FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Murati & Roca [2024] FedCFamC2F 1672
File number(s): MLC 11701 of 2022 Judgment of: JUDGE A. HUMPHREYS Date of judgment: 22 November 2024 Catchwords: FAMILY LAW – PARENTING – children (aged 12 and 16) do not wish to spend time with father – acknowledged family violence by father – mother facilitated children spending time with him on an intermittent basis and not at all for extended periods – mother made major long-term decisions without consulting with father, including moving to a suburb some distance away and changing the children’s schools – children have now spent extended professionally supervised time and then unsupervised time with the father – mother does not contend children would be unsafe in father’s care – father found to have capacity to meet children’s needs, including emotional needs – mother found to lack capacity to support children’s relationship with the father, where she sees no benefit to them spending time with him – children’s expressed views incongruent with their interactions with father – finding children will benefit from relationship with father and paternal family – orders for parties to have joint decision-making responsibility – children to spend regular unsupervised time with father, arranged by agreement in consultation with the children and in default of agreement at fixed times – ancillary orders made as agreed or as determined in the children’s best interests Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 13C, 60B, 60CA, 60CC, 60CG, 61B, 61C, 61D, 61DAA, 65D, 68B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.01
Cases cited: Andrew & Delaine [2009] FamCAFC 182
Bielen & Kozma (2022) FLC 94–123; [2022] FedCFamC1A 221
French & Fetala [2014] FamCAFC 57
Hall & Hall (1979) FLC 90–713; [1979] FamCA 50
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
Lainhart & Ellinson (2023) FLC 94-166
Division: Division 2 Family Law Number of paragraphs: 236 Date of hearing: 14 - 16 October 2024 Place: Melbourne Counsel for the applicant Mr Robinson Solicitor for the applicant Tohme Lawyers Counsel for the respondent Mr Lethlean Solicitor for the respondent C & S Law ORDERS
MLC 11701 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MURATI
Applicant
AND: MS ROCA
Respondent
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
22 NOVEMBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
Decision making responsibility
2.The applicant (“father”) and respondent (“mother”) (“the parties” / “the parents”) have joint decision-making responsibility for major long-term issues relating to the children, X, born in 2008, and Y, born in 2011 (together, “the children”).
Care arrangements
3.The children live with the mother.
4.The children spend time with the father at times to be agreed by the parties in writing, in consultation with the children and consistently with the nature and quantity of time provided by this order, and…
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CaseChat Overview and Summary
The legal issues primarily revolved around determining whether the children's expressed reluctance to spend time with their father should override their potential benefit from a relationship with him and his family. The court had to assess the evidence of family violence by the father, the mother's influence on the children's views, and the children's interactions with the father during supervised visits. Ultimately, the court found that the father had the capacity to meet the children's needs, including their emotional needs, and that the mother lacked the capacity to support the children's relationship with their father. The court also noted the children's expressed views were inconsistent with their actual interactions during supervised visits with their father.
The court concluded that the children would benefit from a relationship with their father and his family. Therefore, it ordered joint decision-making responsibility for major long-term issues and set specific time-sharing arrangements for the children to spend regular unsupervised time with their father. These arrangements were detailed to ensure a consistent and predictable schedule for the children. The court also made ancillary orders regarding communication, medical information sharing, and overseas travel, among other things, to facilitate cooperation between the parents and to protect the children's best interests.
Orders
Orders of the court
MLC 11701 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR MURATI
Applicant
AND:
MS ROCA
Respondent
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
22 NOVEMBER 2024
THE COURT ORDERS THAT:
1. All previous parenting orders be discharged.
Decision making responsibility
2. The applicant (“father”) and respondent (“mother”) (“the parties” / “the parents”) have joint decision-making responsibility for major long-term issues relating to the children, X, born in 2008, and Y, born in 2011 (together, “the children”).
Care arrangements
3. The children live with the mother.
4. The children spend time with the father at times to be agreed by the parties in writing, in consultation with the children and consistently with the nature and quantity of time provided by this order, and failing agreement:
(a) During school term periods, the long summer school holidays in 2024/2025 and the term 1 and term 2 school holidays in 2025:
(i) Until 1 December 2024, each alternate Sunday, from 9.00 am until 5.00 pm, following the same fortnightly cycle in place at the time these orders are made;
(ii) After 1 December 2024, each alternate weekend, from 5.00 pm on Saturday until 5.00 pm on Sunday, following the same fortnightly cycle in place pursuant to order 4(a)(i);
(iii) From January 2025, each alternate weekend, from 10.00 am on Saturday to 5.00 pm on Sunday, following the same fortnightly cycle in place pursuant to order 4(a)(ii);
(iv) From the conclusion of term 1 in 2025, each alternate weekend, from the conclusion of school on Friday (or 10:00 am on a non-school day) to 5:00 pm on Sunday, following the same fortnightly cycle pursuant to order 4(a)(iii); and
(v) From the conclusion of term 2 in 2025, each alternate weekend, from the conclusion of school on Friday (or 10:00 am on a non-school day) to the commencement of school on Monday (or 10:00 am on a non-school day), following the same fortnightly cycle pursuant to order 4(a)(iv),
with time to resume each school term, following the same fortnightly cycle as if the school holidays had not occurred, unless otherwise agreed in writing;
(b) During school holiday periods:
(i) During term school holiday periods:
A. From the term 3 holidays in 2025 and thereafter in odd numbered years, for one week commencing at the conclusion of school on the last day of term; and
B. In even numbered years, for one week concluding at 10:00 am on the last Saturday of the school holidays; and
(ii) For the long summer school holidays:
A. In the 2025/2026 holidays and each alternate year thereafter, for one week, commencing at 10.00 am on the second Saturday in January; and
B. In the 2026/2027 school holidays and each alternate year thereafter, for one week commencing at 10.00 am on the first Saturday in January.
Special occasions
5. Notwithstanding any other provision of these orders, the children spend time with each of the parties for occasions of significance to them and to each of the parties at times to be agreed by the parties in writing, in consultation with the children and consistently with the nature and quantity of time provided by this order, and failing agreement:
(a) On the father’s birthday each year, with the father from 5.00 pm to 8.00 pm;
(b) On the mother’s birthday each year, with the mother from 5.00 pm to 8.00 pm;
(c) On X’s birthday, if she would not otherwise be spending time with a parent, then from 5.00 pm to 8.00 pm with that parent;
(d) On Father’s Day weekend, with the father from 5.00 pm on Saturday until 8.00 pm on Sunday;
(e) On Mother’s Day weekend, with the mother from on 5.00 pm on Saturday until 8.00 pm on Sunday;
(f) During the Orthodox Easter period:
(i) In odd numbered years:
A. With the mother from 3.00 pm on the Saturday immediately preceding Easter Sunday until 12.00 pm on Easter Sunday; and
B. With the father from 12.00 pm on Easter Sunday until 3.00 pm on Easter Monday; and
(ii) In even numbered years:
A. With the father from 3.00 pm on the Saturday immediately preceding Easter Sunday until 12.00 pm on Easter Sunday; and
B. With the mother from 12.00 pm on Easter Sunday until 3.00 pm on Easter Monday;
(g) For the Christian Christmas period, as follows:
(i) In 2024, with the father:
A. On 24 December 2024 (being Christmas Eve), from 3.00 pm until 8.00 pm; and
B. On 25 December 2024 (being Christmas Day), from 3.00 pm until 8.00 pm;
(ii) In odd numbered years:
A. With the father from 3.00 pm on 24 December until 3.00 pm on 25 December; and
B. With the mother from 3.00 pm on 25 December until 5.00 pm on 26 December (being Boxing Day); and
(iii) In even numbered years from 2026:
A. With the father from 12 noon until 3.00 pm on 24 December;
B. With the mother from 3.00 pm on 24 December until 3.00 pm on 25 December; and
C. With the father from 3.00 pm on 25 December until 5.00 pm on 26 December;
(h) For new year:
(i) On 1 January 2025, with the father from 3.00 pm until 8.00 pm;
(ii) When 31 December falls on an odd numbered year, with the mother from 2.00 pm on 31 December to 2.00 pm on 1 January and with the father from 2.00 pm on 1 January until 2.00 pm on 2 January; and
(iii) From 2026, when 31 December falls on an even numbered year, with the father from 2.00 pm on 31 December to 2.00 pm on 1 January and with the mother from 2.00 pm on 1 January until 2.00 pm on 2 January; and
(i) For the Country B Orthodox Christmas period:
(i) On 7 January 2025 (being Orthodox Christmas Day), with the father from 3.00 pm until 8.00 pm;
(ii) In even numbered years, with the mother from 5.00 pm on 6 January until 3.00 pm on 7 January and with the father from 3.00 pm on 7 January until 5.00 pm on 8 January; and
(iii) In odd numbered years from 2027, with the father from 5.00 pm on 6 January until 3.00 pm on 7 January and with the mother from 3.00 pm on 7 January until 5.00 pm on 8 January.
Telephone and electronic communication
6. Each of the parties facilitate the children communicating with the other parent by phone or video:
(a) On Wednesdays the children are in their care, between 6.00 pm and 6.30 pm or, if the children will be unavailable during that time (including if X is working), between 8.00 pm and 8.30 pm, in which case the parent with care of the children is to notify the other parent of the change in time, as soon as practicable;
(b) At such further or other times they may agree in writing; and
(c) At all other reasonable times requested by the children.
7. For the purpose of order 6, the parties each ensure the children have access to a functioning mobile telephone with internet to communicate via telephone/video and provide the children with privacy for their communication with the other parent.
Changeover
8. Unless otherwise agreed in writing, for the purpose of the children moving between the care of the parties pursuant to these orders, changeover take place at the children’s school on a school day and otherwise at C Shop located at D Street, Suburb E.
School and other activities and events and information
9. The parties each ensure that the children attend any extra-curricular, school or social activities or work shifts in which the children (or either of them) are enrolled, engaged or rostered when in their respective care where practicable and for this purpose the parties keep each other notified of all such activities, events, rosters and the like inclusive of relevant contact details.
10. The parties each be at liberty to attend school events and the extracurricular activities involving the children to which parents are usually involved.
11. To the extent that the father may not already be so authorised, the mother authorise any school the children are enrolled in to provide to the father all information concerning the children, including but not limited to photograph order forms, reports and newsletters and access to any parent communication app or tool.
Medical and health issues and information
12. The parties each keep the other advised of any medical or health issues related to the children or either of them including but not limited to providing particulars of any medication that has been prescribed to the children and ensure such medication is provided to the other party at changeover, and the name and contact details of the treating practitioner.
13. Each party forthwith notify the other of any significant injury or medical condition suffered or treatment undergone by either of the children while they are in their respective care and the parties are each authorised to liaise directly with the children’s treating medical practitioner(s), dental or other health specialist(s) in relation to the children’s health and welfare.
Communication between parties
14. Each party notify the other of any changes to their telephone numbers, email address used for the purpose of communication with the other parent or residential addresses within 24 hours of such a change.
15. IT BEING NOTED the parties have agreed they must ensure all communications between them will be strictly child focused and respectful:
(a) The parties communicate on all matters pertaining to the children using the parenting app AppClose (“the app”) save that the parties are permitted to use SMS message or phone in the case of emergencies; and
(b) Until the parties have downloaded the app, which they are required to attend to within seven days from the date of these orders, the parties are permitted to use SMS and email to communicate in relation to arrangements for the children.
Injunctions
16. Each of the mother and father, including by their servants and agents, be restrained from:
(a) Denigrating the other parent in the sight or hearing of the children, and/or from allowing anyone else to do so; and
(b) Permitting the children access or allowing the children to read any documents relating to this court proceeding or prior intervention order proceedings involving the parties.
Overseas travel
17. Each of the mother and the father are permitted to travel with the children outside of the Commonwealth of Australia for a period of up to four weeks per annum with the written consent of the other and subject to the following conditions, unless otherwise agreed in writing:
(a) Travel is restricted to countries which are signatories to the 1980 Hague Convention on the Civil Aspects of International Child Abduction;
(b) The travelling parent provide no less than sixty (60) days’ prior notice in writing to the other of his/her intention to travel outside of Australia with the children;
(c) The travelling parent provide to the other a copy of the airline tickets and comprehensive itinerary which includes the departure and return dates of travel, locations of stay, together with contact details for the children during all such periods of travel; and
(d) The travelling parent facilitate video communications between the children and the other parent at reasonable times during all such periods of travel and ensure that the children speak with the other parent at least twice per week.
18. The parties sign all documents required to obtain the children’s passports, and the cost of such passports be borne by the mother.
Explanation of orders to children
19. The parties forthwith do all things to engage Ms G (or such other therapist as they may agree in writing), to explain to the children the meaning and operation of these orders as soon as practicable, with Ms G’s fee to be borne solely by the father.
Parenting coordinator
20. The parties make every reasonable attempt to exercise joint decision-making by consulting with one another via the app as to proposed decisions and merits of their points of view.
21. In the event the parties are unable to reach agreement within a reasonable timeframe on a matter relating to major long-term decisions concerning the children (or either of them), the parties jointly engage Ms G in her capacity as parenting co-ordinator on an “as needs basis” to engage with them and to assist them reach agreement as follows:
(a) Pursuant to section 13C of the Family Law Act 1975 (Cth) (“the Act”), the parties participate in the service of parenting coordination and for that purpose retain Ms G (or another parenting coordinator as agreed by the parties in writing), as parenting coordinator (“the parenting coordinator”), on a non-confidential basis to assist them on the terms provided in this order;
(b) Within seven days from the date they are unable to reach an agreement on a major long-term issue, the parties shall do all acts and things necessary to:
(i) Engage the parenting coordinator for an intake session and for one further session or as otherwise required by the parenting coordinator;
(ii) Complete the appointment of the parenting coordinator;
(iii) Authorise the parenting coordinator to talk to any health, education or other professionals relevant to the decision in question; and
(iv) Follow all reasonable directions of the parenting coordinator and make a genuine attempt to resolve the dispute between them.
22. No later than 7 days prior to the first intake session booked with the parenting coordinator, the parties or either of them provide to the parenting coordinator, copies of the following court documents:
(a) These orders;
(b) Ms G’s family report dated 11 October 2024 (“Ms G’s family report”); and
(c) The reasons for judgment delivered with these orders.
23. The costs of the parenting coordinator’s engagement pursuant to these orders be solely borne by the father.
Provision of orders
24. The parties are each authorised to provide a copy of these orders to the children’s schools and/or treating medical and allied health professionals and to provide a copy of Ms G’s family report to any psychologist or counsellor attended by the children.
25. The parties are each authorised to provide a copy of these orders and the accompanying reasons for judgment and Ms G’s family report to any psychologist or counsellor they may each attend upon for their personal support, including for assistance with the implementation of these orders.
Obligations, consequences of contravention and assistance with orders
26. Pursuant to sections 65DA(2) and 62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
Procedural
27. All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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