Dean & Dean

Case [2022] FedCFamC1F 763

Federal Circuit and Family Court of Australia

(DIVISION 1)

Dean & Dean [2022] FedCFamC1F 763

File number(s): MLC 7370 of 2020
Judgment of: HARTNETT J
Date of judgment: 7 October 2022
Catchwords: FAMILY LAW – CHILDREN – Best interests – Relocation – Where the mother sought orders to relocate with the child to Country B – Where the father sought orders restraining the mother’s relocation with the child to Country B – Where the child’s primary attachment is to the mother – Where the child is aged three years – Where the child spent no time and then supervised time with the father on two occasions a week until July 2022 – Where the child spends time with the father two days a week with the substantial attendance of the paternal uncle, aunt or grandmother – Where the child communicates with the father via FaceTime – Where the mother has resided in Australia for approximately twelve years – Where there are findings of family violence committed by the father – Where the presumption of equal shared parental responsibility is rebutted – Where the mother shall have sole parental responsibility of the child – Where the mother and child are permitted to relocate to Country B in late 2023 – Where the orders are to be registered in a court of competent jurisdiction prior to such relocation in Country B – Where the mother will pay for the child to travel to Australia to facilitate time with the father – Where the father can travel to Country B – Where the child shall communicate with the father via FaceTime or other electronic communication weekly.
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4(1), 4AB, 60B, 60CA, 60CC, 61DA, 65AA, 65D, 65DAC

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children arts 24, 26

Cases cited:

Adamson & Adamson (2014) FLC 93-622

AMS v AIF (1995) 199 CLR 160

Bell & Nahos [2016] FamCAFC 244

Blinko & Blinko [2015] FamCAFC 146

Bolitho v Cohen (2005) FLC 93-224

Hepburn & Noble (2010) FLC 93-438

M & M (1988) 166 CLR 69

Malcolm v Monroe (2011) FLC 93-460

McCall v Clark (2009) FLC 93-405

Mulvany & Lane (2009) FLC 93-404

R & C [1993] FamCA 62

U v U (2002) 211 CLR 238

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Zahawi & Rayne [2016] FamCAFC 90
Division: Division 1 First Instance
Number of paragraphs: 162
Date of hearing: 14 – 15 July 2022; 18 – 19 July 2022; 26 August 2022
Place: Melbourne
Counsel for the Applicant: Mr Lethlean
Solicitor for the Applicant: Nevett Ford
Counsel for the Respondent: Ms Stavrakakis
Solicitor for the Respondent: VM Family Lawyers
Counsel for the Independent Children's Lawyer: Mr O’Connell
Solicitor for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS

MLC 7370 of 2020

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

MR DEAN

Applicant
AND:

MS…

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AGLC
Dean & Dean [2022] FedCFamC1F 763
Case
[2022] FedCFamC1F 763
Decision Date

CaseChat Overview and Summary

This case involved a dispute between the parents of a child regarding the child's living arrangements and contact with the father. The mother sought to relocate to Country B with the child, while the father opposed this move. The father also sought an increase in his contact with the child. The case was heard in the Family Court of Australia. The court was required to determine whether it was in the best interests of the child to relocate to Country B and, if so, what contact arrangements should be made between the child and the father. In addition, the court had to consider the father's ability to promote and facilitate a positive relationship between the child and the other parent.

The court considered the evidence of the single expert, who observed that the child had a very close, secure bond with the mother and a developing relationship with the father. The court accepted the evidence that the father's parenting skills had improved and that he was devoted to his son. However, the court also had to consider the family violence perpetrated by the father against the mother, which had affected her ability to promote the relationship between the father and the child. The court found that the child's primary attachment was to the mother, who had been the child's primary carer since birth. The court also found that the father's behaviour, including his delay in commencing FaceTime calls with the child and his reluctance to use FaceTime, had contributed to the unsuccess of the calls. However, the court was satisfied that as the child grew and developed, FaceTime would become more productive and enhance the relationship between the child and the father.

The court ultimately found that it was in the best interests of the child to relocate to Country B with the mother. The court also made orders for the father to have regular and meaningful contact with the child, including FaceTime calls twice per week upon the child turning two years of age. The court further ordered that the father's contact with the child should progress to two periods of two hours per week, with the possibility of further increase if the child's age and development warranted it. The court also made orders for the maternal grandmother to assist in facilitating the child's time with the father if the mother and child were to relocate to Country B.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The maternal grandmother was supportive of the child maintaining a relationship with the father and at trial gave evidence that she would assist in facilitating the child’s time with the father if the mother and child were to relocate to Country B. She would be willing to provide support to the father during any stay by him in Country B. The maternal grandmother was an impressive witness with a warmth and practicality about her. She and the mother have clearly a close and abiding affection for each other and the child. The child has a good relationship with her.Section 60CC(3)(c) the parents opportunity to participate in decision making, spend time and communicate with the child The mother has been responsible for all decisions affecting the long-term welfare and development of the child since separation. The father has expressed a desire to be further involved in the decision making process in relation to the child.[103] [103] ICL’s Case Outline filed 4 May 2022, p.5. Following the parties separation, the child spent no time with the father from 13 June 2020 until the interim orders were made on 16 December 2020, approximately 6 months. At the recommencement of the child’s time with the father, the father was shocked by the child’s development, and the child appeared stunned and confused. According to the single expert, these reactions may have been an indication of the damaged bond between child and father. The interim orders of December 2020 provided for the father to communicate with the child twice per week via FaceTime upon the child turning two years of age. The orders also provided for a progression of professionally supervised time commencing with a one-hour period for 12 consecutive weeks, then two periods of one hour a week for 12 consecutive weeks followed by two periods of two hours per week. Upon commencing the two periods of one hour a week, the father immediately requested that the two periods be combined to a single two-hour period each week. The mother agreed. Upon the child turning two, the father delayed the commencement of the FaceTime calls with the child for approximately a month and at trial had not initiated a FaceTime call with the child since 21 December 2021.[104] It was the father’s evidence as stated to the single expert that he does not like FaceTime as he is a “hands on parent”.[105] It is undisputed by the parties that the child’s FaceTime calls with the father facilitated by the mother were problematic and unsuccessful.[106] However, it seems that the child’s age, being only two years of age at the time they commenced, in addition to the father’s behaviour, was why the FaceTime calls were unsuccessful. I am satisfied that as the child grows and is able to talk with the father more, and accepting that the father will be responsibly constrained, that FaceTime will be more productive and enhance the relationship between the child and the father.[104] Mother’s Case Outline filed 3 May 2022, p.5.[105] Family Report dated 22 April 2022, paragraph 96.[106] ICL’s Case Outline filed 4 May 2022, p.5.

Ratio Decidendi

Legal Principle Established

Statements of fact in these reasons are findings of fact on the balance of probabilities.[13] It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. However every piece of evidence relied upon by the parties has been read and carefully considered by me.[14] Best Interests - Primary considerations[13] Evidence Act 1995 (Cth) s 140[14] Bell & Nahos [2016] FamCAFC 244 at [28]; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62].Section 60CC(2)(a) The child’s primary attachment is to his mother who has been the child’s primary carer since birth. It was the single expert’s evidence that the child has a “very close, secure bond” with the mother, being a closer attachment to the mother, than the father.[15] This was not contested by the father, who, by the orders he sought, accepted that the child would remain in the primary care of the mother. [15] Family Report dated 22 April 2022. The father, however, viewed the mother as trying to exclude him from the child’s life. His evidence was that the mother did not have the child’s best interests at heart.[16] This was in the context of the desired relocation. The father, otherwise, did not doubt the mother’s ability to care for the child and acknowledged the mother was a good teacher.[17] [16] Transcript 14 July 2022, p.10 lines 1 – 5. [17] Transcript 14 July 2022, p.10 line 6. The child has a developing relationship with the father. The single expert observed that the father had formed a close bond with the child in the year preceding the trial, despite the limited time the child and father spent together. An increase in time, on the evidence of the single expert, would strengthen this bond and provide the father with a greater parenting role, rather than him being a visitor in the child’s life. It was further the evidence of the single expert that the father is devoted to his son, and his parenting skills have improved exponentially as he seeks to be the best role model and parent he can for his child. That evidence is accepted by the Court. The single expert was further of the opinion that the father was more likely to promote, facilitate, and support a positive and meaningful relationship between the child and other parent. In my view, whilst this in isolation could be correct, the context of the family violence perpetrated by the father upon the mother, which has affected her promotion of the relationship between the father and child until such time as the child’s safety has been assured, cannot be ignored. The father’s evidence, that the mother has “ongoing difficulties in promoting the relationship between the father and [the child]”, suffers from the same difficulty.[18][18] Father’s Case Outline filed 3 May 2022, p.3. Clinical psychologist, Ms S (“Ms S”) provided psychological therapy to the mother in accordance with the initial recommendations of the single expert in relation to the mother’s parenting capacity and level of psychological distress. Ms S’s evidence was that the mother had shown a “great deal of appreciation” of the child’s developing positive relationship with the father, and the father’s effort to facilitate that relationship.[19] It was her evidence, however, that for the mother to further progress she now needed “to gain some actual information, for her own assessment and judgment, about the father’s capacity.”[20][19] Transcript 19 July 2022, p.371 line 36 to p.372 line 10. [20] Transcript 19 July 2022, p.372 lines 2 – 5.