Grigor & Crescens [2025] FedCFamC1F 559 (20 August 2025)

1. All former orders relating to the following children are discharged:

(a) X, born 2011;

(b) Y, born 2014; and

(c) Z, born 2015.

1. Parental responsibility for the children is removed from the applicant and the first respondent.
2. Parental responsibility for the children is conferred upon the second respondents.
3. The children shall live with the second respondents.
4. The parties shall take all reasonable steps to ensure the children spend time with the applicant:

(a) in the NSW Spring school holidays, from 12.00 noon on the first Saturday until 12.00 noon on the third Saturday;

(b) in the NSW Autumn school holidays, from 12.00 noon on the first Saturday until 12.00 noon on the third Saturday;

(c) in the NSW Summer school holidays in 2025/2026 and in alternate years thereafter, from 12.00 noon on the first Saturday of the holidays until 12.00 noon on the Saturday 21 days later; and

(d) in the NSW Summer school holidays in 2026/2027 and in alternate years thereafter, from 12.00 noon on 3 January until 12.00 noon on 24 January.

1. For the purpose of implementing Orders 5(a) and 5(b), the second respondents and the applicant shall cause the children to be exchanged at the McDonalds Restaurant, Suburb B , NSW.
2. For the purpose of implementing Orders 5(c) and 5(d), the second respondents and the applicant shall cause the children to be exchanged at the Sydney International Airport.
3. The second respondents shall forthwith procure and keep current Australian passports for the children, which they and the applicant shall exchange in conjunction with the children whenever the applicant gives 14 days' notice in writing of his intention to take the children to New Zealand.
4. Whenever the children are living with the second respondents, they shall take all reasonable steps to ensure the children communicate electronically with the applicant each Sunday at 5.00 pm.
5. Whenever the children are spending time with the applicant, he shall take all reasonable steps to ensure the children communicate electronically with the second respondents (and the first respondent if she wishes to simultaneously participate) each Sunday at 5.00 pm.
6. Whenever the children are living with the second respondents and not spending time with the applicant, the second respondents shall take all reasonable steps to ensure the children spend time with the first respondent, under the supervision of either of the second respondents:

(a) each Wednesday from the completion of school (or 3.00 pm if not a school day) until 8.00 pm;

(b) on Christmas Day from 2.00 pm until 6.00 pm;

(c) on Mother's Day from 2.00 pm until 6.00 pm; and

(d) any other occasion agreed between the second respondents and the first respondent.

1. Each party is restrained from denigrating any other party in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other parties.
2. The second respondents shall notify the applicant and first respondent of any medical emergency, illness or injury suffered by the children warranting treatment by a third party and shall authorise any treating health professionals to communicate with the applicant and first respondent about the condition and treatment of the children.
3. The second respondents shall authorise and request the principal of any school attended by the children to provide to the applicant and first respondent, at their own expense, copies of all school reports and school photograph order forms relating to the children.
4. Each party shall forthwith inform the others, and keep the others informed, in writing of their respective current residential address, mobile telephone number and email address.
5. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
6. The Independent Children's Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.
7. For the purpose of enabling the parties to register these orders in New Zealand pursuant to the provisions of the Care of Children Act 2004 (NZ), the registrar is directed to prepare and furnish to the parties a certificate formally confirming that these orders are enforceable in Australia.
8. Costs are reserved for 28 days.
9. Any and all other outstanding applications are dismissed.

1. The children are habitually resident in Australia, in the State of New South Wales.
2. By virtue of these orders, the second respondents have "rights of custody" in respect of the children within the meaning of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

1. Retention of the children by the applicant in a country other than Australia without the written consent of the second respondents will constitute a wrongful retention of the children within the meaning of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

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

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grigor & Crescens has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These proceedings concern the need for parenting orders in respect of three children, contested by the father, the mother, and the maternal grandparents.
2. By the time of trial, the dispute was essentially a bilateral contest for the children's residence between the maternal grandparents, with whom the children have lived for the last three years, and the father, who lives in New Zealand.
3. These reasons explain why orders will now provide for the children to live with the maternal grandparents, for their conferral with exclusive parental responsibility, and for the children to maintain their connections with the parents.

1. The children were born in 2011, 2014 and 2015. The eldest is now nearly 14 years of age and the youngest is 9 years of age.
2. The mother and father separated in February 2022 after a violent incident between them, following which the father was arrested, charged with offences, and a family violence order was made against him for the protection of the mother. The father later pleaded guilty to assaulting the mother,[1] for which he was penalised but not formally convicted.[2]
3. The father requested the mother allow the children to spend time with him but, consistently with the terms of the interim family violence order made in February 2022, which order indirectly covered the children and maternal grandparents because they all lived together, the mother was reluctant to allow them to do so other than under supervision.[3]
4. The father abided that situation until November 2022, when he commenced these proceedings contemporaneously with his permanent relocation back to New Zealand,[4] from where he has since conducted the litigation remotely. The mother, maternal grandparents and children continue to live in NSW.
5. In January 2023, interim orders were made for the children to communicate with the father twice each week. In August 2023, the mother conceded she had contravened those orders on numerous occasions, but with reasonable excuse, and so orders were consensually made for the children to have some extra communication with the father over ensuing months. Otherwise, the regime of twice-weekly communication was confirmed.
6. The maternal grandparents were joined as parties to the proceedings in August 2023. That followed the release of the first family report in July 2023, in which the court child expert commented how the children were living predominantly with and were reliant upon the care of the maternal grandparents.[5] It later became clear the children have lived with the maternal grandparents since February 2022,[6] from the time the parents separated.
7. In December 2023, more interim orders were made with the parties' consent, providing for the maternal grandparents to have parental responsibility for the children's health, for the children to live with them, and for the children to spend time with the parents. Their visits with the mother were within the discretion of the maternal grandparents and their visits with the father were to be professionally supervised on three consecutive days in January 2024. Orders for the children's electronic communication with the father were continued.
8. In April 2024 and June 2024, more interim orders were made for the children to spend professionally supervised time with the father on four consecutive days in April 2024, July 2024 and subsequent school holiday periods. The father was unable to see the children in the September 2024 holidays, but did see them under the same supervised conditions in the January 2025, April 2025 and July 2025 holidays.[7]
9. The parties were offered trial dates in March 2025, but could not accept them because they had not complied with procedural orders made in February 2024 directing them to obtain an updated family report.[8] The updated report was obtained in May 2025 and so the trial proceeded in August 2025.

1. The father sought the orders in his Amended Initiating Application filed on 5 February 2024. He proposed that the children now live with him in New Zealand and he have sole parental responsibility for them, they spend time with the maternal grandparents and the mother in school holiday periods in Australia (with the parties sharing the cost), and that they communicate electronically with the maternal grandparents and the mother twice each week.

1. The mother began the trial seeking the orders in her Third Amended Response filed on 6 August 2025. She acceded to the children living with the maternal grandparents and to them having parental responsibility for the children. She also acceded to the children only spending time with her each Wednesday afternoon/evening and on special occasions, supervised by the maternal grandparents, though she envisaged the dispensation of supervision subject to her proving her sobriety. She wanted the children's visits with the father confined to professional supervision at a contact centre in Australia on "no less than" three occasions each year. She was content for them to communicate with him regularly.
2. In final submissions, the mother confirmed her proposal was for the maternal grandparents to have parental responsibility for the children, not just decision-making authority. She altered her proposal in so far as it concerns the children spending time with the father, assuming the children are to remain living with the maternal grandparents.[9] She abandoned her proposal for the children's supervision when with the father and acceded to them spending time with him in school holiday periods.
3. If the children are ordered to live with the father, the mother proposed an alternate suite of orders.[10]

1. The maternal grandparents began the trial seeking the orders in their Amended Response filed on 5 February 2024. They wanted the children to remain living with them and for them to have parental responsibility. They proposed the children only periodically spend professionally supervised time with the father in NSW, though they could communicate electronically with him twice weekly. They proposed controlling and supervising any time the children spend with the mother.
2. Their revised primary proposal was contained in a Minute of Orders.[11] They still wanted the children to live with them and still want to be conferred with parental responsibility - not just decision-making authority, as was mistakenly stated in the suite of orders. They agree the children should spend time with the father, without supervision, in school holiday periods. They propose the children spend time with the mother at their discretion, but always under supervision. This primary proposal was virtually the father's proposal in reverse.
3. If the maternal grandparents' primary proposal fails and the children instead live with the father, they had a fall-back proposal as to how the children would spend time with them.[12]

1. The Independent Children's Lawyer ("the ICL") abandoned the Minute of Orders tendered at the beginning of the trial,[13] electing to instead support the suite of orders primarily sought by the maternal grandparents.

1. Annexures and exhibits to affidavits did not form part of the body of evidence unless separately tendered (r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)).
2. The father relied upon his affidavit filed on 29 July 2025 and the affidavit of his partner, Ms C, filed on 28 April 2025.
3. The mother relied upon her affidavit filed on 23 July 2025 and, with the consent of the other parties and the ICL, another affidavit she affirmed on the first day of trial.[14]
4. The maternal grandparents relied upon their two affidavits filed on 23 July 2025. Without objection, the maternal grandmother also relied upon a supplementary statement,[15] the truth and accuracy of which she adopted in evidence.
5. The parties and the ICL relied upon two family reports, respectively dated 10 July 2023 and 26 May 2025, annexed to affidavits affirmed by the family consultant.
6. Numerous exhibits were tendered.

1. Orders in respect of children are made under Part VII of the Family Law Act 1975 (Cth) ("the Act"), where the meaning of a "parenting order" is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation (s 60B).
2. When making parenting orders, the Court is mandated to regard the child's best interests as the paramount consideration (s 60CA and s 65AA) and the Act specifies the criteria which must be considered when determining the form of orders which meets and promotes the child's best interests (s 60CC).
3. Parental responsibility for children is vested in their parents (s 61C(1)), regardless of whether they live together or are separated (s 61C(2)), but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B).
4. When an order is made allocating parental responsibility for a child or children in relation to "major long-term issues" to more than one person, the order may prescribe whether those persons have joint or sole decision-making authority in relation to all or only specified issues (s 61D(3)). The Act defines "major long-term issues" to include those such as the child's education, religion, culture, health, name, and changed living arrangements (s 4(1)) and defines what "joint decision-making" requires in respect of decisions about such issues (s 61DAA). One person allocated with parental responsibility for a child need not be consulted by another person allocated with parental responsibility in respect of minor decisions made for the child which fall outside "major long-term issues" (s 61DAB).
5. Since amendments were made to the Act, operable as from 6 May 2024, parental responsibility orders no longer have any bearing upon determinations made about with whom a child should live or spend time.

1. The children are not "Aboriginal or Torres Strait Islander" children, in which event these provisions are not relevant.

1. These provisions direct attention to the need for children and their carers to be kept safe from either subjection or exposure to family violence, abuse or neglect.
2. The perpetration of family violence between the parents was undoubtedly a feature of their relationship, which ended with a violent confrontation in February 2022, regrettably witnessed by the children.[16] The police had to be summoned by the mother's teenage son and the maternal grandparents.[17] The children observed the mother being taken away in an ambulance and the father being arrested, handcuffed and taken away by police. The father later admitted and was found guilty of assaulting the mother, though no conviction was formally recorded.
3. The past family violence committed between the parents remained a focal point of their attention at trial, but needlessly so, as it is unnecessary to determine whether the father's violent and coercive conduct was as bad as the mother alleges,[18] or only as bad as he admits.[19] It is enough to recognise the children were frightened by the father's violent conduct which they witnessed and genuinely fearful for the mother's life.[20] The eldest child said she still experiences "flashbacks" of the father's violence directed towards the mother,[21] which frightening experiences of family violence might well account for her diagnosed condition of PTSD,[22] as the maternal grandparents submitted. No other trauma in her life was advanced as a rational explanation for her suffering PTSD.
4. When discussing the issue of past family violence with the family consultant, the father attempted to shift blame to the mother and to cast himself as a victim,[23] about which the family consultant was understandably sceptical and critical of his apparent lack of insight.[24]
5. The father's evidence at trial was no different. His exculpatory version of the violent incident in February 2022 is difficult to accept,[25] given he later willingly pleaded guilty to assaulting the mother. The evidence of his perceived need to escape the mother's violence and for why he participated in a behaviour correction program some years ago in 2020 reveals his likely distorted attitude.[26] He deposed the program convenors told him it was the mother, not he, who was the violent perpetrator.[27] He told the police in late 2020, not long after he completed the program, that he undertook the program because of the mother's abusive behaviour, not to correct his own behaviour.[28] Such evidence, assuming it is subjectively honest, is rejected as being objectively improbable and inaccurate.
6. The parents kept in intermittent personal contact with one another during 2022,[29] but it was apparently uneventful. After their separation in February 2022, the children only once spent time with the father in November 2022, while the mother was present.[30] Since then, the parents have had nothing to do with one another - not even for the purpose of exchanging the children. The children have lived with the maternal grandparents and have only occasionally seen the father under professional supervision at a contact centre or under observation by the family consultant. Irrespective of whether the children continue to live with the maternal grandparents or move to live with the father, the complete absence of interaction between the parents will probably continue. Consequently, as has been the situation for the past three years, the children will not likely be exposed to any more family violence between their parents.
7. It is necessary to address the father's contention that three alleged episodes of disharmony establish the children's safety in the milieu of the maternal family is now compromised.
8. First, the mother was charged with assaulting her teenage son and his girlfriend in late 2024, which charges she is defending on account of her alleged self-defence against their forcible trespass of her home.[31] Without more evidence of the surrounding circumstances, that is not enough to suggest the children are at risk of physical harm perpetrated by the mother. By that time, the teenage son had become recalcitrant and his behaviour unmanageable.[32] In any event, the incident does not reflect upon the maternal grandparents in any way.
9. Secondly, the mother and her teenage son elected to vacate the maternal grandparents' home in February 2024. The grandparents would not permit the teenage son to share a bed with his girlfriend, both then aged 15 years, about which refusal the teenage son became belligerent. Any sexual congress between them would have been illegal and the maternal grandparents sensibly baulked at sponsoring or condoning a criminal offence committed in their home. The fact there was an argument over the issue was unexceptional, regardless of the incident being raised afterwards by the children with their school counsellors. Despite heightened emotions at the time, the father's counsel conceded there was no evidence to establish family violence was committed by either maternal grandparent or the mother on that occasion.
10. Thirdly, the family consultant reported "the children" informed teachers at their school in late 2023 that the mother pointed a gun at the maternal grandfather and threatened to kill him, though their accounts of the incident were supposedly different.[33] Significantly, their accounts differed as to whether a gun was used, only a hand gesture was used, or neither a gun nor a hand gesture was used. School counselling notes contain the reports made by the two eldest children at the school.[34] The police acted on information passed on by the school and investigated, but without consequence. The police record notes "no offence disclosed or detected".[35]
11. The children's counselling reports were probably motivated by some argument within the household, but the probative value of their hearsay accounts is discounted by the inexplicable discrepancies. Significantly, the mother and the maternal grandfather both denied any such violent incident ever occurred.[36] They staunchly adhered to such denials in cross-examination, as did the maternal grandmother when she was asked, and their direct evidence seemed reliable. The maternal grandfather credibly said of the alleged incident:

I don't understand this gun business because it just did not happen.

1. The father's counsel responsibly conceded in final submissions that no finding could be made on the balance of probabilities that the mother assaulted the maternal grandfather in the way the children alleged. At most, there was an argument. The evidence does not establish the commission of family violence by either maternal grandparent or the mother.
2. The father's insinuation the children will likely be exposed to family violence committed by either the maternal grandfather or the mother is rejected, which conclusion is not precluded by the maternal grandfather having occasionally resorted to physical discipline in the past.[37]
3. Aside from those findings, the father's submissions about the children's safety being threatened while living with the maternal grandparents do not spring from him enjoying a position of superiority. Given the historical family violence which the father admits - but minimises - he can ill afford to criticise others for like conduct. While there is no tangible risk of him perpetrating family violence upon the mother in the future for reasons already explained, that conclusion is not the same thing as him having the propensity to act violently towards others in the children's presence if angered. The father admitted he once pushed the maternal grandfather during an argument, which incident he curiously described as a "verbal trespass". As the aphorism goes, he cannot responsibly throw stones when living in a glass house.
4. It is not alleged the children have been physically abused by any of the parties, or that they are at risk of abuse in the future.
5. It is not alleged the children have been neglected by any of the parties, or that they are at risk of neglect in the future.

1. The children have been interviewed twice by the family consultant - initially in June 2023 and then again in April 2025. On both occasions, they were living with the maternal grandparents, which household they uniformly regarded as their stable base.
2. In April 2023, the eldest child was a vocal advocate for the father. She missed him and wanted to spend time with him,[38] though she did not want to live with him.[39] She told her school counsellor the same thing in June 2023[40] and again in January 2025.[41] She repeated those views when interviewed the second time by the family consultant in April 2025.[42]
3. In April 2023, the middle child wanted to visit the father,[43] but nor did she want to live with him.[44] Her views in 2025 were unchanged.[45]
4. In April 2023, the youngest child expressed the desire to visit the father, but did not wish to live with him.[46] She had not changed her views by April 2025.[47]
5. The father contended little weight should be reposed in the children's views because they are susceptible to influence by the maternal family, but his mere suspicion of such influence lacks a solid evidentiary foundation. Objectively, the children are clearly not influenced against the father because of the eagerness of their interaction with him.
6. In cross-examination, the family consultant did agree with the father's somewhat different proposition that it could be inferred the children may not feel free to express their real feelings about with whom they want to live because they do not feel free to report and discuss events which occur within the maternal grandparents' household, though that was bare speculation. It is a guess, not a valid inference, because it is entirely inconsistent with the evidence of the children feeling able to speak frequently and freely to their counsellors.[48]
7. An inference is more easily drawn of the genuineness of the children's expressed desire to retain their residence with the maternal grandparents. Their views are mutually held, long-standing, and expressed to the family consultant independently of the maternal grandparents. The eldest child is now verging on 14 years of age and her views should attract considerable respect. She steadfastly resists moving to live with the father in New Zealand, with which view the younger children concur.

1. It was not disputed that the children's developmental, physical and educational needs could be satisfactorily met by either the maternal grandparents or the father, though the father works full-time and would require the help of Ms C to raise the children.
2. The dispute really centred on their respective capacities to cater to the children's emotional needs, the most critical of which are to have dependable, loving relationships with important adults in their lives and the sense of a secure home.
3. The family consultant was satisfied from observations made in April 2023 and 2025, and from reading supervision reports, that the children are bonded to the father.[49]
4. The children are also bonded to the mother, though they are concerned about her.[50]
5. The children also "share a close bond" with the maternal grandparents,[51] particularly the eldest child with the maternal grandmother.[52]
6. Having lived with the maternal grandparents in Australia since February 2022, moving to live with the father in New Zealand would entail a significant change for the children. It might be even harder for them to adjust to the change when they report having "mixed feelings" about the father.[53] He admitted as much.[54] The family consultant feared the change of residence would be a "significant barrier" to the children's retention of relationships with members of the maternal family.[55] By comparison, the children's residence with the maternal grandparents has obviously proven not to be a significant barrier to them retaining their loving relationships with the father.
7. The family consultant said in cross-examination that the children, particularly the eldest child, would likely react adversely to orders requiring them to live with the father in New Zealand. She agreed the change would likely be "traumatic" for the children. Such evidence is accepted. It would be very difficult for the father and his partner to manage three oppositional children.

1. The respective capacities of the maternal grandparents and the father to provide for the children's emotional needs were in issue.
2. The father's rather nebulous allegation about the maternal grandparents' inability to meet the children's needs was expressed this way:

...the [m]aternal [g]randparents' home has increased risk factors to the developmental, psychological, and emotional needs of the children. There is considerable risk of rejection, there is the considerable risk of lack of flexibility and atunement (sic) to their needs...

(Father's Outline of Case document filed on 8 August 2025 at p.6)

1. Such submissions are ethereal and imagined. The evidence does not reasonably support any finding of a tangible risk the maternal grandparents will reject the children, they will be inflexible about meeting the children's needs, or they will be inadequately attuned to the children's needs.
2. The alleged risk of the maternal grandparents' rejection of the children supposedly arises from them having ejected the mother's teenage son from their home in February 2024 due to his failure to comply with their house rules, but the alleged risk is specious. He was not evicted from the maternal grandparents' home. They invited him to stay, but on condition he not sleep in the same bed as his girlfriend, he tidy his room, and he refrain from the use of profanity. He elected to leave rather than comply with those reasonable conditions. If the children thereby learned a lesson that they have boundaries, that is not a bad thing, but it cannot be contended they are objectively at risk of being rejected by the maternal grandparents or even that the children apprehend the potentiality.
3. The maternal grandfather agreed he values discipline, punctuality, and order, but that is no bad thing either. No child's emotional development could or should be compromised by being instilled with the knowledge every household has rules by which the members must live. That imbues values of independence, common responsibility and an ability to co-operate. The characterisation of spartan inflexibility within the maternal grandparents' home is rejected.
4. The criticism of the maternal grandparents for not being "attuned" to the children's needs is also rejected. The children are loved and cherished by the maternal grandparents, who sacrificed much to ensure the provision of a stable and safe home for them when, first, the mother lacked the capacity to do so, and secondly, the father chose not to do so by voluntarily removing himself to another country.
5. It is readily apparent the maternal family members and the father harbour antipathetic feelings towards one another due to their past adverse experiences. The father is just as ill-disposed to the maternal family as they are to him.[56] The children are seemingly aware of the tension, but mutual antipathy is a quite different thing from the maternal grandparents actively damaging or passively failing to support the children's relationships with the father.
6. To expect litigants to disregard their genuine feelings is to demand a standard of perfection instead of allowing for human fallibility. Children can be perceptive about the attitudes of the adults within their milieu, particularly if critical remarks are sometimes uttered. The evidence of the maternal grandparents making negative comments about the father, regrettable though it is, must be seen in context and not given disproportionate attention.[57] By comparison, the father's evidence was unreasonably critical of the maternal grandparents and he was moved to admit he has a dim view of them. He denied he would communicate his dim view of them to the children, but there is some evidence of him making negative comments to the children about the maternal grandmother.[58] Nor should that be given disproportionate attention.
7. The father eagerly promoted the family consultant's evidence about the children being bonded with him, which opinion evidence is indeed accepted. However, the corollary of the acceptance of such evidence is the removal of the foundation for his contention that the maternal family is not supportive of the children's relationships with him. It is quite inconceivable the children could still enjoy such warm and loving relationships with him if the maternal family were overtly or covertly intent on damaging those relationships. The father was impelled to admit that obvious proposition in cross-examination. The maternal grandparents understand the need for the children to maintain their important relationships with the father, notwithstanding their misgivings about his past conduct towards the mother.
8. The maternal grandparents did not directly criticise the father's parenting capacity but instead sought to fairly emphasise some of his decisions which imply his tendency to elevate his own needs above those of the children.
9. When it must have been clear to the father after separation in early 2022 that the mother was unable to care for the children on her own, rather than staying in the area and providing them with a home, he chose to move to New Zealand in late 2022. He did so despite deposing at the trial that he had intended to remain close to the children after their separation, saying this in his affidavit:
   1. My goal was to secure a caravan and eventually a home, remain close to the children, and ensure they had a parent they could rely on.
10. In cross-examination, the father denied he was satisfied the children were safe in the maternal grandparents' care when he left for New Zealand, but conceded he departed anyway. He was impelled to admit the children may have felt abandoned by him. It must follow from his evidence that he prioritised his desire to move away over ensuring the children's safety and emotional security.
11. Even now, knowing the children would prefer to remain living in Australia and that he return to also live in Australia so they can see much more of him, the father chooses to remain living in New Zealand. Obviously, the father is free to make that choice, but he must be prepared to live with the consequences of his decision. The reasons he has for staying in New Zealand are evidently more important to him than the children's wishes.
12. The mother acknowledged her deteriorated parenting capacity necessitates, at least for the foreseeable future, the supervision of any time the children spend with her. The evidence vindicates her acknowledgement and, as the facts are uncontroversial, it is unnecessary to refer to the relevant evidence at length.
13. Over at least the past few years, the mother has been beset by an excessive use of alcohol. She has been admitted to hospital for detoxification and related medical conditions on several occasions.[59] She also experiences unstable mental health.[60] She lacks the necessary capacity for employment.[61] She was unable to provide basic necessities for the children without the maternal grandmother's support.[62] Due to her afflictions, the maternal grandparents and the children both perceive the mother to be somewhat detached from the children.[63]

1. The parties accept the children would and should benefit from retaining relationships with each of them.

1. No other issue was advanced by the parties or the ICL as being relevant.

1. In the first family report, the family consultant obviously lamented the maternal grandparents were not parties to the proceedings. She therefore recommended that the children remain living with the mother, but on condition she and the children live with the maternal grandparents, as they were then doing. The family consultant envisaged the children might graduate to spending unsupervised time with the father, but she did not envisage them living with him.[64]
2. Later, the maternal grandparents did join the proceedings as parties and the children continued to live with them, even when the mother vacated the home to live separately in her own home in February 2024. The maternal grandparents ensured the children spent time with the father as required by the interim orders made in December 2023, April 2024 and June 2024.
3. In the second family report, following consultations in 2025, the family consultant summarised the advantages and disadvantages of the children living alternatively with the maternal grandparents in Australia or with the father in New Zealand, but without expressly recommending either outcome.[65]
4. The issue of the children's residence was raised with the family consultant in cross-examination, but her oral evidence was unhelpfully platitudinous and internally inconsistent. She readily agreed with contradictory propositions posited by counsel. For example, in answer to questions posed by the maternal grandparents' counsel, she agreed it would be traumatic for the children to be removed from the maternal grandparents' residential care and the current arrangement should be retained if their willingness to support the children's relationships with the father was demonstrated (as it is). Then, in answer to questions posed by the father's counsel immediately afterwards, she agreed there was less risk of harm to the children if they instead live with the father than if they remain living with the maternal grandparents. Her evidence cannot be satisfactorily reconciled.
5. When asked to explain the change of complexion of the recommendations made in the two family reports, the family consultant gave two reasons: first, the maternal grandparents were not parties to the proceedings at the time of the first report; and secondly, the occurrence of certain events in the interregnum.
6. As to the first reason, the prospective joinder of the maternal grandparents was perceived by the family consultant to be an advantage, not a disadvantage, which would therefore logically imply the recommendation within the first report about the children living in the maternal grandparents' household should have consolidated, not waned, in the second report. This reason could not account for the difference.
7. As to the second reason, the only events the family consultant discussed which could account for her apparently waning support for the maternal grandparents were: the children's report of the mother threatening the maternal grandfather with a gun in November 2023; the departure of the mother and her teenage son from the maternal grandparents' home in February 2024; the children's lack of knowledge about the teenage son's whereabouts once he voluntarily ceased living with the mother in October 2024; and the children's alleged expectation they could not talk freely about events which occur in the maternal grandparents' home.
8. An objective analysis of the evidence concerning those issues does not justify the family consultant's ultimately ambiguous assent to the idea of the reversal of the children's residence.
9. The mother's alleged threat to kill the maternal grandfather while brandishing a gun in November 2023 is not proven on the balance of probabilities but, even allowing for some form of confrontation occurring, it was admittedly not family violence perpetrated by the maternal grandparents and was no worse than the many incidents of family violence the father admitted perpetrating in the children's presence.
10. The mother and her teenage son vacated the maternal grandparents' home in February 2024, following an argument. The grandparents would not permit the teenage son to share a bed with his girlfriend. That the mother might have tolerated such an arrangement is an adverse reflection upon her parenting capacity, not that of the maternal grandparents. It is unsurprising the maternal grandfather reacted to the mother's teenage son's behaviour when he insulted the maternal grandmother in a deeply profane way.[66]
11. The disagreement which later arose between the mother and her teenage son in October 2024 had nothing to do with the maternal grandparents. They had no control over the teenage son's decisions, especially when he was no longer a member of their household after February 2024. The children's lack of knowledge about their older half-sibling for several months after he left the mother's home in October 2024 cannot be critically attributed to the maternal grandparents if they knew little or nothing about him either, as they correctly assert. The mother's teenage son apparently did not want the grandparents to know where he was.[67] The maternal grandmother said he refused to accept their telephone calls. Once he did re-establish contact, the maternal grandparents welcomed his re-integration with the family.[68]
12. The assertion or assumption the children felt they could not talk freely about events which occur in the maternal grandparents' home is rejected for the reasons already discussed under the rubric of s 60CC(2)(b) of the Act.
13. The children should remain living with the maternal grandparents. The considerations which militate in favour of that outcome are, in summary:

(a) the children have lived with the maternal grandparents since February 2022 and no sufficient reason was offered by the father to change that satisfactory arrangement;

(b) the father was content to leave the children in the maternal grandparents' residential care when he voluntarily moved back to New Zealand in November 2022, implying his satisfaction with the maternal grandparents' capacity to care for the children;

(c) the children have uniformly and independently expressed their wish to remain living with the maternal grandparents, which wishes are not shown to be disingenuous;

(d) it is uncontroversial the maternal grandparents are satisfactorily meeting the children's physical and intellectual needs;

(e) the controversy over the maternal grandparents' capacity to meet the children's emotional needs, which capacity the father challenged by reason of their alleged failure to support the children's relationships with him, is not vindicated by the evidence - the maternal grandparents do have that capacity;

(f) moving the children to live with the father in New Zealand would dislocate their settlement with the maternal grandparents, academic and extra-curricular pursuits, and peer social groups, unnecessarily causing them significant emotional upheaval;

(g) the children's loving relationships with the father can be satisfactorily maintained by orders which provide for them to spend time with him in school holiday periods, as the implementation of the interim parenting orders has ably demonstrated;

(h) although the maternal grandfather is aging, the maternal grandmother, to whom the children are more closely bonded, is younger and healthy and can probably capably acquit the task of continuing to care for the children; and

(i) while the father might be able to offer the children cramped physical accommodation in his current home with Ms C and their child, he conceded the home was inadequate in the longer term and would need renovation to accommodate them all, meaning the children might be displaced again if the father decided moving to a larger home was preferable to renovating the existing home while they still occupy it.

1. The reasons advanced by the father in evidence for why the children should live with him were essentially these: he does not believe the children will be "properly supported" by the maternal grandparents because of their age and ailments;[69] and he has no confidence the maternal grandparents will continue to support the children's relationships with him.[70] However, the father's bare beliefs are not probative and his concerns are not objectively borne out by the evidence.
2. While the father expressed some dissatisfaction with the implementation of his electronic communication with the children,[71] his counsel confirmed that was not a factual issue which influenced the decision about with whom the children should live.
3. The parties agreed the conferral of parental responsibility for the children would follow the residence order. Since the children will live with the second respondents, they shall have parental responsibility.
4. The orders should provide for the children to spend unsupervised time with the father in three of the four annual school holiday periods, as the maternal grandparents proposed,[72] which was the father's reciprocal proposal for the children to spend time with the maternal grandparents if they live with him.[73] The parties agreed the children would not be exchanged during the mid-year school holidays. The children will spend virtually the whole of the Spring and Autumn school holidays with the father and will evenly divide the Summer school holidays between the father and the maternal grandparents. The parties agreed the finer details were arbitrary.
5. The orders make provision for the children to be exchanged close to their home in NSW for the purpose of them spending the Spring and Autumn holidays with the father, as the maternal grandparents proposed. However, the orders required the children to be exchanged at the Sydney airport terminal in the Summer holidays as it is likely the father will want to take them to New Zealand and that will make the process easier for him, but not unduly burdensome for the maternal grandparents. The father will bear the cost of airfares for himself and the children, which is not unreasonable when he does not pay child support for the children.
6. The orders make reciprocal provision for the children to communicate weekly with the father when they are living with the maternal grandparents and weekly with the maternal grandparents (and the mother if she wishes to simultaneously participate) when they are spending time with the father.
7. When the children are not otherwise spending time with the father, the orders provide for the children to spend time with the mother, though supervised by at least one of the maternal grandparents. The timing of the visits is similar to the current regime,[74] but not identical with the mother's proposal.[75] If for some reason neither maternal grandparent is available for an occasional visit, the children and the mother will have to miss it. No orders are made for alternate professional supervision, as the mother proposed.[76]
8. The mother's idea for the dispensation of supervision upon her providing sobriety test results is rejected.[77] The evidence of her insobriety and unstable mental health is too serious and too recent to implement such a strategy. It is well known that long-term supervision is undesirable, but that is in the context of the supervision being professionally provided. However, the maternal grandparents will provide the supervision in this instance, so the mother's supervision will occur in a family setting. Aligned family members are usually unsuited as supervisors (Marriage of B & B [1993] FamCA 143; (1993) FLC 92-357 at 79,780-79,781), but the maternal grandparents are dependable. They have tried to sensitively manage the safety and interests of both the children and the mother, which has not been easy.[78] The father is satisfied with them as supervisors.[79]
9. If and when the mother is satisfied of her durable sobriety and stable mental health, she may move the Court for varied orders, suspending supervision and potentially expanding the time the children spend with her (s 65D(2) and s 65DAAA of the Act). That onus rests with her.
10. The maternal grandparents are ordered to procure and keep current Australian passports for the children, which they must make available to the father and the children if they are due to spend time with him in New Zealand.
11. Australian orders may be registered and enforced in New Zealand (s 81 and s 82 of the Care of Children Act 2004 (NZ)). The orders direct the registrar to certify the enforceability of these orders in Australia, which will facilitate registration of the orders in New Zealand.
12. New Zealand is not a signatory to the 1996 Hague Convention on Parental Responsibility and Protection of Children, but is a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. As an added measure to protect against the children being wrongfully retained in New Zealand, the notations to the orders will state facts relevant to any future proceedings which may become necessary under the 1980 Convention.
13. None of the other orders could be the subject of reasonable objection.

I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

[1] Father's affidavit at [207]-[211]; Mother's affidavit at [52.3]; First family report at [28]-[29], [57]

[3] Father's affidavit at [228]-[230], [233]-[237] and [240]; Mother's affidavit at [55]-[56]

[4] First family report at [30]; Second family report at [31]; Father's affidavit at [11] and [241]-[242]

[5] First family report at [25], [42], [44], [45], [64], [112], [118]

[6] Second family report at [4]; Father's affidavit at [13]; Mother's affidavit at [13], [44], [45], [107]; Maternal grandmother's affidavit at [36]

[7] Father's affidavit at [329]-[333], [337] and [345]; Mother's affidavit at [60]-[64]

[16] First family report at [27]; Exhibit M9

[17] Maternal grandmother's affidavit at [32]; First family report at [87]

[18] First family report at [48]-[55], [106]; Mother's affidavit at [46]-[54]

[19] First family report at [56], [105], [106]; Father's affidavit at [175]-[182]; Exhibit M4

[20] First family report at [27], [51], [56], [60], [109]

[23] First family report at [57]-[59], [105]; Father's affidavit at [96]-[110], [126]-[166]

[25] Father's affidavit at [196]-[206]

[26] Father's affidavit at [175]-[196]; Exhibits M4, M5

[27] Father's affidavit at [186]-[188]

[31] Second family report at [52], [54]; Mother's affidavit at [108]

[32] Maternal grandfather's affidavit at [53]

[36] Mother's affidavit at [109]; Maternal grandfather's affidavit at [78]

[37] Second family report at [58]; Maternal grandfather's affidavit at [44]

[38] First family report at [10], [13], [86]

[46] First Family Report at [24], [115]

[48] Exhibits ICL2, M7, M8, M9, F6, F7, F8, F13, F14, F15, F16, F17, F18, F19, F20

[49] First family report at [94], [97], [115]; Second family report at [65], [84]

[51] First family report at [112]; Second family report at [29], [82]

[53] Second family report at [84], [95], [102], [107]

[54] First family report at [82]; Father's affidavit at [366]

[56] First family report at [38]; Second family report at [46]

[57] Second family report at [46], [100], [104]

[58] Maternal grandmother's affidavit at [50]

[59] First family report at [66]-[72]; Second family report at [69]-[72]; Mother's affidavit at [72]-[77]

[60] First family report at [76]-[77]; Second family report at [75]-[78]; Mother's affidavit at [80]-[81]; Exhibit M13 at [7]-[10]

[62] First family report at [64], [69], [112]; Second family report at [41], [44], [53], [57]

[63] First family report at [45], [89]; Second family report at [22], [51]

[64] First family report at [117]-[122]

[65] Second family report at [95], [102]-[107], [111]-[115]

[66] Maternal grandfather's affidavit at [53]

[69] Father's affidavit at [367], [375]

[71] Father's affidavit at [349]-[354]

[73] Amended Response filed on 5/2/24 at Order 3

[79] Amended Application filed on 5/2/24 at Order 4