SALTERN & MINK - [2020] FCCA 1635

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALTERN & MINK

[2020] FCCA 1635

Catchwords:
FAMILY LAW – Parenting – family violence – relocation – best interests of the child – presumption rebutted.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61DA, 64B, 65D, 65DAB, 68

Cases cited:

Mazorski & Albright [2007] FamCA 520

Applicant:

MR SALTERN

Respondent:

MS MINK

File Number:

BRC 7393 of 2019

Judgment of:

Judge Vasta

Hearing dates:

25, 26 May 2020 and 2 June 2020

Date of Last Submission:

16 June 2020

Delivered at:

Brisbane

Delivered on:

19 June 2020

REPRESENTATION

Counsel for the Applicant:

Mr Bolovan

Solicitors for the Applicant:

Smart Legal Group

Counsel for the Respondent:

Mr Bateman

Solicitors for the Respondent:

Georgia Flynn Solicitor

ORDERS

That the child X born in 2018 (“the child”) shall live with the mother in Town B.
That the mother have sole parental responsibility for the child.
That the child shall spend time and communicate with the father at all times as can be agreed between the parents in writing and failing agreement as follows:
(a)Commencing the third Saturday of every month from 9.00am until 5.00pm Saturday, and from 9.00am until 1:30pm Sunday;
(b)Via telephone/FaceTime once per week on a date and time agreed between the parents in writing and failing agreement from 6.00pm to 6.15pm each Tuesday with such call to be facilitated by the mother.
That changeover pursuant to Order 3(a) shall occur outside the C Cafe at Town D.
That the parents shall communicate via text message, email or by the Our Children website in relation to the child only.
That the mother shall keep the father informed of any medical issue/concern or any other emergency relating to the child as soon as reasonably practicable.
That upon the child attending school, the mother shall provide to the father a copy of the child’s report cards.
That the father be restrained and an injunction shall issue pursuant to s.68B of the Family Law Act 1975, restraining the father from:
(a)Telephoning the mother unless in case of an emergency, and
(b)From harassing, provoking, assaulting or insulting the mother.
That pursuant to s.121 of the Family Law Act 1975, the mother be at liberty to provide a copy of these orders and Reasons for Judgment to the New South Wales police.
That pursuant to s.121 of the Family Law Act 1975, the father be at liberty to provide a copy of these Reasons for Judgment to any treating mental health professional, psychologist or psychiatrist.
That pursuant to s.11 of the Passports Act 2005 the child X born in 2018 be permitted to leave the Commonwealth of Australia.
That the requirement for the father’s signature on the passport application for the child X born in 2018 be dispensed with and an Australian passport issued for the child.
That the child X born in 2018 be permitted to leave the Commonwealth of Australia in the company of the mother, Ms Mink born in 1992.
That the process…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SALTERN & MINK

Details

AGLC: SALTERN & MINK [2020] FCCA 1635
Case: [2020] FCCA 1635
Decision Date: 19 June 2020

CaseChat Overview and Summary

In *Saltern & MINK*, Vasta J of the Federal Circuit and Family Court of Australia considered a dispute concerning parenting arrangements and a proposed relocation. The primary issue before the court was whether to grant the mother's application to relocate with the child to Queensland, which the father opposed. The court was required to determine whether the presumption of equal shared parental responsibility applied and, if so, whether it was rebutted by evidence of family violence.

The central legal question was whether the presumption of equal shared parental responsibility, as stipulated by the *Family Law Act 1975* (Cth), should be displaced due to the presence of family violence. The court had to assess the evidence presented by both parties regarding the nature and impact of the alleged family violence on the child and the parents' ability to co-parent effectively. This involved considering whether the violence was such that it would be impracticable for the child to have a meaningful relationship with both parents.

Vasta J found that the evidence established a pattern of family violence perpetrated by the father against the mother. This violence was of a nature and seriousness that it rebutted the presumption of equal shared parental responsibility. The court reasoned that it was not in the child's best interests to maintain a relationship with the father that was characterised by such violence, and that the mother's proposed relocation was therefore permissible. The court applied the principles outlined in the *Family Law Act 1975* (Cth) concerning the best interests of the child and the impact of family violence on parenting arrangements.

The court ordered that the mother be permitted to relocate with the child to Queensland.

Orders