FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Carrieri & Steenkamp [2023] FedCFamC1F 609
File number(s): MLC 13556 of 2020 Judgment of: STRUM J Date of judgment: 25 July 2023 Catchwords: FAMILY LAW – PARENTING – RELOCATION – Where the mother seeks to relocate the child’s residence from metropolitan Melbourne to regional Victoria – Where the child is nearly four years of age – Where the mother is originally from regional Victoria and her family and support networks are located there – Where the father and the paternal family reside in metropolitan Melbourne – Where the father seeks for the child and the mother to remain living in metropolitan Melbourne and a progression for the child to spend equal time with each parent – Where the mother seeks sole parental responsibility over matters relating to health and education – Where the father seeks equal shared parental responsibility – Where the father and paternal family have engaged in behaviour that belittles the mother and maternal family – Where the father unashamedly and without any justification views himself and his family as superior to the mother and her family – Adverse inferences drawn from father’s failure to adduce evidence from his family members – Where the parents are unable to co-parent effectively – Relocation allowed – Sole parental responsibility for matters of health and education granted to the mother. Legislation: Evidence Act 1995 (Cth) ss 55, 140
Family Law Act 1975 (Cth) ss 4(1), 4AB, 60B, 60CA, 60CC, 61C, 61DA, 64B, 65DAA, 65DAC, 69ZT, 121
Family Law Regulations 1984 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15(3)(e)
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Anderson & Salinos [2022] FedCFamC1F 976
Asher & Wilkinson (2020) FLC 93-945; [2020] FamCAFC 44
Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27
Chappell & Chappell (2008) FLC 93-382; [2008] FamCAFC 143
Doherty & Doherty [2016] FamCAFC 182
Eddington & Eddington (No 2) (2007) FLC 93-349; [2007] FamCA 1299
Franklyn & Franklyn [2019] FamCAFC 256
Goode v Goode (2006) FLC 93-286; [2006] FamCA 1346
Hall & Hall (1979) FLC 90-713; [1979] FamCA 73
Height & Rhett [2010] FMCAfam 1268
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
KB & TC (2005) FLC 93-224; [2005] FamCA 458
Kennedy v Kennedy [2010] FamCAFC 195
Love v Henderson (1996) FLC 92-653
Mallory & Mallory [2019] FamCAFC 221
Masoud & Masoud (2016) FLC 93-689; [2016] FamCAFC 24
Mazorski & Albright [2007] FamCA 520
McGregor & McGregor (2012) FLC 93-507; [2012] FamCAFC 69
Mulrooney & Cooper [2023] FedCFamC1F 273
Newlands v Newlands [2007] FamCA 168
Pavli & Beffa [2013] FamCA 144
Sampson & Hartnett (No 10) (2007) FLC 93-350; [2007] FamCA 1365
Sayer & Radcliffe and Anor [2012] FamCAFC 209
Sherif & Sherif [2012] FamCA 215
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- AGLC
- Carrieri & Steenkamp [2023] FedCFamC1F 609
- Case
- [2023] FedCFamC1F 609
- Decision Date
CaseChat Overview and Summary
The case involves the parents of a child, the father and the mother, who were married and subsequently divorced. The primary legal issue before the court was to determine the arrangements for the shared parental responsibility of the child, the living arrangements of the child, and the visitation schedule for the father. The court was required to consider the evidence presented by both parties and decide on the best interests of the child. The court also needed to address the mother's desire to relocate with the child to or in the vicinity of City B and the father's objection to this relocation. The court's reasoning involved a comprehensive evaluation of the evidence, the affidavits of the parties, and the family reports. The court found that the parties should have equal shared parental responsibility for the child, except for health and education matters, where the mother would have sole responsibility. The court ordered that the child live with the mother and permitted her to relocate to City B or its vicinity. The court also set a visitation schedule for the father, including specific weekends in City B or Melbourne, at his election, and the third weekend in Melbourne. This decision was based on the balance of probabilities and the best interests of the child, taking into account the evidence presented and the circumstances of the case.
The court's decision was influenced by several factors, including the child's need for stability, the mother's extended family support in City B, and the father's willingness to travel to facilitate visitation. The court considered the father's history of leaving the former matrimonial home and the mother's subsequent relocation to City B. The court also took into account the father's compliance with the requirements of the interim orders and his efforts to maintain a relationship with the child. The court's decision reflects a careful consideration of the parties' positions and the evidence presented, with a focus on the welfare of the child. The final orders include provisions for equal shared parental responsibility, the mother's relocation to City B, and a visitation schedule for the father that allows for regular contact with the child. These orders are designed to promote the child's best interests and ensure a stable and supportive environment for the child's development.
The court's decision was influenced by several factors, including the child's need for stability, the mother's extended family support in City B, and the father's willingness to travel to facilitate visitation. The court considered the father's history of leaving the former matrimonial home and the mother's subsequent relocation to City B. The court also took into account the father's compliance with the requirements of the interim orders and his efforts to maintain a relationship with the child. The court's decision reflects a careful consideration of the parties' positions and the evidence presented, with a focus on the welfare of the child. The final orders include provisions for equal shared parental responsibility, the mother's relocation to City B, and a visitation schedule for the father that allows for regular contact with the child. These orders are designed to promote the child's best interests and ensure a stable and supportive environment for the child's development.
Orders
Orders of the court
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Background
Background to the litigation
For the reasons that follow, I will order, in summary, that the parties have equal shared parental responsibility for the child, save in respect of his health and education, for which the mother will have sole parental responsibility; the child live with the mother and she be permitted to relocate with him to or in the vicinity of City B; and the father spend time with the child, including in the first and third weekend of each month, the first such weekend in City B or Melbourne, at his election, and the third such weekend in Melbourne.BACKGROUND A joint agreed chronology was tendered and, save where otherwise indicated, forms the basis of the relevant background to this matter hereunder. The father was born in 1984 and the mother was born in 1984. They commenced cohabitation in late 2016 and they were married in late 2018. The child was born the following year. On the child's first birthday, , the father left the former matrimonial home in Suburb J, at the request of the mother, and went to stay at his parents' home, nearby in Suburb C. The following day, the mother moved to City B with the child, where her extended family lives; namely, her mother, her step-father and her sister. The mother asserts that separation occurred on that date. The father asserts that he was not then aware that their separation was to be final. However, the precise date of separation is immaterial for present purposes. In late 2020, Victoria Police filed an application for an interim Intervention Order against the father, for the protection of the mother and the child. The following day, on what is agreed by the parties to have been a “full no contact Interim Intervention Order (with the usual exceptions)” [sic] was granted. Some weeks later, arrangements were implemented between the parties for the father to spend time with the child in City B. I am satisfied that, by that time, at the latest, the parties had separated. They were divorced in late 2022. Between late 2020 and early 2021, the father travelled to City B to spend time with the child over 10 weekends. However, as recited above, on 9 December 2020, he initiated these proceedings, seeking then only final and interim parenting orders. On the first return thereof, on 5 January 2021, a Senior Judicial Registrar made interim orders, inter alia, requiring the mother to return the child's residence to within a 20km radius of the former matrimonial home in Suburb J; providing for the child to spend time with the father, initially only during the daytime and increasing to overnight once per fortnight from his second birthday; providing for the parents to have equal shared parental responsibility; requiring the father to undertake a men's behaviour change course; and restraining the father from leaving the child in the unsupervised care of Ms H, one of his two sisters. For reasons which will become apparent, the husband's sister is relevant to these proceedings but, unusually, for reasons which were not explained by the father, he did not call her to give evidence.
Evidence
Evidence Before The Court
The trial before me proceeded over four days, on 8-10 and 21 February 2023.EVIDENCE In addition to his documents referred to above, the father also relevantly relied at the final hearing upon his trial affidavit filed 28 November 2022 and his reply affidavit filed 19 December 2022. Affidavits of his parents were also filed; however, as they related solely to financial issues, in the result, they were not required for cross-examination. I note that his parents were present in Court with him during the course of the hearing. As with his sister, Ms H, no evidence was adduced from them in relation to parenting issues. For reasons which will also become apparent, they too are relevant to these proceedings but, similarly unusually, and again for reasons which were not explained by the father, he did not call them either to give evidence. In addition to her documents listed above, the mother also relevantly relied at the final hearing upon her trial affidavit filed on 12 December 2022, her further updating affidavit sworn on 3 February 2023 and filed with leave of the Court on 8 February 2022 and affidavits of her mother, Ms N, and her sister, Ms M, both filed 12 December 2022. Evidence was also given by Mr L, in the form of his two family reports annexed to his affidavit filed 30 January 2023, in respect of which he was cross-examined on behalf of both parties. Pursuant to s 140 of the Evidence Act 1995 (Cth), the standard of proof in this case is the balance of probabilities, That section provides:(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:(a)the nature of the cause of action or defence; and (b)the nature of the subject?matter of the proceeding; and (c)the gravity of the matters alleged. The parties' affidavits exhaustively set out their accounts of history of their relationship and various parenting disputes. I have read and considered that affidavit evidence and do not propose to repeat it at length in these reasons. It is not necessary for a trial Judge to refer to every piece of evidence or argument presented during a trial. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case. In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 - 386, Mahoney JA said this:It is not the duty of the judge to decide every matter which is raised in argument.…Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard… Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…CREDIT & OTHER OBSERVATIONS
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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