QLD Custody of Children - Daughter to Live With Mother In New Zealand?

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Manuel David

15 September 2014
Hi everyone, I was hoping someone can point me to the right direction or give me some information if anyone has come across the same issue.

My daughter lives with me here in Australia and her mum recently moved back to NZ with her partner and 2 kids. My ex wants my daughter to stay with her partner's mum in Brisbane because they cannot afford for her to come back to NZ at the moment. My daughter doesn't want to go and stay with her partner's mum.

My question is, does she have to go were she doesn''t want to and can her mother make her? We don't have anything in writing as far custody of children goes it's all verbal and I would like to know if it's best to contact a family lawyer to get more information and to put things in writing.

Thanks in advance.


Dear Manuel,

Firstly, how old is your daughter?

If you and your ex cannot agree on how to care for your daughter, you should seek advice from a lawyer and get something in writing. Especially if your ex is insisting that she go to live with her partner's parents and your daughter does not want to.

When considering what custody / parenting orders to make, a court is required to have regard to the best interests of the child as the most important consideration. This should also be the primary concern of parents when making arrangements for their children.

There is some useful information on the family court website which demonstrates how a court will arrive at a decision as to a child's custody arrangements. I have extracted a few paragraphs below for your information. As you will see, depending on your child's age her preferences as to where she wants to live and with whom will be given appropriate weight by the court in coming to a decision.

I would seek advice and try to obtain orders that your daughter is comfortable with.


"Two tiers of consideration
In deciding what is in the best interest of a child, the Act requires a court to take into account two tiers of considerations – primary considerations and additional considerations:

Primary considerations:

  • the benefit to children of meaningful relationships with both parents
  • the need to protect children from physical or psychological harm (from being subjected or exposed to abuse, neglect or family violence).
Additional considerations:
  • the child’s views and factors that might affect those views, such as the child’s maturity and level of understanding
  • the child’s relationship with each parent and other people, including grandparents and other relatives
  • the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent
  • the likely effect on the child of changed circumstances, including separation from a parent or person with whom the child has been living, including a grandparent or other relatives
  • the practical difficulty and expense of a child spending time with and communicating with a parent
  • each parent’s ability (and that of any other person) to provide for the child’s needs
  • the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
  • the right of an Aboriginal and Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right
  • the attitude of each parent to the child and to the responsibilities of parenthood
  • any family violence involving the child or a member of the child’s family
  • any family violence order that applies to the child or a member of the child’s family, if:
    – the order is a final order, or
    – the making of the order was contested by a person
  • whether it would be preferable to make the order that would be least likely to lead to further court applications and hearings in relation to the child, and
  • any other fact or circumstance that the court thinks is relevant.
A court must consider the extent to which each parent has or has not previously met their parental responsibilities, in particular:
  • taken the opportunity to:
    – participate in decision-making about major long-term issues about the child
    – spend time with the child
  • communicate with the child, and has:
    – met their obligations to maintain the child, and
    – facilitated (or not) the other parent’s involvement in these aspects of the child’s life.
If the child’s parents have separated, a court must consider events and circumstances since the separation."


Well-Known Member
23 July 2014
Just some clarifying questions...

First, when you say that your ex wants the child to stay with her partner's mother, do you mean on a permanent basis? As in, the child live with her partner's mother (aka, the child's step-grandparent)? Or do you mean that if the mother comes back to Australia, that where she would go to spend time with the child?

Second, how old is the child?

It seems a touch unreasonable for the mother to expect you to send your daughter away to live with her partner's mother when she is quite happy to live with you. I'd even go so far as to say that a court would be highly unlikely to rule that a child should live with a member of her extended step-family over her own dad.