was still busy in Perth, the father’s attitude towards the mother and her absence in New Zealand took a sudden nasty turn. He became convinced that the mother had tricked him, to get herself and X to New Zealand and to separate from him. The father insisted the mother and X return to the B Region where the father’s own father and sister live for him to meet up with them there before going to Country E together. The mother, though clearly concerned about the father’s attitude, willingly complied with his demand.
After they were back together in the B Region, the relationship unsurprisingly deteriorated very rapidly. Soon, the father told the mother that she had to move out of his father’s home in which they were staying together as a family and live somewhere close by so that they could share the care of X week about. He was not going to let her take X though, to start with. X was not even one year old, was still being breastfed and had been principally cared for by her mother since birth. After the father overheard the mother talking on her phone about separating and taking X, the father would not let the mother and child out of his sight. The mother arranged to see a solicitor and the father insisted on going with her and the baby. During that appointment, the police were called to the solicitor’s office and, at the mother’s request, the father was asked to leave alone. That was the point of physical separation and the mother has not lived with the father again since then. The child stayed in her care.

The mother quickly commenced proceedings for parenting orders in the Federal Circuit Court. The father opposed the mother’s application and they have been in dispute in the courts ever since. The mother’s principal care of the child was confirmed and assured by interim court orders. Her application for an order that permits her to take X to New Zealand with her to live has been opposed by the father and she has been required by order to remain living in the B Region ever since. An interim application by her to relocate was refused.
The father was unsuccessful in having the mother and child ordered to return to live in Perth on an interim basis and he was unsuccessful in having the proceedings transferred to the Family Court of Western Australia.
Earlier this year, when the Coronavirus pandemic struck and international and state borders were being quickly shut down, the mother decided to bring another interim application for permission to take X and fly back to New Zealand. That was listed for hearing, but before it came on, the mother decided just to take X and go before the borders closed. She did that, but I ordered her to return with the child and then listed the matter for a trial. She returned to the B Region as ordered, prepared for trial and provided X for time with the father as ordered.
When the matter came on for trial before me in August, the father had moved to the B Region and was having regular time with X. At the trial, he appeared without legal representation. The mother was represented by solicitor and counsel and there was an Independent Children’s Lawyer (“ICL”) who appeared with counsel. At the end of the three day trial, the ICL submitted that when international travel between Australia and New Zealand is again permitted without the requirement for quarantining, the mother should be permitted to take X to live with her in New Zealand with ordered arrangements to be in place for X to spend time with her father. I am satisfied that the proper outcome in this case, considering the best interests of the child, is for the mother to be able to take the child back to New Zealand to live with her there. I will make parenting orders that provide for that. I will only make the mother wait until the New Year to leave Australia, whether the requirement for quarantining has been lifted or not. These are my reasons.

How is the Court required to determine this Case?

The Court’s task is to “make such parenting order as it thinks proper” subject to the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).[1] In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.[2] Section 60CC(1) provides that in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3) of the same section.
[1]Family Law Act 1975 (Cth), s 65D.
[2]Ibid, s 60CA.
Subsection (2) sets out two primary considerations which are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection (2A) provides that the Court must give greater weight to the second of those two primary considerations when applying them. Subsection (3) sets out a relatively long list of “additional considerations”, the last of which – “any other fact or circumstance that the court thinks is relevant” – demonstrates how broad the discretionary inquiry can be.
Also, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[3] Parental responsibility, in relation to a child, means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.[4] Section 61DA(2) provides factual circumstances which, if they exist, cause the presumption just referred to not to apply. Section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
[3]Ibid, s 61DA.
[4]Ibid, s 61B.
If, and only if, the Court decides to make a parenting order that provides for a child’s parents to have equal shared parental responsibility for the child, the Court must then consider whether the child spending equal time with each of the parents would be in the best interests of the child and also whether the child spending equal time with each of the parents is reasonably practicable.[5] “Reasonable practicality” is determined, pursuant to s 65DAA(5), having regard to how far apart the parents live from each other, their current and future capacity to implement an arrangement for the child spending equal time with the other parent, their current and future capacity to communicate with each other and to resolve difficulties that might arise in implementing an equal time arrangement, the impact that an equal time arrangement would have on the child and such other matters as the Court considers relevant.
[5]Ibid, s 65DAA(1).

Is equal shared parental responsibility in the child’s best interests in this case?

I have said many times in judgments I have written over the years that where I am satisfied that parents cannot communicate with each other in a reasonable, respectful and appropriate manner that I do not consider it in their child or children’s best interests to confer parental responsibility upon them equally. I consider that to be a recipe for disaster in so far as the child is concerned. Important decisions about major long-term issues need to be carefully and sensibly made for the child’s sake. I do not think it to be appropriate for them to be made by parents in high conflict and who act without respect for the other parent’s point of view. In such circumstances, I consider the risk of an important decision not being able to be made at all, thus forcing the parties back to Court to litigate about it if it must be made, is too high. That is not in their child’s best interests.
Equal shared parental responsibility orders impose obligations upon parents through the operation of s 65DAC of the Act to do a number of things when making a decision about a major long-term issue in relation to the child or children for whom they share parental responsibility. Each parent is required to consult the other parent in relation to the decision. They are required to make a genuine effort to come to a joint decision about that issue, and they are required to make the decision jointly. It follows that if they cannot make the decision jointly that it cannot be made unilaterally by one of them. It would require a Court having jurisdiction to make the decision if it is to be made at all, where they cannot make it jointly.
Nothing I have seen in the evidence in this case gives me any reason to consider that these two parents could make an equal shared parental responsibility order work in respect of their daughter, X. The evidence demonstrates, most particularly, that the father cannot communicate sensibly, respectfully and appropriately with the mother. The evidence demonstrates that the father acts unilaterally when it comes to his relationship with the mother and X, and has a tendency to cause the mother a great deal of grief in the way that he communicates with her and in respect to the decisions he makes about his interaction with her and his relationship with X.
Though the orders proposed by the ICL included an order that the mother and the father have equal shared parental responsibility, the social worker who saw the family early last year and wrote a family report for the Court in late February 2019, recommended that consideration be given to conferring sole parental responsibility on the mother. That experienced family report writer wrote of the father:
He appears to have little understanding of X’s needs as separate to his own need to be in control of her activities, including her vaccination and play group. While he is assessed as being a loving father to X, his capacity to respond to her needs; to co-parent co-operatively and be reliably involved in her life is questionable wherever he, or [the mother] may live.
I accept Ms D’s opinion completely. I do not consider it in the child’s best interests for her parents to have equal shared parental responsibility. Having to consult the father and make an effort to reach agreement with him on any major long-term issue would simply put far too much unwanted and unnecessary pressure on the mother. That would not be good for the child. She would, I consider, always be under intense pressure to give in to the father’s single minded determination to get what he wanted, otherwise decisions would not get made. As I am also of the view that the child’s best interests would be met by permitting her mother to take her to live in New Zealand, the fact that I expect the parents to be living across the Tasman Sea from each other (the father told the Court he would not be moving to New Zealand) adds weight to my view that equal shared parental responsibility is not in the child’s best interests. If, for example, a decision has to be made about the school X is to attend, the mother will be much better placed to make that decision unilaterally, living there with X whilst the father lives here in Australia. I will not make an order in this case for the parents to have equal shared parental responsibility for X.
I will make an order that confers sole parental responsibility on the mother. There will be an obligation on her to communicate with the father in writing about any major long-term decision that she intends to make, to seek his views, to give them due consideration when making the decision herself and then to tell him what decision she has made and the reasons for it. That way the father will have some involvement, but the mother will not be under the same pressure as she would otherwise be if it was equal shared parental responsibility.
Accordingly, there is no statutory requirement for me to give consideration to the matters set out in s 65DAA (1) and (2) of the Act. In any event, I do not consider that an order providing for the child to spend equal time with each parent or even substantial and significant time with each parent is in her best interests or reasonably practicable, so that is not going to happen. The mother never made her home in the B Region. The father never made his home in the B Region. It was never the intention of either of them to live there. The mother has been kept there for two and a half years, effectively against her will. Keeping her there because the father expects her to stay there, when it is not even clear if he will continue to live and work there or whether he will seek employment in a remote location on a fly in-fly out basis, is not reasonable in all the circumstances.

International Relocation Applications

I said in another international relocation judgment that I delivered recently that contested parenting cases that are transferred from the Federal Circuit Court to this Court are generally not easy to decide. Pursuant to the transfer protocol that exists between this Court and the Federal Circuit Court, those contested parenting cases in which one party seeks to relocate a child or children with him or her to live in another country are required to be transferred to this Court for hearing and determination. That is appropriate. It is commensurate with the status of this Court as a superior Court of record and with the degree of importance, as well as difficulty and complexity that usually surrounds international relocation cases. Such cases require very careful consideration. That said though, parenting orders proceedings in which a parent is seeking an order that permits him or her to relocate a child or children to another country are to be decided in the same manner as other parenting orders cases. The parenting order that the Court considers proper having regard to the best interests of the child as the paramount consideration is the order to make. The parent seeking to relocate is not required to demonstrate “compelling reasons” for the proposed relocation to justify and support an order permitting them to do so. They just have to persuade the Court that it is the outcome that meets the best interests of the child.
I again remind myself, as Kent J so appropriately said in Heath v Hemming (No 2) [2011] FamCA 749 at [101], parenting cases in which a parent proposes a relocation:
…bring into sharp focus the central issue of balancing statutory imperatives concerning children’s best interests in the context of the legitimate and competing interests of parents. The task is to achieve, by the application of the law, Orders which are legitimate by reference to both “best interests” considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
It is also not as simple as determining that as the principal carer the mother is entitled to take the child to live wherever she wants to live. There is much more to the determination than that. As their Honours, Gummow and Callinan JJ said in the High Court’s judgment in U v U (2002) 211 CLR 238 at [92]:
The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
And as his Honour Hayne J said in the same case at [170]:
It follows that the needs and the wishes of each parent and the needs of the child (and, if of sufficient age, the child’s wishes) all bear upon the question to be considered by the Family Court.
In my judgment, another important guiding principle that clearly emerged from that High Court decision was the confirmation that the Court is not confined to a choice between the particular proposals that each of the parents make, or, indeed, that the ICL makes, for the residence of, and contact with the children. In other words, I am not limited to choosing between the mother’s proposal of moving the child to live with her in New Zealand or the father’s proposal that the mother and child stay living in the B Region with the child living in an equal time care arrangement if he works in the B Region or during the “whole of the rest and recreation period” if he works on a fly in – fly out basis. Other alternatives can be considered. As I have already said though, the proper orders having regard to the best interests of the children as the paramount consideration have to ultimately be made.

Some more Relevant Background

The father is 49 years of age. He hails from Western Australia. He apparently has some professional qualifications (not a university degree), skills and experience. He has been running his own business in Perth, contracting and subcontracting his services to other businesses. He has a young adult daughter of a previous relationship. She lives and works in a community on the far north coast of Western Australia. He did not have a relationship with her until she was around twelve years old, the responsibility for which he attributes to her mother. He has seen her and built a relationship with her in the years since. The mother in this case has had communication with her since the separation from the father. She says that it has been friendly and respectful and designed to maintain a relationship between the two sisters. I have no reason not to accept that as correct.
The mother is 37 years of age. She grew up in the New Zealand, North Island town that she wants to move back to. When she met the father in Country E, she had been living and working there for some time, having lived a bit of a nomadic life, travelling, staying and working in various places around the world (including in Western Australia for a period) for a lot of her adult life until that time. She had no children. She is a university educated, qualified professional.
When the couple met, the father was sailing around the islands of Country E. The former couple stayed together on the father’s boat and sailed the islands for several weeks before travelling off to south-east Asia together visiting several countries. The father was considering having surgery in Asia, but opted against that and returned to Perth for it. The mother joined him in Perth a week later. She informed him that she was pregnant and they agreed to marry. They lived together in a Perth home owned by the father’s father and in June 2017, they returned to Country E where they married. They returned to Perth and X was born in … 2017. In August 2017, they celebrated their marriage again in Perth.
After a six month period of convalescence from the surgery in early 2017, the father returned to work within his business. The mother principally cared for their daughter after she was born, but, as a university qualified professional, she was able to do some contract work remotely online for a couple of New Zealand businesses that she has connections with, when she had time.
I consider that their relationship really did not have long to develop firm foundations before their baby came along. It struggled to survive amidst some apparent personality differences and conflict that emerged around parenting issues. In early 2018, the events happened that led to the total breakdown of their relationship in June of that year. There is a complete disconnect in some of the underlying facts outlined by each of the parties in respect to the lead-up to their separation, such that one of them cannot be telling the truth about it. Determination of where the truth lies on that, in my judgment, does not matter much, other than to assist in determining the credibility of the parties and considering that when determining matters that are more relevant to the parenting orders outcomes about which the parties are also at complete odds.
It is common ground that the father had acquired a leasehold interest in some land on the west coast of the main island of Country E in or around early 2017. The parties diverge markedly over the plans each asserts they had in respect of that land. The mother asserts that they planned to move to Country E, build a house on the land and to then live there as a family, with the father to start his own business in that country. She asserts they acquired three shipping containers in Perth to pack all of their possessions and business materials into to ship them to Country E in mid-2018. The house they were living in in Perth that was owned by the father’s father was sold in early 2018 with the parties contracting to rent it back from the new owners until 23 April, when they were, she asserts, to move to Country E.
The parties then rented from an Airbnb provider in Perth whilst the father continued the work of packing the containers. The mother asserts that she and X were then to fly to the B Region to stay with the father’s father who lives in F Town before the father would join them there before travelling to Country E. The mother asserts that she was informed, just prior to leaving for F Town from Perth that her mother was ill and about to undergo some surgery. The mother asserts that she talked about this with the father and he agreed with her that she should travel to New Zealand from the B Region to be with her mother. She and the child flew out to the B Region on 4 May, stayed with the paternal grandfather for a week and then, on 11 May, flew on to New Zealand to be with her mother. The mother asserts that was an agreed plan and that the father was to join them in New Zealand or they would simply meet up in Country E.

The mother and the father had some pretty distressing email and text exchanges in the subsequent weeks, with the father demanding that the mother and the child return to the B Region. They did. He flew from Perth to join them there. It was during the subsequent days that the conflict between them escalated. The father asked the mother to leave his father’s home but did not want her to take the child with her. The mother managed to physically separate from the father and to retain the child in her care with the assistance of her solicitor and local police. They have been separated and litigating in the courts ever since.
The father asserts that they were not going to build a house on the land in Country E and move there. He asserts that he and a friend were going to develop a small resort on the land. He asserts that what was being packed into the container and sent was just the materials for that project. He asserts that he had a contract to sail from Country E to New Zealand and that was the principal reason why he was going to Country E at that time. Even after the separation, he went to Country E from the B Region and undertook that job before he returned to Perth where he has been living since. Significantly, the father asserts that the mother unilaterally travelled to New Zealand from the B Region, without his knowledge or consent. He asserts that it was only after telling her that he would make an application for the return of the child to Australia under the Hague Convention that the mother returned with the child to the B Region. He asserts that the mother was already planning to separate from him and not return the child to Australia.
Having read and considered the evidence the mother and the father gave about the plans to travel to Country E at the time, having read the emails and text messages adduced into evidence that they sent to each other at the relevant time, and having seen them give oral evidence in the trial before, I am actually satisfied that the mother told the truth about their plans to move to Country E, build a house there and to set up a business there. I reject the father’s evidence denying that and his evidence that he was only going to build a small resort there. It may be that part of his plan was to build some additional accommodation on the site of the land he had leased, on which he was going to build the pre-constructed house, with such additional accommodation planned to be used for the overflow of guests from a nearby, offshore island resort owned by one his friends, but I am satisfied that they were going to build a house in which they were going to live as a family, having left Perth. One of the father’s messages to the mother at the time confirms that he had built their house and was shipping it in pieces in a container to Country E. I consider the father’s attempt to persuade the Court that they were not moving to Country E at the time was simply part of the case he constructed to try to persuade the Court that the mother should be ordered to return, with their baby, to Perth to live where he had returned to.
Further, whilst I do not intend to set out all of the email and text message exchanges between the mother and the father in the period of time whilst he was still in Perth and she was in New Zealand visiting her sick mother in early 2018, I will say that I have read them and re-read them. They reflect very poorly on the father’s attitude towards the mother. They, in my considered opinion, provide evidence that corroborates the mother’s evidence that the father was unduly controlling and abusive towards her during their relationship. I accept her evidence about that. His written messages demonstrate a great deal of irrationality on the father’s behalf, as well as a complete lack of appreciation about what was in his baby daughter’s best interests at the time. The messages he has written since separation are not much different.
I reject the father’s evidence that the mother had travelled to New Zealand at the time in some sort of pre-meditated, calculated move to remove X from Australia and to keep her in New Zealand. Though, having been provided with documentary evidence before the final trial that the maternal grandmother was genuinely ill at the time, the father reluctantly accepted that she was, he was actually presenting the view prior to then that the mother had even fabricated the story of her mother’s illness as part of the relocation plot. That was a totally irrational position for him to take and caused the mother a great deal of unnecessary distress.
My credibility findings also create problems for the father in respect of another factual issue. The mother gave evidence of the father’s illicit drug use. She even gave evidence that she considered he was a supplier or dealer in some illicit drugs. The mother gave evidence of her knowledge of the father’s use of marijuana, ecstasy, cocaine and even methamphetamine. She said that she had discussed the father’s drug use with him and that she had asked him to refrain from using methamphetamine, most particularly in their Perth home. She said that one day, sometime shortly after that, the father invited her into his work shed in the backyard of the Perth property, showed her a plastic clip-seal bag with blue crystals in it, told her it was $40,000 worth of methamphetamine and flushed it down the toilet in front of her. The father denied that had ever happened and denied that he ever used methamphetamine. However, in the witness box the father conceded he had used marijuana, cocaine and ecstasy in the past. His friend and business associate who gave evidence for him also conceded that the father had used marijuana, cocaine and ecstasy in the past, but denied that he had used methamphetamine.
I reject the father’s denial (and the evidence of the father’s friend) that he had ever used methamphetamine or ever flushed blue crystals down the toilet in front of the mother, telling her it was methamphetamine. I do not accept the father’s assertion that the mother just made that up to discredit him. I accept the veracity of the mother’s evidence that the flushing of the crystals down the toilet happened in front of her and that the father made such a show of calling her in to the shed and doing that in front of her, even telling her it was supposedly worth $40,000. I was also very concerned that the evidence pointed strongly to a finding that the father was using methamphetamine during the time that he was in Perth in 2018 busily packing the containers whilst the mother was in New Zealand. The mother said that before she left Perth, the father was using methamphetamine. She was in bed with him one morning when he asked her to hand him his phone and she heard him call someone to arrange the purchase of some methamphetamine. She had packed a box of his things for the move, including some of his overalls. She said he became agitated and searched for the overalls in front of her. When he found them, he pulled a glass pipe out of a pocket. The mother said it was his pipe for smoking methamphetamine. I accept her evidence about that.
The father’s messaging to the mother after she had left Perth was just so angry, irrational and erratic and when he arrived on the B Region at the end of that period, it is not in dispute that he slept for almost four days straight. Without any corroborating evidence or any suggestion as to why she might do it, the father alleged that the mother drugged him with some form of sleeping tablet. I reject that as an outlandish attempt to deflect attention away from the mother’s allegations that he was using methamphetamine and her expressed concern that his sleeping for four days straight was his body’s response to coming off the “high” caused by the methamphetamine that she believed he had been taking.
The mother gave evidence that she does not use drugs. The father did not dispute that.

The mother and child’s circumstances since separation

The mother and child have been living in rental accommodation in the B Region for the last two years. She has had to move a couple of times. One of the occasions that she had to move was because her landlady asked her to find alternative accommodation after there had been an altercation at the property between the landlady (who also lived at the house) and the father. One day in late 2018, during time the father was in the B Region to spend time with X, he received a missed phone call from the mother. He rang her back but was unable to get an answer. He decided to simply go to the house at which the mother was living at the time to ascertain why she might have called him. The mother and child were not there. The landlady was at home and approached the father and asked him to leave the property. The father does not dispute that there was an argument and an altercation between him and the landlady and that the landlady called the police to remove him from the property. Police attended. The father was directed to leave the property. He was actually charged by police with an offence in respect of what had happened. The father asserts, and the mother did not dispute the assertion, that the charge was later withdrawn and not proceeded with. In any event, the landlady asked the mother to move out of the residence and the mother said that was because she did not want any more dealings with the father.
The mother does not have Australian citizenship. She is able to live in Australia on a special category visa that permits New Zealanders to remain indefinitely in Australia to live and work. It does not give them the same rights as citizens or permanent residents. A consequence of that is that she has not been able to receive as much by way of Commonwealth Government income assistance as she might otherwise if she was a citizen. She does not get a sole parent pension and only receives Family Tax Benefit A and B of $170 per week. She has been caring for herself and X on that Government assistance she has been receiving, financial assistance in the form of child support from the father, though, at times, sporadically received, and some income she has continued to receive from two separate New Zealand businesses that she has been working remotely for on a part-time contract basis as has been possible. That is, she is using her New Zealand qualification, knowledge and experience to undertake work for New Zealand clients in respect of jobs on the ground in New Zealand. She gave evidence, which I accept, that the income she has earned from that employment has decreased during the COVID pandemic. She has had assistance from her family to pay for her legal representation in this case.
Since the former couple’s separation, the father has continued to travel regularly from Perth to the B Region, where he has stayed with his father, to spend time with X. The father could do that at his discretion, giving notice to the mother of his intention to travel there and to spend time with X there on a daytime basis only. He has certainly demonstrated resolve and commitment to develop and maintain a relationship with X. He has spent well over one hundred days with X in the period leading up to the trial. However, it was a constant source of significant disappointment to the father that the mother had not permitted the child to spend overnight times with the father.
I consider it entirely fair to say that the relationship between the parents and their interaction during the time the father was visiting the coast each time was very poor. The father was demanding, insistent, angry, arrogant and uncompromising in most of his communication with the mother and also with her solicitors. Indeed, on one occasion that he communicated by email with the mother’s solicitors, he wrote the message “RIP [name of mother’s solicitor]”. That solicitor reported that communication to the police as a threat. Remarkably, and unbelievably, during the trial the father denied the assertion that it was a threatening and intimidating remark by him and asked the court to accept that he was just really questioning the solicitor as to how she could sleep peacefully at night given her actions. I reject that evidence of the father.
At the three day trial in August, the father told the Court that he had moved to live in the B Region. He had apparently had a falling out in his relationship with his father and was not living with him in his house. The father confirmed that in his evidence. He did not call his father to give evidence for him at the trial. The father said he was renting premises just south of the New South Wales border. He told the Court that he intended to continue to live there, on the coast, for as long as X was living there. He said that he was looking to get employment in the B Region and expected to be able to, utilising some contacts he had in the industry there. He said that if the mother was not permitted to relocate X to live with her in New Zealand that he would stay living in the B Region and would either work locally or find fly in-fly out employment and use the B Region as his home base to return to during his rostered time off. It was unclear where he planned to live if the mother was permitted to relocate X to New Zealand, but though there was evidence that he had asked the mother some time before the trial what contact she would agree to him having with X if he lived near them in New Zealand, he did say at the trial that he would not move to New Zealand even if the mother was permitted to take X to live there.
At the end of the three day trial before me in August, I made some interim orders providing for X to spend increased time with the father pending the making of the final orders. Indeed, the mother, through her counsel, told the Court that she agreed that it was time for X to start spending some overnight time with the father. I provided for a few weeks in which it was just overnight for one night before moving to two nights, from Friday afternoon until Sunday morning each alternate weekend and daytime contact only on the Sunday in the other week and alternate Tuesdays thereafter.
There was no dispute between the parties that X knows and loves her father and enjoys spending time with him. Indeed, even after the mother and X returned to the coast from New Zealand earlier this year, after X had not physically seen her father for over fifteen weeks, she recognised him and ran to him and gave him a large hug. She was happy to go with him. I consider this to be not just indicative of her good relationship with her father, but also evidence that despite the nature of the relationship between the mother and the father, the mother was able to keep the relationship alive for X during her time in New Zealand. X’s actions with her father are not consistent with there being conduct on the mother’s part that might discourage the relationship between X and her father.

Considering the competing Proposals

The mother wants to return to New Zealand as soon as she can. She told the Court in evidence that if she remains living in Australia that her work with the New Zealand companies would likely cease. She asserted, with some cause I accept, that she could not rely on the father to be consistent and appropriately supportive with child support. She considers that she would end up suffering financial hardship as she would find it difficult getting work in Australia because of her specialisation in the New Zealand legislative environment and their regulatory codes of conduct. She predicted that she would probably have to re-enter the hospitality industry if she remained in Australia and said that was not an attractive proposition to her because of the type of hours she would have to work, taking her away from caring for X.
In the B Region, the mother has no family or relatives and limited social networks. She has tried to re-establish her relationships with the father’s father and the father’s sister there but they have not taken up offers to see X.
She told the Court that if she returned to New Zealand she would be returning to her hometown of only 3,500 people. All of her immediate family live there including her mother, her stepfather, her father, her sister and her husband and their two children. She said that her family is very close and provide her with a lot of support. Her mother has just retired and the mother said that her mother would be very happy to help her out with childcare for X at no charge. X knows the mother’s extended family having met them all before.
The mother said that her father is currently constructing a duplex dwelling on a block of land five minutes’ drive from the town centre. She said that she and X will live in a three bedroom unit as part of that duplex and her father would live in a one bedroom unit as the other part of the duplex. She said that she would only pay nominal rent to her father and would have his support close by. Friends of hers from her school days, and their children, live on the neighbouring properties. She has many friends in the town and X would go to school there at the local area school that has students from age 5 to 18 and is the school the mother herself attended.
The mother said that if she relocated to New Zealand she could continue to work for the same two companies she currently works for and that it would “dramatically” increase her employment potential. She could also seek out contracts with other New Zealand companies. She said that the contract nature of the work she would do there would allow for her to be available for the child as necessary and to attend at school events at which parents are welcome.
The father proposed orders that obliged the mother to give the child’s New Zealand passport to him and that he also retains her New Zealand passport, only to give it to the mother when she and X are travelling to New Zealand on agreed holidays. He proposed that X is to live in Queensland within a 15 km radius of F Town. The father proposed that X spend time with him from Friday afternoon until Sunday afternoon one week and then from Wednesday afternoon until Friday morning the other week. He proposed that increase after six months to Thursday afternoon to Sunday afternoon one week and from Wednesday afternoon to Friday morning still in the other week. He proposed that when X commences school that she move into a 50/50 equal shared care arrangement between them, but in the event that he is working in fly in/fly out work that she spend time with him during the “whole of the rest and recreation period in [the father’s] roster. He proposed sharing the school holidays week about as well. He did propose that the mother could travel with X to New Zealand for two periods of two weeks in any year, but proposed that he be able to travel to Western Australia or even overseas with X “during any year for a period of 2 weeks per travel occasion”. The way the father wrote that proposal appears not to limit that to only two occasions each year or to only one per year. It is unclear to me if he meant that or not.

Why permit the mother to relocate the child to New Zealand?

I am satisfied that the mother’s proposal to relocate with X to live in cheap rental accommodation provided by her father, who will be living next door, in the small town where the mother grew up and where all of her family and many of her friends live, is most definitely the best outcome in this case having regard to X’s best interests as the paramount concern.
The mother will have much better access to valuable employment that will facilitate her proper financial support of herself and the child and to emotional and practical support from family members, particularly her mother, in caring for the child when the mother cannot do it. I have absolutely no doubt that the mother will be a much happier and far more resilient person living over there in familiar surrounds and surrounded by familiar people than she would be if she was forced to stay on the B Region by an order that did not permit her to relocate X with her to New Zealand, with the person she had to look to for any form of support being the father.

As I have already observed, the B Region is not her home. She never chose to move there and to live and work there or to raise a family there. Similarly, the father did not choose to make the B Region home and, at the moment, only says it will be his home if X is required to live there. Though the father says that he will not move to New Zealand if X is permitted to relocate there, there is absolutely no reason why the father cannot move there himself and set up home and work there. He clearly contemplated that possibility at one time.
Unlike the mother, the father himself does have family in the B Region, but his relationship with his father is estranged at the moment and there was absolutely no evidence from his sister about her relationship with him or X. He has a young adult daughter who lives further from the B Region than it is to New Zealand from there and, currently, the state of his relationship with that daughter is not known.
It is true that if the mother and X stay in the B Region, and the father stays there, too, X will get to spend more time with her father than she will if she is living in New Zealand and the father is living in Australia. However, the relationship between these two parents is not a good one and, if it ever was a good one it was not for a very long period of time at all. I formed a view of the father that he dearly loved his daughter and fears the prospect of not being a part of her life as she grows. That is commendable. Yet the evidence shows him to be a determined man without much flexibility or willingness to compromise. It shows him to be a man prepared to give false evidence to the Court where he considered that it would help his cause or that truthful evidence would hurt his cause. It shows him to be a man convinced of the righteousness of his position in respect of his daughter but to have little real insight into her emotional and practical needs, and no real capacity to adjust easily to meet those needs. It shows him to be arrogantly rude, disrespectful and abusive to the mother, particularly when he is not getting his own way.
The child, I am satisfied, will get much more focused, capable and stress free parenting from her principal care-giver, the person she is most significantly attached to at this stage of her life, if she is permitted to live with her mother in New Zealand. She is far more likely to be living in a situation where her mother is financially much better off and more capable of providing for her financially if she is living with her in New Zealand than if she is required to live here.
I am just as satisfied that she will be able to maintain a meaningful relationship with the father who loves her a lot and who she loves even if she is living on the North Island of New Zealand and he is living in Australia in the B Region, whether he works there or works in a fly in/fly out situation. I am not entirely convinced that the father will not still go to Country E to live there and establish his business once Australians are allowed to travel to Country E again, in any event.
Though she will not be able to spend time with the father each week as the father would like, unless he moves to live near her in New Zealand, I am satisfied that provision for regular visits to Australia to spend time with the father and provision for regular time with him if he chooses to travel to New Zealand, in addition to provision for regular and consistent video conferencing communication, will appropriately facilitate the continuation of a meaningful relationship between X and the father.
Accordingly, I will be ordering that X continues to live with the mother who I will permit to relocate X to live with her in New Zealand. I will confer sole parental responsibility on the mother, subject to some obligation to communicate with the father about decisions pertaining to major long-term issues in X’s life, though the mother will be able to make those decisions ultimately by herself.
The ICL submitted that the relocation not be permitted until the borders to New Zealand have re-opened and the father is able to travel to New Zealand without the need to self-quarantine once he goes there. No-one can safely predict right at this point in time when that might happen, but it is hoped it will not be too far away. As the father remains living in the B Region at the moment, seeing X on a regular basis, I consider that it is at least appropriate to not permit the mother to leave and relocate X to New Zealand until after Christmas. There is a reasonable prospect, in my considered judgment, that the border with New Zealand will be open again by that time or very soon thereafter. Such restraint would also give the father just under a couple more months of spending regular time with X before she leaves and the opportunity to spend some time with her here on the Coast over Christmas and the first part of summer.
Accordingly, as long as the father continues to reside on the B Region, the mother will not be permitted to leave Australia to relocate X to New Zealand before 1 January 2021.

What time then should X spend with the father, both before and after she goes to New Zealand?

At the end of the trial in early August, I made orders that provided for X to start spending longer periods of time with her father. By now, she would be spending from 4:00 pm on Fridays to 11:00 am on Sundays each alternate weekend with him and from 8:00 am to 4:00 pm on the other Sundays and for two hours each alternate Tuesday afternoon with him. I will increase that somewhat for the period between now and when her mother takes her to live in New Zealand, extending the two day stay out to 4:00 pm on the Sunday afternoons and making the Tuesday afternoon visits every week instead of every second week.
This current ordered schedule, as I calculate it, provides for X to go into her father’s care at 4:00 pm on Christmas Day, Friday, 25 December 2020 and I will leave that in place, considering that suitable for X to spend Christmas night, Boxing Day and 27 December with her father, going back to her mother at 4:00 pm on that day.
This slightly extended schedule will continue until the mother leaves Australia and takes X to live in New Zealand so long as the father continues to live on the B Region in the meantime. If he moves from the B Region before the end of the year, the mother will be permitted to leave Australia then, too.
After the mother and X have moved to New Zealand, then X’s time with the father shall take place as follows:
Until the child starts school (once travel between the two countries is once again permitted without quarantine requirements)
(i)In the event that the father travels to New Zealand at his own expense and on the giving of three weeks’ notice in writing to the mother, during no more than one week in each four week period:
(a)from 9:00 am on day one of a week long period until 5:00 pm on day three, with the father to collect the child from the mother at the mother’s residence at the commencement of that time and return her to the mother’s residence at the end of that time;
(b)the child shall remain in the mother’s care for two nights after being returned by the father to the mother before the father can collect her again from the mother’s residence at 9:00 am on the fifth day of the same week long period having her in his care until 5:00 pm on the seventh day of that week long period when he shall return the child again to the mother’s care at the mother’s residence;
(c)the father shall inform the mother where he will be staying with the child for each of the nights she is in his care during that week;
(ii)The mother shall return the child to the B Region at her own expense for at least one whole week each four calendar months on the giving of four weeks’ notice in writing to the father, conditional on the father immediately responding and confirming that he will be available to spend time with the child as follows during that week:
(a)from 9:00 am on day one of a week long period until 5:00 pm on day three, with the mother to deliver the child to the father outside the F Town Post Office at the commencement of that time and the father to return the child to the mother at the same location at the end of that time;
(b)the child shall remain in the mother’s care for two nights after being returned by the father to the mother before the father can collect her again from the mother outside the F Town Post Office at 9:00 am on the fifth day of the same week long period, having her in his care until 5:00 pm on the seventh day of that week long period when he shall return the child again to the mother’s care outside the F Town Post Office;
(c)the father shall inform the mother where he will be staying with the child for each of the nights she is in his care during that week;
After the child starts school
(iii)In Australia:
(a)the mother shall return the child (at her expense and whether or not she travels with her or has her travel unaccompanied) to the B Region for three weeks during each of the New Zealand summer school holidays, for two weeks during the New Zealand winter school holidays and for one week during the New Zealand autumn school holidays each year with the three weeks of the summer school holidays to include Christmas Eve, Christmas Day, Boxing Day, New Year’s Eve and New Year’s Day at the end of the first year the child starts school and in alternate years thereafter, otherwise to be weeks selected by the mother after consultation with the father, and with the week of the autumn school holidays to be the first week in the child’s first year of school and each alternate year thereafter and the second week in the other years;
(b)the father shall inform the mother where he will be staying with the child whilst she is in his care during those weeks;
(c)handovers of the child to the father and then back to the mother shall be as arranged and agreed upon by the parents in advance;
(d)the mother shall give the father as much notice in writing of the details of the arrangements to get the child to and from Australia for each of those trips, but not less than two months’ notice for the autumn and winter holidays and not less than three months’ notice for the summer holidays;
(e)the father may elect to have any of the school holiday periods provided for in this sub-paragraph for the child to be in his care in New Zealand instead of Australia (at his expense), provided he gives the mother notice of that intention before she has arranged the travel to Australia;
(iv)In New Zealand:
(a)in the event that the father travels to New Zealand (at his expense) and on the giving of four weeks’ notice in writing to the mother, during no more than one whole week during each school term, from 9:00 am on the first day of that whole week until 5:00 pm on the seventh day of that whole week with the father to ensure that the child attends school on each of the school days and with the father being entitled to attend at the school on any of those days as might be agreed between him and the administration of the school;
(b)as provided for in sub-paragraph (iii)(e) above;
(c)the father shall inform the mother where he will be staying with the child whilst she is in his care during any such weeks;
(d)handovers of the child to the father and then back to the mother shall be as arranged and agreed upon by the parents in advance.
I consider those arrangements to be proper having regard to the best interests of the child.
As for the child’s communication with the father, that shall by Skype (or such other online digital video conferencing platform as the parents may agree upon) each Sunday, when the child is not in the father’s care, between 5.00 pm and 6.00 pm (New Zealand time) and on the child’s birthday, the father’s birthday, Australian Father’s Day, Easter Sunday and Christmas Day at such time as is agreed between the parents but, in default of agreement, then between 5:00 pm and 6:00 pm (New Zealand time) on those days, with the father to make these calls and the mother to make the child available to take them.
I consider that whilst X is spending time with the father during school holidays she shall communicate with the mother in the same way as she will with the father whilst she is in the mother’s care, save that it will be between 5:00 pm and 6:00 pm Queensland time each Sunday that she is not in her mother’s care and also on any of the special days that she is not in the mother’s care at all, such as the child’s birthday, the mother’s birthday, Easter Sunday and Christmas Day with the mother to make these calls and the father to make the child available to take them.

Some Other Orders

I will make orders that the mother provide the father regularly with certain written information about the child, photographs and any school reports she receives once she commences school. I will make orders restraining each of the parents from denigrating the other parent to or around the child, from undermining the child’s relationship with the other parent, from talking about family law issues around the child, and from showing the child any court documents. I will make an order restraining each of the parents from drinking alcohol to excess and from taking or being under the influence of illicit drugs whilst the child is in his or her respective care. These orders I consider to be in the best interests of the child.
I will make orders that the parents communicate with each other by email and keep each other informed of his and her contact details.
I will make orders that each of the parents is at liberty to attend or be involved in activities that X is involved in or any school events that parents are invited to attend. I will make orders that authorise the child care centre, school and after school care centre that X attends to provide information to each parent at that parent’s request and cost, if any.
I will make orders that each parent keeps the other informed as to the child’s health and any significant change to that by illness or injury and that they advise about prescription medication the child may be taking and provide it to the other parent at changeovers. I will make orders that authorise each parent to be able to get information about the child’s health and education from the health and education professionals in the child’s life.
I will make orders that provide an alternative dispute resolution pathway in the event of disputes in the future, just as the ICL submitted, with a view to keeping this former couple out of the courts.
Finally, I will repeat something I said in a recent relocation application where I permitted another mother to relocate the child in that case to New Zealand. No evidence as to New Zealand law was adduced in this matter or as to the capacity for the parties to register these orders with a New Zealand court so that they are enforceable in New Zealand. I am nevertheless aware of s 81 of the New Zealand Care of Children Act 2004 (NZ) that provides for the registration in the District Court of New Zealand of an overseas parenting order. Section 8 of that Act defines an “overseas parenting order” as:
… an order made by a court in a prescribed overseas country, being … an order relating to the role of providing day-to-day care for, or contact with, a child
and in the same section, Australia is defined as a “prescribed overseas country”.
Section 82 of that same New Zealand Act provides that if an overseas parenting order is registered in a court under s 81 of that Act, then, “so long as the registration is not cancelled, the order may be enforced, varied, or discharged as if it were an order made by that court” under that same Act.
Accordingly, I consider it in the best interests of the child to include in my orders a requirement for the mother to take all steps necessary to register these orders with the District Court of New Zealand pursuant to s 81 of that Act and to provide the father with evidence that these orders have been registered with that court before she leaves Australia with X to move to New Zealand.
I will discharge the ICL.
I make the orders set out at the commencement of these written reasons.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 11 November 2020

Associate:

Date: 11 November 2020