Racz & Racz
[2025] FedCFamC1F 354
•29 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Racz & Racz [2025] FedCFamC1F 354
File number(s): NCC 108 of 2024 Judgment of: BAUMANN J Date of judgment: 29 May 2025 Catchwords: FAMILY LAW – PARENTING – Where the mother seeks to relocate the child’s residence outside Australia – Where the father’s behaviour has contributed to the detriment of the parents co-parenting relationship – Where the father presents little evidence as to insight regarding his behaviour and treatment of the mother and the maternal family – Mother permitted to relocate outside of Australia with the child following a period of time in which the child will spend supervised time with the father. Legislation: Family Law Act 1975 (Cth) ss 60CC, 69ZX(3) Cases cited: AMS v AIF (1999) 199 CLR 160
Morgan & Miles (2007) FLC 93-343
Taylor & Barker (2007) FLC 93-345
U v U (2002) 29 Fam LR 74
Division: Division 1 First Instance Number of paragraphs: 92 Date of hearing: 30 April – 1 May 2025 Place heard: Newcastle Place delivered: Brisbane Counsel for the Applicant: Ms M Meares Solicitor for the Applicant: Coastal Lawyers Counsel for the Respondent: Mr S Flanigan Solicitor for the Respondent: Grant & Co Solicitors & Attorneys Counsel for the Independent Children's Lawyer: Ms V Geraghty Solicitor for the Independent Children's Lawyer: Jennifer Blundell & Associates ORDERS
NCC 108 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS RACZ
Applicant
AND: MR RACZ
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
29 MAY 2025
THE COURT ORDERS ON A FINAL BASIS:
1.That pursuant to s 61D(3) of the Family Law Act 1975 (Cth) (“the Act”) the mother shall have sole decision-making responsibility for the child X born 2020 (“the child”) and in respect of major long-term issues, the following conditions shall apply:
(a)For the purpose of these Orders the term “major long-term decision issues” shall be construed as those identified in s 4(1) of the Act, being currently:
(i)the child’s education (both current and future);
(ii)the child’s religious and cultural upbringing;
(iii)the child’s health;
(iv)the child’s name;
(v)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent;
(b)Save in an emergency, the mother shall give written notice to the father of her intended decision on a major long-term issue, and the father shall have fourteen (14) days to respond in writing as to his agreement, opposition or alternative;
(c)The mother shall be permitted to make such decision and shall advise the father of any decision made by her after considering any response by the father.
Live with
2.That the child shall live with the mother.
Relocation
3.That the mother shall be permitted to permanently relocate the child’s place of residence to the United Kingdom on or after early 2026, unless otherwise agreed by the parents in writing.
Spend time – prior to relocation
4.That commencing on Sunday 8 June 2025 the child shall spend time with the father, at all times in the presence of the paternal grandparents (or one of them) as follows:
(a)On 8 June 2025 for four (4) hours between 11.00am and 3.00pm;
(b)On 22 June 2025 for five (5) hours between 11.00am and 4.00pm;
(c)On 6 July 2025 for six (6) hours between 10.00am and 4.00pm;
(d)On 20 June 2025 between 10.00am and 5.00pm and each alternate Sunday thereafter;
(e)On Sunday 7 September 2025 (being Father’s Day) from 10.00am until 5.00pm; and
(f)On 25 December 2025 (being Christmas Day) from 10.00am until 5.00pm.
5.That for the purpose of Order 4 inclusive:
(a)The father is to advise the mother in writing by 4.00pm on the Wednesday preceding the forthcoming visit, which grandparent/s will be in attendance and whether it is anticipated the paternal aunt, Ms B shall also attend;
(b)Where a paternal grandparent is not available, then in the absence of any written agreement between the parents, the contact visit shall not occur;
(c)Changeover for each visit shall take place at the Supervised Contact Centre C Family Services, or a similar supervised contact centre (unless the parents agree on a different location), with both parents completing the intake procedures of the Contact Centre within seven (7) days of the Centre to facilitate the changeover; and
(d)The father shall bear the costs of the supervised changeovers with each parent to bear their own cost of the intake process.
Communication – prior to relocation
6.That commencing on Wednesday 4 June and Sunday 15 June 2025 and each Wednesday and non-contact Sunday thereafter, the child shall communicate with the father by Facetime or telephone call, on the following terms:
(a)The father shall initiate the call to the mobile phone number nominated by the mother within forty-eight (48) hours of this Order;
(b)Unless otherwise agreed, the call shall take place between 6.00pm and 6.30pm;
(c)The mother shall ensure that the mobile phone available for use by the child to receive such call from the father, is fully charged and in a mobile reception area; and
(d)The calls are to be uninterrupted, unrecorded and where the child is afforded privacy.
Spend time and communication – following relocation
7.That the mother shall notify the father within two (2) hours of the child arriving in the United Kingdom, that the child has safely arrived and shall then facilitate the child speaking to the father within twenty-four hours of their arrival in the United Kingdom.
8.That upon the child being permitted to relocate, the mother shall travel to Australia with the child for no less than three (3) weeks in a calendar year in accordance with the child’s schooling needs and as the dates as nominated by the mother initially by 30 April 2026 and by 30 April each year thereafter.
9.That for the purpose of Order 8 hereof, the mother shall provide by no later than 30 April each calendar year written notice to the father of the dates that she will be in attendance in Australia with the child for that year ahead (being “the travel dates”).
10.That the mother’s notification of the travel dates shall include details of her proposal for the time the child will spend with the father during the period of three (3) weeks that the child is in Australia, and unless otherwise agreed:
(a)the time shall occur on not less than 15 occasions;
(b)each contact visit should be at least between 10.00am to 5.00pm on the conditions as to the presence of the paternal grandparents or one of them, and the location for changeover as prescribed at Order 5(c).
11.That the child shall communicate by Facetime or telephone call with the father weekly, at a time agreed to between the parents, and failing agreement, on each Sunday at 12.00pm United Kingdom time for up to thirty (30) minutes on the same terms as prescribed by Order 6(a) – (d) inclusive.
Passport
12.That pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth) the mother is at liberty to renew the passport for the child X born 2020 and these orders be sufficient authority for the mother to apply for such passport without the consent of the father.
Restraints
13.That pursuant to s 114 of the Act, the father be restrained from consuming alcohol on the day of spending time with the child and from drinking alcohol throughout the time spent with the child.
Communication
14.That any communication between the parents shall take place by way of the communication application “App Close” or other such parenting application as nominated by the mother.
15.That in the event of any emergency pertaining to the child, the parent spending time with the child will contact the other parent by way of telephone as soon as practicable to update them.
Non-denigration and other specific orders
16.That both parties are restrained from denigrating each other or the other’s family to or in the presence or hearing of the children or causing or permitting any other person to do so.
17.That this Order shall operate as sufficient authority for the father to seek information from the child’s school or treating health practitioners.
18.That the parents shall keep each other informed of their residential address and a contact telephone number and shall keep the other parent informed of any change to such details within twenty-one (21) days.
Recognition of orders in the United Kingdom
19.That the mother be permitted to apply to a Court in the United Kingdom or the United Kingdom for recognition of these Orders in the United Kingdom pursuant to The Reciprocal Enforcement of Foreign Judgments (Australia) Order 1994 (UK), and/or other related Acts (United Kingdom).
20.That upon the father providing to the mother at least sixty (60) days prior written notice, the child shall spend time with the father at all reasonable times as may be agreed between the parents.
21.That the Independent Children’s Lawyer be discharged.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Racz & Racz has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
When the parents of X (now aged 5 years) (“the child”) separated finally in December 2022, the Applicant mother, Ms Racz (“the mother”) and the Respondent father, Mr Racz (“the father”) were able to negotiate arrangements for the child to spend regular time with the father.
However, after the mother made it clear that it was her desire to return to her native United Kingdom, with X, the father’s opposition to that relocation – fuelled by allegations of excessive alcohol use; family violence and inappropriate denigration of the mother, by the father, lead to a breakdown in the time arrangements and the inevitable need for a judicial determination of the core dispute around relocation.
These Reasons seek to explain to the parents, why the Court has decided it is in the best interests of X to be permitted to relocate to the United Kingdom – but not as quickly as the mother prefers.
COMPETING PROPOSALS
The mother
The mother has been seeking orders for the child to relocate with her to the United Kingdom since her Initiating Application filed 17 January 2024. Although her proposal for the time the child spends with the father has slightly altered over time, by final submissions delivered orally by her Counsel Ms Meares, her position was as articulated in Exhibit 26, which for reference is Appendix One to these Reasons.
Essentially, the mother submits it is in the best interests of the child that:
(a)the child live with her and that he be permitted to relocate to the United Kingdom with her by mid-2025, so as to enable the child to commence school in August2025;
(b)the mother have sole decision making responsibility for major long term issues, but with a requirement to consult with the father before making a decision;
(c)pending the child leaving Australia, the child spend time with the father, professionally supervised, fortnightly for up to four (4) hours, at the father’s cost. This frequency was increased during submissions (and after hearing submissions from the Counsel for the Independent Children’s Lawyer (“ICL”)) from the earlier proposal of monthly visits;
(d)after relocation, the mother shall return the child to Australia each year for no less than three weeks, on dates nominated by the mother – but in a practical sense, during the child’s long “Summer” school holiday which begin (as an example) for the 2026 year from around mid-2026;
(e)during that three week period, the child will spend time with the father up to 12 occasions, again professionally supervised, for up to four hours per booking; and
(f)weekly communication between the child and the father will occur by facetime or similar electronic process.
The mother’s said minute provides that time will remain supervised if the child does not relocate. No “sunset” provision is identified in the mother’s minute to progress from supervised visits to unsupervised or overnight/holiday time. If permission to travel overseas is not permitted, then the mother seeks permission to travel to the United Kingdom not less than on one occasion each year for up to two weeks.
The father
The father’s primary position is that the mother’s application for relocation should be refused. This is best articulated in his amended Response filed 6 December 2024. In that Response, and as was confirmed by the father’s Counsel Mr Flanigan in oral submissions, the father contends that:
(a)the child should live with the mother in Australia and the parents should share decision making responsibility;
(b)the child should spend time with the father, unsupervised, on alternate weekends; each Friday evening and two weeks of all school holidays, as well as on special occasions such as Father’s Day and Christmas; and
(c)the child be available to communicate with the father five times a week.
The father did not articulate any precise proposal for what time arrangements should be ordered, if X was permitted to relocate, save to contend that if relocation was permitted, it should be delayed until early 2026.
The Independent Children’s Lawyer
The ICL’s position was initially articulated in the case outline filed 23 April 2025, which simply stated that:
(a)the child should live with the mother in the United Kingdom, who would have sole decision making responsibility for making all major long term decisions; and
(b)the child would, when in Australia post relocation, spend time with the father “on 12 occasions, each for a period of four (4) hours, within a two (2) to three (3) week period” with such time “to be supervised by the paternal grandparents or in their presence at all times”.
In final oral submissions on behalf of the ICL, delivered by Counsel Ms Geraghty, the Court was informed that the ICL agreed with the mother’s proposal for how supervision to be undertaken by professional supervisors (at the father’s costs) and disagreed with the father’s proposal that relocation be delayed.
The competing final proposals identify the issues to be determined, in short as:
(a)should X be permitted to relocate to United Kingdom?
(b)what time arrangements for X to spend time with, or communicate with the father, are in his best interests if he continues to live in Australia, or in the alternative, pending and after relocation?
The mother made it clear, understandably on the evidence and in circumstances where the father does not seek orders that the child live with him, that she would not exercise her personal right of freedom of movement and move to the United Kingdom without X.
APPLICABLE PRINCIPLES
Section 60CC of the Family Law Act 1975 (Cth) (“the Act”) provides that when determining a child’s best interest certain things must be considered.
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a)consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
The general considerations contained in s 60CC(2) prescribe that, for the purposes of the best interests consideration, the Court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
CONTEXTUAL HISTORY
Statements of fact which follow should be construed as findings of fact.
In this regard, there is, on some issues, two versions of an event, where the evidence given by the father and the mother differ. Counsel for the mother says the father should be seen as an unreliable and dishonest witness, such that on every issue where there is a difference in version offered to the Court, I should prefer the evidence of the mother.
Having had the benefit of observing the parties give evidence, and although on some issues I do prefer the evidence of the mother, I do not make the general credit finding as sought by the mother. As will become apparent, and not in any way unusual, both parents at times gave evidence through the lens and perspective of their beliefs.
The father is aged 49 years; the mother is aged 43 years. The mother came to Australia from her native United Kingdom in 2008 and the parents commenced cohabitation in 2011.
They were blessed with the birth of their only child X in 2020. He is now five years of age. The child commenced daycare in early 2021, when the mother returned to work as a health professional – although by late 2022, the mother’s usual role was employment as a health professional in Region D, which was still the position at the trial. The father has throughout the relationship worked in the building industry – more recently in the Sydney area.
As I will explore later in these Reasons, and I find, the mother was expressing her concerns to the father about what she felt was his excessive use of alcohol and the effect it was having on their relationship – even sending him letters expressing her concerns which she left for him in their garage as early as 15 July 2020.
Separation occurred in December 2022, and although the parties jointly attended their general practitioner in January 2023 to discuss the mother’s concerns about the father’s use of alcohol, the growing tensions in the adult relationship (which had led to the separation) worsened – not assisted by the mother, on an agreed holiday in the United Kingdom with the child from early 2023, not returning as she had indicated she would some short time later. The correspondence between lawyers then engaged by the parties reflect the tension and the mother’s concerns about her returning to Australia if the father did not deal with his drinking habits – and the father’s concerns that he might have to engage in Hague proceedings if the mother did not return to Australia with the child. The mother did return to Australia with the child in early 2023, some days after the originally planned return.
The parents negotiated, with the assistance of lawyers, for the child to spend regular day time with the father, approximately three times a week, unsupervised. Preceding most visits, the mother required the father to conduct a breathalyser test and show her the results. Although some visits did not occur, for which the reasons are disputed, I am satisfied that visits occurred fairly consistently – again unsupervised until late 2023 when the mother and X visited the United Kingdom for approximately two weeks (with the father’s consent) to attend the mother’s brother’s wedding.
Sadly, the mother’s brother was diagnosed with a medical condition and the mother’s Application filed 17 January 2024 to travel to the United Kingdom (with X) to see her brother was not resolved before the brother’s passing in 2024. The events around this time and the father’s position that, as X had only met the mother’s brother on a couple of occasions, seems to have exacerbated the mother’s distress and, I find, a renewed longing to live in the United Kingdom to be close to family and away from the father. I accept, as the mother deposes, that the loss of her brother and absence of close family in Australia made her grieving more pronounced.
The case management pathway (at that time in Division 2) reveals the following Orders:
(a)On 2 February 2024, a Senior Judicial Registrar ordered by consent the child spend unsupervised time with the father two times mid-week for approximately one hour and each Sunday from 12.00pm until 3.00pm, unsupervised;
(b)On 27 February 2024, a Senior Judicial Registrar ordered by consent that the Sunday time be increased to between 11.00am until 5.00pm, unsupervised, as well as time on special occasions and regular telephone time;
(c)On 29 July 2024, a Senior Judicial Registrar made final property orders by consent, and made some variations to the interim parenting Orders of 27 February 2024, essentially maintaining the regime of unsupervised time, but incorporating orders that:
(i)restrained the parties from allowing X to use tools unsupervised or generally allowing X to be unsupervised (Order 25);
(ii)the parents complete a parenting course (Order 26);
(iii)the father obtain a referral for a sleep apnoea test (Order 27); and
(iv)the father undertake a hair follicle test “for detection of alcohol” (Order 28).
Furthermore, all interim parenting Orders to this point of time provided a “non-denigration” order and an order that the father “is restrained from consuming alcohol on the day that he is spending time with [X] and throughout the time spent with [X]”.
These Orders continued (although the father stopped seeing X mid-week) until around late 2024 when an incident at changeovers occurred, which I deal with later in these Reasons. In hindsight, on the evidence, the regular (at least weekly) unsupervised time that had begun in early 2023 and continued until late 2024 (a period of nearly 17 months) progressed well but then came to an abrupt halt. From the child’s perspective, I am satisfied he was enjoying his time with his father, although it was likely the tensions between the parents – shaped by the mother’s stated intention to relocate to the United Kingdom and the father’s opposition to the move and his desire for more time (including overnight time), would have been apparent to this sensitive little boy.
Certainly, the text and other communications between the parents (most of which – but not all – occurring without the knowledge or in the presence of the child) resulted in frankly increasing disgraceful remarks about the mother and, at times, her family, coming from the father. The father’s late attempts to express regret or to associate his behaviour with his growing frustration and fear of losing a relationship with his son, do not, on my assessment, diminish the hurt the mother felt for his behaviour.
I deal later, when assessing the evidence within the context of the mother’s submission that the father now poses an unacceptable risk to the child, with the legal consequences that arose from the event of late 2024; a subsequent charge against the father dealt with at a trial before a State Magistrate in early 2025.
What is however important to note, for context from the child’s perspective in my assessment, is that:
(a)since late 2024 (apart from interaction for family report interviews on 4 November 2024), X has spent only eight hours in physical contact with his father (for four hours of supervised time on 26 January 2025 and 22 February 2025); and
(b)has spent approximately one hour twice since Christmas 2024 interacting with the paternal grandparents – which I accept, to the mother’s credit, was facilitated and supervised by the mother, in the absence of the father.
ANALYSIS OF WHETHER THE FATHER POSES AN UNACCEPTABLE RISK TO THE CHILD
Although the assessment of the risks includes the cumulative effect of any established concerns, at least for analysis, it is appropriate to consider the mother’s case that the child is at an unacceptable risk, thereby requiring professional supervision, arising at least from:
(a)potential for exposure to family violence;
(b)the father’s excessive use of alcohol and lack of insight into the effect on him (and others) of that use;
(c)issues that flow from the father’s alleged sleeping disorder; and
(d)the father’s continual denigration of the mother and his lack of insight into the effect of that behaviour on the mother and the child.
Family violence
I am satisfied that the growing tensions in the intact relationship before separation finally in December 2022, resulted in verbal arguments between the parents – and every likelihood that X was exposed to that conflict. I find that the father’s drinking habits and likely unavailability emotionally to the mother was a trigger to the mother’s gradual acceptance, from her point of view, that the relationship could not continue – and that was followed by a focus on her future, which she saw was living back in the United Kingdom, with X.
I am not satisfied that before the event in late 2024, that physical violence was present in the relationship, however post separation it would have been apparent to the father that the mother was determined to return, if she could, permanently to the United Kingdom with X. The father’s sense of loss of his relationship; the family home and his future connection with X have, I find, exacerbated the father’s behaviour and sense of unfairness and injustice. Whilst at one level understandably frustrating for him, his behaviour towards the mother and anyone else who he perceived was trying to interfere in his relationship with the child (for example, the contact centre supervisor) was disgraceful at times and cannot be justified. Sensibly, in final submissions, the father’s Counsel did not seek to do so.
Although the mother may have been raised in a different cultural environment, the father’s assertion to the family report writer (paragraph 65) about the mother being able to effectively ignore his robust hurtful comments, showed no insight into his behaviour and the effect on the mother. It would be mere speculation as to whether the mother’s desire to return to the United Kingdom would have been so intense if, frankly, he had treated the mother with more dignity and respect – as the mother of his child, as he should have done.
In this respect, the event in late 2024 becomes significant – not the least because of the charges and conviction that followed – but because from that time, the father’s time with X significantly reduced and was always supervised, when it occurred.
Although the parents give differing versions of the incident at changeover in late 2024, Exhibit 16 is, I find, a reliable summary, which reveals that:
(a)the changeover was without incident until the mother asked about X’s t-shirt, causing the father to react angrily telling the mother to “shut up”;
(b)X was in the mother’s car when the father again approached the car, to say a final goodbye to the child, and, I accept, the father threw a bottle top at the mother’s car causing her to say “what are you doing? You could have hit me or damaged the car”;
(c)the father responded “how about you fuck off arsehole”; and
(d)as the mother drove away, she says the father was observed “extending his middle finger” towards her.
The mother, at 8.22pm that day, made a complaint to police, and stated she regretted having to report such matters to police, yet the father’s behaviour had caused her to fear her safety. The mother also reported that she believed “alcohol abuse to be a contributing factor” to the father’s aggression and unpredictable behaviour. The father was arrested on charges that his behaviour was a breach of the Domestic Violence Order made in late 2012. The charges – which the father is defending – are still before the Local Court and scheduled for hearing in mid-2025.
However, earlier allegations of breaches of the Domestic Violence Order were the subject of a hearing in the Local Court that were completed in early 2025. These breaches, as found, related to text messages sent over three days in October 2023. Exhibit 11 is a transcript of the Reasons of a Magistrate delivered in early 2025. I am invited by Ms Meares of Counsel for the mother, to adopt the findings of the Magistrate (as permitted under s 69ZX(3) of the Family Law Act1975 (Cth)), and do so. The Magistrate found the father’s communications were “harassing”. At its core seems to be the father’s belief that an undertaking the mother had given this Court (see page 166 of the mother’s annexure) required her to inform him when X had returned from the United Kingdom. The undertaking does not contain such a condition, although I accept the father (from his earlier experience when the mother delayed her return from the United Kingdom a few days) may have been anxious.
The learned Magistrate’s Reasons sets out many more exchanges between the parties around this time and I do not need to repeat them, save to comfortably adopt the Reasons of the judicial officer that:
The accused acknowledged, himself, that he would sometimes send demeaning or degrading text messages to the complainant, to get an answer from her. It was clear he felt entitled to a reply to any of his questions when he demanded it, and was prepared to annoy her to get such a response, regardless of her pleadings for him to leave her alone. Further, he was aware that the complainant at least found his messages harassing. She told him as much.
…
In such circumstances, I find that the defendant was well-aware of the substantial risk that his communications were harassing the complainant, but that he sent them anyway. As such, he was at least reckless as to using a communication service to send the harassing communications. If not, deliberate in his actions.
The Magistrate found the father guilty; recorded a conviction and sentenced the father to a Community Corrections Order for a period of nine months.
I take these matters into consideration when assessing whether the father is currently an unacceptable risk to the child, and the mother, arising from family violence.
Alcohol use by the father
As already discussed, the father’s use of alcohol was a concern to the mother, and I find the major contribution to the breakdown of the relationship.
During the proceedings, the father was at times required by the mother to submit to breathalyser analysis before unsupervised time between X and the father took place on that day. Generally, the results, when he submitted to the analysis, did not establish he was under the influence of alcohol at the time of those visits.
Furthermore, after proceedings were commenced, an Order was made on 27 February 2024 restraining the father from consuming alcohol when X was in his care, and a further Order was made on 29 July 2024 for the father to undertake a hair follicle test (at his cost) to determine his level historically of alcohol use.
Although the mother had concerns about the father manipulating the timing of the hair follicle tests, she conceded in cross-examination that the test taken on 3 August 2024 reveals low alcohol consumption – not excessive consumption (see Annexure “A” to the father’s trial affidavit), as did the test taken in June 2023 (Annexure “B”).
Not surprisingly, the father was cross-examined by Counsel for the mother about his current use of alcohol. Whilst accepting earlier convictions for driving under the influence in 2001 and 2005 (see Exhibit 3), he denied the injury he sustained when he “stacked” his push bike in December 2022, was because he was intoxicated at the time. The mother did not establish otherwise on the evidence.
The mother points to the “bottle top” incident in late 2024, and the notes about one of the supervised visits (which I deal with below), as well as seeing a beer bottle in the father’s car as evidence, I infer, that the father was affected by alcohol when X has been in his care. The mother did not discharge the evidentiary onus to establish that fact.
It is clear the father consumes alcohol – I find nearly every day after returning home from work. The level of consumption (and the period over which consumption occurs) post-separation is really difficult to determine. There is no evidence to demonstrate events of drunkenness have come to the attention of authorities post-separation.
As his partner (and mother of his son), the mother was consistently urging the father to better understand how this use of alcohol was affecting him – and as a result affecting her. It was not a “role modelling” the mother felt was best for X to witness.
Post-separation, in January 2023, the parents attended their general practitioner. The mother says (at paragraph 175 of her trial affidavit) that the father admitted to probably drinking too much and suggested the father attend for assessment by a specialised service. Blood tests were ordered.
Exhibit 4 are notes from the “[Region D Health District]”, which establishes that in January 2023, the Service informed him of the referral for counselling from the general practitioner, but that the waiting time to commence counselling was longer than usual. Attempts to contact the father by phone were not successful until February 2023, although in January 2023, the notes record a conversation between the father and a nurse at the service, in these terms:
What does the Client Seek/Reason for Call?: Wife feels he has an issue with ETOH
Explained the recommended amounts recommended and that he is over recommended limits
He stated he would like to have counselling for strategies to reduce his use
(As per the original)
The record note in February 2023 was in these terms:
P/C to [Mr Racz] re: referral to [E Counselling]. [Mr Racz] answered. He reported he currently does not wish to engage with [E Counselling] and will see GP instead. He consented for letter being sent to him with contact number for [E Counselling] to use if needed in future. He consented for current referral to be closed. Nil acute mental health risks elicited, [Mr Racz] polite and appropriate over phone.
The father, subsequent to this telephone call, did return to his general practitioner (alone on this occasion), as reflected in Exhibit 6 – in February 2023, when a review of his blood tests was undertaken. The relevant note as to the discussion about alcohol, noting he indicated that he drinks five standard drinks on a weekday and on a weekend he will have 10 standard drinks, was as follows:
Explained alcohol intake guidelines
Has only arranged doctors review due to marriage breakdown – wife feels he is an alcohol and has given him an ultimatum to “sort this out” or she will divorce him
[Mr Racz] is not concerned about his alcohol intake, does not think he drinks to excess
Will go to alcohol counselling to “prove” to his wife that he is not an alcoholic
Wife wants him to be scheduled for a period of rehab?? Explained involuntary admissions are not taken lightly and [Mr Racz] certainly would not qualify [for one]
There is no point in [Mr Racz] going to rehab when he is doing it out of obligations and has no motivation or [intention] to reduce his alcohol intake himself
Discussed risks of ongoing alcohol misuse – limited insight into same
[Mr Racz] enquired about pharmacotherapy – again I feel there would be poor compliance as he has no personal inclination to reduce his intake himself
Given information on [E Counselling] and [F Support Services] – this would be a good place [to] start
Also stressed importance of marriage counselling and for his wife to seek her own medical/psychological care with a GP. He will try to enact this
When this evidence was put to him in cross-examination, the father repeated that although he was aware of his wife’s concerns “she is not qualified to give” him advice; “she was being unreasonable”; and that her evidence of the effect on her of his drinking is “exaggerated”. He firmly believes he does not have a “drinking problem”.
As to the discussions with the Health Service and subsequently his general practitioner, his perspective was that the doctor did not say he needed to go into rehabilitation, and unless he had a motivation to reduce his intake, rehabilitation was unlikely to be of assistance.
On all this evidence, much of which was available to the Court Child Expert, Ms G opined that although she maintained concerns about the father’s insight into his use of alcohol, this issue was not the reason for her recommending supervised time.
My finding is that the father, when the child is not in his care, more likely than not consumed alcohol in excess of the recommended daily intake. The father does not regard his intake as excessive.
I am satisfied the father understands the importance of not consuming or being affected by alcohol when the child is in his care – and that being so affected would significantly reduce the quality of his interaction with X.
I do not find that the father poses as an unacceptable risk to X due to his alcohol consumption, that cannot be ameliorated by some supervision. For completeness, I record that I have not ignored the evidence of the mother’s witnesses, Ms H and Ms J, who were relied upon but not required for cross-examination. Whilst some of the evidence is hearsay, to which I attach little weight, direct observations of the father were limited and also largely historical.
Sleep apnoea
The father has established (see Exhibit 18) that he has taken some steps to investigating whether he has a sleeping disorder and if he does, what he should do about it. I am not satisfied this issue weighs heavily in respect of the father spending even unsupervised time with the child, during the day.
Denigration of the mother and her family
I have broadly discussed this issue already within the context of such behaviour being “harassing” of the mother within a family violence context. I again repeat that some of the text messages were disgraceful. The father now says he regrets many of those text messages.
Whether attending a men’s behavioural change course or some parenting course would have moderated the father’s beliefs and need to express them, particularly to the mother, is unclear. The evidence I found most concerning, and not capable of minimisation through any argument of whether he said it or not, is generally what the family report writer records in her report about statements made to her by the father. In the cross-examination of Ms G, she was not movable on the accuracy of her recorded statements. The low water mark is paragraph 65 of the family report which stated (in its entirety):
When asked if he had ever called the mother names or sworn at her, the father replied, “She walked out and took my house, and I called her a cunt. I can’t believe they ask these things. I lost my house, my savings, my son. I have been humiliated but I called her a cunt.” He further stated, “We would fight, and I would say things. That is taken out of context. I said, ‘You have thrown all this away [Ms Racz], so you can sit on the couch like a fat useless cunt’. In Australia people say that, that is a terminology they use. I have called her an arsehole for not letting a son see their father on Christmas day, that is an arsehole. For using the word arsehole it should be printed up in a gold certificate as to how you handle situations which shows restraint, she has used the A word.” When asked what it would have been like for the mother when he referred to her as “a fat useless cunt,” the father responded, “From someone coming from a working-class background in [City K] I imagine it would be like being dipped in honey and thrown to the lesbians.” (Q. So it didn’t offend her?) “No, of course it didn’t offend her. To offend her I would need to get a […] tattoo on [X’s] butt cheeks.” The father then spoke about his concerns with the involvement of the maternal family in the [Christian] faith. The father commented to the writer, “I am surprised I have not done something a lot worse”.
(As per the original)
The father could not explain away those extremely hurtful comments/beliefs. That he would make them to a report writer (in November 2024) when he knew:
(a)she would likely record them in her report;
(b)that they would be seen by the mother and the Court, with a trial pending in a few months’ time; and
(c)when parents being interviewed by a report writer they are generally seeking to present themselves in the most positive way,
is simply outstanding.
I can well understand the mother’s concerns that arise from the prospect of such vile comments being shared by the father with, or in X’s presence. Whilst there is little evidence that establishes he has done so to date (leaving aside the interactions during the two supervised visits which I discuss next), in the absence of being completely satisfied that under pressure or frustration an emotional outburst in the presence of X could occur, this does present to X as an emotional risk.
As I will expand upon later in these Reasons, how such a risk can be ameliorated is at the core of the orders I propose to make.
The mother asserts that the evidence of the two supervised visits between the father and X on 26 January 2025 and 22 February 2025, support her concerns. Notes from those visits are at pages 238 to 245 of the mother’s annexures (tendered as Exhibit 1) and supplemented by Exhibits 2, 8, 9 10, 17. The author of the reports did not give evidence, and therefore was not the subject of cross-examination. I have carefully read these notes and my view is that:
(a)it may have been expected that after no physical contact between the father and the child since the incident in late 2024 (save for the brief interaction in the presence of Ms G on 4 November 2024), that some reticence by the child would be observed in the child. That was not the case on 26 January 2025, when the visit for nearly three hours began with the child calling out “dad” and running into his arms;
(b)although I would understand and accept that the mother’s dialogue with the child would be different than the father’s; that the father demonstrated “high energy” and at times the father may have spoken “loudly and quick” at times, this characteristic of the father, whilst different to the calm and more relaxed mother, was not concerning. The child appeared to enjoy himself; there were many warm interactions, although I note the supervisor’s comment that X became “overwhelmed” by the father’s behaviour when he “unexpectedly lifted him up”. At the end of the visit, the father gave the child a “warm hug” and the child watched sadly as his father walked away. Although the supervisor said the father’s style was “fun, playful, high energy and enthusiastic”, the supervisor suggested (without explanation) it was above X’s “comfort level”;
(c)on this visit, the supervisor’s summary including criticisms of the father leaving the presence of the child to have a smoke; engaging in “inappropriate modelling” (for example touching a mushroom on the ground) and, as expressed, concerningly was said to have “allowed [X] to run off towards the road twice”. The father gave a plausible explanation and context to this comment, which I accept;
(d)the next visit, on 22 February 2025, is said to have occurred between 1.45pm and 5.45pm (four hours) and gives no indication of how it commenced save for him giving the father a hug – but the content of the note suggests again X enjoyed himself. My impression is that to some degree the notes were shaped by a desire to be critical of the father, referring to a red drink can in the father’s bag which the child found. The child poured it out. The supervisor could not accurately describe the can but noted “it smelt like beer” but she conceded that she had not seen the father drink from it. If it was the intention of the supervisor to convey an observation that the father may have been drinking alcohol during the visit, the father denied such an assertion and again, in my view, gave a plausible explanation. The notes reveal much chatting, playing games and warm interaction, before X left after hugging his father and saying goodbye;
(e)no doubt this was an exciting visit for X, and the father used this visit to provide the child with some walkie talkies. As to the walkie talkies, the father was challenged in cross-examination about the purpose of such gift and whether his intent in doing so was an action designed to maintain contact with the child contrary to the Court Orders. Frankly, after hearing the father’s explanation, I regard this issue as trivial; and
(f)I was concerned that the supervisor, for this visit, felt it necessary to note the father was “not slurring words or uneasy on his feet” when no such comment was made in the same section of the notes relating to “personal hygiene” for the first visit. The description of the mood being “manic” again without content, appears to be a criticism of the enthusiastic parenting style of the father, as is the supervisors view that apparently allowing X to “jump on his stomach, poke him with the antenna from the walkie talkies” reveals the father shows “no boundaries”.
As can be seen, I have carefully read those notes. I accept the father felt a degree of discomfort in the way the contact centre managed his visit and expressed his concerns, inappropriately perhaps, in the emails tendered at Exhibit 8 with Exhibit 9, being a critique of the father’s behaviour sought to be maintained by the contact centre during visits, by reference to the “service agreement”.
Overall, I would not assess the father’s interactions with X as particularly concerning – although the father’s reaction to the supervisor (which seems to have led to the cessation of further visits) was inappropriate considering the opportunity the centre provided X to interact with the father, as ordered by the Court. The end of these visits just meant that it fuelled the father’s sense of injustice and frustration arising from again not spending time with the child – exacerbated, I find, by the awareness that if the mother was permitted to relocate to the United Kingdom with the child, fewer opportunities to spend time with his son would be available.
FAMILY REPORT
I do not propose to incorporate into these Reasons large portions of the considered opinion of Ms G set out in her report dated 9 November 2024 (marked Exhibit 19), arising from interviews and observations conducted on 4 November 2024. For context however, I record that:
(a)although X (still young at the time) refused to initially separate from his mother to be interviewed (at paragraph 109) X is said to have “expressed excitement to spend time with his father and separated easily from his mother”. The interactions observed were playful, although X did not appear keen to “hug” his father, although physical closeness (sitting on his father’s lap) occurred. X appeared sad to separate from his father, which the child indicated to his mother;
(b)at paragraph 117 (in respect of the father’s alcohol use) and paragraph 118 (in respect of the alleged family violence), the expert noted the allegations were “strongly contested”. At paragraph 120, the expert expressed concern that:
the father’s pattern of behaviour is [unlikely] to change, noting that it appears to be an entrenched personality style of the father, and the father denies or minimises his past behaviour, justifies his behaviour, blames others for his behaviour, and does not have insight into how his behaviour can impact others. Notably, in his interview with the writer the father presented as chaotic and unpredictable and presented with unrelenting, intense and palpable anger and hatred towards the mother. He also persistently denigrated the mother and her family.
(c)The expert opined (at paragraph 123), that “the concerns identified concerning the father’s conduct and parenting pose an unacceptable risk of harm to [X] which can only be mitigated if the father’s time with [X] is limited in nature and supervised”. At that time, as recorded, the mother accepted “that the paternal grandparents are appropriate supervisors of [X’s] time, and this is supported”;
(d)Ms G said (at paragraph 126) that if “the Court accepts that [X] will live with the mother, then the mother’s proposal to relocate with [X] to [the United Kingdom] needs to be considered”. The recommendation at paragraph 136 that X be allowed to relocate to the United Kingdom, was made with the acknowledgement that this would mean a significantly diminished ability for X to spend time with the father (paragraph 127); the mother is likely to facilitate time and a relationship, including at a distance (paragraph 128); there are advantages to X’s wellbeing (and also the mother’s wellbeing) if relocation is permitted (paragraph 129) and that establishing a “geographical separation between the parties, with the mother and child residing in the United Kingdom and the father in Australia, would be an effective measure to mitigate this risk (paragraph 130).
These opinions, and their foundation, were the focus of some exploration in cross-examination, from which the following further evidence, in part, was given, by Ms G:
(a)The father presented as fixated and intense with his own agenda, who thought his past behaviour was “acceptable”, but she was not sure this was his intention;
(b)although there was no “data” to demonstrate the father had shared or exposed X to his palpable “hatred” of the mother, if he did, this would be detrimental to X;
(c)The mother could recall the times when the father had been “a good father” and the expert’s assessment was that the mother genuinely sees the benefit to X of having a relationship with the father, and supports it;
(d)If the mother could be a more “relaxed” parent by being able to relocate to the United Kingdom closer to her family support and with some “space” away from the father, as the primary carer, this would benefit X;
(e)X having limited time, or less frequent time, which will certainly occur if relocation is permitted, is likely to be less confusing to the child;
(f)The expert retains some confidence that the mother will be able to make decisions about how time with the father progresses into the future, as she is well attuned to the child’s needs;
(g)When asked to consider the option raised by the Court during the hearing, of delaying any relocation to early 2026, the expert opined that her preference would be moving to the United Kingdom earlier, as a delay could expose the child to more incidents of family violence;
(h)Where it was the opinion of the expert that presently the father has little insight into the effect of his behaviour and limited capacity to change, attendance by the father at a men’s behavioural change course offers little benefit; and
(i)When confronted during cross examination by Counsel for the father that if the child was permitted to relocate in mid-2025 and would not return to Australia until mid-2026 – a period of two years since time essentially ceased in September 2024 – the expert accepted this was a long period of time for a child of X’s age (five years) to not see or have physical contact with his father, particularly where he enjoys spending time with him.
The Court is not bound to accept the opinions and recommendations of the Court Child Expert, although the following analysis reveals that I do give weight to many of those opinions where I have found, on all the evidence, a solid evidentiary foundation has been established.
DISCUSSION OF COMPETING PROPOSALS WITHIN THE MATRIX OF THE STATUTORY PATHWAY
I rely upon but do not repeat findings already made earlier in these Reasons.
As higher and longstanding authority makes clear, where there is no real challenge (as in this case) about which parent X shall live with, then the Court’s attention should be directed to how the child’s relationship with the other parent, if such a relationship is of benefit to the child, can be nurtured and sustained (AMS v AIF (1999) 199 CLR 160). Such an issue is always challenging for young children and where relocation will create a significant geographical distance.
I am also conscious of the principles which arise from decisions such as Taylor & Barker (2007) FLC 93-345 at [53] that the preferred approach is not to deal with the relocation as a discrete issue but where possible “as just one of the proposals for the child’s future living arrangements”. In this case, as often occurs, the mother has indicated that she will not exercise her right of freedom of movement if the child is not permitted to relocate, and would remain in Australia, however the Court is well aware of the dissenting judgment of Gaudron J in U v U (2002) 29 Fam LR 74 at [37] about ensuring each competing proposal is separately evaluated.
I adopt, as core principles (despite a change in the legislation since her Honour’s decision), what was succinctly observed by Boland J in Morgan & Miles (2007) FLC 93-343 at [80], that:
(a)the child’s best interests remain the paramount but not sole consideration;
(b)a parent wishing to move does not need to demonstrate “compelling” reasons, although this does not mean the reasons are not irrelevant;
(c)a judicial officer must consider all proposals and may be required to formulate proposals in the child’s best interests; and
(d)the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement.
Before I undertake the required analysis, I make the following further contextual findings:
(a)I agree that whether X lives in the United Kingdom or Australia, it is in his best interests that he live with the mother. The father’s desire to be an effective parent and his genuine love for his son, is not in question – but his attitude to the mother and her family and his failure to take responsibility for some of his past behaviour compels X living with the mother (s 60CC(2)(a));
(b)The child is too young for his wishes to be articulated properly or given weight. To the extent an indication of his feelings can be discerned from evidence of his time spent with the father to late 2024, the observations by the Court Child Expert Ms G and the two supervised visits in early 2025, I am satisfied that X wishes to spend time with the father and enjoys those opportunities. They offer the child a different – perhaps more robust and energetic parenting style (s 60CC(2)(b));
(c)The mother has almost exclusively since separation met X’s “developmental and psychological needs” (s 60CC(2)(e)). The father raises few criticisms of her parenting of the child, and the evidence (including the assessment by Ms G) does not indicate otherwise. The mother, for example, has engaged the child in counselling to support him, although the evidence from his counsellor is limited (see Exhibits 21 and 22). Fortunately, this little boy seems to enjoy robust health; is not neurodiverse but demonstrates some traits of anxiety. Although, apart from the event in late 2024, he seems to have been spared witnessing the exchanges between the parents, I find it more likely than not that he is aware of the parental conflict and perhaps even his mother’s desire to live in the United Kingdom with him. The mother has obtained a mental health plan (see Exhibit 25) for herself and has undertaken some counselling as a result. I regard the mother doing so as a positive action on her part, although again without more evidence from her treating psychologist, and being tested, I am limited in my assessment of the mother’s capacity to shield the child from her anxiety and distress;
(d)I rely upon earlier findings relating to the parents’ capacity and attitude to the responsibilities of parenting (s 60CC(2)(d)) although the risks earlier identified about the father are a matter I take into account. Although the father says he also has had some counselling, very little evidence to corroborate his assertion is provided, and no evidence about either any therapeutic benefits or future treatment options is offered to the Court. In those circumstances, I agree that the Court can have little confidence, at this stage, that the father is both motivated and capable of effecting the change to his behaviour – particularly in respect of his view and attitude to the mother – as Ms G opines. I accept her opinion in that regard;
(e)The mother says, and I accept, she was genuine in this respect – that X will benefit from having a safe relationship with the father and the extended paternal family, including the paternal grandparents and the paternal aunt. I note, to her credit, that this year the mother has initiated and facilitated X spending time on two occasions for the paternal grandparents. For the first visit at L Family Services in January 2025, the father proposed that his sister Ms B come to see X as well. The contact centre reminded the father that the Orders made did not permit that and although the father was disappointed, he complied with that direction. It is worth noting that the father’s evidence for the final hearing was limited – one affidavit of only 80 paragraphs – compared to the mother’s extensive affidavit and tender bundle. Furthermore, a point made by both Counsel for the mother and the ICL, no evidence was offered by the father from his parents and/or his sister. I return to this issue shortly;
(f)In circumstances where, for the reasons which follow, the Court will make orders for X to relocate with his mother to the United Kingdom, the balance of the Reasons will relate to:
(i)when the child should be permitted to go; and
(ii)what should be the arrangements for the child spending time with the father until then – including if supervised, by whom; and
(iii)what arrangements post relocation are in X’s best interests.
Trying to shape orders when balancing the risks I have identified and the benefit to X of having an opportunity to recommence a meaningful relationship with the father, becomes the ultimate focus of these Reasons and the orders I make.
RELOCATION IN THE CONTEXT OF THE CHILD’S BEST INTERESTS
I summarise the factors, associated with the competing proposals, and the best interests of X.
The mother (and ICL’s) proposal for the child to relocate and father’s opposition
I assess the advantages and disadvantages to X of these proposals to be:
Advantages
(a)The child will continue to be in the primary care of the mother, as his feelings suggest he seeks, in a country where the mother will be more content and relaxed as a parent;
(b)X will have more opportunity to engage with the maternal grandparents and extended maternal family in the United Kingdom;
(c)The mother’s belief that she will have more family support and at least equal financial/work security, has a reasonable foundation, but is not the determinative factor. The mother has chosen to live in Australia for many years; has secure employment as a health professional and a support network of friends – all aspects she will need to recreate in the United Kingdom;
(d)The child is less likely to be exposed to parental conflict at changeovers or at public events at school and sporting occasions if the parents live so far apart. He, of course, can still be dragged into conflict through telephone/video calls and harmful letters accompanying gifts etc. In this respect, I am not satisfied the mother’s difficulties in managing some of the father’s behaviour had caused her to denigrate or influence negatively X’s view of his father;
Disadvantages
(e)The most significant disadvantage to X is that he will not be able to develop a safe relationship with his father through the frequency and involvement in X’s life, that proximity permits. No amount of video calls or gifts etc. can substantiate for the physical and emotional connection and sharing of developmental experiences, available by living close to the father. In this regard, I do not find the risks and concerns I have assessed and identified, are to the extent and magnitude, so as to severely limit X’s time with the father, if in the presence of this family;
(f)X will need to adjust not only to spending infrequent time with his father (and the Australian paternal extended family), but to a change of environment which he is used to – including climate, culture and local familiarity. The close and loving bond he holds with his mother, I find, will go a long way with helping X to adjust;
(g)Although X has not started school in Australia yet, his childcare attendance is likely to have included preparation (with a focus on the Australian curriculum) for starting school in early 2026. As a result, although no evidence was provided to the Court, he may need to adjust to a different educational regime in the United Kingdom. At his young age, and with no obvious learning difficulties, I am comfortable with X navigating these changes positively;
(h)If he remains in Australia, living with the mother, his primary carer will feel less supported and more at risk as a result of the father’s past behaviour. With little prospect, on the evidence of a capacity for the father to change this style of interaction with the mother, from her perspective the future is clouded and, in a sense, she is likely to feel trapped in Australia. I assess, despite capacity to accept such a decision, the co-parenting relationship is not likely to improve.
I have, on all the evidence, reached a conclusion that it is in the best interests of X that he be permitted to relocate with the mother, to the United Kingdom. I will now deal with the other issues in dispute.
PARENTAL DECISION MAKING
Where poor communication exists between the parents and where the distance and time differences challenge effective joint decision making anyway, I find, it is in the best interests of X for the mother to have sole decision making responsibility for major long term issues, as defined in the Act. The mother will be ordered to advise the father in writing about any such decisions, within 14 days after he has been invited to express an opinion, save in an emergency, when notice shall be given as soon as practicable.
There was no evidence about how, and in what ways, decision making of a parent under United Kingdom law operates. The mother’s minute of order requires attempts to register this Court’s orders, which I adopt. Enforcing orders in the United Kingdom is a matter for those Courts with appropriate jurisdiction.
WHEN SHOULD RELOCATION OCCUR?
The United Kingdom school year commences in August 2025, and the mother’s proposal is that X be permitted to begin school with all his new cohort at that time, which would require departure from Australia and arrival in United Kingdom around 14 days earlier. Ms G indicated this was also her preference, a position adopted by the ICL.
I do not regard it in X’s best interest to leave Australia so early and will order that the mother be permitted to relocate X, unless otherwise agreed in writing by the parents, on or after early 2026. Aware of the mother’s reasons, concerns and the support from the ICL and the Court Child Expert, whilst important, I assess they are outweighed by delaying the movement to the United Kingdom for the following reasons:
(a)On the mother’s limited proposal of alternate supervised visits until 1 August 2025, even if intake procedures and availability can be completed within seven days of this Judgment, only a maximum of four visits could occur;
(b)This would mean, anticipating that at best X would return at the start of the 2026 United Kingdom Summer school holidays, X would have had around seven visits in almost two years since late 2024. That, in my view, does not set an appropriate foundation for the challenges of maintaining a relationship with the father post relocation;
(c)The mother has secure employment and rental accommodation in Australia, and no evidence was offered to the Court to suggest that delaying her arrival in the United Kingdom puts any housing needs or employment at risk in United Kingdom;
(d)The Orders I propose to make for X to spend time with the father will be on the basis that the time occurs with either one of his parents present. The reasons for adopting this arrangement rather than to require supervised time at a contact centre are set out below. Remaining in Australia for this period will enable X to benefit from the love and attention of not only his father but also the father’s parents, who are elderly. Their ability to be as interactive with X in 12 months’ time, even if available, at their age, is an uncertainty. It will benefit X to develop a better understanding from the father and the paternal grandparents, of his heritage and history of the father’s side, which goes to a child’s identity. Relocation will mean he will have plenty of opportunities to understand better his United Kingdom heritage;
(e)By remaining at his current childcare to the end of this year and in the environment he is accustomed to, his stability will be maintained but in circumstances where he is now likely, permissibly, to begin to understand the change to his world that will come at the end of this year. I find the mother will convey the positives of the change, but as she is not unaware that for his little boy, he may have some anxiety about the change, the mother I find, will support X preparing for the change. He of course has a treating therapist to provide support as well; and
(f)The father and his family have not spent Christmas with the child for two years. They will do so this year. Furthermore, the child will be able to spend time with the father for Father’s Day in Australia.
I accept that there is a risk X might be exposed to the father’s behaviour, as it has happened, at times, in the past. The father will be aware however that this additional opportunity my orders will allow, to spend time with X, should be cherished and full of memory building, love and play. In the presence of his family, I am on balance satisfied that the benefits of this additional time for X outweighs the likely risks or concerns.
Counsel for the mother properly raises a concern about the way the father ran his case, particularly not calling his parents as witnesses. The parents additionally were not presented to Ms G for assessment. I agree this was far from optimal.
However, I have already recorded that in November 2024 the mother told the Court Child Expert that she would be prepared to support orders for the father’s time to be in the presence of the paternal grandparents.
I accept her case seemed to change after that point, but the mother’s evidence that she no longer supports them being effectively the supervisors because of their age, state of health and, in particular, that they will not protect X from the comments of the father, was in my assessment unconvincing. The mother facilitated time with the grandparents, which demonstrates that she saw some benefit in the child having a relationship with them. I know little about the father’s sister – and certainly there is no risk raised about her spending time, as a family unit, with X.
For these reasons, the orders I make for time with the father between the start of June until the end of December 2025, are in X’s best interests. They build on what was occurring up to late 2024, before events on that day had the consequence revealed by the history recorded.
The evidence is not sufficient to persuade me that overnight time is appropriate, although the parents could allow that to occur by agreement if the mother felt comfortable. The history of care and the risks identified do not allow me to feel that X could cope with overnight time at the moment.
Certainly, with more maturity and with the likely increased confidence that often flows with childhood sleepovers and the like, I would not be surprised if the mother formed the view, when the child returns next to Australia in mid-2026, that some overnight time would be appropriate. As a result, the orders I make set out some parameters for the time to occur over a three-week holiday in Australia, but with the mother obligated to give written notice of her proposal by 30 April 2026 and by 30 April each year thereafter. To try and be too prescriptive now is more theoretical than evidence based. By doing so, it is my hope that the parents will engage in some discussions about the regime that can operate. Importantly, I comfortably assess the mother will be able to meet the costs of her travel and accommodation, with the father to share equally in the costs of travel for X. It is not possible to be certain how a liability on the father to pay child support will operate.
Ideally, the father would find a way financially, post relocation, to visit his son in the United Kingdom. It is hard to think of a greater and more obvious statement to X about his father’s love and interest in him, than the father getting to the United Kingdom to see X, including at his school or on a sporting field. The evidence does not permit me to be satisfied if or when it might occur, conscious of the costs of travel and accommodation. To the extent the father says he would not be welcome in the United Kingdom, or worse, at risk of harm going there, I reject such a proposition.
For the reasons given, the Orders at the commencement of these Reasons are in the best interests of X.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 29 May 2025
APPENDIX ONE
Decision making
1. That pursuant to section 61D(3) of the Family Law Act 1975 the mother shall have sole decision-making responsibility for the child, X born in 2020 (the child) in respect of major long term decisions and shall inform the father in writing of any major long-term decisions she makes for the child
Live with
2. That the child shall live with the mother.
Relocation
3. That the mother be permitted to permanently relocate the child’s place of residence to United Kingdom, United Kingdom.
4. Pursuant to section 68B of the Family Law Act, the father be restrained from removing the child from the care of the mother or any other person or organisation with whom the mother has placed the child.
Spend time: Prior to Relocation or if location refused
5. Prior to the mother being permitted to relocate, or in the event that the court does not allow the mother to permanently relocate, the father shall spend time with the child as follows:
a. On a supervised basis on the Region D at C Family Services or similar community-based supervision service (the supervised time) at the father’s expense not less than once per month for a period of up to 4 hours, on either a Saturday or Sunday depending on the Centre’s and fathers’ availability.
Spend time: following relocation
6. Upon the mother being permitted to relocate the mother shall travel to Australia at her expense with the child for no less than three (3) weeks in a calendar year in accordance with the child’s schooling needs and as nominated by the mother each year.
7. That for the purposes of Order 6 above, the mother shall provide confirmation in writing by no later than 14 January each calendar year written notice to the father of the dates that she will be in attendance in Australia with the child for that year ahead (the travel dates).
8. Within thirty (30) days upon receiving notification of the travel dates in Order 7 above, the father shall contact a professional supervision contact service provider in Region D such as C Family Services or similar supervised contact service (the supervised centre) and secure at least 4 separate supervision bookings of up to 4 hours per booking, but not more than 12 separate bookings, with the supervision centre at the father’s expense (the scheduled time).
9. Upon the father complying with Order 8 above, the father is to provide written confirmation by way of email to the mother of the confirmed scheduled supervised time within seven (7) days including confirmation of payment.
10. Upon compliance by the father with Order 8 and 9, the mother shall do all acts and things necessary to conduct any relevant intake process within fourteen (14 days of notification under Order 9.
11. That father shall pay all the costs of the supervision centre including intake and report fees.
Passport
12. The pursuant to section 11(1)(b) of the Australian Passports Act 2005 the mother is at liberty to renew the passport for X born in 2020 and these orders be sufficient authority for the mother to apply for such passport without the consent of the father.
Restraints
13. That pursuant to section 114, the father be restrained:
a. from consuming alcohol on the day of spending time with X and from drinking alcohol throughout the time spent with X.
Communication
14. That any communication between the parents shall take place by way of a communication app “App Close” or other such parenting app as nominated by the mother.
15. In the event of any emergency pertaining to the child, the parent spending time with X will contact the other parent by way of telephone as soon as practicable to update them.
Non-denigration
16. Both parties are restrained from denigrating each other or the other’s family to or in the presence or hearing of the children or causing or permitting any other person to do so.
Recognition of orders in the United Kingdom
17. The Mother be permitted to apply to a Court in United Kingdom or the United Kingdom for recognition of these Orders in the United Kingdom pursuant to The Reciprocal Enforcement of Foreign Judgments (Australia) Order 1994 (UK) and/or Administration of Justice Act 1920 (United Kingdom) and/or the Foreign Judgments (Reciprocal Enforcement) Act 1933 (United Kingdom).
Permission to travel overseas if relocation not granted
18. That should the mother not be permitted to relocate with the child, X born in 2020 (“X”) to United Kingdom then the mother shall be permitted to travel with X on not less than one occasion per calendar year to United Kingdom, for the purposes of visiting her family (“the visit”) without the consent of X’s father, Mr Racz (“the father”) on the following basis:
a. The visit will be for a period of two weeks taking into account the time zone difference.
b. The mother will return with X to her residence at the conclusion of the visit.
c. The mother will provide the father with copies of the return tickets, itinerary and contact details for X and herself for the visit no later than three (3) days prior to departure.
d. The mother will message the father within one (1) hour of her return flight to confirm that X has returned to Australia.
e. While the mother and X are overseas, the mother will facilitate Facetime communication between X and the father not less than once per week. The father will call at 6.00pm onwards Sydney time and the mother will ensure that her phone is charged and available for X. The mother will also ensure the father and X have privacy for the duration of the call.
19. Notwithstanding Order 19 above, in the event of a family emergency, the mother shall be permitted to travel with X to United Kingdom, for the purposes of the family emergency family without the consent of the father with the mother to comply with Orders 19(a) to (e) above.
Notation:
Telephone CallsA. It is the intention of the mother to facilitate a weekly telephone call between X and the father once relocating on a weekly basis on a date and time to be advised by the mother in the parenting app, based on X’s age and schooling commitments. And that for the purposes of this call the father shall call the mothers phone at the specified time.
B. The mother is at liberty to terminate the above call if the mother considers that the father is either under the influence of alcohol or not being child focussed in his communication.
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