Racz & Racz

Case [2025] FedCFamC1F 354

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…

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AGLC
Racz & Racz [2025] FedCFamC1F 354
Case
[2025] FedCFamC1F 354
Decision Date

CaseChat Overview and Summary

In the matter of Ms Racz and Mr Racz, the Federal Circuit and Family Court of Australia (Division 1) considered a dispute primarily concerning the relocation of the child, X, from Australia to the United Kingdom with his mother. The father contested this relocation, arguing that it would negatively affect the child’s relationship with him. The court needed to determine the best interests of the child concerning relocation, parental decision-making responsibilities, and the timing of the relocation.

The court found that it was in the best interests of X for the mother to have sole decision-making responsibility for major long-term issues, such as education and religious upbringing. This decision was based on the poor communication between the parents and the challenges posed by distance and time differences. The court also ordered that the mother must notify the father of any intended decisions within 14 days, allowing him to respond unless an emergency situation arises. The relocation of the child to the United Kingdom was permitted but delayed until early 2026 to ensure the child could maintain a relationship with his father and paternal grandparents. This period would also allow the child to prepare for the change in his life and maintain stability in his current environment. The court emphasised that the mother should support the child during this transition.

The court highlighted the father's behaviour, including derogatory remarks and harassment towards the mother, as detrimental to the co-parenting relationship. Despite the father's acknowledgment of his actions and attempts to address potential sleeping disorders, the court was not convinced that these factors significantly impacted the father’s ability to spend unsupervised time with the child. The court ordered supervised visits for the child with the father until the relocation, with the presence of paternal grandparents, and regular communication between the child and the father post-relocation. Additionally, the court mandated that both parents refrain from denigrating each other or their families in the presence of the child and provided specific guidelines for communication and contact arrangements.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.