Blazek and Gabarros

[2018] FCCA 3930

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLAZEK & GABARROS [2018] FCCA 3930

Catchwords:
FAMILY LAW – Relocation – sole parental responsibility given to the mother – father terminally ill.

Applicant: MR BLAZEK

Respondent: MS GABARROS

File Number: MLC 10816 of 2017

Judgment of: Judge Harland

Hearing date: 14 December 2018

Date of Last Submission: 14 December 2018

Delivered at: Melbourne

Delivered on: 14 December 2018

REPRESENTATION

The Applicant: No appearance

Solicitors for the Respondent: Ms Thiru of Victoria Legal Aid

ORDERS

1. The mother have sole parental responsibility for the child [X] born …2015 (“the child”).

2. The child live with the mother.

3. The child spend time and communicate with the father as agreed between the parties in writing.

IT IS NOTED that publication of this judgment under the pseudonym Blazek & Gabarros is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10816 of 2017

MR BLAZEK

Applicant

And

MS GABARROS

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting application.  The father discontinued his application on 12 November 2018. The respondent mother seeks orders in accordance with her amended response. The father had initially sought orders requiring the mother and child to return to Victoria from South Australia and sought orders to spend time with [X] on alternate weekends and during holidays. The mother and [X] moved to South Australia in early 2017. Her evidence is that she informed the father and he did not object to that move until he filed initiating proceedings several months later, and he filed those proceedings on 19 October 2017. 

3. The father has not spent time with [X], except for one occasion, since 2016. The proceedings have been adjourned on a couple of occasions by consent and at the father’s request, as the father had been diagnosed with a brain tumour, and he has now advised that that condition is terminal. In those circumstances, the mother is seeking orders for sole parental responsibility for [X], for [X] to live with her and to spend time with the father as agreed in writing.  She says the last time that the father saw [X] was at a play centre for an hour on 6 April 2018, which was supervised by her brother. 

4. She says she has made invitations for the father to spend time with [X], but he was unwilling to travel to South Australia, and she says she could not afford to travel to Victoria. She says initially she was seeking equal shared parental responsibility but now seeks sole parental responsibility because she is not sure how they would be able to communicate and that the father has not shown much interest in participating in decision-making with [X], which she attributes probably to his health. 

5. She says that [X] has some developmental delays, which are being investigated, and that she will need to make several decisions for him and that in August 2018 he needed to have surgery to remove his adenoids as well as sinus irrigation and grommets being inserted into his ears. In her previous affidavit, she described her living arrangements as being well settled in South Australia, where she has family, and she is now working. She says that the living expenses are much cheaper there than they were in Victoria. 

6. I am satisfied that the orders the mother proposes are in [X]’s best interests.  She is [X]’s primary carer.  The father has had little involvement with [X], and, due to the father’s illness, it may well be that he will not be in a position to resume a relationship with [X].  The mother needs to be able to make decisions for [X]’s wellbeing, and I am satisfied that it is in [X]’s best interests that she have sole parental decision-making responsibility. 

7. I am also satisfied that [X] should live with the mother and that there be orders for [X] to spend time and communicate with his father as agreed between the parties in writing.  In the mother’s evidence, she has stated that she has encouraged the father to have a relationship with [X] in the past and would still be willing to do so.  There is nothing before me to suggest that the mother is not well and truly able to provide for [X]’s emotional, intellectual and physical needs. 

8. The mother also refers to connection to her culture in South Australia and being able to learn her family’s traditional language, which [X] will also benefit from that exposure to his cultural heritage. I am satisfied that the orders proposed are in [X]’s best interests, and I will make those orders and otherwise finalise the proceedings.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 16 January 2019