Peers & Hemsley [2020] FamCA 25 (24 January 2020)

[2020] FamCA 25

FAMILY LAW - CHILDREN - Parenting Orders - International Relocation - Where the mother, father and children live in Australia - Where the mother seeks to relocate with the children to New Zealand - Where the father and Independent Children's Lawyer oppose relocation - Where the mother's application to relocate the children's permanent place of residence is dismissed

FAMILY LAW - PROPERTY - Property Orders - Superannuation Splitting Order -husband's superior income mandates a significant adjustment to wife's contribution-based entitlement to property

Family Law Act 1975 (Cth), ss 60B, 60CC(2), 60CC(3), 65AA(5), 75(2)

Ferraro & Ferraro [1992] FamCA 64

Goode v Goode [2006] FamCA 1346

Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 217; (2003) FLC 93-145

Morgan & Miles [2007] FamCA 1230, (2007) FLC 93-34, (2008) 38 Fam LR 275

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:

(1) All previous parenting Orders are discharged.

(2) The mother's application to relocate the primary residence of the children X born ... 2011 and Y born ... 2003 is dismissed.

(3) The parties have equal shared parental responsibility for the children.

(4) The children live with the mother for three weeks out of four and with the father for the fourth week and at other times as agreed.

(5) The children spend one half of each school holiday period with the parties, being for the first half with their father in 2020 and each alternate even year thereafter, and with their mother the first half in 2021 and each alternate odd year thereafter.

(6) Both parties do all acts and sign all documents necessary to cause the children to obtain a New Zealand citizenship and a New Zealand passport forthwith.

(7) Both parties do all acts and sign all documents necessary to ensure the children's Australian and New Zealand passports are maintained and updated.

(8) The father to retain the Australian passports and the mother to retain the New Zealand passports.

(9) The mother is permitted to holiday with the children when they are in her care on any occasion she so desires to New Zealand by giving the father 28 days' notice in writing of her intention to travel to New Zealand, together with a copy of the travel itinerary and return air flight tickets, passports the children are travelling with, and that that such travel must not interfere with the children's school unless the father so consents.

(10) The parties may travel out of the Commonwealth of Australia during any period of school holidays when the children are in their care provided they provide to the other parent 42 days' notice of their intention to travel overseas, a copy of the itinerary and return air flight tickets, and passports the children are travelling on.

(11) The parties may by agreement provide for the children to spend Mother's Day and Father's Day, respectively, in the care if they are not already living with them on those weekends.

(12) In relation to the children's birthdays, the parent with whom the children are not living may spend time with the children, on a school day, from after school to 8 pm and on a weekend or non-school day from 12 noon to 5 pm.

(20) The husband pay to the wife the sum of $33,000 within three calendar months of today's date less the sum of $6,162 being the wife's share of the Independent Children's Lawyer's costs and thereafter he is entitled to all assets in his name including, but not limited to, the boat, Boat 1.

(21) The wife execute all documents necessary to cause any interest she has in the business known as B Pty Ltd to be transferred to the husband at the same time as the husband pays the wife pursuant to Order 20.

(22) The wife to sell the business licence in her name within three calendar months of today's date, and upon sale the net proceeds of that sale are to be divided 70% to the wife and 30% to the husband

(23) The husband pay the Independent Children Lawyer's costs in the sum of $6,162 at the same time as he pays wife her entitlement to property pursuant to Order 20.

(24) In relation to Superannuation entitlement of the parties:

• (a) A base amount of $150,000 is allocated, as required by s 90XT(4) of the Family Law Act 1975, to the wife out of the interest of the husband's Superannuation Fund.
• (a) In accordance with section 90XT(1)(a) of the Family Law Act 1975, the Trustee of the Fund ("the Trustee"):

  • (i) Creates an entitlement on the part of the wife to be paid into her nominated superannuation fund in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;

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 Peers & Hemsley 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).

1. The matter of Peers & Hemsley is an application by a mother for both property settlement and to remove the parties' children, X, born in 2011, and Y, born in 2013, to New Zealand to live in City D, where the mother's family live and where she was born. The father objects to the relocation.
2. The parties agreed that in the event I did not permit the mother to relocate, the current regime of time the children have with their parents, being one week with their father in each of week three of his roster and one week in each of week five of his roster continue and, otherwise, the children live with their mother. The parents agreed to share parental responsibility no matter the outcome of these proceedings.
3. Ms Giacomo of Counsel acted for the applicant father, Mr Clifton of Counsel acted for the mother, and Ms Messner of Counsel appeared as Independent Children's Lawyer. At the conclusion of the hearing, the Independent Children's Lawyer submitted that the mother not be permitted to relocate to New Zealand with the children.
4. The mother, father, maternal grandmother, the mother's sister, Ms A, the paternal grandfather and Dr E, were all cross-examined at trial.

1. The evidence I read was as follows. For the father:

1. Initiating Application, filed 11 August 2017; 2. Affidavit, filed 28 August 2019;

1. Affidavit of the paternal grandfather, Mr F, filed 23 January 2019; 2. Affidavit of the paternal grandmother, Ms F, now deceased, filed 23 January 2019; and 3. A case outline.
2. For the mother:

1. Amended Response, filed 20 March 2018; 2. Notice of Risk, filed 26 September 2017;

1. Affidavit of the maternal grandmother, Ms C, filed 19 October 2019; 2. Affidavit of the maternal aunt, Ms A, filed 22 October 2018; 3. Affidavit of the maternal father was not relied upon; and 4. A case outline.
2. The exhibits were as follows. For the father:
   1. Father's exhibit 1, a letter from his solicitors in relation to his legal costs which are mercifully a modest sum of $45,000, dated 25 November 2019.
3. For the mother:

1. Mother's exhibit 1, a print out from the web in relation to travel costs to New Zealand. 2. The mother tendered a minute of order in the trial. That was not marked as an exhibit but was relied upon at the hearing.

1. Mr Clifton's costs notice was not tendered at trial, however a copy was emailed to my Associate on 2 December 2019.
2. For the Independent Children's Lawyer:
   1. ICL Exhibit 1, a costs memo. The Independent Children's Lawyer seeks payment of their costs in the sum of $12,324.80 to be equally paid by each in the amount of $6162.40;
   2. ICL Exhibit 2, proposed Minute of Order; and
   3. An agreed balance sheet was tendered at trial however was not marked as an exhibit.
3. A Report was prepared by Dr E, dated 27 February 2019, together with an addendum to that Report, dated 27 February 2019. The Report and the addendum was marked court exhibit 1.

1. The father was born in 1972, aged 47.
2. The mother was born in 1974, aged 45.
3. In 1999, the father established a business known as B Pty Ltd.
4. The mother came to Australia in April 2000.
5. The parties commenced cohabitation in 2008.
6. X was born in 2011 and Y was born in 2013.
7. The parties separated on 4 May 2017.
8. In about 2009, the father commenced working for G Pty Ltd, initially in Melbourne and then in Sydney after X's birth in addition to running his own business.
9. The father's roster was explained at the trial. He works two weeks, has a week off, works for two weeks and then has three weeks off. The weeks off are not free time.
10. The parties purchased their former matrimonial home at H Street, Suburb J ("H Street property") in 2010.
11. The father sold assets he had acquired prior to the relationship and the mother mortgaged her unit at K Street, Suburb J ("K Street property") to fund the purchase of the property together with a mortgage.
12. The mother ceased work when X was three months of age and she commenced working in the marine business with the father. The mother carried out the bookings, organised charters, made sure that what was required for a charter was available and otherwise ran the financial end of the business. The father rather more attended to the boating side of the business.
13. The parties purchased a boat called the "Boat 2" for $120,000 in July 2011 and spent about $80,000 upgrading it for business charter purposes. The money needed to fund this project was borrowed and secured over H Street property.
14. In 2015, the company purchased by way of shares Boat 1 for $386,000, and again, money was borrowed using H Street property as security to fund the purchase.
15. On 1 April 2019, Boat 2 was sold for $43,000, the parties having spent $200,000 on its purchase and upgrade. Boat 1 has been valued at $205,000 despite the parties having purchased it for $386,000 in 2015.
16. It is clear their business flourished under the mother's management combined with the father's skill set. However, post-separation when the parties were no longer each working in the business, the business income and value has diminished and it no longer produces the income it did during the marriage.

1. I will deal with the property application prior to the parenting application in relocation matters. No matter what Order the Court makes one party will be bitterly disappointed with the outcome of the proceedings.
2. The parties' assets are as follows:

1. The parties agree the mother's unit at K Street, Suburb J is worth $662,500. This property was purchased by the mother prior to the marriage and she and the children currently reside at that unit. 2. There is a vessel called "Boat 1", worth $205,000.

1. The value of the parties company B Pty Ltd, is of nil value.

1. The mother has a Motor vehicle 1 worth $9,500 and a Motor vehicle 2 worth $10,000. 2. I have taken the father's Motorcycle out of the balance sheet as the debt in relation to that bike is almost its value. 3. The mother has a business AA licence, the value of which is unknown, however I will order her to sell that license and the proceeds to be divided in accordance percentage division of the property as a whole that I determine. 4. There are M Bank shares worth $319 as at November 2019 in the mother's possession. 5. Otherwise, all other assets in the balance sheet are monies and bank accounts acquired post-separation and I will not have regard to those sums. 6. The gross assets amount to $887,319 7. Liabilities: 8. Mortgage over the Suburb J property of $313,280. 9. Otherwise, all other liabilities in the balance sheet are the party's debts acquired post-separation or, for example, the mother's legal fees which no matrimonial money was used to fund.
2. This is a net asset pool of $574,039.
3. There is some $515,919 in superannuation of which the father has $406,938, and the mother has $108,981.

1. The father has the first week off and the second three weeks off in his 8 week roster. However, he father must be on call 24 hours a day during 3 of those weeks, must be no more than two hours from work, must not have consumed alcohol and the like, and must be ready to be called in to work.
2. In one of these four weeks, he is not on call. However, if there was an emergency, he may be called in if there was insufficient staff on call to fulfil his company's obligation to the government agency in relation to emergency services.
3. The father took me to his work schedule attached to his exhibits. In an eight week cycle his work timetable is as follows:

1. The days/weeks marked "flexi 1" are days/weeks where he is assigned as team one. These are his on call days/weeks and he can be called to work at any time on two hours' notice. 2. The days/ weeks marked "flexi 2" are days/weeks where he is assigned to team two and he must be on standby around the clock on those days/weeks.

1. The days/weeks marked "flexi 3" are days/weeks where he is assigned as team three, which are again days in which he can be called in at any time around the clock.

1. The days/weeks marked with an "X" are weeks of leave and these days/weeks are clear for him.
2. Although the father has much downtime from his work, he is on call for three of those downtime weeks. Effectively, he has one week off in each month and that is the week he has the children in his care. This is the arrangement the parents have come to and by all accounts this is working well for the children. Additionally, the father has recently begun to assist the mother to collect and deliver the children to and from school to assist her with her work in his on call weeks, and each parent reported at the trial that this was working well.

1. The mother has two part-time jobs. She works for L Organisation and carries out building maintenance at Suburb O, earning a modest income approaching $1,000 per week.
2. The father has a good income. He earns $3,736 gross per week. His income is four times that of the mother. The father pays child support and continues to pay child support in the assessed amount, and this varies according to his income.
3. Child support is sometimes $325 a week, sometimes it is $400 a week, and currently is about $365 a week.
4. It is clear that at the commencement of the relationship, the parties had somewhat equal assets and the mother, to her credit, conceded the father's assets may have been more because he had a boat which was sold. It is also clear that during the relationship, these parties equally contributed by way of providing income for the family. The father with his work at G Pty Ltd, the mother with her income as an email marketing manager for N Group, both parents in their combined work with B Pty Ltd. Shortly after the birth of the children, the mother left her full-time job and carried out the bulk of parenting and homemaking contributions.
5. I find that consistent with people who are wanting to get ahead, a fact the paternal grandfather gave evidence about, these parents worked extremely hard and, perhaps, pushed themselves to a point which caused a fracture in their relationship. However, there was nothing other than an equal contribution of effort by each during their relationship to their assets.
6. In relation to the K Street property, that unit was owned by the mother prior to the relationship, and the father's contribution to the current value of that property has been limited in that, I accept the property was rented out during the relationship and outgoings were paid from that rent.
7. I accept at times there was a shortfall of necessary outgoings over income. Neither parent could quantify this figure and this lack of evidence lay at the feet of the mother given it is a property in her name. I accept the father's evidence that it was not always tenanted, and the mother agreed and that the parties made up the shortfall. A hot water system needed to be replaced, the father purchased and installed it at the unit and there was other maintenance work which the father carried out on the property.

1. Consistent with decisions such as Hickey & Attorney-General for the Commonwealth of Australia[1] and Ferraro & Ferraro[2], there is a four stage approach the Court must engage in to determine the parties' contribution-based entitlement to their property as set out in section 79 of the Family Law Act 1975 (Cth) ("the Act").
2. The first stage is to identify the value, nature and species of the pool of assets for division.
3. The second stage is to ascribe to each party their contribution-based entitlement to the property expressed as a percentage having regard to their direct financial and non-financial contributions, indirect financial and non-financial contributions, and the role of parent and homemaker.
4. It is may also be important to determine whether one party has made a superior contribution post separation to the assets of the parties or to either of them or the family.
5. Finally, the Court determines whether there ought to be an adjustment to either party's contribution-based entitlement for their past contributions having regard to their future needs, often referred to as the 75(2) factors.
   1. Going to the contribution-based entitlement of the parties.
   2. I will deal with the property on a two pool basis. Given the age of the parties, it is many years before they can access the superannuation.
   3. I find that both the mother and father let the business deteriorate to the level it is today and that this is an exigency of a marriage breakdown and a fact that unfortunately does occur to businesses and to parties properly when relationships break down. Therefore, I will not sheet home any greater responsibility for the diminution of this asset to the father than to the mother.
   4. I formed the view that although each parent has made an equal effort to their current assets, the mother has made a superior contribution to the current asset base for the following reasons.

1. Going now to the vexed issue of the parenting matter. There is no doubt that the mother's application to move to New Zealand has substance and such a move is of benefit to her. In moving to New Zealand, she will have the support of her family, she asserts that she will be able to buy accommodation more suitable than a two bedroom unit at Suburb J for herself and the children. Further, she contends that given she will have the support of her family, she will be able to look to obtaining one full-time job. There is no doubt that parenting the children as the mother does for, at times, three weeks straight solely in the absence of family support is a difficult and taxing task, and although she has a good circle of friends, a circle of friends does not match the support of parents for a full-time working sole parent.
2. Consistent with the principles in Morgan & Miles,[3] for matters concerning relocation, be it international or within Australia, I must weigh up the parties' competing proposals in relation to the relocation and then, having weighed up those proposals consider the factors under sections 60CC(2) and (3) of the Act and apply those factors to the evidence in the parties respective proposals to determine which order is an order in the children's best interests, for a relocation matter is not a particular species of a parenting application. It is but a parenting application but has the overlay of significant loss for one or the other parent and for children. Relocation to another country is not merely reordering or changing time a child spends with a parent, it is a significant and potentially life-changing experience for children if the order is granted or not.
3. The mother's proposal is not frivolous or without merit and the basis of the mother's application to move to New Zealand with the children permanently is well understood by the Court.
4. The mother's proposal is that she move to New Zealand with the children; that the father to visit up to ten times per year; that the children spend 21 days of long school holidays in Australia with the father; that the father come to New Zealand on any occasion, and is able to spend time children together with telephone calls Skype and telephone communication. The mother also seeks a raft of additional parenting Orders, including Orders for overseas travel Orders whether she is permitted to relocate or not. I will deal with those additional Orders later.

...Y is at risk of acting out and his behaviour may deteriorate ... there are issues around change for Y and conflict and change and conflict for Y would exacerbate his acting out ... he needs a contained environment with an absence of conflict ... he is a male child and male children who act out are more effectively managed by a male role figure who can contain them and who acts in an appropriate fashion.

1. Dr E agreed that the father was providing that role model for Y at present. On the other hand, Dr E opined:

...if the mother is not happy living in Sydney, this is not conducive to the containment of his behaviour, either.

1. Dr E found that Y was the most vulnerable child, whilst X could adapt to living New Zealand.
2. The mother's proposal is that if she was permitted to move to New Zealand, she would not sell her apartment immediately to ensure that if the move to New Zealand was not working out she would have a home for herself and children to return to in Sydney.
3. Although I had formed the view this was a child-focused and appropriate course the mother had chosen, this caused Dr E real concern:

X will adapt to New Zealand, and will establish new friendships there. Returning her to Australia would disrupt her yet again, she already having been disrupted from the first move.

1. Dr E said such a move was also contraindicated for Y as well. However, I formed the view this was not the mother's intention, rather, she had been child-focused and thinking about whether this would work for her children. In any event, I have no power to stop the mother from returning to Australia even if I permit her remove the children to live in New Zealand.
2. Dr E said that Y was probably still attaching to his father and other people around him, and that it may not be until he was eight or ten, that this process may stop. I asked Dr E, "Would this mean that I delay the mother going to New Zealand until Y is, say, X's age, age eight?" Dr E said, "That may have less risks for him than going to New Zealand now." Dr E said that he believed the mother could manage living in Sydney if she was unable to relocate. His interview with her and the testing she provided him indicated she is a resilient woman, and he accepted that she had been unwell in 2017 but there has been no recurrence of that illness since that time.
3. Dr E was asked if the father had presented to him as he presented in Court, which was defeated, grieving and very sad. Dr E said no, and that the father was still undergoing the grieving process of the loss of his mother only one month prior to this final hearing. This was an important piece of evidence from Dr E as I had not seen the father in March 2019 when the father's mother was still alive and Dr E had.
4. Dr E also opined that if I ordered a relocation now, this would be a double blow for the father, and he would have a multiple loss, causing him significant grief. The father was clear and I accept his evidence he will not be able to maintain regular face to face time with his children if they move to New Zealand.
5. He said that the mother's proposal he come to New Zealand over 10 times a year is not feasible. It is not feasible on his income. It is not feasible for his work. It is not just travelling and flying to New Zealand that is costly, it is accommodation, hiring a car, and the costs associated with having the children in his care. No parent, unless independently wealthy and/or not needing to work, could afford financially or workwise that level of travel per year, and neither the mother or father are in a position to do so.
6. The second seminal piece of evidence from Dr E' oral evidence was that if the hostility that was evident in the maternal family continued, the children's relationship with their father would deteriorate. If there was no hostility and they were in a nurturing and a positive environment about their father, it would not deteriorate as much. This factor has been an overwhelming factor in this matter and the mother's proposal to relocate.

1. The mother's sister, Ms A, in cross-examination, referred to the father's intoxication when she and her family visited. To drive home her point, she said that she would not allow someone that intoxicated near her children and that her ex-husband, Mr A, was wonderful, a clear inference that the father was not. I formed the view that the father will be compared to Mr A in New Zealand, and he may be found wanting, and this would be a disaster for his children.
2. Ms A reiterated throughout her cross-examination that as a school teacher, she knew the importance of children having a relationship with both parents. The difficulty with that statement was that she said nothing positive about the father and her only comments about him were negative. Ms A described poor treatment by the father of her sister, that he was more interested in his mobile phone than the children, and that he has a significant problem with alcohol. This behaviour was confirmed by the grandmother.
3. When pushed on her view of the father, Ms A went back to statements about how wonderful her ex was and what a good relationship they had. Her platitudes that their family would ensure that they spoke positively of the children's father as her family did of Mr A, did not satisfy to me that this would in fact occur.
4. The maternal grandmother's attitude was a little softer, but she also raised issues about the father not repairing an air‑conditioner, his unfairness in having the mother get a part for a boat which necessitated taking the children with her and then telling her he did not really need it, was disruptive and in her opinion her daughter had not been supported by the father.
5. These criticisms related to events which occurred many years ago, when both parties were working extremely hard in their business, parenting two young children and trying to make good of their relationship. I detected no support for the children's all-important relationship with their father from the mother's family, and this finding, coupled with the mother's, at best lukewarm opinion of the importance of the father in the children's lives, has been a compelling factor in my decision.
6. The mother told Dr E at paragraph 15 there were multiple problems in the paternal grandparents having any interaction with the children. That was mischievous and incorrect. The mother was particularly negative about the father saying he drank to excess. Dr E opined that from his observations, interviews and testing that the father had no problem with alcohol.

Apart from when he was working, Mr Peers was rarely at the house.[4]

Up until separation, it has been Ms Hemsley that has cared for the children.[5]

I saw Ms Hemsley was doing all the parenting.[6]

Mr Peers seemed too busy with his 'friends'.[7]

Mr Peers and his friends drank in excess and had loud music which kept me, Ms Hemsley and the children awake.[8]

Mr Peers grumpily went downstairs to bed and the children opened their presents without him. He did not get up until lunchtime.[9]

Ms Hemsley asked Mr Peers to look after the children, as she wanted a sleep in. He refused.[10]

Although it was Christmas time I felt this drinking culture (in excess) with Mr Peers and his friends was not appropriate in front of the children.[11]

1. This attitude was confirmed in the witness box and although the mother did not read these paragraphs of her sister's Affidavit, in her case, Dr E had read it.
2. Dr E agreed that the mother's anxiety would certainly lessen and that she would be happier if she moved to New Zealand, and that is undoubtedly correct. In submissions, her Counsel stated that as she was the parent who was doing 75% of the parenting in Sydney, it was in the children's best interest they moved to New Zealand with their mother for she would be happier in that country. I accept this is correct, however it is only one factor I must have regard to.
3. Dr E did not agree that the benefit of the children living in New Zealand and spending time with their cousins could compensate in any way for the diminution in their relationship with their father, and this must be correct for as important as extended family and cousins are, it cannot compare at ages of eight and six to the relationship a child has with their parents.
4. The mother's practice or requirement that the children had FaceTime with their father sitting with their back to a blank wall, and that they could not FaceTime in their bedroom, lounge room and other parts of the home where they lived demonstrated a lack of insight by the mother into the impact of that restriction upon the children. I struggle to accept what the mother's fears were in the father seeing the inside of the apartment where she and the children lived given it was owned by her prior to the relationship and the father had entered it on many occasions. However, this demonstrates that the mother's needs at this time overwhelmed what was clearly best for her children, which was that they could freely speak to their father from whatever room they chose to speak to him.
5. This significant lack of insight was similar to the mother's inability to see the emotional impact of this move upon the children and to see it from their point of view. That was in contrast to the father's clear understanding of what it meant for the children emotionally to not be with both parents as they currently are.
6. The mother submitted that she can persuade or sway her family in New Zealand that her view of the father is he is now better than he was when they were together, that she will take the lead and improve her family's view of the father if she is in New Zealand, that she will be in a better and happier place and will more easily be able to form a positive view of the father, that her finances will improve, and that she will perhaps improve what has been excellent parenting of the children to date. Many of those propositions are correct, particularly in relation to the mother's financial position and being happier living in New Zealand. The children will benefit from this and living in New Zealand may engender a more positive attitude in her of the father and his importance in the children's lives.

1. I accept the father's evidence that he cannot possibly take up all the time the mother offers him if the children move to New Zealand because, firstly, he cannot financially afford it, and secondly, it would impact upon his job, as on many of the weeks he is not at work, he must be on call and he is called in.
2. Currently the father and mother have a babysitter who they each call on. Thus, at times when he has the children in an on-call week, he has someone to assist him, and that service is available to the mother. The father said the job he has is one everyone wants, and the feeling is if you knock back work constantly on your on-call weeks, there may come a time when you do not have a job with that company.
3. The father became very upset on a couple of occasions during the trial, particularly when his mother's name was mentioned, as she had only passed away one month previously, and I accept the man in the witness box was not the man Dr E saw. He admitted that during the relationship, there were times when he went out with friends and he could have spent that time with his children. I accept the mother's position and her criticisms of the father that he left her to do the bulk of parenting and was somewhat lackadaisical at times in spending time with his children as is so often the case when you live with your children.
4. However, since separation, I accept that the father has changed, and he has taken up that cudgel and he now spends all the time he can with his children around his work commitment, including assisting the mother when she has them in her care.
5. Under cross-examination, the mother admitted she had a meeting with Mr P just prior to the hearing because she wanted to find out for herself what had happened in the 1980s. It was apparent to me the mother hoped to be able to gather evidence to use at this trial, however, that cannot have occurred as Mr P did not file an Affidavit, nor was there any application made for him to give evidence at the hearing.
6. The mother did not tell Dr E that she had known about the allegations concerning Mr P since 2009 and that the children had spent many occasions at their paternal grandparents' home prior to separation. Only post-separation did the "Mr P issue", as I will refer to it, become a problem.
7. In cross-examination, the mother agreed that X had had a close relationship with her paternal grandparents and yet has now been denied a relationship with her paternal grandmother due to the mother maintaining these spurious allegations.

If relocation occurs there will be an inevitable reduction in the ability of the children to develop a relationship with their father and it will lead to a severe curtailment of their relationship with the paternal family generally.

1. The mother was asked if the Court did not permit her to remove the children's permit residence to New Zealand, the assumption was she would remain in Australia with them. The mother hesitated and said, "It is something I would have to think about".
2. At no stage has the mother told the Court she will go to New Zealand without her children and no submission was made to that effect at the close of her case. Thus, I will determine this matter on the basis that if I do not permit the mother to remove the children to New Zealand, she will remain in Sydney with them.
3. Dr E confirmed in oral evidence, that the view he had formed in his Report of the mother not being a vulnerable personal psychologically, that she is resilient and has a network of friends, was still correct, despite her clear health issues in 2017.
4. Dr E said at paragraph 132 of his Report, "If the children lived in New Zealand, the father would only have an attenuated relationship with them". And at paragraph 133:

The impact upon the children's relationship with their father would be that the relocation would attenuate the relationship. The impact on the mother of not being to relocate would be considerable, but I see her as resilient and likely to work around the obstacles, despite the significant reduction in quality of life it would present to her and, with that, perhaps an impact on the children.

1. The primary submission the mother made that as she will have 75% care of the children, the balance should be the Court maximising her parenting capacity as being a highly important consideration in the weighing up of the competing proposals. There is force in that submission and it is a correct statement.
2. However, at paragraph 134, Dr E echoes my concern:

The only concern I have in that regard is Y. Y does present as a psychologically vulnerable boy and I am unsure how he would respond over time in a situation where was unable to develop his relationship with his father, or where his mother had become resentful and stressed as a result of being forced to stay in Australia.

The Court may have to consider the sensitivity to change and the vulnerability that is emerging in Y' behaviour. I am unclear how to interpret that. I do not know whether his behaviour might settle more if he is in a more bucolic environment, well supported by the maternal family or whether his behaviour might worsen as a result of missing his father and not being able to engage with his father.

1. The mother's application to relocate to New Zealand is but one aspect of a parenting Order, and my obligation is to make an Order in the children's best interests. Although this obligation is at the core of my decision and is expressed as a paramount consideration, it is not the only consideration, as per Morgan & Miles.[12] As with all parenting applications, I must weigh up the parties' competing proposals, assess all the evidence and then apply the factors under sections 60CC (2) and (3) of the Act to the parties' respective proposals and the evidence, and determine whether the relocation is or is not in the best interests of the children having clearly identified evidence to which I have attached significant weight.
2. The starting point is the decision of Goode v Goode[13] as it is referred to in the seminal decision in relation to relocation matters of Justice Boland in Morgan & Miles.[14] At paragraph 68, her Honour says, "In a case involving relocation which raises issues of whether a child spending equal, or substantial or significant time, is "reasonably practicable", 65AA(5) is likely to be of significance".
3. In these proceedings, the parents have agreed to equal shared parental responsibility no matter what decision I make.
4. Secondly, there is no issue of equal time given the father's work roster and the agreement the parties have reached that if the mother is not permitted to relocate the children will live with her and with their father two weeks out of eight, and at other times as agreed as the father is currently doing.
5. Although the arrangement the parties have agreed in the absence of a relocation, it is not the traditional significant and substantial time as defined in the Act being time on the weekends, during the week and in school holidays, it is substantial time in one block that the children spend with their father and for them this is significant time.
6. What is relevant is that if the children move to New Zealand the arrangement the parties agree is working well for the children and they wish to maintain if the mother is not permitted to relocate cannot continue.

There can be no dispute that in determining a case where one party which research indicates is invariably the mother wishes to relocate a Court is making a parenting order generally about who the child will live with or with whom the child will spend time. Relocation matters are not a special category of parenting orders.

It is also undisputed that in determining a parenting case where one party wishes to relocate the child's best interests remain the paramount, but not sole consideration. The Act does not contain any presumption against a parenting order which involves relocation nor any presumption in favour of parent with whom a child lives predominantly at the time of the application to obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate orders to be made.

1. At paragraph 79, Her Honour notes that in considering whether the child should live with the parent who proposes to relocate, a Court:
   • Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
   • Make orders having regard to the child's best interest as the paramount, but not the sole consideration.
   • Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
   • If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
   • In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
   • When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
   • Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child's best interests, make such order which may provide:
     • - that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

The child's best interests remain the paramount but is not the sole consideration

The parent wishing to move does not need to demonstrate compelling reasons.

The judicial officer must consider all proposals and make himself or herself be required to formulate proposals in the child's best interests

The child's best interest must be weighed in balance with the right of the proposed relocating parent's freedom of movement.

1. At paragraph 81, her Honour went on to say that the legislation requires a Judge to consider the parties' competing proposals against the criteria set out in sections 60CC(2) and (3) informed by section 60B of the Act.
2. Further, generally speaking, findings in relation to the section 60CC factors must be applied to findings in relation to the consideration of equal time or significant and substantial time.
3. Following the pathway set out in Goode & Goode[15] as this is a necessary step in determining what Order I should make in the child's best interests.
4. In determining what is in a child's best interests, a Court must consider the matters set out in sections 60CC(2) and (3) of the Act.
5. The primary considerations in section 60CC(2) of the Act are:

(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

1. The additional considerations in section 60CC(3) of the Act are:

(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

(b) the nature of the relationship of the child with:

(ii) other persons (including any grandparent or other relative of the child);

(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long‑term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child;

(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

(f) the capacity of:

(i) each of the child's parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j) any family violence involving the child or a member of the child's family;

(k) if a family violence order applies, or has applied, to the child or a member of the child's family - any relevant inferences that can be drawn from the order, taking into account the following:

1. Both children benefit from a meaningful relationship with each of their parents and they have not been subjected to abuse neglect or family violence in either parent's home. However, they have been exposed to parental conflict.
2. The wishes of the children in this matter are not an issue for me having regard to the age and their inability to understand what a permanent shift to New Zealand would mean for them and their relationship with their father. I accept they are familiar with New Zealand and have family in that country with whom they have an excellent relationship, including cousins of similar ages.
3. The mother has been the children's closest emotional attachment and she was clearly the primary parent and homemaker. However, as Dr E observed, the children have a close and beneficial relationship with their father and enjoy spending time with him.
4. I am concerned that the mother has a deficit in her capacity to promote the children having a positive relationship with their father over a long distance given her view of him and that she effectively lays responsibility at his at his feet for the financial position they find themselves in. I accept the mother now has a more positive view of the father than perhaps even at the time of Dr E Report, but her position was clear in oral evidence he was not interested in the children, he let the business deteriorate and he is the responsible party in their difficult financial position. This is concerning because I formed the view that the maternal family in New Zealand have little if any capacity to provide a positive view of the father to the children and the children will be living in that environment without their father's presence as they currently enjoy on a regular and defined basis. Long-distance relationships are difficult to maintain, are particularly difficult for young children and where there is not continued positive reinforcement of the absent parent, rather negativity, there could be a significant fracturing of the current beneficial and meaningful relationship the children have with their father.
5. Each parent has a capacity provide for the emotional, psychological and educational needs of their children and I was impressed by the father's insight into the emotional consequences for the children of living in New Zealand without him. The mother has parented the children to a very high standard and she is a confident, capable and caring parent, as is the father, who I accept in the past did not always put the needs of his family before his own needs.

1. The Independent Children's Lawyer has made an application for the costs paid by each of the parties in the sum of $6,162 each.
2. I find that application has merit. This was an international relocation it was imperative that an Independent Children's Lawyer be appointed and the sum sought is but a fraction of the costs of the Independent Children's Lawyer in this matter.
3. The husband has a good income. The wife is receiving a sum of money from her property settlement and I will order that the husband pay her share of Independent Children's Lawyer's cost of $6,162 from her entitlement to property settlement prior to him paying her entitlement and that he is to pay his share of the Independent Children's Lawyer's costs in the sum of $6,162 within 90 days of today's date.

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 Henderson delivered on 24 January 2020.

[1] Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 217; (2003) FLC 93-145.

[2] Ferraro & Ferraro [1992] FamCA 64.

[3] Morgan & Miles [2007] FamCA 1230, (2007) FLC 93-34, (2008) 38 Fam LR 275.

[13] Goode v Goode [2006] FamCA 1346.