Tillson and Keller (No 2)

FAMILY COURT OF AUSTRALIA

TILLSON & KELLER (NO. 2)

[2020] FamCA 899

FAMILY LAW – CHILDREN – Parenting Orders – International Relocation – Where the mother is from New Zealand and has lived in Australia for 12 years – Where the mother seeks to return to New Zealand and relocate the child – Where the father opposes relocation – Where the Independent Children’s Lawyer opposes relocation – Where the mother and the father have a history of depression and anxiety – Where the father was diagnosed with a Major Depressive Disorder – Where the mother’s parenting capacity will likely improve if relocation permitted – Where the father’s mental health is likely to suffer if relocation permitted – Where the parties agree to equal shared parental responsibility – Where an order for equal time is not in the child’s best interests – Where the child is to live with the mother and spend substantial and significant time with the father – Where the mother is willing to foster the relationship between the child and the father – Where the child can spend substantial and significant time with the father if relocation permitted – Where the best interests of the child are met by allowing relocation – Where the mother is to register the Order as an overseas parenting order with the District Court of New Zealand

Family Law Act 1975 (Cth)

Care of Children Act 2004 (NZ) s 81 and s 82

MRR v GR [2010] HCA 4
U v U (2002) 211 CLR 238
Heath v Hemming (No 2) [2011] FamCA 749

APPLICANT:

Mr Tillson

RESPONDENT:

Ms Kate Keller

INDEPENDENT CHILDREN’S LAWYER:

Paula Fletcher

FILE NUMBER:

LEC

169

2017

DATE DELIVERED:

26 October 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

10, 11, 12 & 13 February and 8 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms McDiarmid

SOLICITOR FOR THE APPLICANT:

Ferguson Legal

COUNSEL FOR THE RESPONDENT:

Mr Jordan

SOLICITOR FOR THE RESPONDENT:

Burgess Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Decle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Fletcher
Universal Law

Orders

IT IS ORDERED BY CONSENT

That all previous parenting Orders and parenting plans are discharged.
That save as otherwise provided for herein, the mother and the father shall have equal shared parental responsibility for the making of decisions about all major long-term issues (as that term is defined in s 4 of the Family Law Act 1975 (Cth) (“the Act”)) in relation to the child, X TILLSON born … 2016, (“the child”) and, to be clear, the provisions of s 65DAC of the Act apply to the making of any such decision.

IT IS FURTHER ORDERED

That the mother and the father shall forthwith take all steps necessary to cause the records of the Registry of Births, Deaths and Marriages (NSW) to be amended so that the child’s name is officially recorded as X KELLER-TILLSON and thereafter the parents shall be restrained from using any name for the child other than that name.
That the child shall live with the mother and the mother is permitted to relocate the child to live with her in the B Region of New Zealand any time after the expiry of four weeks from the date of these Orders.
That to the extent that it may be necessary, the Court requests that the Australian Federal Police remove the name of the child, X TILLSON born … 2016 (female), from the Family Law Watchlist at all points of international arrivals and departures in Australia.
That on the undertakings of the paternal grandmother and paternal grandfather given to the Court on 18 September 2020, the child shall spend time with her father from 8:00 am each Thursday until 5:00 pm on the following Saturday each week until the mother and child leave Australia to travel to New Zealand to live.
That the obligations imposed upon the paternal grandmother and paternal grandfather pursuant to their undertakings given to the Court on 18 September 2020 will be discharged when the mother and child leave Australia to travel to New Zealand to live, but the obligations imposed upon them by their undertakings given to the Court on 13 February 2020 shall continue, with those undertakings not being discharged by these Orders.
That in 2021, the mother shall bring the child back to Australia at her expense for a period of at least two weeks in each of the four three-monthly quarters of the year and during those two week periods the child shall spend time with the father as follows:
(a)The first two week period:
(i)From 8 am on the first Monday to 5 pm on the following Wednesday;
(ii)From 8 am on the first Friday to 5 pm on the following Monday;
(iii)From 8 am on the second Wednesday to 5 pm on the following Sunday;
(b)The second two week period:
(i)From 8 am on the first Monday to 5 pm on the following Thursday;
(ii)From 8 am on the first Saturday to 5 pm on the following Wednesday;
(iii)From 8 am the second Friday to 5 pm on the following Sunday;
(c)The third and fourth two week periods:
(i)From 8 am on the first Monday to 5 pm on the following Friday;
(ii)From 8 am on the first Sunday to 5 pm on the following Thursday;
(iii)From 5 pm on the second Friday to 5 pm on the following Sunday.
That in 2021, if the father is able to travel to New Zealand and have the child spend time with him at his own expense, the child shall spend time with the father in New Zealand for one period of two weeks in each of the two halves of the year as follows:
(a)The first two week period:
(i)From 8 am on the first Monday to 5 pm on the following Wednesday;
(ii)From 8 am on the first Friday to 5 pm on the following Monday;
(iii)From 8 am on the second Wednesday to 5 pm on the following Sunday;
(b)The second two week period:
(i)From 8 am on the first Monday to 5 pm on the following Friday;
(ii)From 8 am on the first Sunday to 5 pm on the following Thursday;
(iii)From 5 pm on the second Friday to 5 pm on the following Sunday.
That one of the visits to Australia in the fourth quarter of 2021 or to New Zealand in the second half of 2021 shall be arranged between the parents so that the child spends Christmas Eve and Christmas Day of 2021 in the care of the father.
That, in addition to all other time provided for in these Orders, if the father elects to have the child travel to Australia and spend time with him, at his expense, over the long-weekends that fall in June and October each year in New South Wales, then the mother shall bring or send the child over, at the father’s expense in terms of return airfares, and the child shall spend time with the father at least from 8:00 am on the Saturday of such weekend until 5:00 pm on the following Monday.
That from the beginning of 2022, the child shall spend time with the father as follows:
(b)From when the child starts school in 2022:
(i)For two periods of up to one whole week in New Zealand during school term, being one week in in the first half of the year and one week in the second half of the year, at the father’s election and expense, provided the father ensures the child attends school during each such week;
(ii)For one whole week in each of the end of term New Zealand school holidays with the mother to bring or send the child to Australia at her expense for those visits in the first week of each of those holidays;
(iii)For two whole weeks in the Summer holidays at the end of 2022 with the mother to bring or send the child to Australia at her expense with this visit not to include Christmas Day unless the mother elects for it to do so.
(c)From when the child turns 7 in … 2023:
(i)For three weeks or exactly half (whichever is the greater) of the New Zealand Summer school holidays at the end of 2023 and each Summer holiday period thereafter, with the mother to bring or send the child to Australia at her expense with this visit to include Christmas Eve and Christmas Day in 2023 and in 2025;
(ii)For two periods of up to two whole weeks in New Zealand during school term, being two weeks in the first half of the year and two weeks in the second half of the year, at the father’s election and expense, provided the father ensures the child attends school during each such period;
(iii)For three periods of two weeks, being the last week of the New Zealand school term and the first week of the end of term school holidays that follow, with the mother to bring the child to Australia at her expense;
(d)From when the child turns 10 in … 2026:
(i)For two periods of up to two whole weeks in New Zealand during school term, being two weeks in the first half of the year and two weeks in the second half of the year at the father’s election and expense, provided the father ensures the child attends school during each such period;
(i)For three weeks or exactly half (whichever is the greater) of the New Zealand Summer holidays at the end of each year, with the mother to bring/send the child to Australia at her expense with this visit to include Christmas Day in the odd numbered years;
(ii)For the whole of two of the end of term, two week long school holiday periods each year, at the father’s election as to which ones, with the mother to bring/send the child to Australia at her expense.
That should the father decide that he would like to spend his New Zealand school holiday time with the child in New Zealand instead of in Australia he may elect to do so, and, if he does, the child shall spend the same time with the father in New Zealand as she would have spent with him in Australia, but with the father being responsible for the cost of his own travel to New Zealand and, to be clear, such time is to be considered additional to any time that the father spends with the child in New Zealand during school term pursuant to other provisions of these Orders.
That the child shall communicate with the parent whose care she is not in at any particular time by internet video conferencing platform such as FaceTime, Skype, WhatsApp, or Zoom (whichever the father elects) twice per week, at times to be agreed, and in the absence of agreement then each Wednesday and Sunday evening at 6:45 pm New Zealand time for up to 15 minutes or such other agreed time.
That the parent whose care the child is in at the particular time shall be responsible for ensuring that the child makes the internet video conferencing call to the other parent provided for in (14) above and shall ensure that she is given privacy for the purposes of such call.
That in addition to the time that the child is to spend with the father before she leaves with her mother for New Zealand she shall spend from 9:00 am until 4:00 pm with the father on her fourth birthday on … 2020.
That when the child is to spend time with the father in Australia, before she moves to New Zealand and after she has moved there, the mother shall be responsible for delivering or causing her to be delivered to the father’s home at the commencement of her time with him, or, if the parents otherwise agree, to the father at the airport, and for collecting or causing her to be collected from the father’s home at the conclusion of her time with him, or, if the parents otherwise agree, the father can return her to the mother at the F City airport.
That when the child is to spend time with the father in New Zealand, the father shall be responsible for collecting her from the mother’s home at the commencement of her time with him, or, if the parents otherwise agree, at the airport, and for delivering her back to the mother at her home at the conclusion of her time with him, or, if the parents otherwise agree, the father can return her to the mother at the L City airport.
That where each of the parents has the right to elect when the child’s time with the father is to take place within the parameters of these Orders, no less than 28 days’ notice in writing shall be given to the other parent of the dates within which that time will take place in accordance with these Orders, and where the father has the right to elect to have the child travel to Australia for the June and/or October long weekends each year, not only shall he give the mother no less than 28 days’ notice in writing of that election but he shall also cause copies of the economy class air e-ticket/s from L City to F City and return, as necessary, to be sent to the mother at the same time with the mother to respond to him with confirmation that she has received that notice and those tickets within 24 hours of such receipt.
That after the child moves with her mother to live in New Zealand, arrangements pertaining to the child spending special days such as her birthday, the father’s birthday, the mother’s birthday, Father’s Day, Mother’s Day and the Easter holidays shall be determined as between the mother and the father pursuant to the processes otherwise in place pursuant to these Orders for the child to spend time with the father, but should the child not be with the father on her birthday, the father’s birthday, Father’s Day, Easter Sunday or Christmas Day then the mother shall ensure that the child communicates with the father via internet video conferencing calls on those days (in addition to the two calls per week already provided for) and the father shall ensure that the child communicates with the mother in the same way if the child is in his care on her birthday, the mother’s birthday, Mother’s Day, Easter Sunday or Christmas Day.
That each of the mother and the father shall keep the other informed at all times of his and her residential address, email address, and mobile telephone number, as well as any landline telephone number he or she might have and any change to any of these shall be advised to the other parent by no later than 24 hours after any such change.
That the mother shall keep the father informed of the name, address and telephone number of any treating medical or allied health practitioners who may treat the child from time to time and she shall authorise any such practitioner to provide the father with all information that the father may request about the child’s treatment, diagnosis and prognosis, that the practitioner is lawfully able to provide.
That the father shall keep the mother informed of the name, address and telephone number of any treating medical or allied health practitioners who may treat the child at any time that she is in his care and he shall authorise any such practitioner to provide the mother with all information that the mother may request about the child’s treatment, diagnosis and prognosis, that the practitioner is lawfully able to provide.
That each parent shall inform the other parent of any significant development in respect of the child’s health as soon as reasonably practicable after such development.
That the mother by this Order authorises any day-care centre, pre-school or school that the child might attend from time to time to provide the father with any information the father might request about the child’s educational, sporting, cultural and social progress and development that the school may lawfully provide, with such information to be provided at the father’s expense if there is any.
That during the time the child is with either parent, that parent shall:
(i)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(ii)Speak of the other parent respectfully;
(iii)Not denigrate or insult the other parent in the presence or hearing of the child;
(iv)Use his or her best endeavours to ensure that others do not denigrate or insult the other parent within the hearing or presence of the child;
(v)Not use physical discipline on the child or allow any other person to physically discipline the child.
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.

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 Tillson & Keller 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

FILE NUMBER: LEC 169 of 2017

Mr Tillson

Applicant

And

Ms Keller

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Ms Keller and Mr Tillson are the parents of little X, who was born in 2016 and is nearly four years old. X was born during their relatively short de facto marital relationship that began around the middle of 2014 and ended in March 2017, when X was only a very young baby.
These two parents, who I shall call “the mother” and “the father” throughout these reasons, have been in disagreement about parenting and living arrangements for X ever since they separated.
The mother, who is a New Zealander, has wanted to return to live in her hometown in the B Region of New Zealand since even before her relationship with the father broke down. Since their separation, she has maintained the determination to live there and to bring X up there. The father, who is an Australian, does not want that to happen. He wants the mother to stay with X on the north-coast of New South Wales, where they lived whilst together in their relationship and where they have lived since separation, whilst these proceedings have been pending and awaiting determination. He does not want to move to New Zealand himself and says he will not move there even if the mother is permitted to take the child with her to live there. The father wants the mother and X to stay in Australia and for the time that the child spends in his care to increase until she is living with him and her mother on an equal time, shared care basis.
There is no dispute that X has a loving and meaningful relationship with both of her parents. Clearly, it is in her interests to be able to maintain those relationships as she grows. The father’s case is that is best achieved with X’s mother being required to continue to live with her here and with X spending substantial amounts of time with him every week. The mother’s case is that X’s loving and meaningful relationship with her father will be able to be maintained, even if she lives with the mother in New Zealand, by regular and frequent digital communication with him and by regular visits by X to stay with her father in Australia as she grows, augmented by visits by the father to New Zealand to spend time with X over there whenever he can. The father espouses the belief that if the mother is permitted to relocate with X to New Zealand that his relationship with her will end and that she will be “lost” to him.

What the Court is required to do

The Court’s task is to “make such parenting orders as it thinks proper” subject to the provisions of Part VII of the Family Law 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] Section 65D of the Act
[2] Section 60CA of the Act

Subsection (2) sets out two primary considerations which are:
(a)The benefit to the child of having a meaningful relationship with both of her 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.
[3] Section 61DA of the Act
[4] Section 61B of the Act
The evidence in this case gives rise to questions of fact that might, if decided one way, have the result that the presumption does not apply. However, that said, the mother, the father and the Independent Children’s Lawyer (“the ICL”) in the case all ultimately agreed that parental responsibility for X should be conferred equally on both parents, regardless of where she lives. So, there is no need for the Court to determine whether or not the presumption applies. If both parents and the ICL accept that it is in X’s best interests for the parents to have equal shared parental responsibility, all being conscious of those disputed issues and aware of the statutory obligations created by the provisions of s 65DAC of the Act, then I accept that position and will make such an Order.
Such circumstances bring into operation the provisions of s 65DAA which require the Court to consider the following:
(1)Whether the child spending equal time with each of the parents would be in the best interests of the child; and
(2)Whether the child spending equal time with each of the parents is reasonably practicable;
and if it is each of those things, then the Court must consider making an order for the child to spend equal time with each of the parents.
If the Court does not make an order that the child is to spend equal time with each of the parents, then the Court must consider the following:
(1)Whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(2)Whether the child spending substantial and significant time with each of the parents is reasonably practicable;
and if it is each of those things, then the Court must consider making an order for the child to spend substantial and significant time with each parent. The phrase “substantial and significant” is defined in the same section. It includes days that fall on weekends and holidays and days that do not fall on weekends and holidays and includes days that allow the parent to be involved in the child’s daily routine as well as days that allow the child to be involved in events and occasions that are of special significance to the parent. In determining whether it is “reasonably practicable” for each of those possibilities, the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”.
Relevantly, these particular provisions were considered by the High Court in its judgment in MRR v GR [2010] HCA 4. At [15], their Honours said:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in E Town, [the trial judge] was obliged to consider the circumstance of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
Their Honours went on to say that “had consideration been given to the question only one conclusion could have been reached, one which did not permit the making of the order”. They then set out the circumstances under which the mother found herself still living in E Town, which their Honours clearly thought were so unacceptable that it would be unreasonable to expect her to stay there with the child.
Their Honours then said:
The evidence of the Family Consultant was that the mother was “definitely despondent” about being in E Town, as her living conditions were not good and she was isolated from her family. The Family Consultant said that the mother was depressed and recommended that she attend counselling. The finding of [the trial judge] that “the mother’s anguish and depression in being in E Town … can, to a significant degree if not in their entirety, be dealt with by… counselling” is not supported by this evidence.
The evidence before his Honour did not permit an affirmative answer to the question in s 65DAA(1)(b). It follows that there was no power to make the orders for equal time parenting.
Their Honours went on to acknowledge that the Court would need to consider whether substantial and significant time spent by the child with each parent was in the child’s best interest and whether that was reasonably practicable. Their Honours said:
That would require a consideration of the mother being resident in Sydney. … At the rehearing of this matter afresh, the necessary determinations will be made on the evidence as to the practicability of such orders, given the circumstances pertaining to the parties as they then stand.
Applying that decision, not only must I consider whether it is in the best interests of X to have equal time with each of her parents but I must also make “a practical assessment of whether equal time parenting is feasible”. I may only consider making an order that X spends equal time with each of her parents if I consider it is in her best interests and if I consider that it is “feasible”. If I find that one or both of those is not answered in the affirmative, then I must go through the same process in respect of “substantial and significant” time with each parent.
Before I go to those considerations, I will set out some relevant history, discuss some of the disputed factual matters and make necessary findings.

Some Relevant History

The father was born in 1975 here in Australia and is 45 years of age. The mother was born in New Zealand in 1984 and is now 36 years of age. As a young adult, she travelled to Australia with a former boyfriend, after she obtained healthcare qualifications at home in New Zealand. She was 24 years of age at the time. She says she “wanted to experience living and working in Australia”. She and her boyfriend lived in F Town and Brisbane together until they separated in 2011. A little after that, the mother took up employment in healthcare at remote sites in Western Australia. She principally worked on a fly in/fly out basis, living, though not working, in either Perth or Brisbane.
The father also worked in the same remote workplace. He had also been in a long term relationship before, between 1998 and 2011. That ended amicably. He, like the mother, had no children when he and the mother met. Like so many people do these days, the mother and the father made each other’s acquaintance “online” through an internet site. That was in 2014 when the father was 38 years old and the mother was 30 years old. They were both working on a fly in/fly out basis at different sites. The father was living in an apartment owned by his parents in G Town on the north New South Wales Coast. Within months of getting to know each other, around the middle of 2014, the mother moved in to live with the father in his apartment.
The couple soon opened a joint bank account together and were living in all respects as a de facto married couple. From around the middle of 2015 they began having discussions with the father’s parents, who lived in a nearby town, about purchasing the apartment they were living in from them. Arrangements were agreed to, money was borrowed and secured by mortgage over the property, and it was transferred into their names in early 2016. They were both still working on a fly in/fly out, rostered basis at different mines. Their rosters were not always aligned, so they did not get to spend all of their rostered days off with each other. However, around this time they were also actively trying to conceive a child, and the mother learned she was pregnant in or around the middle of 2016. At around the same time, they negotiated with the owners of the duplex property adjoining theirs to purchase it as well. They did that with settlement taking place in early October 2016. This put them heavily in debt. X was born soon thereafter and the mother stopped working so as to able to provide full-time care to X.
In February 2017, they were in New Zealand for a wedding and staying at the rural property of the mother’s parents near the small town of B Town – the town the mother grew up in and wants to return to. At around that time, they were also looking at opportunities to purchase a property and/or a business in New Zealand. They had also been looking at the possibility of buying a business in Australia over time before that. None of that is in dispute.
What the parties do not agree upon though is whether they were looking to move to live permanently in New Zealand. The mother asserts that they were. The father asserts that they were not. I am unable to determine that they had a concluded agreement to move permanently to live in New Zealand. I am satisfied though, that they were seriously planning the possibility of continuing to own the two properties in G Town and living there for some part of each year, whilst also planning the purchase of a property in the B Region where they could also live for some other part of each year, most likely the Summer months when they planned to rent out their G Town properties for maximum rental return and when the weather in New Zealand is more appealing. There was definitely talk between them about finding a business in New Zealand that they could operate whilst still working in fly in/fly out employment in Australia, flying in and out of New Zealand for rostered time off during which they could manage the business they might buy. They shared communications about the fruits of their own research about that and their respective positive thoughts about the various proposals they came up with. There is clear evidence of that.
Whilst I am satisfied that the mother might certainly have had in her mind, particularly after X was born, that they would move to live in New Zealand permanently as a family, I am not satisfied that the father was completely at one with that prospect in his mind. I am satisfied that he was definitely committed to the idea of living some months of the year in New Zealand and was actively supporting the prospect of finding a property and/or a business that they could purchase in New Zealand that might help facilitate that, at least. I am not able to find that they were completely at one on the actual final outcome each envisaged might happen and I am further satisfied that this absence of a completely common position fuelled disagreement between them that led to argument and separation in February, 2017. The father was particularly troubled by an idea that the mother’s father had proposed that they construct a home on the rural block/property that the mother’s parents owned. The father was, unsurprisingly, concerned about the idea of putting money into the construction of such a home and not getting any title to it. I am satisfied that this was the immediate pre-curser to argument between them that flared to the point that the mother determined to separate from the father. I will return to further discussion about the facts surrounding that.
Immediately after separation was declared between them, the mother communicated her desire to stay in New Zealand and to keep X with her there. The father, in response, communicated his desire to return to Australia with X. The mother and her parents retained and hid X’s Australian passport. The father spoke to the Australian Consulate with a view to getting an urgent replacement passport for the child and told the mother that he had booked tickets for himself and X to fly back to Australia the next evening. The maternal grandfather told the father that he would “need a Court order to take X out of the country”.
Over the next day or so, things settled a little and the father decided to simply take a few days on his own at a nearby town until things settled further. Soon thereafter, both the mother and the father returned to G Town in Australia, but their separation remained final. The father commenced these proceedings and secured an order for the child to be put on the Family Law Watchlist that ensured that she could not be removed from Australia by the mother without his consent. They have lived separate and apart, but in the H Town-G Town area, ever since whilst the proceedings worked their way through the pending cases list towards trial. That process, unfortunately, took some three years.
In the meantime, the properties they owned have been sold, the debt discharged and property adjustment Orders finalising property settlement between them were eventually agreed to and made by the Court with their consent. The mother has been living in rental accommodation in H Town and the father has been living in a “granny flat” attached to the home of his parents, also in H Town. The mother has not worked at all in the intervening years, choosing instead to parent X full time. The father ended his fly in/fly out employment in November 2017 and commenced his own business, as well as working for a local business delivering goods very early in the morning on four days each week. He gave that employment up sometime in the second half of 2019.
The trial of the matter came on before me over four days in mid-February this year. It is regrettable that other hearing commitments and obligations to write many other reserved judgments, as well as pre-arranged annual leave have resulted in delay in completion and delivery of this reserved judgment. Indeed, a blow-out in the hearing of another difficult parenting orders dispute that was listed for five days and ultimately took nineteen days of hearing by an online video conferencing platform during the lockdown caused by the response to the COVID-19 pandemic significantly contributed to the delay by reducing the number of scheduled judgment writing days I had available to me. Unfortunately, having regard to the further delay caused, just when I had commenced writing these reasons, the mother filed an application to re-open the hearing in order to lead some more evidence. I listed that for a date in mid-September for hearing and determined to re-open the trial and admit further evidence in the form of affidavits by each of the parents and the father’s mother and sister. Cross-examination on that further evidence and the hearing of further submissions took place on 8 October.

Some More Particular Factual Matters

Allegations of Control and Abuse

The mother raises, as an important part of her case, the particularly difficult nature of her relationship with the father that ultimately led to its breakdown as one of the reasons she does not wish to continue to live in the H Town-G Town area, coming into contact with him on a very regular basis and having to co-parent with him on a daily and weekly basis. She claims that it is not good for her emotional well-being or the emotional well-being of the child. She points to a history of behaviour on the part of the father that was abusive and controlling of her, including some incidents of verbal and physical abuse that she alleges occurred on a couple of occasions during the relationship and, in particular, right at the very end of their relationship when she decided to separate from him when they were in New Zealand in February, 2017. She asserts that his behaviour since their separation has seen a continuation of his attempts to control her, and that all of this history is supportive of findings that such behaviour is likely to continue, to the mother and child’s detriment, if the mother is effectively required to remain here in Australian by not being permitted to relocate X to New Zealand. In that respect, the mother made it clear during the trial that she would not leave X here in Australia and relocate to New Zealand herself if she is not permitted to relocate X with her as well.
Not all of the facts asserted by the mother are accepted as true by the father. He denies her allegations that he was physically abusive to her and he responds, asserting that, in fact, it was the mother who was the instigator of physical abuse against him on a couple of occasions. She categorically denies those allegations.
In order to make her case in this respect, the mother adduced evidence of a lot of the communications between her and the father by way of text and email messaging, most particularly during the early stages of their relationship. It is to be remembered that they were working fly in/fly out at different remote sites and their rostered days off did not always coincide. The evidence clearly establishes that at that time they were both habitually heavy users of alcohol, particularly during their rostered time off and at least up to the time when X was born. Neither of them sought to disavow that fact.
The father denied the mother’s assertions that he was possessive, controlling or jealous. Having regard to the evidence, particularly the evidence of the messages that went between them, I respectfully reject that denial.
The documentary evidence adduced by the mother satisfies me that their relationship from the start was heavily laced with passion, both in respect of the expression of their feelings for each other and also in respect of the father’s jealousy, mistrust and suspicion of the mother. Apparently, the father was initially quite suspicious and mistrusting of the mother and became easily jealous of her, particularly in respect to her interactions with other men, and his concerns about her previous relationships. This was evident by his non-acceptance of her answers, assurances and explanations whenever he questioned her about such things. Many of the communication exchanges between them, particularly when they were apart and when the father was clearly under the influence of alcohol, reflect the fact that the father would become emotionally quite abusive of the mother. A careful reading of them does not reveal such emotional abuse of the father by the mother. The evidence reveals the father searching the mother’s Facebook page and telling her to delete certain friends. It reveals repeated questioning and challenging of the mother about the passing re-emergence of past male acquaintances. Particularly worryingly, it reveals repeated assertions that the father was intent on contacting the wife of a man the mother had had a relationship with at a site she worked at, in the time before she had even met the father, with a view to revealing that relationship to this other unknown woman. It reveals repeated assertions by the father that he was going to terminate the relationship with the mother and was particularly mindful of the need to protect his assets from her. It reveals a demand by him of her that she move out of his apartment almost immediately. It reveals questioning of her over how she came to have a particular hotel’s stationery in her possession. It reveals a demand by him of her to immediately send him a photograph showing her at a market in a particular local town, just to prove to him where she was. It reveals him taking up the mother’s phone and responding to another man’s message to her as if he was the mother, pushing away any further contact. It reveals him being very critical of what he perceived to be “flirtatious” behaviour on the mother’s part.

The mother did agree with counsel for the father that much of that type of behaviour on the father’s part had occurred in 2014 and that things settled significantly in their relationship after that time, apparently as the father began to accept that the mother was truly committed to their relationship. Nevertheless, some of the behaviour she complained of still occurred later in their relationship. In my considered judgment, the evidence does support the mother’s assertions that she found the father possessive, jealous and controlling. It is apparent that he was. The evidence also supports a finding that she worked hard at soothing his feelings, assuaging his concerns and trying to win his trust.

Instances of Physical Abuse

In her evidence, the mother referred to three particular instances of what she alleges was physical abuse of her by the father. In his evidence the father dealt with each of those, denying that he had been abusive as alleged. In contrast, he alleged it was the mother who was physically abusive of him. In addition he raised a separate incident that he said happened even earlier than those the mother had raised. He said that there had been a time when the mother just started punching into the back of his head in anger and that he had grabbed her and held her close to him to restrain her and defend himself from her. He said that she shouted at him not to touch her. When questioned about this alleged incident, the mother denied that she had punched the father but remembered there had been a time when something was happening between them when she had demanded that he not touch her as he said she did. I accept her denial and reject the assertion that she punched into the father.
The most significant of the separate incidents alleged by the mother to have occurred was on New Year’s Day 2016. The mother had returned from work at a remote site, having worked a twelve hour shift the day before and having drunk a lot of alcohol on the return journey home. The father had been rostered off and was at home working around their home and yard for a week. Both had been drinking alcohol together at home and the father’s brother was also there at the time, staying in a spare bedroom at their place. A lot of alcohol had been consumed. The mother wanted a home-cooked meal that evening. The father just wanted to order a take away meal. This disagreement caused some friction between them when they were both tired and under the influence of alcohol. The mother says that she asked for the father to help her prepare dinner but that he told her he was tired after a big week. She prepared the meal herself, she says. She says that after dinner, when his brother had gone to bed, she asked the father if he would give her a hand to clean up and that he again expressed reluctance to do so, suggesting they do it the next morning. She must have persisted as she says that he started telling her to “get off [his] back” and then swore at her. They argued and she says she began walking towards the kitchen when the father then blocked her from entering, grabbed her around the throat with both hands, put pressure on the front of her throat, shook her a couple of times and said to her “I want to kill you”. She says he then dragged her to the kitchen sink, held her head down close to the sink and splashed water over her head saying “that should cool you down”. She says she ran, frightened, to the spare room and the father followed her, preventing her from closing the door behind her. She says he glared at her and said “You can get fucked and you won’t be getting a cent out of me.” He walked away and went to their room and, a little while later started texting her on his mobile phone.
The father gave evidence about the event. He says that he cleared the table and stacked the dishes next to the sink after dinner. He accepts that he suggested that they leave the wash up until the next day. He says that the mother become abusive towards him and was swearing at him “relentlessly”, demanding that he wash up that night. He says that as he was filling the sink with water, the mother again swore at him in an aggressive fashion and so he did swear back at her. He says she then came around into the kitchen where he was and “threw several punches on the back of [his] head”. He says he turned around, blocked her punches, grabbed her right shoulder and splashed water two or three times from the kitchen sink, telling her to “cool off”. He says she then backed away. He denies restraining her, hitting her or putting his hands around her throat. He says that she then crouched down and said “you tried to strangle me, you were trying to kill me”. He says that he said in response “[Ms Keller], what the fuck are you saying, don’t go yelling stuff like that, that’s dangerous”. He says that he told her she was being immature and that “saying things like that is not funny”. He says she stormed off to the back room but he did not follow her. He says that he washed the dishes and went to bed. He acknowledges that they then texted each other for a time.
It was the mother who put the text messages they sent each other into evidence.
The father first wrote:
The attitude and way you act tonight is exactly everything I walked away from previously .… Good bye [Ms Keller] …. If you’re tired and can’t handle work and travel even though you git pissed last night is not my problem …… At this stage you have blown it with me in done here
A few minutes later he wrote again:
I’m done…..simple. Your actions tonight are inexcusable .… Simple… Not going down this path again
A few minutes later he wrote again:
I now have doubts abd I really dint want to risk anything financially any more [Ms Keller]… Sorry but today just rings too true of past moments ……
The mother then responded, for the first time:
My actions? You tipped water all over my head, held me by the throat and said u wanted to kill me? I’m sorry……. Where did my actions become inexcusable? When I wanted help with dinner and cleaning up? Or was it when I told you you were being embarrassing? I always pick u up when u are coming off shift, do my best to cook and clean for you…… You can’t do the same for me once inwhile? Wow, I’m a terrible person obviously …..
He responded:
Simple I have been working since I came home I have t come off break nor will I for the next two months… Get over yourself
A few moments later, he said again:
I’m not fighting this I’m now protecting my own interests sorry but true…. Done
A few moment later again, he said:
Btw u grabbed yiu because you were super abusive never did I hurt u
Then again, a few moments later:
Water on your head was for shock value to at least try to calm your telling and immature behaviour
Then, a few moments later:
Not going down this path again [Ms Keller] sorry but the early warning signs are there ….
She then responded:
I’m sorry, I didn’t realise helping with dinner and the clean up was so taxing on you..… Believe it or not I have also been working which is very tiresome when u don’t do much. I’m up before you, call u at 4.30 to tell you I love you.… See bugger all people during the day for 12 hours and your telling me I’ve got it easy? I don’t do physical work like you do, but I’m there in the office just as much as you, working the same hours as u do.… I cook and clean and try to sort out our everyday chores to make life easier on you when u come home so u have less to do……. wtf……..
He then wrote:
Firstly you finished work yesterday I ahve t stopped
A few moments later he wrote:
You git pissed that’s your choice
She then wrote:
U get pissed most nights, that’s also your choice, I wonder if u would do what you have done if u were sober?
He then wrote:
Oh sorry you get paid to do fuck all but maybe you would be happier coming hime and abusing anyone else but me because I’m not tolerating it
He then wrote again:
You’re ten years too late for that
He wrote again, a few moments later:
Well you don’t have to wonder any more do you
She responded:
Don’t tell me about abuse.… You’ve just proved again that you are more than capable of that….again
He then wrote:
I see the early warning signs now I have been working my arse off at home and work you come home tired abd crabby uncontrollably screaming I don’t need or will tolerate that ……you haven’t been here befire but I have…
He finished a few minutes later with:
So Sunday is good for you to move out
(Errors as per original)
It is clear the mother first made the allegation that the father had held her by the throat and said he wanted to kill her in the immediate aftermath of the incident that night. She at least did that via a text message, if not in conversation beforehand. The fact that she did that in text and the father failed to refute or deny that allegation in text when the mother put it to him that very night lends great weight, in my view, to the veracity of the mother’s claim. If the father’s evidence of what happened was correct, I would have expected him to express shock and distress at the allegation when made in text and to have rejected, refuted or denied it, even if he had already verbally denied or refuted it as he said he did. Instead, in the text messaging, he agrees that he “grabbed” the mother, attributing that to her being “super abusive” and simply asserts that he did not “hurt” her. He ended up effectively telling her he expected her to move out two days later. That did not happen, so he obviously cooled down himself by then and changed his position on that. Indeed, the mother sent him an email the next day in which she apologised to him for her behaviour the night before. That probably helped him to change his position. The mother said in her affidavit evidence that she did not consider she had done anything wrong but was apologising simply to help resolve the problems and save their relationship.
I saw both parties cross-examined about the respective versions. I considered it more likely than not that the mother’s version of the events that night was the correct version, though I accept that she was no doubt angry and loud herself when complaining about the father’s apparent lack of interest in helping to clean up that night. Of course, that does not excuse physical abuse in response. I do not accept the truth of the father’s evidence that the mother punched him in the back of the head and, most particularly, I am satisfied that he did grab her by the throat and say he wanted to kill her. Alcohol clearly had much to do with that incident, but it does not excuse the violent and threatening behaviour. His text messages, particularly the way they are constructed and are mistake-ridden, certainly evidence the fact that he was under the influence of a significant amount of alcohol that night.
The next incident the mother gave evidence of took place a couple of months later. The couple went on a camping trip to celebrate a friend’s birthday. The mother says that on the Saturday night, the father had a lot to drink and went to bed before she did. She says that she went to bed about an hour later. She says she was woken suddenly by the father saying to her “what did you say? What did you say?” She was half asleep and says she said “what are you talking about?” She says that he said “you just called out [Mr J’s] name”. Mr J was the name of another friend who was also there camping with his girlfriend. The mother says she said to the father “[Mr Tillson], I was asleep, I didn’t say anything.” She says that the father kept challenging her and so she said “So, now you are accusing me of sleeping with Mr J.” She says the father’s response was “you may as well be. Once a slut, always a slut.” She says she was so upset about this that she got up to leave the tent and he then said “Don’t you leave this tent”. She says that as she was trying to leave the tent the father grabbed her by the shorts and pulled them so hard that they ripped off her. She grabbed a blanket, wrapped it around herself and went outside again to sit around the campfire with some others who were still up. She says that the next day they drove home on a four and half hour trip and they barely spoke about anything. She says that she said to him during that drive “we need to talk about what happened” to which he responded “I don’t want to talk about it”.
The father gave evidence responding to the mother’s allegations about that event. He says that they had both been drinking and that the mother went to bed in their tent about twenty to thirty minutes before he did. He says that when he went in and was getting undressed to get into bed that the mother stirred in her sleep and said “[Mr J], [Mr J], is that you?” He says he laughed and said to her “what are you saying?” He says after he lay down the mother again said “[Mr J] is that you?” He says he laughed again and the mother had woken up some more. He says that he said “[Ms Keller], what are you talking about, it’s me”. He says that the mother then said “what?” after which he told her what she had said. He says he was laughing as he thought it was funny. He says that the mother immediately snapped and said “you’re always calling me a slut”. He says she was very angry and he said to her “[Ms Keller], I didn’t call you a slut”. He says that the mother then jumped onto him holding her pillow and was punching him in the face with the pillow and kneeing him in the chest and stomach. He says she then bent down to unzip the tent to go out. He says that he reached his hand out to stop her and as the pillow was in his face he could not see her and he grabbed the back of her shorts as she stood up and they got torn. He says that he then said to her “well, you have been a slut”. He says in his affidavit that he regrets those words. He says that the next day he said to the mother “we just can’t act like this and have these arguments over nothing.”
Again, I saw both parties cross-examined about these contrasting versions of events. The behaviour attributed by the mother to the father is far more consistent with the impulsive, jealous outbursts he was coming out with when under the influence of alcohol earlier in the relationship evidenced in all the messaging between them. I do not accept his assertions that hearing the mother saying words like he attributes to her that night caused him to laugh, thinking it was funny, when all his previous behaviour suggested he was possessive, mistrusting and jealous of her and that such feelings were exacerbated when he was under the influence of alcohol. I consider it far more likely that he reacted that night as the mother says he reacted. I accept that in anger, trying to stop her from leaving the tent, he grabbed and ripped her shorts and accused her of being a “slut”.
Of additional relevance to my determination on this, during the trial, the mother’s counsel took the father to evidence he had given in an affidavit he had filed in interim proceedings in this matter in 2017. In that affidavit, he had set out several paragraphs of evidence criticising the mother’s sexual behaviour and what he believed was her “promiscuity”. He had even criticised her for the fact that she apparently had wanted to wear in his presence revealing swimwear that they purchased together and for telling him she wanted him to buy her sexy things or adult sex toys when he asked her what she might like for Valentine’s Day. He clearly had some difficulties coming to terms with the mother’s sexuality and seemed prepared to use that against her during their relationship and also in these proceedings.
The mother gave evidence about what she alleges was a third incident of physical violence directed at her by the father. This, she said, took place in mid-February 2017 when they were in New Zealand and during the argument that precipitated their separation. She says they were arguing about the issue of the purchase of property in New Zealand and the timing of a conversation with her father about that subject. She says she told the father she was not going to sleep in the same bed as him whilst they were arguing and that she was going to sleep downstairs. She says that the father then said to her that he was going to take X and go back to Australia the next day, earlier than planned. They then had a text message exchange, though they were in the same house, but in different rooms. Those messages are in evidence. They show the date as 15 February 2017. The father repeated a couple of times that he was determined to leave and travel back to Australia with X the next day. The mother responded that X would not be going back to Australia with the father as she intended attending the wedding that they had travelled to New Zealand for. Then the father responded, saying that he was going to take X with him and they had a text-for-text stand off as to whether X was staying or going, each maintaining and insisting on his or her position.
The mother says that she slept in a different room and put her and X’s passports under the mattress, having heard the father say he was going to leave with X the next day. She says that the following day, they barely spoke to each other and that she again told him she would sleep in the spare room that night also. After they had both retired to bed, further text messages were exchanged between them. They are in evidence also. The father told the mother in a text message that night that he would send her the details for the flights that he and X would be taking to get home the next day. He was quite clear in telling the mother that he was taking X home the next day. Then he sent her another message making it clear that he knew that she had “hidden” X’s passport and expressing his clear anger with her.
The mother says that she then went to the father’s room to speak with him. She says that he said to her “if you don’t sleep in this bed with me it is all over, we are over. I am taking X and you won’t get a cent out of me.” It is to be remembered that X was three months old at this time, being breast-fed and cared for full-time by the mother. The mother says that she repeated her intention to sleep downstairs whilst the father was lying on the bed and she was standing beside the bed. She says that he then swung his right leg over and kicked her in the stomach, not with full force, but with enough force to hurt her and to shock and upset her. She says she went to leave the room and the father jumped up and said to her “You stupid fucking cow. Don’t you walk away from me.” She says she pushed past him and went downstairs and woke her mother. She says she heard the father come downstairs about fifteen minutes later and talking on the phone about having a new passport issued for X to replace a “lost” one.
The father says that he and the mother were arguing about the issue of the New Zealand property investment. On the evening before the final fight, they were drinking wine together on the back deck of the mother’s parents’ home and the mother’s parents had gone to bed. He says he went to bed to read and then the texting occurred between them. Those texts are in evidence and I have referred to them already. He says that was 15 February. He says that the next evening (16 February) they were again sitting on the back deck drinking wine and the mother said to him “I’m staying in New Zealand with X.” He says he then went to bed and started reading but that there were text messages between them in which he tried to shut down the conversation, “saying I didn’t want to talk about it that night etc.” However, the page of text messages the mother adduced into evidence that night shows only five messages that were sent by the father to the mother from 8:44 pm to 9:19 pm. None of those messages show the father trying to shut down the conversation or that he did not want to talk about it that night. He was telling the mother he had booked flights home for him and X the next day. The language he uses reflects anger on his part and demands he is making of the mother. The last messages show that he had realised that the mother had hidden his and X’s passports.

The father says that the mother came into his room, very angry. He says he was lying on his right side with his left foot just off the edge of the bed. He says that the mother put her right knee on his foot “pressing on it repeatedly” saying “why won’t you talk about it now?” He says that he just told the mother to go to bed as they were not getting anywhere, but that he said to her “Sleep in this bed, so that we can wake up and start fresh”. He says he moved his foot gently against her knee to get her knee off his foot. He denies kicking the mother in the stomach as she alleges. He says then that he “flicked” his foot against her knee, without any intention to hurt her. He says that the mother then moved back towards the door and he got up to leave the room. He says that as he walked past the mother, she said “That’s it. You’ve done it now” to which he says he said “That’s what, done what now?” He does not report any further words from the mother and says he went downstairs and had a cigarette. He says when he went back to the room they had been sharing he noticed that X’s passport was gone from the dresser and that his passport was no longer in his backpack. Perhaps that was between 9:04 and 9:16 as the 9:16 text message he sent the mother is the first time he mentioned that she had taken his passport and a few minutes later he spoke of her hiding X’s passport as well in the last text message. In his affidavit, he says he later found his passport on the floor near where the backpack was. He acknowledges going back downstairs and making a call to the Australian consulate to see what was involved in getting a passport for X to replace the other one that the mother had taken.
The father says that the next morning he told the mother that it was not in X’s best interests to book X a flight with him due to her age. He says (and there is no dispute about it) that the maternal grandfather did tell him that he was going to need a Court order to take X out of the country with him. He did not fly home that day, but rather went away to a nearby town on the coast for some surfing for a few days on his own. I am satisfied that this is when separation finally occurred.
Again, I am satisfied that the mother’s version of the events as they unfolded, particularly the altercation in the bedroom, is more likely to be the correct version. The father was already texting the mother on 15 February telling her that he was going to leave New Zealand with X the very next day, 16 February. I am satisfied that the mother did get X’s passport that night and sleep with it under her mattress. She was making it clear in the text messages that night that the father was not going to take X with him the next day despite his assertions that he was going to. I accept it most likely that she acted to give effect to her assurance to him that X was not going with him back to Australia the next day.
I am also satisfied that the next evening, 16 February, the father was very angry with the mother – his anger is reflected in the text messages he sent the mother. He was not, as he says in his affidavit, trying to shut down a text conversation, at least not the one that was taking place from 8:44 pm. On the evidence adduced, he was the only one of the two of them sending text messages from that point on. He was clearly telling the mother still that he was taking X the next day. I do not accept that around this time he was actually peacefully trying to coax the mother to sleep in the same bed as him and that he only just “flicked” his foot against her knee to move her knee from his foot. It may have been that the mother touched his foot or feet with her knee or her leg, but I accept that his response was to kick out, making contact with the mother’s body, which hurt her. I do not go as far as finding that he intentionally kicked her in the stomach or intended to hurt her, but I am satisfied that he kicked out in anger as a response to her touching his feet with her leg and that his kick connected with the mother. I am satisfied that her response to him after that, “That’s it, you’ve done it now” reflects her feelings of anger and finality at having experienced that from him, particularly after the other incidents of the year before.

The Parties’ Emotional Health

Parental disputes and legal proceedings such as these that are taking place between these parties can take a huge emotional toll on the participants. This case is no exception. Both the mother and the father have suffered since their separation and have had professional mental health intervention and assistance.
The mother was first referred to a psychologist by her general medical practitioner soon after returning to Australia in 2017. That psychologist provided a number of reports that were adduced into evidence and she was cross-examined at the trial. She expressed the opinion that when the mother started seeing her she was experiencing anxiety and low mood upon the breakdown of the relationship with the father and her inability to return to live in New Zealand as she wanted to, expressing concern at her ability to cope as a single mother in a small Australian town where she had no social or family support.
The mother saw her psychologist on a regular basis right through until the trial earlier this year. The psychologist expressed the opinion that the mother was most likely experiencing an Adjustment Disorder with mixed anxiety and depressed mood and that she continued to do so throughout the period of years she has seen her. In early 2018, the psychologist recommended to the mother that she discuss with her doctor the idea of commencing medication and she was put on an anti-anxiety medication. It had some stabilising effect, but “her mood was continuing to deteriorate”. In mid-2018, the dose was increased by her doctor and the mother continued to see the psychologist. Her anxiety was considered to have stabilised but the psychologist considered her mood was still poor and that, in fact, it deteriorated further in late 2018. As I have observed, the mother continued to attend upon her throughout 2019 and into this year. The mother’s psychologist expressed the opinion that the mother’s condition would likely improve if she were allowed to relocate with the child to New Zealand.
The parents also were seen and assessed by a single expert psychiatrist as part of the preparation of this case by the ICL. Dr F saw them in September last year and considered much of the written court material including documents subpoenaed by the ICL and reports of the parents’ individual psychologists in the preparation of his report.
After seeing the mother, Dr F expressed the preliminary opinion that she presented with low mood with associated anxiety which would meet criteria for an anxiety disorder with depressive features. He did say he could not exclude a Major Depressive Disorder that was in partial remission. After reading and considering all the material he was provided with, Dr F said that there was nothing that would change his view that the mother did not appear to suffer from a psychotic illness. He considered it may have been possible that the mother developed a Major Depressive Disorder in the context of the separation, but he did not consider that she was actually presenting with features of such an illness, though she was still presenting with symptoms of significant anxiety and low mood. He held on to the view that she was suffering from an Anxiety Disorder with depressive features and not just Anxiety Disorder as the psychologist had opined. He considered the fact that the mother had been prescribed anti-depressant medication also suggested it was not just an Anxiety Disorder that she was experiencing. He did not consider that she had personality vulnerabilities that would be of concern to the Court though. I accept that opinion evidence.
As for the father, things were not vastly different. The father was also regularly seeing a psychologist. Her report that was in evidence reflected that the father started seeing her in June 2018, saw her four times in July that year, four times in August, twice in September and again in October. He did not see her again until March 2019, then again on two occasions in April, once in May, three times in July and once in August. She reported that the father presented to her with anxiety and fear surrounding the mother’s proposal to relocate with X to New Zealand to live. She also pointed out that he was also struggling with financial pressures and working long and hard to try to make sufficient money to stay afloat financially. The psychologist said, when answering questions from the ICL at the trial, that the father often arrived at the appointments with her in a “highly agitated state” and that they spent a lot of time “negotiating that”. She said he would sometimes arrive “quite fraught and distressed”.
Though the father was seeing this psychologist in the first half of 2019, and said in his trial affidavit that he had made good progress with her, he suffered from a serious emotional breakdown in late May that year. On 15 May, the sale of the parties’ two real properties in G Town had taken place. That, combined with the fact that financial settlement with the mother had not yet been achieved, apparently greatly distressed the father. He was continuing to work long hours, doing night work at the local business and trying to establish his business during the day. On or about 21 May 2019, the father apparently got into such an emotional state that when he was under the house of his parents at which he lives, he took up a tin of motor mower petrol and poured some of it over his body, with some going onto his head. He was in the presence of his mother who was working at a desk a few metres away. He was apparently having some sort of conversation with her when he started questioning the distress that he considered he was being put under, referencing the mother and her family as being responsible for the stress he felt he was under.
The evidence of the father and of his mother is that his mother said to him “that was a stupid thing to do”. The father says he simply acknowledged that and went off to shower to wash it off, washed his clothes, then went to bed to sleep. He says that he “never had any intention of self-harm nor were there any lighters or fire-starting tools under the house”. He says he considers it nothing other than “a display... [of his] frustration and fatigue”.
With all due respect, I consider that there was more to it than that and that the father and his family attempted to minimise the issue for the trial out of concern for the negative impact they perceived the issue may have had on the father’s case.
Documents subpoenaed from the H Town District Hospital reveal notes of a Social Worker taken after a phone interview with the father, in which his sister participated, when he presented at H Town Hospital Emergency Department a week later on 27 May 2019, (the circumstances of which I shall come to soon). The Social Worker wrote:
[THE FATHER] DID NOT MENTION HE DOUSED HIMSELF IN PETROL, IT WAS HIS SISTER WHO TOLD ME
Last week [the father] Doused himself with Petrol and if it wasn’t for the fact he couldn’t find a lighter, he intended to set himself alight.
No treatment was sought as he was with his parents and they comforted him.
[The father] was evasive about his Suicidal ideation and omitted his recent actions unless quizzed about them.
When the father’s sister gave evidence at the trial, she was asked questions about this. Though she told the Court she could not remember conveying that information to the Social Worker, she conceded its inclusion in the records reflected that it had to have been conveyed to her somehow. I am satisfied that the father’s sister must have given the hospital Social Worker that information contained in the first few sentences I have just quoted. There is no evidence that she was present when the father doused himself in petrol, so the information about his intention to set himself alight must have been conveyed to the father’s sister by the father or, more likely, the father’s mother. When the father’s mother was cross-examined about the events of that day, remarkably, given she had just seen her son pour petrol over himself, she said she was not concerned that he might have been suicidal. I do not accept that. It is just not consistent with the information conveyed to the hospital Social Worker through the father’s sister. As I have said, with respect and acknowledgment of the love the paternal grandmother feels for her son, I consider she was minimising the events of that day.
Unfortunately, the father did not see the psychologist again straight after that incident. He did not even stop going into work at the local business, despite his mother telling the Court that she had urged him to stop doing that. Relevantly, the mother was not told anything about the incident by the father or any member of his family in its immediate aftermath.
A week later, on the morning of 27 May 2019, the father again suffered another serious emotional breakdown. At 7:30 am, after coming off his shift that had begun at around 1:30 am, and before starting work in his own business for the day, the father drove himself to the local beach headland, got out of his car and walked up to an enclosed area on the point of the headland from which there must be a long drop to rocks or ocean below. He then texted a message to his sister and his family, referencing the mother and her family again, and saying that he had “allowed them to break [him]”. He said that he asked his family to look after X and to let her know that he loves her. He said he was thinking about suicide. He said that he had texted his mother asking for his psychologist’s telephone number and that his mother and his sister both tried to text and call him, but he did not answer them. He said that within minutes his father arrived at the scene where he was and told him not to do anything silly. The father said that he walked back to his car and was about to drive himself to the H Town Police Station to speak with police about what might be able to be done about “false allegations”. He said that his sister and her husband arrived in their car and he told them he was going to the H Town Police Station. He did that, spoke to police officers there and was given information by police. He said that he then went home to his parents’ home in H Town where he spoke with his sister and his parents. He asked his sister to call the psychologist. He said that the psychologist recommended he go straight to see his GP or go to the hospital straight away. His sister accompanied him to H Town Hospital, as I have already referred to. That is where she and the father were when they had that telephone conferral with the Social Worker and other members of an Acute Care Team.
After that consultation, the father was “scheduled”. That is, he was involuntarily detained pursuant to provisions of the Mental Health Act 2007 (NSW) and was to be transferred to C Hospital for further review. He remained in H Town Hospital overnight, waiting for an ambulance transfer, but eventually (because of unavailability of an ambulance) was permitted to be transferred by his mother the next morning in a private vehicle.
Further notes taken by the Social Worker record that the father “believes he is under surveillance, people are taking pictures of him to build a positive case against him”. They reflect that he had gone to the owner of the business that employed him and spoken with him about “surveillance” that had been “going on for 2 years”. The Social Worker recorded that the father was “agitated” and “overwhelmed”, “anxious and depressed” and “exhausted”. She wrote that he was “over inclusive and at times circumstantial and tangential” in his consultation with her. She wrote that he even told her about his last work-place of two years prior and how “they also had him under surveillance” and that he was subject to some form of psychological testing.
During the father’s admission at C Hospital he was diagnosed with Depression with psychotic features and was prescribed an antidepressant medication. He signed a document called a Nomination of Designated Carer(s) on which he nominated his mother and his sister as his designated carers and on which he expressly excluded the mother from being provided with any information about his treatment. He was discharged back to his parents’ care with continued outpatient assessment and review. C Hospital notes referred to the family’s decision to support the father’s return home. Those notes said “concerned about implications of admission for court case”. Outpatient review noted he was still voicing “biological symptoms of depression” but that he did not have any psychotic symptoms or suicidal thoughts.
At the trial, members of the father’s family all disavowed being the source of that information about holding concern about implications of the father’s admission for the Court case. I do not accept that none of them expressed such concern and am satisfied at least someone in the father’s family expressed some concern about that to hospital staff. I do not accept it would have appeared in the notes otherwise.
On 28 June 2019, the father was reviewed by the psychiatrist at the Community Mental Health Facility who considered he had made a full recovery and noted that he denied any thoughts of self-harm, depressive symptoms or psychotic symptoms and was referred back to his GP for follow up. He was to continue on an anti-depressant for at least twelve months and on an anti-psychotic medication, being reduced over time, for three months.
After he had seen the father for his assessment, Dr F said he could find no evidence of any ongoing major mental illness. He did acknowledge that it appeared the father had developed “overvalued ideas of a persecutory nature” whilst experiencing significant stressors and a Major Mood Disorder, but he did not appear to consider them to be “psychotic”. He did not consider the length of his hospital admission was consistent with a valid diagnosis of “psychotic depression”. After the doctor had read all the material he had been provided with, he did not change his view that the father was not suffering from an underlying psychotic illness such as schizophrenia, nor from a delusional disorder. He considered the father’s beliefs of a persecutory nature were contextual in the current dispute and were “certainly not ongoing”. The doctor confirmed he was “somewhat sceptical” of the C Hospital’s diagnosis of a Major Depressive Disorder with psychotic features. He attributed this to the rapid resolution of symptoms within the hospital environment and the unlikelihood that any antipsychotic medication would act that quickly. Dr F said that the father was not presenting, when he saw him, with any ongoing features of a Major Depressive Disorder, but that he did report some ongoing anxiety around the court process.
As to the father’s personality, Dr F did express the view that the father had a propensity to mistrust the motives and actions of others. He said that may suggest the presence of paranoid personality traits, though it would appear that these only become apparent in times of stress, including when he is burdened with a Major Depressive Disorder. He considered “the presence of para suicidal behaviour and difficulties in appropriately managing his emotions at times, as well as his apparent impulsive behaviour, may also suggest the presence of cluster B personality traits”. Dr F emphasised, in saying that, that it is not his view that the father presents “with a personality disorder per se in the cluster B range.”
What became a significant issue for the mother and the ICL though at the trial, was the fact that the father and his family had kept information from the mother about his emotional difficulties and his hospitalisation. The evidence was that on the day that the father was to have X in his care during the time that he was still hospitalised, he simply texted the mother and told her that he would not be able to see X that day as he was “sick”. He gave no other information. After his discharge, a day or so later, he simply reverted to the Court ordered schedule of seeing X without a word to the mother about what had happened. As such, the mother had no idea what had happened.

In contrast, there was a submission made by counsel for the mother both at the end of the trial in February and at the end of the reopening earlier this month that resonated with me when considered against all of the evidence in this case. He effectively submitted that the mother has had to live for three years in a very stressful and intense co-parenting relationship which itself has impacted upon her own emotional well-being when she has little or no emotional support around her where she lives. He submitted that all the circumstances of the case would cause me to accept that the child’s best interests are indeed met by living principally with the mother and that the mother and the child would benefit most from living in New Zealand away from that constant intensity, conflict and scrutiny, but with the child’s meaningful relationship with the father being maintained by regular and consistent time spent with him throughout the year either here or in New Zealand.
It is very important to remember that the mother does not have to demonstrate “compelling reasons” as to why she should be permitted to take the child to live in New Zealand, and also that her right to choose where she wishes to live is one that is only fettered by the limitations she imposes upon herself if the Court determines it is not in the child’s best interests to go to live with her in New Zealand.
As I have already pointed out earlier in these reasons, the mother, the father and the ICL all agree that parental responsibility for the child is to be equally shared and that is an Order the Court will make. Consequently, that requires consideration to be given to whether the child spending equal time with each of the parents would be in the best interests of the child. Simply put, I am satisfied that it would not be.
The child is nearly four. She has been cared for principally by her mother for all of her life so far. When she was born, her mother stopped working to care for her full-time and her father kept working in a fly-in/fly-out job until separation when the child was about three months old. Those arrangements were clearly consensually arrived at between mother and father. Then, for several more months after that, the father continued to fly away to work. The mother has been caring for the child full-time ever since, save for the time X has spent with her father that has gradually progressed, as developmentally appropriate, to where it is now over those intervening years.
I am plainly satisfied that X has a loving, meaningful relationship with her father and also with her paternal grandparents whom she has seen a lot of in the years of her life so far. However, I have no difficulty concluding that her principal or most significant attachment, developed over those four critical years, is with her mother.
I do not consider that moving X into an equal shared care regime where there is so much mistrust and tension between her parents is in her best interests. I am satisfied that the father has some unrealistic expectations of the mother in respect of her parenting, and a belief that he can continue to exert pressure on her to parent as he considers X should be parented, rather than simply letting her get on with parenting when she has X in her care, the way she considers is appropriate. Communication between them over the last few years is reflective of that. In that respect, the evidence satisfies me that the mother’s care of X meets X’s needs and ought not be subject to constant scrutiny and pressure from the father. I am satisfied that the mother’s own emotional and mental health would have a far better chance of improving significantly if she was not subject to that constantly. I am also satisfied that the best way to protect X from psychological harm that she would be at considerable risk of suffering by being constantly exposed to the conflict and emotional intensity of her parents’ co-parenting relationship is to have her continuing to live principally with her mother and spending regular but not equal time with her father so that she can continue to get the benefits of her meaningful relationship with him.
Not only do I not consider it is in X’s best interests, in all the circumstances of her parents’ separation, to live in an equal shared care arrangement, but I do not consider that it is reasonably practicable either. As I have alluded to already, I do not consider that the post-separation relationship of the parents is such that they have the capacity to implement an equal shared care arrangement or to communicate and relate with each other in a way that would easily facilitate the workings of an equal shared care arrangement. Furthermore, the mother is only living close by the father as she is restrained from moving to her preferred place of residence pending the outcome of these proceedings. Considering the circumstances of the parties, as the High Court in MRR v GR said is required to be done in considering s 65DAA(1)(b), I am not satisfied that it is reasonable to expect the mother to stay with X on the north coast of New South Wales, most particularly without any family support (particularly where that offers free and stable accommodation), and without the certain, flexible and suitable employment that is available to her in New Zealand, when she genuinely does not want to stay there. It is not without significance that the mother wanted to return to live in New Zealand with her partner and daughter before they separated. The bona fides of her desire is beyond question.
The mother’s counsel submitted at the end of the reopening that the mother is “the unchallenged primary carer”. I have determined that submission is correct and that she should remain in that position. From there, counsel went on to submit that the mother “ought to be able to move to where she wants to live”. With respect, it is not as simple as determining that as the primary carer she is entitled to take the child to live wherever she wants to live. As their Honours, Gummow and Callinan JJ said 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, what clearly emerged from that 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 child. Indeed, Hayne J went on in [175] of that judgment to express just how important it is in the process to consider whether the parent with whom the child is not going to be principally resident could or should move to live in the same place as the parent with whom the child is principally living. In this regard, I am acutely aware of the need to consider, as part of the “deeper inquiry about where the best interests of the child may lie” whether a move by the father to live in New Zealand could be part of arrangements that would best serve the child’s interests.[5]
[5]U v U (2002) 211 CLR 238 per Hayne J at [175] and [176]
Of course, if the child is permitted to be relocated by the mother to go and live in New Zealand, the meaningful relationship between the child and the father could be more easily and readily ensured if the father also moved to New Zealand to live, particularly if he moved to live in the relative vicinity of the mother and child. Clearly, as a matter of fact, he can do that. Just as the mother has permissibly lived and worked in this country for many years, due to the relations between Australian and New Zealand and working administrative arrangements between our two national Governments, the father could do the same in reverse. He could go to New Zealand to live and work if he wanted to.
As I have already observed, in these proceedings, the father did give express evidence that even if the mother was permitted to take X to live with her in New Zealand, he will definitely not move there. This is against a backdrop of evidence that I have accepted that whilst they were still together as a couple, the father was happily discussing and considering options to buy real property in New Zealand in which to live and businesses there to own and run. He was, I am satisfied, certainly contemplating a future in which he spent a lot of his time, albeit probably not all of it, in New Zealand. Significantly, there is no language barrier. There is no cultural barrier of any serious impediment. He knows the place as he has been there before several times, at least. It is only a few hours air travel away from where he currently lives. As such, it is closer to where he currently lives than Perth is.
The father did give evidence that he had considered the prospect of moving to New Zealand but that he had determined that he is “unable to move for reasons relating to family, financial and to be able to provide X with the best possible care and opportunities”. I understood that to mean that he does not wish to leave the close care and loving support of his parents, his sister and other friends he has in the immediate area in which he lives. I also understood his evidence to be that because he has started his own small business where he currently lives, which is growing through his hard work and with the help of his family and “their network of contacts”, he considers it preferable to remain here and continue with that endeavour. By doing so, he is more likely, he considers, to be in a position where, financially, he can better provide for X, and, it offers him flexibility that is beneficial for him in providing physical care for her.
Those are plainly sound reasons, particularly with the uncertainty around his mental health and the risk that he could experience another anxiety crisis at any time. I do not consider them to be based in mala fides. Considering them, however, also highlights the significance to the mother of wanting to be around family and friends who will give her care and support and to be able to work in a flexible employment arrangement with a caring and considerate employer. Whilst she potentially could find employment in the area in which she is currently living, the reality is that her close family members live in the place she wants to return to and that is a very significant drawcard for a mother raising a young child. So, too, is flexible, local employment with a friendly employer.
I remind myself, as Kent J 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.
Having determined that equal shared care of X is neither in her best interests nor reasonably practicable, I must consider whether substantial and significant time spent with each parent is in the child’s best interests and reasonably practicable.
Essentially, it would appear that a finding that X spending substantial and significant time (as that term is defined in s 65DAA(3)) with her father is reasonably practicable presupposes that the child would not be permitted to be taken by her mother to live in New Zealand as it is only “substantial and significant time” if the child spends time with her father on days that fall on weekends and holidays and also weekdays and if that time “allows [the father] to be involved in the child’s daily routine” and also occasions and events of particular significance to the child and those that are of special significance to the father. However, it also presupposes that the father will not ever move to New Zealand or even go and spend time with her there on terms that allow those things if she is permitted to be relocated there. If I consider that it is in X’s best interests to be allowed to go and live there in New Zealand with her mother, then, of course, providing for her to spend substantial and significant time with her father in Australia will not be reasonably practicable. Orders could still be made, though, that do provide for her to spend substantial and significant time with her father in New Zealand, if he was able to avail himself of the opportunity such orders created, and in Australia by ordering her regular return here for visits with him.
Accordingly, I consider it important to determine firstly whether it is in X’s best interests to be taken by her mother to live with her in B Town or rather whether it is in her best interests for her mother to be prohibited from taking her to live in New Zealand (knowing that her mother says she will not leave her here and return to New Zealand to live without her) and then to consider the nature of the orders that should be made for her to spend time with her father, whatever the outcome of that determination.

What is My Determination as to the Outcome that would meet X’s best interests?

It is an extremely finely balanced case, as most international relocation cases are, and I am acutely conscious of the submissions made by counsel for the ICL in support of rejection of the mother’s application to be permitted to relocate X to New Zealand. However, I am ultimately satisfied that X’s best interests will be served by permitting her mother to take her to live with her in B Town, New Zealand and putting in place orders that facilitate her regular return to Australia for holiday visits with her father and his family, appropriate time with her father whenever he is able to visit her in New Zealand, and very regular electronic communication with her father across the Tasman.
I am confident that permitting the mother to return to New Zealand to live will give her the best chance of being a happy and contented person able to focus even more positively than she currently does on caring for and providing for the needs of X on a day to day basis. She will, I am sure, be well assisted by her parents and family in all respects. I am quite satisfied that the mother loves and cares so much for her daughter that she appreciates X’s need to maintain the critically important and meaningful relationship that she has with her father and she will do all that she can to facilitate that, as well as her relationships with her paternal grandparents and the other members of the father’s extended family.
There is, of course, some risk that the nature of X’s relationship with her father will change, but I am of the view that the mother will do what she can to positively maintain it, and that she will be far better disposed to do that in the circumstances in which she will find herself. She will be far happier in her dealings with the father than she has been over the last few years. She will no longer feel the pressure, on a day to day basis, of the intensity of the scrutiny her parenting has faced for the last three years and the nature of the communication between them that has come with that. I am also confident that once the certainty of a determination in this difficult case is with the parties, that the father will positively face that outcome and set about doing everything that he possibly can to maintain his relationship with his daughter and to facilitate regular communication and time with her, such that her wellbeing is put first and foremost rather than the contest between the parents being a distraction.
I am firmly of the view that this outcome is the outcome that will best lead to both of X’s parents being happy and well and for her mother to be best able to provide her with the type of principal care she needs from day to day and for her father to provide her with the best care and experiences she needs with him when she is, most particularly, spending holidays with him here in Australia or even when he can visit her in New Zealand and spend holidays or even weekends and weekdays with her there.
I am quite satisfied that X has a well-established, strong and loving relationship with her father that will survive and prosper even if she is living in New Zealand and the father on the north coast of New South Wales.
I intend to order that X continue to live with her mother and that her mother is permitted to relocate with her to New Zealand.

What Orders should be made in respect of X’s time with her father?

I intend to make an Order that until the mother and X depart Australia for New Zealand that the time X is currently spending with her father be extended by simply including the overnight period on Fridays. That will see her staying with her father from Thursday morning until Saturday afternoon each week until she leaves the country. I will permit the mother to leave the country with X no earlier than four weeks from the date of the making of the Orders so that X has that time with her father and her grandparents over the next four weeks. The Orders that I make providing for that time with the father to be extended will be conditioned on the continuation of the undertakings given by the paternal grandparents on 18 September 2020 that were made exhibits in the proceedings. They undertook for one of them to monitor and regularly check in on the father whilst X is in his care and for one of them to stay overnight in the granny flat with the father and X whilst she is spending overnight time with him. I consider it appropriate for that to continue to happen until X leaves with her mother for New Zealand, given the possibility of the father experiencing another episode of high anxiety in that time.
X will not be starting school until early 2022. The mother proposed that she will bring X back to Australia on four occasions each year for two week stays commencing on a Monday, with a graduated period of time with the father in those two week periods. The father proposed that he would travel to New Zealand for two periods of two weeks each year to spend time with X for three days and two nights (just like she will be having now for four weeks) before going back to the mother for two days then back with him for five nights. He also proposed that the mother bring X to Australia for two periods of two weeks each year that she paid for and that he would pay for the mother to bring her over on two other occasions for four days. The mother had also suggested the June and October long weekends as occasions she would bring the child over if the father paid for that. Clearly, there is a great deal of overlap and consistency in the proposed positions in the event that X is permitted to be relocated to New Zealand as I have determined she will be.
I will order that in 2021, before X starts full-time schooling, that the mother shall bring her back to Australia at her expense for two weeks each three months and that X spend time with her father in those two week periods as follows:
(a)The first two week period:
(i)From 8 am on Monday to 5 pm on Wednesday;
(ii)From 8 am on Friday to 5 pm on Monday;
(iii)From 8 am on Wednesday to 5 pm on Sunday;
(b)The second two week period:
(i)From 8 am on Monday to 5 pm on Thursday;
(ii)From 8 am on Saturday to 5 pm on Wednesday;
(iii)From 8 am Friday to 5 pm on Sunday;
(c)The third and fourth two week periods:
(i)        From 8 am on Monday to 5 pm on Friday;
(ii)       From 8 am on Sunday to 5 pm on Thursday;
(iii)      From 5 pm Friday to 5 pm on Sunday.

I will order that in 2021, if the father is able to avail himself of the opportunity, that he can, at his expense, have X spend time with him in New Zealand for one period of two weeks each six months as follows:
(a)The first two week period:
(i)From 8 am on Monday to 5 pm on Wednesday;
(ii)From 8 am on Friday to 5 pm on Monday;
(iii)From 8 am on Wednesday to 5 pm on Sunday;
(b)The second two week period:
(i)From 8 am on Monday to 5 pm on Friday;
(ii) From 8 am on Sunday to 5 pm on Thursday;
(iii) From 5 pm Friday to 5 pm on Sunday.
One of those visits, either in New Zealand or in Australia, shall be at such time that the child spends Christmas Day in 2021 with the father as I expect she will be spending Christmas Day this year with the mother in New Zealand.
I will order that, in addition, if the father is able to pay for the airfares of the mother and the child, the mother bring the child over to Australia to spend time with the father from 8 am Saturday until 5 pm Monday on each of the long weekends that fall in June and October in New South Wales and I will provide for that to be in place for each year from now on. When she is old enough to travel unaccompanied, of course, the father will only have to pay for her airfares.
From when the child starts school, of course, the arrangements for her to spend time with the father will have to take into account her schooling commitments. The mother’s proposal is for X to come to Australia to spend time with the father for the first half of each of her school term holidays and for two weeks in the Summer holidays. She proposes that when X turns seven (which will be in 2023) that those visits be extended to include the last week of her school term (making them two weeks in length) and for the Summer holidays to be shared equally between the parents.
The father proposes that after X starts school in 2022, he will travel to New Zealand for two periods of two weeks each year so that she can stay with him whilst she is going to school, so that he can be involved in that, too. He proposed that she also travel to Australia for three periods of two weeks during school holidays with one of those periods commencing on 23 December so that she can have Christmas with him. After X turns seven, he proposes that X spends half of the summer holidays with him and the whole of two of the other end of term, two week long holidays with him. He also proposes that she spend another period of seven days with him in New Zealand during school term so that he can be involved in her schooling. The father proposes that from when X turns ten, she spend four weeks of the summer holidays with him and the whole of two of the end of term, two week holidays with him, as well as one other week in New Zealand during school term.
Again, having considered those respective proposals, I will order that the child spends time with the father as follows:
(a)From when the child starts school in 2022:
(i)For two periods of one whole week in New Zealand during school term, being one week in in the first half of the year and one week in the second half of the year (at the father’s expense);
(ii)For one whole week in each of the end of term school holidays with the mother to bring the child to Australia at her expense for those visits in the first week of each of those holidays;
(iii)For two weeks in the Summer holidays at the end of 2022 with the mother to bring the child to Australia at her expense with this visit not to include Christmas Day unless the mother elects for it to do so;
(b)From when the child turns 7 in … 2023:
(i)For three weeks or exactly half (whichever is the greater) of the New Zealand Summer holidays at the end of 2023 and each Summer holiday period thereafter, with the mother to bring/send the child to Australia at her expense with this visit to include Christmas Day in 2023 and 2025;
(ii)For two periods of two whole weeks in New Zealand during school term, being two weeks in the first half of the year and two weeks in the second half of the year (at the father’s expense);
(iii)For three periods of two weeks, being the last week of the New Zealand school term and the first week of the end of term school holidays that follow, with the mother to bring the child to Australia at her expense;
(c)From when the child turns 10 in … 2026:
(i)For two periods of two whole weeks in New Zealand during school term, being two weeks in in the first half of the year and two weeks in the second half of the year (at the father’s expense);
(ii)For three weeks or exactly half (whichever is the greater) of the New Zealand Summer holidays at the end of each year, with the mother to bring/send the child to Australia at her expense with this visit to include Christmas Day in the odd numbered years;
(iii)For the whole of two of the end of term, two week long school holiday periods each year, at the father’s election as to which ones, with the mother to bring/send the child to Australia at her expense.
I will also order that when X is in the care of one of her parents she shall communicate by internet video conferencing platform such as FaceTime, Skype, WhatsApp, or Zoom (whichever the father elects) with the other parent twice per week, at times to be agreed, and in the absence of agreement then each Wednesday and Sunday evening at 6:45 pm New Zealand time for up to fifteen minutes or such other agreed time. I will provide for the parent who she is living with at the time to be the parent responsible for ensuring that X makes the call and for giving her privacy during such calls.
As for special days, I will order that X is to spend from 9:00 am until 4:00 pm on her fourth birthday on … 2020 in her father’s care. The arrangements as to whether the time she spends with her father from after she relocates to New Zealand can be made as between the mother and the father on the terms I will provide for in the Orders as to selection of dates, notice and the like and if those occasions are to fall on or around the child’s birthday, the parents’ birthdays, Mother’s Day or Father’s Day, and the Easter holidays will simply be determined by that process. My Orders will provide for an internet video conferencing call (in addition to the ones already provided for) to be made by the child to the father on his birthday, Father’s Day (in Australia), Easter Sunday, Christmas Day and by the father to the child on her birthday, if she is not in the father’s care on any of those days. They will provide for the same type of thing in respect of the mother if the child is in the father’s care on those days.
So, it is clear that with these Orders, even with the child living in New Zealand and the father living in Australia, the time that the child is to spend with the father will meet the definition of “substantial and significant” time contained in s 65DAA(3) of the Act. It follows, given that I consider these to be the proper orders to make, I am satisfied that it is in the best interests of the child to spend “substantial and significant” time with the father and also that I consider the regime of “substantial and significant time” that the child will spend with the father pursuant to these Orders to be one that is “reasonably practicable” having regard to the matters set out in s 65DAA(5) of the Act.

Other Particular Orders

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 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 am aware that an order was made at the commencement of these proceedings in the Federal Circuit Court for X’s name to be placed on the Airport Watchlist maintained by the Australian Federal Police and that it may have been removed before now. At least, the child has been travelling between Australia and New Zealand in that time, but that could have been facilitated by temporary arrangements to facilitate that travel. It may not be necessary, but I will make an Order that the child’s name be removed from the Watchlist if it is necessary to do so. If the name is still on the Watchlist then this order will suffice to have it removed.
The mother sought an order that the child’s family name be known as Keller-Tillson, a hyphenated combination of both of her parents’ family names, and that the necessary steps be taken to have the records of the Registry of Births, Deaths and Marriages (NSW) amended so that the child’s name is officially recorded as X KELLER-TILLSON. Counsel for the father told the Court that the father consented to this. I consider that entirely appropriate and child focused. Such a change to the child’s family name is in her best interests. She is the child of a couple who were only together in a de facto relationship for a short period of time and an even shorter period of time after she was born. Her mother’s family name is Keller and that is who she will be principally living with in New Zealand. Her father’s name is Tillson. It is in her interests, given the separation of her parents, that her own family name reflects the fact that she is from parents with two different family names. When she is an adult, she can make her own decisions about what family name she wishes to be known by.
The orders I make will provide for the collection and delivery of the child by one parent to the other in a manner that I consider to be in her best interests, but, of course, will permit the parents to make alternative arrangements by agreement.
In the orders, I will also provide for the parent who has the right to elect when the child’s time is to take place as per those orders to give no less than twenty-eight days’ notice in writing to the other parent of the dates within which the time will take place. I will also provide for the father to send copies of economy class return air tickets to the mother no less than twenty-eight days in advance of the June and October long weekends if he elects to have time with the child on those occasions in any year. The mother is to respond within twenty-four hours, confirming receipt.
The orders will provide for the provision of relevant information about addresses and telephone numbers to the other parent in a timely fashion. They will provide for each parent to provide the other with details about significant developments in respect of the child’s health, as well as details about treating doctors and allied health practitioners. They will authorise communication between each parent and those practitioners. The orders will authorise communication between the father and any day-care centre, pre-school or school that the child might attend as well.
The orders will also include restraint on each parent in respect of how they speak of the other parent around the child and to the child and in respect of the use of physical discipline on the child.
Finally, I will discharge the ICL whose assistance in this difficult case was indeed appreciated.
It is hoped that both parents can now move on with their lives without the enmity that these proceedings and the differing views of the future of their co-parenting relationship have generated. Each parent loves their daughter dearly. Each parent knows that their daughter loves them dearly. Each parent must know the importance in the sound and healthy development of their daughter of her having a conflict-free upbringing where her relationships with each parent, as diverse as they may be, are truly valued, supported, encouraged and facilitated.
I make the orders set out at the commencement of these reasons.

I certify that the preceding two hundred and thirty-eight (238) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 26 October 2020.

Associate:

Date: 26 October 2020

[2020] FamCA 899

26 October 2020

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Consent

Jurisdiction

Procedural Fairness

Remedies

Standing

Statutory Construction