FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fujiwara & Suzukaze (No 2) [2022] FedCFamC1F 357
File number(s): BRC6591 of 2021 Judgment of: CAREW J Date of judgment: 23 May 2022 Catchwords: FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – BEST INTERESTS OF CHILD – Where the parents were born and lived in Country B – Where the father moved to Australia in 2004 and is self-employed – Where the mother moved to Australia in 2019 to be with the father and a child was born – Where the mother does not speak English and has no support or family in Australia – Where mother wishes to return to Country B with the child – Where the father has previously withheld the child from the mother – Where the father’s alcohol consumption poses a risk to the child – Paramount consideration – Where a parent’s legitimate interests must yield to the child’s best interests –Where the mother is at liberty to relocate to Country B. Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Convention on the Civil Aspects of International Child Abduction
Cases cited: Allesch v Maunz (2000) 203 CLR 172
Babcock & Waddell [2019] FamCAFC 129
Baghti & Baghtiand Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bant & Clayton (2019) FLC 93-924
Briginshaw v Briginshaw (1938) 60 CLR 336
Johnson & Page (2007) FLC 93-344
N and S and the Separate Representative (1996) FLC 92-655
Zahawi & Rayne [2016] FamCAFC 90
Number of paragraphs: 99 Date of hearing: 30, 31 March, 1, 4 April 2022 Place: Brisbane Counsel for the Applicant Ms Davison Solicitor for the Applicant: Jurgensen Horne Lawyers Counsel for the Respondent on 30, 31 March and 1 April: Mr Cahill Solicitor for the Respondent on 30, 31 March and 1 April: A P Hodgson & Associates The Respondent on 4 April: Self-represented Counsel for the Independent Children’s Lawyer: Mrs Horsley Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDER
BRC 6591 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FUJIWARA (AKA MS TANAKA)
Applicant
AND: MR SUZUKAZE
Respondent
ORDER MADE BY:
CAREW J
DATE OF ORDER:
23 MAY 2022
THE COURT ORDERS THAT:
1.All previous parenting Orders are discharged.
2.The child X Suzukaze (also known as X Fujiwara or X Tanaka) born in 2020 (“the child") shall live with Ms Fujiwara (also known as Ms Tanaka) (“the mother”).
3.The mother shall have sole parental responsibility for major long-term issues (as that term is defined by s 4 of the Family Law Act 1975 (Cth)) affecting the child.
4.Except in the event of an emergency involving the child, the mother shall consult Mr Suzukaze (“the father”) about decisions to be made in the exercise of her sole parental responsibility, as follows:
(a)The mother shall inform the father of the issue about which a decision needs to be made, the…
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- Fujiwara & Suzukaze (No 2) [2022] FedCFamC1F 357
- Case
- [2022] FedCFamC1F 357
- Decision Date
CaseChat Overview and Summary
In the Family Court of Australia, Fujiwara & Suzukaze (No 2) involved a dispute between the mother and father regarding the primary care and parental responsibilities of their child. The mother sought to relocate to Country B with the child, while the father opposed this move, citing the need for the child to maintain a relationship with him. The mother alleged that the father had belittled and verbally abused her both before and after the child's birth and had failed to provide adequate financial support. The father, on the other hand, argued that the mother's claims were unfounded and that the child's best interests would be served by maintaining a relationship with both parents.
The court had to determine whether the mother's allegations of family violence were substantiated, and if so, whether this would impact the presumption of equal shared parental responsibility. Additionally, the court needed to decide whether the parents could effectively communicate and cooperate in making joint decisions about major long-term issues affecting the child. Furthermore, the court had to consider the child's best interests in light of the mother's proposed relocation and the father's opposition to it.
The court found that while there were competing allegations of family violence between the parents, there was no evidence that the child had suffered serious psychological harm or that the changeovers had been problematic. The court also concluded that the parents were not capable of discussion or negotiation, and therefore, the presumption in favour of equal shared parental responsibility was rebutted. As the child would be living primarily with the mother, she was granted sole parental responsibility for making major long-term decisions that affect the child, with the father being involved to the maximum extent possible. The court further ordered that the child would reside primarily with the mother in Country B, as it was in the child's best interests to maintain a relationship with the father while living with the mother.
In summary, the court granted the mother's application for the child to reside primarily with her in Country B and ordered that she would have sole parental responsibility for making major long-term decisions affecting the child. The father was to be involved to the maximum extent possible, and the child was to maintain a relationship with both parents.
The court had to determine whether the mother's allegations of family violence were substantiated, and if so, whether this would impact the presumption of equal shared parental responsibility. Additionally, the court needed to decide whether the parents could effectively communicate and cooperate in making joint decisions about major long-term issues affecting the child. Furthermore, the court had to consider the child's best interests in light of the mother's proposed relocation and the father's opposition to it.
The court found that while there were competing allegations of family violence between the parents, there was no evidence that the child had suffered serious psychological harm or that the changeovers had been problematic. The court also concluded that the parents were not capable of discussion or negotiation, and therefore, the presumption in favour of equal shared parental responsibility was rebutted. As the child would be living primarily with the mother, she was granted sole parental responsibility for making major long-term decisions that affect the child, with the father being involved to the maximum extent possible. The court further ordered that the child would reside primarily with the mother in Country B, as it was in the child's best interests to maintain a relationship with the father while living with the mother.
In summary, the court granted the mother's application for the child to reside primarily with her in Country B and ordered that she would have sole parental responsibility for making major long-term decisions affecting the child. The father was to be involved to the maximum extent possible, and the child was to maintain a relationship with both parents.
Orders
Orders of the court
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Background
Background to the litigation
Before considering the issues, it will be helpful to set out some background and the legal principles that apply to all parenting matters. BACKGROUND The mother is 32 years of age. Prior to moving to Australia in February 2019 she worked as a professional in H City, Country B. The father is 42 years of age and has his own legal practice in City C, Queensland, Australia. His clients are from Country B and the majority of his work can be performed via email. He has lived in City C since about 2004. As already noted, the mother and father met in Country B in 2018 and the father travelled back and forth numerous times (about eight times in a 12 month period for a week or two at a time) before the mother moved to Australia and cohabitation commenced in February 2019. In November 2019, the mother returned to Country B without informing the father beforehand. The mother was pregnant. The parents have different versions about why they were having problems in their relationship at this time. The father contends that it was due to the mother’s argumentative nature and unwillingness to contribute to household duties. The mother contends that it was due to the father’s heavy drinking, her social isolation and financial dependence on the father. In any event, it is common ground that the father persuaded the mother to return to Australia after promising to cease drinking alcohol and promising to provide her with sufficient funds for her support. The mother returned to Australia on 1 February 2020. It is also common ground that their relationship did not improve. Two days after giving birth to the child by caesarean on 20 April 2020, the mother was assisted to move into a refuge by social workers engaged through the hospital. Hospital records note the mother’s complaints about the father’s emotional and financial abuse. The mother had no income of her own and had no independence from the father who generally accompanied her everywhere. The mother had no friends or family in Australia. The mother returned to live with the father about a week after she left the hospital as she was firmly of the belief that the child should have both parents in his life. The parties separated under the one roof in May 2020 and the mother left the home in October 2020. In order to obtain the father’s consent to her leaving, she signed a loan agreement (in English) agreeing to repay the father $15,000 that he was to provide to her so that she could obtain alternative accommodation. The payments to the mother were to be made in instalments and the repayments to the father were to be made over a 12 year term together with interest. During the trial, the father said he had no intention of enforcing the loan agreement and in his additional evidence (Exhibit 25) said that he thought the mother already had access to significant funds at the time of the loan agreement. The loan agreement was attached to a parenting plan (also in English) which provided for the child to spend time with the father, initially for one hour on weekdays and two hours on a weekend until the child turned one and then increasing from 9.00 am on a Sunday to 4.00 pm on the following Tuesday. The effect of the parenting agreement required the mother to travel by public transport to the father’s house each day (about 30 minutes each way) so that the child could spend one hour with the father. The mother had no car and no driver’s licence. The father had both.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The mother’s case at its highest is that the father has belittled her and verbally abused her both before and after the birth of the child and failed to support her and the child financially. There is no evidence that the child has been of an age where he would have suffered serious psychological harm by being exposed to such conduct. The child has only just turned two years of age and there is no evidence that the changeovers have been problematic. The parents barely communicate it seems. Accordingly, the evidence does not support a finding that there is an unacceptable risk of the child being exposed to family violence in the future or that he has suffered serious psychological harm. I note that neither the mother nor the ICL contends to the contrary. CAN THE PARENTS MAKE JOINT DECISIONS ABOUT MAJOR LONG-TERM ISSUES THAT AFFECT THE CHILD? Neither the parents, nor the ICL, submitted that the presumption in favour of equal shared parental responsibility did not apply despite competing allegations of family violence between the parents (verbal, emotional and financial). I note the opinions of both the Family Consultant who prepared the Child Inclusive Interview Memorandum (see Exhibit 1) and Mr J, the Family Report writer, that there is a serious power imbalance present in this case, in favour of the father. While that may or may not be the case, it is common ground that the parents do not communicate, other than in a most perfunctory way, and do not wish to communicate with each other. While that may very well change once the mother feels more secure and supported living in Country B, I note the father’s evidence that the parents are not capable of discussion or negotiation and that future parenting arrangements should be made in a way that no communication occurs between the parents. Mr J also opined that “[t]here is unlikely to be any relationship between the parents which would be of benefit to [the child]”. In my view, given the absence of any communication or relationship between the parents it is not feasible for them to have to make decisions jointly. The presumption in favour of equal shared parental responsibility is rebutted. As the child will be living primarily with the mother, she will have sole parental responsibility for making major long term decisions that affect the child. As proposed by the ICL and adopted by the mother, she will involve the father in such decisions to the maximum extent possible but will ultimately make the decision. WHAT PARENTING ORDER IS PROPER? The mother is the unchallenged primary carer for the child and the child has a secure primary attachment to the mother. Despite considerable disruption to the child’s relationship with the father, it seems that they have an ongoing loving relationship and it is common ground that it is in the child’s best interests to maintain a relationship with the father. The mother wishes to return to Country B to live with the child where she has far superior employment prospects and family and friendship support. The mother has struggled in Australia in circumstances where she is not proficient in English and has limited employment prospects. Her current life in Sydney is not sustainable. She works very long hours and has no support either financial or emotional. Her level of desperation has at times been evident e.g. the emails sent to the ICL and the father, and she has sought psychological assistance, but she is vulnerable emotionally if she is effectively forced to remain in Australia against her will. The mother does not wish to return to City C, even with financial support from the father to do so. The difficulties with obtaining employment and the absence of support from family and friends would not be overcome with financial assistance from the father. I accept the ICL’s submissions that if the mother were required to return to City C, the child would experience uncertainty, arising in particular as a result of the isolation that the mother and child would likely endure.
Ratio Decidendi
Legal Principle Established
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