Tarr & Kral
[2024] FedCFamC1F 185
•22 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tarr & Kral [2024] FedCFamC1F 185
File number(s): SYC 4827 of 2022 Judgment of: BAUMANN J Date of judgment: 22 March 2024 Catchwords: FAMILY LAW – PARENTING – Application by mother to relocate the child’s permanent residence outside of Australia – Consideration of the advantages and disadvantages of the competing proposals – Relocation application refused Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA Cases cited: A v A: Relocation Approach (2000) FLC 93-035
Goode & Goode (2006) FLC 93-286
Hall & Hall (1979) FLC 90-713
KB & TC (2005) FLC 93-224
Division: Division 1 First Instance Number of paragraphs: 58 Date of hearing: 11-12 March 2024 Place heard: Sydney Place delivered: Brisbane Counsel for the Applicant: Mr Havenstein Solicitor for the Applicant: Fox & Staniland Lawyers Counsel for the Respondent: Ms Bateman Solicitor for the Respondent: Catalyst Family Lawyers ORDERS
SYC 4827 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS TARR
Applicant
AND: MR KRAL
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
22 MARCH 2024
THE COURT ORDERS:
1.That all previous parenting Orders be discharged.
2.That the parents have equal shared parental responsibility for the children, X born 2011 and Y born 2014 (“the children”).
3.That the children live with the parents as agreed in writing, but failing agreement during school terms in an equal time arrangement in blocks of one (1) week, with changeover to occur after school each Friday, and if Friday is a public holiday (or pupil free day) then at 4.00pm.
4.That during the term four (4) school holidays, unless otherwise agreed, Order 3 hereof shall be suspended, such that the children spend time with:
(a)the mother for one (1) half of the term four (4) school holidays, being the first half in an odd numbered years and the second half in even numbered years; and
(b)the father for one half of the Term 4 school holidays, being the first half in years ending in an even number and the second half in years ending in an odd number.
5.That the mother, at her nomination in writing to the father within twenty one (21) days of the proposed departure date, is permitted to travel and spend time with the children in New Zealand for the entirety of the term four (4) school holidays in odd numbered years during the children’s time with the father pursuant to Order 4(b) hereof and the children’s time with the father shall be suspended for this period whilst the children are in New Zealand.
6.That subject to Order 10 hereof, the children shall spend extended time with the parents for the purposes of holidays during the term one (1), two (2) and three (3) school holidays.
7.That for the purpose of Orders 4 and 5 hereof:
(a)term one (1) school holidays refers to the school holidays that commence immediately at the conclusion of term one (1); term two (2) school holidays refers to the school holidays that commence immediately at the conclusion of term two (2); term three (3) school holidays refers to the school holidays that commence immediately at the conclusion of term three (3) and term four (4) school holidays refers to the school holidays that commence immediately at the conclusion of term four (4);
(b)the school holiday period starts at 9.00am the day following the last day of the school term and concludes at 9.00am or before school on the first day of the school term; and
(c)half of the school holiday period is the number of days of the school holiday period divided by two (2). In the event the number is uneven, the father be permitted to have that additional date, with changeover to occur at the midpoint day.
8.That unless otherwise agreed, the children’s time with each of the parents pursuant to these Orders shall be suspended so that the children spend time with:
(a)the mother on Mother’s Day from 9.00am until 9.00am or the commencement of school the following day;
(b)the father on Father’s Day from 9.00am until 9.00am or the commencement of school the following day;
(c)the mother for the mother’s birthday from 9.00am (if a non-school day) or after school on the day of the birthday until 9.00am or before school on the day following the mother’s birthday;
(d)the father for the father’s birthday from 9.00am (if a non-school day) or after school on the day of the birthday until 9.00am or before school on the day following the father’s birthday;
(e)with the mother (if the children are not already spending time with the mother), on the children’s respective birthdays from 3.00pm until 6.00pm; and
(f)with the father (if the children are not already spending time with the father), on the children’s respective birthdays from 3.00pm until 6.00pm.
9.That both parents shall do all things and sign all documents necessary including any application form, within seven (7) days of the other parent’s request to do so, for the children to have an Australian passport issued and/or renewed and to give all authorities for that passport to be released to the mother who shall retain those passports for safekeeping.
10.That both parents are permitted to take the children on holidays within New South Wales, interstate and overseas and in relation to such travel, unless otherwise agreed:
(a)the parents shall not take the children out of school for the purpose of any holiday;
(b)during the term one (1), two (2) and three (3) school holidays, it shall not exceed seven (7) days in duration;
(c)during the term four (4) school holidays, except as provided for in Order 5 hereof, it shall not exceed twenty one (21) days in duration;
(d)except as provided at Order 10(g) hereof, the travelling parent shall provide the other parent (“the non-travelling parent”) with not less than twenty one (21) days’ notice of his/her intention to travel with the children outside of Australia or interstate, with such notice to include the proposed travel dates;
(e)in case the parents intend travelling with the children on the same dates, priority shall be given to the parent who first gives notice of an intention to travel in accordance with these Orders;
(f)except as provided at Order 10(g) hereof, not less than fourteen (14) days’ prior to departure, the travelling parent shall provide the non-travelling parent with an itinerary including copies of the children’s airline, cruise or other relevant boarding passes/tickets; departure date and return date and time; travel insurance certificate; the countries/destinations including accommodation details and approximate dates on which the travelling parent and the children will arrive and depart each destination (“itinerary”); and
(g)where the proposed travel is for the purpose of attending a funeral or visiting terminally ill friends or family, the travelling parent shall provide the non‑travelling parent with notice and an itinerary as soon as reasonably practicable.
11.That in the event the children’s passports or either of them are lost, damaged or stolen, the parent who is in possession of the passport/s at the time that it was/they were lost, damaged or stolen shall be solely responsible for the cost of replacing the passport/s, and he/she shall do all acts and things and sign all documents necessary to replace the passport/s within fourteen (14) days of discovering that they were lost, damaged or stolen.
12.That in the event one parent is unable to look after the children overnight due to travel (for example for the purposes of work or a holiday) or illness, or other similar circumstances, the other parent shall be offered the first opportunity to care for the children.
13.That unless otherwise agreed, the parent whose time shall commence with the children, shall be responsible for collecting the children from their respective schools or making appropriate arrangements if the children are at school; or otherwise, shall deliver the children at the conclusion of their time to the other parents’ place of residence.
14.That whilst the children are in their respective care, each parent shall advise each other as soon as reasonably practicable of any major medical/dental issues (of any non‑routine nature) involving the children, and each parent shall keep the other informed of any required treatment, diagnoses or medication required in relation to the children and the treating practitioner and the parents shall ensure the proper administration of such medications and treatments is performed by them.
15.That in the event either parent proposes to enrol the children in an extra-curricular activity to occur outside of school hours which requires the children’s attendance, then that parent shall consult with the other parent and shall not proceed with the enrolment of the children in such activity unless there is an agreement reached between the parents in writing, which includes agreement as to payment of fees.
16.That the parents be at liberty to attend all school events to which parent are invited to and to receive all information about the children’s education and progress directly from the school, with this Order to serve as an authority for the school to provide all information sought by the parents.
17.That the children communicate with each of the parents by telephone at all reasonable times, and the parent with whom the children are living is to facilitate this.
18.That the parents shall ensure the other parent has full details of their current address and contact details including telephone number and email addresses.
19.That in the event either parent becomes sick or suffers from a medical emergency which significantly impacts their ability to care for the children, then that parent or someone that parent nominates shall notify the other parent to collect and care for the children until he/she has recovered.
20.That neither parent shall criticise or denigrate the other parent or members of that parent’s family or household in the children’s presence or within the hearing range of the children nor permit others to do so.
21.That within seven (7) days of the other parent’s request to do so, both parents shall do all acts and things and sign all documents necessary to obtain Country B passports for each of the children, with any cost associating with implementing this Order to be borne solely by the father.
22.That when the children do not require their Country B passports for the purpose of travel, the children’s Country B passports shall remain in the father’s possession.
23.That within twenty one (21) days of the other parent’s request to do so, both parents shall do all acts and things and sign all documents necessary to obtain New Zealand citizenship and New Zealand passports for each of the children, with any cost associating with implementing this Order to be borne solely by the mother.
24.That when the children do not require their New Zealand passports for the purpose of travel, the children’s New Zealand passports shall remain in the mother’s possession.
25.That the parents shall facilitate and equally contribute to the costs of the Court Child Expert Ms C explaining these Orders to the children, and for that purpose Ms C shall be permitted to receive a copy of the Reasons for Judgment published by the Court on 22 March 2024.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tarr & Kral has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
Relocation cases are often regarded as finely balanced and different to determine, as they often involve two competent parents and where one parent, post separation, wishes, for understandable reasons, to move to another country to live, and wish their children to go with them. Often the children have a settled routine already in Australia and the parent who would remain opposes relocation.
This is one such case.
The mother of two boys who are now aged 12 years and 9 years wishes the children to move to the country of her birth, New Zealand. The father says that the children should remain in Australia, the county of his birth and also of the two boys.
For the reasons which follow in this case, the Court has decided it is in the best interests of the children at this time that they remain living in Australia, and the mother’s application will therefore be refused.
CONTEXTUAL HISTORY
Statements of fact hereafter should be construed as findings of fact.
The mother, Ms Tarr (“the mother”) is aged 49 years and the father Mr Kral (“the father”) is aged 46 years. The parties met in the United Kingdon when both were working there and commenced cohabitation in Sydney in early 2002.
In 2007, the mother returned to her native New Zealand and a long distance relationship continued, and finally culminated in a commitment to marry, solemnised in Australia in 2009 – when the mother was 35 years of age and the father was 32 years of age.
Their first son X was born in 2011 and their second son Y was born in 2014. Sadly, Y was diagnosed with a serious medical condition, which thankfully after immediate and early treatment, has now been in remission for some years.
To enable the father to pursue a work opportunity, the family moved to the United Kingdon in early 2016, returning to Australia in early 2018, where they initially lived with the paternal grandparents for some months before returning to live in Sydney.
By 7 May 2020, the parties decided their marriage could not continue, and they separated under the one roof, with final separation occurring in February 2022 when the mother left the family home.
I am satisfied whilst the mother had always longed to live in New Zealand, the separation was the catalyst for the mother more clearly articulating her wish for the boys to relocate – discussions being focussed on this possibility, by at least October 2021. The father then, as now, opposed relocation.
On 13 July 2022, the mother filed her Application seeking relocation. In February 2023, the parties privately engaged Ms C to provide a family report, with interviews and observations taking place in February 2023, resulting in a report dated 24 February 2023. Ms C was cross‑examined as the last witness in the trial.
I mention that, in accordance with usual practice for international relocation cases, the Legal Aid Commission of New South Wales was requested to fund an Independent Children’s Lawyer – however the Legal Aid Commission of New South Wales refused to fund, in this case, an Independent Children’s Lawyer, and as a result the hearing proceeded without one. The Court was however assisted by the parties retaining experienced solicitors and Counsel with Ms Bateman of Counsel appearing for the father and Mr Havenstein of Counsel appearing for the mother. Neither Counsel could have reasonably said more than they did, to advocate for their client’s proposal.
By the time the matter commenced hearing on 11 March 2024, the further events of significance that had occurred were at least:
(a)on 13 March 2023, the parents consented to orders which broadly reflected arrangements in place since final physical separation, where the children spend equal time with each parent – the orders prescribing the regime of a 2, 2, 5, 5 night arrangement; and
(b)both the mother alone (in late 2022 and early 2022) and the mother together with the children (on two occasions in late 2023) had spent time in New Zealand.
COMPETING PROPOSALS
Reflective again of the parents’ capacity to negotiate successfully on most matters, Exhibit 2 was tendered which set out the parents’ agreement to orders in the event the children relocate to New Zealand or they do not. Save for the issue of how flights were to be organised and paid for, the orders (attached to these Reasons and marked as Appendix One) were agreed.
The issue to decide was whether the boys should be permitted to relocate to New Zealand. The parents agreed that it would suit X’s school arrangements if he could begin the 2025 school year in New Zealand, and complete grade eight in Australia this year.
Although the mother is very keen to return to live in New Zealand with the boys, she indicated, and her case was founded, on an intention to remain in Australia if the boys are not permitted to relocate. This position is identified by the parenting arrangement agreed to if the children do not relocate. However, the Court was under no illusions that the mother’s primary proposal was for relocation.
After making some discrete findings and considering the “advantages and disadvantages” of each competing proposals through the matrix of the primary and additional considerations, the Court will have hopefully illuminated to both the mother and father the pathway to the conclusion reached.
PRINCIPLES
Relocation cases involve parenting orders so that the current statutory pathway applies, namely:
(a)in all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the children;
(b)to the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect;
(c)in certain circumstances, the Court applies a statutory presumption that it is in the children’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent; and
(d)in Goode & Goode (2006) FLC 93-286, the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s 61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s 65DAA and:
when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents.
In determining whether it is in the best interests of the children to relocate, the Court should identify the competing proposals by each parent. Parents have a right to freedom of movement and a parent who wishes to relocate does not bear an onus to establish reasons to relocate any more than a parent who does not wish to move (see A v A: Relocation Approach (2000) FLC 93‑035 and KB & TC (2005) FLC 93-224).
THE PARENTS
I had the privilege of seeing the parents give their evidence, which basically served to confirm the observations and assessments of Ms C, that the parents are thoroughly decent people committed to the best interests of their children but are different in personality. This case does not raise issues of significant mental health, substance use by parents or chronic family violence.
As I remarked during the hearing, X and Y are fortunate to have such well-adjusted and high functioning parents to nurture their development. I give credit to both parents in the way they conducted their cases – not attempting to demean or criticise the other parent, but more to try and explain why they regard their primary proposal is in the children’s best interests.
The mother, I assess, is devoted to the boys. She from birth was their primary carer although the father was always involved, often because he was able to work from home. Ms C went as far as to opine that the mother is still the primary attachment figure although at ages nearly 13 and 10 respectively, the boys are developing greater development independence. Ms C assessed the mother as highly attuned emotionally to the boys. I agree. She has a more relaxed presentation, and as she said in her evidence, often she accommodated the needs and desires of her partner and went with the flow. I find that although her desire to live in New Zealand would have been known to the father for a significant part of the relationship, the mother did not more seriously assert her position until the parents separated.
The father presented as quite an intense and structured thinker. Being attracted to mathematics and finance fits his personality. He, as the mother suggests, is not as flexible but often works through arguments in a more analytical way. He offers the boys a resource to assist with their homework (as does the mother) and his outdoor pursuits are like sports whilst the mother enjoys and shares her interest in the outdoors through bushwalking etc.
The father’s focus on financial matters is clear. He asked the mother to sign a Binding Financial Agreement in March 2011 (to protect his assets) and he made an application for child support at a time when he knew (from the mother’s evidence in this case) that she was struggling financially – particularly with the increases in the costs of living in the Sydney region. That he has received an assessment for the wife to pay him $130 per fortnight showed, in my view, some lack of empathy, however as the father acknowledged, he does not have employment which means his capacity to remain living in Sydney will also be tested. He says, despite making over 50 job applications, he is confident he will obtain employment – and probably at a level of salary twice that is currently received by the mother as an administrative officer. When that happens, it is likely he will be required to pay the mother child support if the children remain living in Australia.
In respect of both parents, I agree with Ms C that each parents sees the benefits (or not) of relocation from their own perspective.
As was made clear, with the mother having no onus to establish why she wishes to relocate – or for the father to demonstrate why he could not relocate if the boys do – this merely reinforces the test to be applied – namely which proposal is likely to meet the best interests of the children.
FAMILY REPORT AND ADDITIONAL EVIDENCE UNDER CROSS-EXAMINATION
Ms C describes herself as a “forensic social worker” with many years of experience in a variety of contexts before beginning as a family consultant in the Sydney and Parramatta registries in 2008. From her interviews, observations and after reading the material identified in her report, I note some of her relevant opinions and comments as follows:
(a)Although no issues were raised with her about risks, including violence, drug or alcohol abuse or mental health, at paragraph 12, the report writer observed the mother as “quite teary during the interview, particularly when talking about feelings of isolation and home sickness” however Ms C properly conceded she is not qualified to diagnose mental health conditions;
(b)The father asserted the mother’s mood is “unpredictable” and that the mother “appeared quite depressed when they were living with his parents” (paragraph 12). That was nearly 6 years ago. The mother said she was receiving counselling from psychologist Ms D. The report writer spoke with Ms D (see paragraph 14);
(c)The mother described the father as a “controlling partner who appeared insecure and jealous” and the father presented to Ms C as “somewhat pedantic and fixated” during the interview (paragraph 15);
(d)X was interviewed, with details set out at paragraphs 20 to 28, and was noted as a “well mannered young man” who appeared anxious about the process and well aware of the stress that his parents are under. He was not asked if he had a preference in respect of relocation, but wished his parents could agree, noting that he would be happy to go to New Zealand or remain in Australia, but not without his mother, who he said he wants to be “near”.
(e)Y was interviewed, with details set out at paragraphs 29 to 38 and presented as a “confident” child. At paragraph 30, Y is recorded as saying to Ms C that:
…he would like his parents to reunite so that he can live with them both all the time and they can all visit New Zealand a few times a year together. He said that he would miss his father if he moved to New Zealand and would miss his mother if she moved to New Zealand without him.
(f)The observations the report writer made of the children, with each parent in their respective homes were unremarkable, with warmth and affection observed (paragraphs 39 to 45);
(g)The report writer’s analysis/evaluation generally followed the criteria prescribed by s 60CC(3) of the Act and will be referred to, as required later in these Reasons, but I have considered the experts opinions; and
(h)Noting the report was prepared in February 2023 (one year before the hearing), it is obvious that the expert was strongly encouraging a negotiated resolution between the parents, whilst opining further mediation was not likely to be successful. The report did not (nor was it absolutely necessary) make a recommendation about relocation, observing a judicial decision will be required. Ms C did suggest that rather than the current parenting orders for equal time (involving four changeovers a fortnight) for children of this age, week about is more suitable, even on an interim basis.
Arising from the cross-examination of Ms C, the following further evidence was given:
(a)Referring to paragraph 14 of her report, Ms C said she had spoken to the mother’s treating psychologist Ms D, who said that mother had “situational depression” although her hopes to relocate means she is able to function well. As to her prognosis, the Court was well aware of the importance of this issue. When the matter was listed for hearing, the Court ordered the mother to file an affidavit from her treating psychologist (see Order 5(c) made 16 November 2023). An affidavit was not filed, and the Court was told the mother’s treating psychologist elected not to sign one. Perhaps so as to retain the therapeutic relationship, no subpoena was issued. Instead, over objection, I permitted the mother to tender (and marked Exhibit 1) some reports prepared by Ms D being dated 29 August 2023 and 20 December 2023 (to the mother’s general practitioner to support continuance it seems of the mother’s mental health care plan). Furthermore, a more lengthy “medico-legal” report dated 17 December 2023 was provided to the mother’s solicitors. I have read these reports, however the father was unable to test the evidence in the usual way, which in my view reduces the weight I can apply to the opinions expressed by Ms D;
(b)Both parents are likely to be “devastated” if the final decision is not what they hope for, although Ms C felt the father does not appear to have empathy for the mother’s position or recognise that she made sacrifices to suit him over time;
(c)When discussing what weight can be applied to the children’s wishes, the report writer opined, and I agree, that the boys do not have the cognitive capacity to understand the potential long term impact of the decision – both on their relationships, but also on their parents. In respect of the mother’s recent evidence after the most recent visit to New Zealand about the children’s wishes, Ms C cautioned about blindly accepting their comments as they were “probably telling her what she wants to hear”;
(d)If the children were to relocate, she believes the current strong foundation that exists between the children and their father could be maintained although the nature of the relationship would be different. If the mother, electing to remain against her wishes showed distress, then it is possible the children could regard their father as the cause of the mother’s distress, and that could cause tensions in their future relationships with their father; and
(e)When under cross-examination by Counsel for the father, Ms C volunteered that if she weighed up the “advantages and disadvantages” of relocation for the children and had to form a view, it would be that it was in the best interests of the children to relocate. When asked why her report did not make such a recommendation (noting that there are of course cases where a report writer feels unable to express a decided conclusion), Ms C said that where no recommendation is made, it means “less pressure on the parents”.
I found most of the opinions expressed by the report writer as consistent with the evidence as tested before me. The Court is not bound by the views of an expert (see Hall & Hall (1979) FLC 90-713). In this case, it appears the focus of the family report, at the time of its preparation, was to assist the parents to try and find a resolution – one that the children also sought. The report did not achieve that goal with each parent taking what they liked from the report. The somewhat “last minute” recommendation, whilst noted, is not determinative. Nonetheless, the parents saw the benefit in having Ms C explain to the boys the result of the Court case, and for that reason the orders I pronounce will permit a copy of these Reasons to be provided to Ms C, to assist her in explaining the decision to X and Y. Hopefully by so doing, the boys do not carry any of the burden which might be apparent in the reaction of the parents, particularly their mother.
PRIMARY CONSIDERATIONS
Both parents accept, as do I, that X and Y will benefit from having a meaningful relationship with each parent.
The children are not at risk of harm, abuse or neglect in the care of either parent. To the credit of the parents, they do not appear to have exposed the children to their parental conflict. The family unit functioned reasonably well when the parents were separated under one roof for over 20 months. Whilst the children are aware of the different positions their parents have taken on them moving to New Zealand, this seems to have been managed by both parents in a child focussed way.
ADDITIONAL CONSIDERATIONS
Assessing the children’s wishes – which have not been independently collected – is difficult. For a child of X’s age (on the cusp of “teenagerhood”) forming more definitive views about his life would be expected. This highly sensitive boy does not wish to hurt his parent’s feelings. He has not been allowed to really express what he truly feels about such a significant change in his life, at this time. My impression is that both boys would feel the loss of regular contact with their mother more deeply than the loss of regular contact with their father. However, and a reflection of the mother she is, the mother will not require her children to feel that loss – as her case is that if it is not found by the Court to be in the best interests of the children to relocate to New Zealand, she will remain.
The boys’ strongest relationships are with their parents and, these polite and sensitive boys have been exposed to regular contact with the father’s extended family, and have had much less exposure to the mother’s extended family who primarily live in New Zealand. It is not a “numbers game” to identify in which country there are more relations. These children are not under loved – they will enjoy developing connections with all their living grandparents, aunts, uncles and cousins for the remainder of their lives.
The parents have demonstrated co-operative decision making and participated sensibly in required major long-term issues. Apart from the strains both parents are experiencing meeting the costs of living in the area near the children’s schools, there is no practical impacts of the father’s proposals. The costs of travel for the children if they relocate can, I find, be managed.
As earlier mentioned, these parents are different and parent differently however their attitude to parenting and the values and principles they try and instil in their children are very similar. I deal more fully with the parents’ capacity to parent (s 60CC(3)(f)) as well as the effect of any changes in the children’s circumstances (s 60(3)(d)) shortly when analysing the advantages and disadvantages of the competing proposals.
As earlier noted, there are no family violence orders in existence.
The Court is asked to consider making orders least likely to lead to further proceedings. Leaving aside the absolute right of any litigant to seek to Appeal an order for relocation (or not), my impression is that these parents want an end to the litigation which arises from final orders and have shown this by the manner in which they negotiated the agreed terms set out in Exhibit 2.
PARENTAL RESPONSIBILITY
The parents accept it is in the best interests of X and Y that the parents equally share the responsibility for major long-term decisions. They have done so in the past and this should continue in the future.
In looking next at the advantages and disadvantages of each competing proposal, I accept that there is some crossover, but in a finely balance case, I believe to undertake this assessment means the parents are able to see how their evidence has been taken into account and weighed against the other factors.
RELOCATION PROPOSAL IF SUCCESSFUL
In summary form, I find the advantages and disadvantages of the mother’s summary proposal to be as follows.
Advantages
In no particular order I find:
(a)The mother is likely to be delighted to live in New Zealand (City E area) close to her family and friends. She will feel less stress than she is currently experiencing and will enjoy exposing the children to the New Zealand culture and, no doubt, places of significance and interest from her upbringing;
(b)The children will have the opportunity to develop a closer relationship with the mother’s extended family. In this regard, it seems that during the children’s years living in Australia the extended family were not frequent visitors – although the mother’s sister visited soon after the birth of both X and Y;
(c)The mother says she will be able to easily find employment with her skills, however she was not able to produce any evidence of that certainty. The mother says the cost of living in City E (including rent) will be easily managed on her anticipated salary in New Zealand, whilst remaining in Sydney on her current wage is a struggle financially for her; and
(d)The boys, the mother says, will adjust to living in New Zealand (for the first time) and, in her view, cope with the changes of school, peers and the different country environment. She says the current interests that the children enjoy (for example X’s extra-curricular clubs) can be replicated in City E – although she provides no clear evidence of where and how those activities will occur.
Disadvantages
In no particular order I find:
(a)The children’s relationship with the father will change. He will not be readily/physically available to engage with them in the same way he has since birth, but particularly since separation. He will, of course, be able to engage electronically to assist them to adjust to their new life and school in New Zealand;
(b)The father is likely to be saddened by the relocation occurring, and the father will find it difficult, at least initially, to disguise his disappointment from his sons, which may hinder them emotionally;
(c)If the relocation does not prove a happy transition for the boys, for example adjusting to a new school and peer group, then there is a likelihood the mother (as she indicated in her evidence) would consider returning with the children to Australia; and
(d)The boys would have more limited opportunities to engage and enjoy the support of the father’s extended family, which have been a consistent part of their lives since at least returning to Australia in 2018.
IF RELOCATION IS REFUSED
In summary form, I find the advantages and disadvantages of the father’s primary proposal to be as follows.
Advantages
In no particular order I find:
(a)the children, based on the parents agreed position, will continue to spend equal time with both parents, as they have since separation which as assisted them to develop to the well-adjusted boys they are;
(b)X and Y will be able to maintain their current schooling and extra-curricular activities, noting X this year began grade eight with a new cohort. On all the evidence, the current schooling supports the boys’ interests and neither parent is proposing a change of schooling if the children remain living in the Sydney region;
(c)the mother’s current financial position might improve if, as the Court finds is likely, the father obtains suitable employment and pays a reasonable assessed level of child support. Furthermore, under Australian child support legislation, any assessment of child support may be reviewable if the costs of educating the children founds a ground for departure; and
(d)the children will be able to maintain the regular contact with the father’s extended family.
Disadvantages
In no particular order I find:
(a)the mother will be very disappointed, and although she says she will not relocate without the boys, she will need to undertake and rely upon the therapeutic support from her current treating psychologist to help her navigate her anguish. The boys are likely to be aware of the mother’s disappointment as she may find it difficult to disguise her feelings, although I find she will likely try to do so. If the boys “blamed” the father’s opposition to relocation as the cause for their mother’s distress, his could cause some tensions in their relationship with their father;
(b)the children will have a limited, mostly school holiday-based opportunity to engage with the mother’s extended family in New Zealand. They will not have the same chance to immerse themselves in the different culture and traditions of the mother’s birth place;
(c)if the mother’s financial situation improves by relocating (for example being able to afford a car) this might improve and increase the opportunity for extra-curricular activities when in the mother’s care in New Zealand; and
(d)the father will be less available to continue as the children’s “primary male role model” if the mother relocates with the children.
DISCUSSION
Often in relocation cases, the parent who wishes to relocate says they must relocate and if the children are not permitted to relocate, the parent will still go. This really creates a clear “contested residence” issue.
The mother has revealed the strength of her commitment to her children by indicating that if the boys are not permitted to relocate, she will remain and continue the equal time arrangement. She is likely to see doing so, as a further example of her sacrificing her own needs and desires, now for her children. In the past she has felt she has made sacrifices for the father.
Critically, I do not find that if the mother cannot relocate the children to New Zealand, that she will totally fail to function as a parent. She has employment (which has been consistent for some four years); she has friends and personal activities which she has developed since at least she began living primarily in Australia before the parents married in 2009. She would be able to return for visits to New Zealand regularly – and less often with the children.
The parents, post separation, have maintained reasonable communication and this has allowed some emergency support to be provided at times – something which the father could not provide if the mother was living in New Zealand with the boys.
However, one of the major issues which persuades me against permitting relocation is that these two impressive and sensitive young males are doing very well at school and in their community at present. There are a number of uncertainties that arise by them being in New Zealand – a country they have visited but never actually resided in – and the risks of those changes are a significant factor in my assessment.
It is not possible to find a ready solution for the mother’s financial stress – although the father paying child support to the mother would clearly assist. The father’s overall financial position reveals if he does not receive employment, he is likely to be in a worse position to that of the mother.
In these circumstances, the joint decision of the parents to maintain the children’s schooling at F School (X – grade eight) and G School (Y – grade five) is based on their assessment that both schools offer the child excellent academic support. Education is important to both these parents, however suburbs in proximity to the children’s current schools demands rent to be paid which, from the evidence, may be higher than other parts of Sydney. Although the children were required to be in the catchment area of the schools to secure enrolment, now that they are in those schools, the mother’s evidence is that living out of the catchment is a possibility. Of course, to do so, would likely entail additional travel or greater use of public transport. The child X however already utilises public transport to get to school on occasions.
CONCLUSION
In this difficult decision, I have reached the conclusion that it is in the best interests of X and Y that their mother’s application for them to relocate to New Zealand, be dismissed.
I do however adopt the sensible opinions expressed by the report writer Ms C, that the equal time arrangements currently prescribed by the interim Order of March 2023 alter to week about, with changeovers at school each Friday. I see no real benefit to the boys in prescribing a night in such block with the other parent, but of course can do that if they agree.
I understand the father expressed concern that the boys might miss him if they did not see him for seven days. Although I expect some slight adjustment to the new regime, which shall commence from the beginning of term two (2), 2024, the reduction in the number of changeovers every fortnight will, I find, work better for X and Y.
Also, with week about time, the parents will be able to find better balance with work and home duties. Also, the mother knowing the children are in the care of the father for a whole week, would be able to explore the possibility of a one-week trip to New Zealand (out of the peak school holiday periods) if she desires to reconnect with her elderly mother and sisters (and their families) more often.
For these reasons, the orders which appear at the commencement of these Reasons are in the best interests of the children.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 22 March 2024
APPENDIX ONE
Definitions:
(a)“Mother” means the Applicant Mother, Ms Tarr.
(b)“Father” means the Respondent Father, Mr Kral.
(c)“Parties” means the Applicant and Respondent together.
(d)“Children” means the parties’ children: “X” (born in 2011) and “Y” (born 2014) together.
IN THE EVENT THAT THE CHILDREN RELOCATE TO NEW ZEALAND
1.That the parties have equal shared parental responsibility for the children.
2.That the children live with the Mother.
3.That the children be permitted to depart and permanently live outside of the Commonwealth of Australia with the Mother to City E, New Zealand.
4.That following the children’s relocation to New Zealand with the Mother, the children shall spend time with the Father during the school holidays as follows:
(a)All of Term 1 school holidays;
(b)Half of Term 2 school holidays;
(c)All of Term 3 school holidays; and
(d)Half of Term 4 school holidays.
5.For the purposes of the children spending time with the Father in accordance with Order 4, the Father shall organise and pay for the children to travel to Australia on each occasion at his own cost. [order sought by the mother]
6.That for the purpose of the children spending time with the Father in accordance with Order 4, the mother shall organise and pay for the children’s flights no less than 28 days prior to their intended departure date and advise the father of the flight details within 48 hours of booking the flights. [order sought by the father]
7.That when the children do not require their Australian passports for the purpose of spending time with the father, the children’s Australian passports shall remain the possession of the mother.
8.The parties shall each create and maintain a Zoom account and the Mother shall facilitate the children speaking to the Father via Zoom as often as the children wish, and in respect of the Father speaking to the children, at least three times per week for no less than 30 minutes, and in respect of the Mother speaking to the children when they are in the care of the Father pursuant to Order 4, at least three times per week for no less than 30 minutes.
9.The Mother shall ensure the parties are listed as enrolling parents and emergency contacts at the children’s school.
10.The Mother shall authorise the children’s school and other care providers to provide all information and documents about the children to the Father, including but not limited to the children’s progressive reports, school newsletters, photographs and details of any school activities.
11.That the parties be at liberty to discuss matters relating to the child with the child’s school, teachers, principal, and other care providers.
12.Either party be at liberty to attend any significant school events and any significant extra-curricular activities or sporting events that the children may be involved in from time to time.
13.Each party shall keep the other informed of their current residential address, mobile and landline numbers and email address and advise the other party of any change thereto within 24 hours of such change.
14.That each party notify the other as soon as practicable of any serious illness suffered by the children, emergency admission to hospital or injury suffered by the children whilst in the care of the other party.
15.Neither party shall denigrate the other or permit anyone else to do so in the presence of the children.
16.That other than advising the children as to the outcome of these proceedings neither parent will otherwise discuss what occurred at Court during these proceedings or show the children any documents prepared for the purpose of these proceedings.
17.That should the mother be permitted to relocate the children’s place of residence to New Zealand then upon the father providing the mother with 14 days’ notice in writing should the father travel to New Zealand, the father is at liberty to have the children in his care in New Zealand for up to 7 nights each school term provided that, unless otherwise agreed, the father does not take the children out of school during his time with the children pursuant to this Order.
18.That within 7 days of the other party’s request to do so both parties shall do all acts and things and sign all documents necessary to renew the children’s Australian passports.
19.That within 7 days of the other party’s request to do so both parties shall do all acts and things and sign all documents necessary to obtain Country B passports for each of the children, with any cost associating with implementing this Order to be borne solely by the Father.
20.That when the children do not require their Country B passports for the purpose of travel, the children’s Country B passports shall remain the possession of the father.
21.That within 21 days of the other party’s request to do so both parties shall do all acts and things and sign all documents necessary to obtain New Zealand Citizenship and New Zealand passports for each of the children, with any cost associating with implementing this Order to be borne solely by the Mother.
22.That when the children do not require their New Zealand passports for the purpose of travel, the children’s New Zealand passports shall remain the possession of the mother.
23.That the parties shall do all acts and things and sign all documents as may be necessary to file any application and/or complete any documentation required to register a copy of these Orders in the Family Court of New Zealand.
IN THE EVENT THAT THE CHILDREN REMAIN LIVING IN SYDNEY, AUSTRALIA, THEN THE FOLLOWING ORDERS
24.That the parties have equal shared parental responsibility for the children.
25.That the children spend time with the parties as agreed, but failing agreement in an equal time arrangement on a 2-week cycle as follows:
(a)With the Mother, from Monday after school (or 9.00am on a non-school day) until Wednesday before school (or 9.00am on a non-school day).
(b)With the Father, from after school on Wednesday (or 9.00am on a non-school day) until before school on Friday (or 9.00am on a non-school day).
(c)With the Mother, from after school on Friday (or 9.00am on a non-school day) until the following Wednesday before school (or 9.00am on a non-school day).
(d)With the Father, from after school on Wednesday (or 9.00am on a non-school day) until the following Monday before school (or 9.00am on a non-school day).
26.That during the Term 4 school holidays, unless otherwise agreed, Order 24 shall be suspended, such that the children spend time with:
(a)The Mother, for one half of the Term 4 school holidays, being the first half in years ending in an odd number and the second half in years ending in an even number; and
(b)The Father, for one half of the Term 4 school holidays, being the first half in years ending in an even number and the second half in years ending in an odd number.
27.That the Mother, at her nomination in writing to the Father within 21 days of the proposed departure date, is permitted to travel and spend time with the children in New Zealand for the entirety of the Term 4 school Holidays in odd numbered years during the Father’s time with the children pursuant to Order 25(b) and the Father’s time shall be suspended for this period whilst the children are in New Zealand.
28.Subject to Order 31, the parties are permitted to spend extended time with the children for the purposes of holidays during the Term 1, 2 and 3 school holidays.
29.For the purpose of Orders 25 and 26:
(a)Term 1 school holidays refers to the school holidays that commence immediately at the conclusion of Term 1; Term 2 school holidays refers to the school holidays that commence immediately at the conclusion of Term 2; Term 3 school holidays refers to the school holidays that commence immediately at the conclusion of Term 3 and Term 4 school holidays refers to the school holidays that commence immediately at the conclusion of Term 4.
(b)The school holiday period starts at 9.00am the day following the last day of the school term and concludes at 9.00am or before school on the first day of the school term.
(c)Half of the school holiday period is the number of days of the school holiday period divided by 2 – in the event the number is uneven the Father be permitted to have that additional date with the changeover to occur at the midpoint day.
30.That unless otherwise agreed, each parties’ time with the children pursuant to any other Order shall be suspended so that the children spend time with:
(a)The Mother, on Mother’s Day from 9.00am until 9.00am or the commencement of school the following day.
(b)The Father, on Father’s Day from 9.00am until 9.00am or the commencement of school the following day.
(c)The Mother, for the Mother’s Birthday, from 9.00am (if a non-school day) or after school on the day of the birthday until 9.00am or before school on the day following the Mother’s Birthday.
(d)The Father, for the Father’s Birthday, from 9.00am (if a non-school day) or after school on the day of the birthday until 9.00am or before school on the day following the Father’s Birthday.
(e)If the Mother is not already spending time with the children, with the Mother on the children’s respective birthdays from 3.00pm until 6.00pm.
(f)If the Father is not already spending time with the children, with the Father on the children’s respective birthdays from 3.00pm until 6.00pm.
31.That both parties shall do all things and sign all documents necessary including any application form, within 7 days of the other parties request to do so, for the children to have an Australian Passport issued and/or renewed and to give all authorities for that passport to be released to the Mother who shall retain those passports for safekeeping.
32.That both the Father and the Mother are permitted to take the children on holidays (“travel”) within NSW, interstate and overseas and in relation to such travel, unless otherwise agreed:
(a)The parties shall not take the children out of school for the purpose of any holiday;
(b)During the Term 1, 2 and 3 school holidays it shall not exceed 7 days in duration.
(c)During the Term 4 school holidays, except as provided for in Order 26, it shall not exceed 21 days in duration.
(d)Except as provided at Order 31(g) herein, the Travelling Party shall provide the other party ("the Non-Travelling Party") with not less than 21 days’ notice of his/her intention to travel with the children outside of Australia or interstate such notice to include the proposed travel dates;
(e)In case the parties intend on travelling with the children on the same dates, priority shall be given to the party who first gives notice of an intention to travel in accordance with these Orders;
(f)Except as provided at Order 31(g), not less than 14 days’ prior to departure, the Travelling Party shall provide the Non-Travelling Party with an itinerary including copies of the children’s airline, cruise or other relevant boarding passes/tickets; departure date and return date and time, travel insurance certificate, the countries/destinations including accommodation details and approximate dates on which the Travelling Party and the children will arrive and depart each destination (“Itinerary”);
(g)Where the proposed travel is for the purpose of attending a funeral or visiting terminally ill friends or family, the Travelling Party shall provide the Non‑Travelling Party with notice and an Itinerary as soon as reasonably practicable.
33.In the event that the children’s passports or either of them are lost, damaged or stolen, the party who is in possession of the passport/s at the time that it was/they were lost, damaged or stolen shall be solely responsible for the cost of replacing the passport/s, and he/she shall do all acts and things and sign all documents necessary to replace the passport/s within 14 days of discovering that they were lost, damaged or stolen.
34.In the event one parent is unable to look after the children overnight due to travel (for example for the purposes of work or a holiday) or illness, or other similar circumstances, the other parent shall be offered the first opportunity to care for the children.
35.That unless otherwise agreed, the party whose time shall commence with the children, shall be responsible for collecting the children from their respective schools or making appropriate arrangements if the children are at school; or otherwise, shall deliver the children at the conclusion of their time to the other parties’ place of residence.
36.That whilst the children are in their respective care, each party shall advise each other as soon as reasonably practicable of any major medical/dental issues (of any non-routine nature) involving the children, and each party shall keep the other informed of any required treatment, diagnoses or medication required in relation to the children and the treating practitioner and the parties shall ensure the proper administration of such medications and treatments is performed by them.
37.That in the event that either party proposes to enrol the children in an extra-curricular activity to occur outside of school hours which requires the children’s attendance, then that party shall consult with the other party and shall not proceed with the enrolment of the children in such activity unless there is an agreement reached between the parties in writing, which includes agreement as to payment of fees.
38.That the parties be at liberty to attend all school events to which parties are invited to and to receive all information about the Children’s education and progress directly from the school and with this Order to serve as an Authority for the school to provide all information sought by the parties.
39.That both parties be at liberty to communicate with the children by telephone at all reasonable times, and the party with whom the children are living is to facilitate this.
40.Each of the parties shall ensure the other has full details of current address and contact details including telephone number and email addresses.
41.That in the event either party becomes sick or suffers from a medical emergency which significantly impacts their ability to care for the children, then that party or someone that party nominates shall notify the other party to collect and care for the children until he/she has recovered.
42.That neither party shall criticise or denigrate the other party or members of that party’s family or household in the children’s presence or within the hearing range of the children nor permit others to do so.
43.That within 7 days of the other party’s request to do so both parties shall do all acts and things and sign all documents necessary to obtain Country B passports for each of the children, with any cost associating with implementing this Order to be borne solely by the Father.
44.That when the children do not require their Country B passports for the purpose of travel, the children’s Country B passports shall remain the possession of the father.
45.That within 21 days of the other party’s request to do so both parties shall do all acts and things and sign all documents necessary to obtain New Zealand Citizenship and New Zealand passports for each of the children, with any cost associating with implementing this Order to be borne solely by the Mother.
46.That when the children do not require their New Zealand passports for the purpose of travel, the children’s New Zealand passports shall remain the possession of the mother.
0
0
1