Anderson & Salinos

Case [2022] FedCFamC1F 976

Federal Circuit and Family Court of Australia

(DIVISION 1)

Anderson & Salinos [2022] FedCFamC1F 976

File number(s): MLC 1292 of 2020
Judgment of: WILLIAMS J
Date of judgment: 13 December 2022
Catchwords:

FAMILY LAW – PARENTING – RELOCATION – Where the mother seeks to relocate the child’s residence to New Zealand, or City B in the alternative – Where the child is seven years of age and has resided in country Victoria with the parents and paternal family since birth – Where the mother has lived in country Victoria for 13 years – Where the maternal family live in New Zealand –
Where relocation would deprive the child of regular and consistent time with the father – Where the father is unable to meet the costs of regular overseas travel – Where the mother’s proposal prioritises her needs over the child’s – Where the considerations for relocation are finely balanced – Where relocation of the child is not permitted – Child to live with mother and spend five nights a fortnight and half holidays with the father from 2023 –

Medical procedures – Covid-19 vaccinations – Whether the child should be vaccinated – Where there was a lack of evidence presented by the parties at trial – Order made for the parties to have liberty to file a further application and supporting affidavit limited to whether the child should be vaccinated against Covid-19.  
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 60I, 61DA, 65DAA, 67ZC

Cases cited:

A v A: Relocation Approach (2000) FLC 93-035

AMS v AIF (1999) 199 CLR 160

Banks & Banks [2015] FamCAFC 36

Cranston & Persson (No 2) [2022] FedCFamC1F 187

Mazorski v Albright [2007] FamCA 520

McCall & Clark (2009) FLC 93-405

Morgan & Miles [2007] FamCA 1230

Sigley & Evor [2011] FamCAFC 22

Taylor & Barker [2007] FamCA 1246

U v U [2002] HCA 36

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 1 First Instance
Number of paragraphs: 188
Date of hearing: 24–25 October 2022
Place: Melbourne
Counsel for the Applicant: Mr Allen
Solicitor for the Applicant: Van Beveren & Associates
Counsel for the Respondent: Mr Hall
Solicitor for the Respondent: Heinz & Partners

ORDERS

MLC 1292 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS ANDERSON

Applicant
AND:

MR SALINOS

Respondent

order made by:

WILLIAMS J

DATE OF ORDER:

13 DECEMBER 2022

THE COURT ORDERS THAT:

1.All previous parenting orders regarding the child X born 2015 (“the child”) be discharged AND FURTHER the child’s name be removed from the Airport Watch List maintained by the Australian Federal Police.

2.The parties sign all documentation and do all things necessary to alter the registration of the name of the child to X SALINOS-ANDERSON with the Victorian Registry of Births’ Deaths and Marriages AND FURTHER any costs incurred be shared equally between the parties.

3.The parents have equal shared parental responsibility for the child…

Continue reading Anderson & Salinos

Sign in free to access the full text

Details
AGLC
Anderson & Salinos [2022] FedCFamC1F 976
Case
[2022] FedCFamC1F 976
Decision Date

CaseChat Overview and Summary

The matter under consideration in Anderson & Salinos involved a dispute between the parents of a child regarding relocation and parenting arrangements. The mother sought to relocate to either New Zealand or another city, while the father opposed the relocation and proposed specific parenting arrangements. The Family Court was tasked with determining whether the relocation would be in the child's best interests and to establish suitable parenting arrangements. The court had to balance the benefits of the child maintaining a meaningful relationship with both parents against the potential harm that could arise from the relocation and the impact on the child's relationship with the father.

The primary legal issues addressed by the court included the consideration of the child's right to maintain a meaningful relationship with both parents as outlined in s 60CC(2)(a) of the Family Law Act, and the need to protect the child from any potential harm or abuse. The court had to assess the evidence and arguments presented by both parents concerning the impact of relocation on the child's relationship with the father and whether such a relationship could be preserved despite the physical distance. Additionally, the court needed to ensure that the proposed parenting arrangements were in the best interests of the child, taking into account the child's age, the nature of the child's relationship with each parent, and any other relevant factors.

In reaching its decision, the court considered the evidence and submissions from both parents. It acknowledged the child's existing close and positive relationship with both parents and recognised the importance of maintaining this relationship. The court found that the child would benefit from a meaningful relationship with both parents and that relocation to New Zealand or City B would significantly impede this relationship. Consequently, the court prohibited the mother from relocating and established specific parenting arrangements that aimed to preserve the child's relationship with both parents. The court ordered that the child would live with the mother and spend term time with the father on a fortnightly basis, with arrangements adjusted from the start of term 1 2023. The child would also spend half of all school holidays with each parent. The court further allowed the possibility of future applications regarding the child's Covid-19 vaccination.

The final orders of the court included prohibiting the mother from relocating to New Zealand or City B, directing that the child live with the mother, and establishing the fortnightly parenting arrangements with the father as outlined. The court also allowed for future applications concerning the child's Covid-19 vaccination. These orders were intended to ensure the child's best interests were met by maintaining a meaningful relationship with both parents while protecting the child from potential harm.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I have determined:(a)the mother is not permitted to relocate the child’s residence to either New Zealand or City B;(b)the child live with the mother;(c)the child spend term time with the father on a fortnightly basis, as follows:(i)in week one, from conclusion of school Thursday until commencement of school Friday;(ii)in week two, from conclusion of school Friday until commencement of school Monday;(iii)As from the commencement of term 1 2023, the child’s time with the father in week two commence at the conclusion of school Thursday;(d)the child spend half of all school holidays with each parent;(e)the parties are at liberty to file a further application and affidavits including relevant evidence, about the child’s Covid-19 vaccination. Background There was limited background information in the parties’ trial affidavits and Case Outlines. The mother is 41 years of age and is a health professional. She was born in New Zealand but has lived in Australia since mid-2009. Her family of origin, including the maternal grandmother, and two sisters live in New Zealand. The mother worked in a Melbourne hospital for two years prior to moving to City C in 2011, where she has continued to live. She was previously employed as a health professional at the City C Medical Centre, however her employment was terminated because of her refusal to be vaccinated against Covid-19. The father is aged 40 and has lived in Australia his whole life. He is currently employed in agriculture. The father currently lives some distance from the child’s home. His sister, brother-in-law and their four young children live in the same town as the father and spend frequent time with each other. The parents commenced a relationship in late 2011 and lived together in City C shortly thereafter. In late 2015, they purchased a property in City C, where the mother and child continue to live. During the relationship the mother was the child’s primary caregiver whilst the father continued in his employment. The father contended he was an active and involved parent prior to separation, which the mother denies. In late 2019, there was a physical altercation between the parents, which the father accepts the child heard and which the mother contends she witnessed. The father left the family home a few days later and was charged by the police. He pleaded guilty to assaulting the mother. Following the altercation the mother was referred to a family violence service and obtained an intervention order against the father, which has now expired. The mother travelled to New Zealand with the child in late 2019 and returned to Australia in early 2020. The father was initially unaware the child had travelled to New Zealand. The father issued an application in the City E Magistrate’s Court seeking time with the child, and on 15 January 2020 orders were made for the child to spend time with the father supervised by the paternal aunt. Thereafter, time progressed to the existing arrangements, whereby the child lives with her mother and continues to spend significant time with her father.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

I will now address the primary considerations. Primary Considerations The benefit to the child of having a meaningful relationship with both of the child’s parents There was no dispute the child would benefit from a meaningful relationship with both parents. The primary issue for determination was whether the mother should be permitted to relocate to New Zealand, or alternatively City B and whether relocation would permit the child to maintain a prospective meaningful relationship with her father. In Sigley & Evor [2011] FamCAFC 22, the (then) Full Court of the Family Court referred to the following propositions concerning s 60CC(2)(a):(a)a meaningful relationship is one “which is important, significant and valuable to the child” (Mazorski v Albright [2007] FamCA 520, Brown J at [26]);(b)the enquiry is “prospective” which requires a court to consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (McCall & Clark (2009) FLC 93-405 at [118]). During the trial, counsel for the mother sought to cast the nature of the child’s relationship with her father as developed and counsel for the father sought to cast the relationship as still developing and evolving. Neither categorisation was particularly pertinent as both parties agreed the child enjoys a close and positive relationship with her father. There was no question that the child also had an excellent relationship with her mother. The father’s case was the child’s relationship with him would inevitably face substantial challenges, decline and become more distant if his future time with the child were to be in accordance with the mother’s proposal for relocation. The mother, on the other hand, submitted the child’s relationship was sufficiently established to endure a change in the configuration and frequency of her time with the father.The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse Neither party contended the child was at risk of harm in the other parent’s care on a day-to-day basis. The mother had no welfare concerns for the child in her father’s care other than the effect on the child of witnessing the father’s assault on the mother in late 2019. The mother’s proposals for extended time between the father and the child during holidays, if she were permitted to relocate, and her proposals in the event of no relocation, demonstrate her confidence in the father’s care of the child. The father’s proposal for the child remain living with her mother is similarly demonstrative of his confidence in the mother’s capacity to care for their daughter on a day-to-day basis. The assault on the mother occurred in late 2019 following a deterioration in the parental relationship. Each parent had different views about whether the child had witnessed the assault or was in an adjoining room and heard as opposed to saw the assault.