FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vrolijk & Beaulne [2023] FedCFamC1F 416
File number(s): ASC 5 of 2021 Judgment of: BERMAN J Date of judgment: 24 May 2023 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives with – Relocation – Where the mother lived in Country B until 2021 – Where the child was born in Country B – Where the mother has employment, housing and family support in Country B – Where the mother cannot work in Australia because of her visa – Where the mother cannot afford rental accommodation – Where the father has not financially assisted the mother – Where there is a significant disadvantage in not affording the mother the ability to relocate with the child – Consideration of whether the child could develop a meaningful relationship with the father if relocated – Consideration of the child’s young age – Orders providing for the father to establish a relationship with the child free of the condition of supervision prior to relocation permitted.
FAMILY LAW – CHILDREN – With whom a child spends time with – Where the mother alleges family violence and inappropriate sexualised behaviour by the father – Where the court finds that the mother’s evidence was not reliable and that the father does not present as a risk to the child – Whether the mother is able to support the child’s relationship with the father –Where the mother is opposed to the father spending any time with the child that is not supervised – Consideration of the extent to which a final order that a party’s time with a child should be the subject of long term supervision – Consideration of orders that would best maintain the child having a meaningful relationship with the father until the mother is permitted to relocate – Orders.
FAMILY LAW – CHILDREN – Parental responsibility – Presumption of equal shared parental responsibility – Where the parties have a demonstrably poor relationship – Where the parties are unable to communicate – Where equal shared parental responsibility would not be in the child’s best interest – Orders.
Legislation: Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth), Division 12A, ss 60CA, 60B(1), 60B(2), 60CC, 60CC(2), 60CC(2)(A), 60CC(3), 61DA, 65DAA, 69ZT, 69ZT(3), 69ZN
Migration Act 1958 (Cth) s 114
Cases cited: AMS v AIF [1999] 199 CLR 160
Baglio & Baglio [2013] FamCA 105
Beckham v Desprez [2015] 55 Fam LR 310
Blanding v Blanding [2016] 55 Fam LR 218
Champness & Hanson (2009) FLC 93-407
Cotton & Cotton (1983) FLC 91-330
Dennison & Wang [2010] FamCAFC 182
Mazorski v Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Sigley v Evor (2011) 44 Fam LR 439
Starr & Duggan [2009] FamCAFC 115
St Claire & St Clair and Ors [2013] FamCA 108
Wang & Dennison (No 2) [2009] FamCA 1251
Zahawi & Rayne [2016] FamCAFC 90
Division: Division 1 First Instance Number of paragraphs:
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CaseChat Overview and Summary
The central legal issue was whether the presumption of equal shared parental responsibility should apply, considering the parents' conflict and the father's alleged family violence. The court had to weigh the advantages and disadvantages of the parents' proposals, focusing on the child's best interests, including the need for a meaningful relationship with both parents. The court also considered the mother's precarious financial situation and visa status, which would impact her ability to provide for the child and maintain a relationship with the father.
The court concluded that the presumption of equal shared parental responsibility was not in the child's best interests due to the highly conflicted relationship between the parents and the father's history of alleged family violence. The court decided that the child should primarily reside with the mother, but with a gradual increase in the father's unsupervised time over 24 months. This arrangement aimed to allow the mother to demonstrate her compliance with court orders and undertake therapeutic assistance while providing the child with an opportunity to develop a relationship with the father. The court also noted the uncertainty surrounding the mother's visa process, which could take between two and four years. The orders ensured that the mother could relocate to Country B after 24 months if her visa situation permitted.
The final orders granted the mother permission to relocate the child to Country B after 24 months, provided her visa situation allowed. During this period, the father's contact with the child would gradually increase from supervised to unsupervised, enabling the development of a meaningful relationship. The court's decision balanced the need for the child to have a stable primary caregiver with the importance of maintaining a relationship with both parents, considering the unique circumstances of the case.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In the decision of Zahawi & Rayne [2016] FamCAFC 90, the Full Court considered a number of authorities, both international and local, and summarised the position as follows:-47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children's best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents' proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children's best interests. Concomitantly, Gummow and Callinan JJ said in U v U: ...The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.48."Relocation cases" are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children's best interests. However, the issues in a "relocation case" are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.(Footnotes omitted)PARENTING CONSIDERATIONS The parties are not agreed as to parental responsibility. The mother seeks sole parental responsibility on the basis that whether she is required to remain in Australia with the child or is permitted to relocate the child’s residence to Country B, the relationship between the parties is so highly conflicted arising from the father’s alleged family violence and sexualised behaviour that there is no possibility of effective and child focused communication occurring. The father’s proposal is that his time should increase immediately to an equal shared care arrangement. If the mother cannot remain in Australia, then the father proposes that the child reside with him and that he have sole parental responsibility. The orders sought by the mother would have the child in her primary care and any time to be spent with the father would be under strict supervision. The uncertainty, as considered by the Court Child Expert, is whether either if required to remain in Australia or if leave is given for the child to relocate to Country B, the mother would promote and support the child’s relationship with the father. Meaningful relationship In Mazorski v Albright [2007] FamCA 520, Brown J commented on the definition of "meaningful" and said:-26.What these definitions convey is that "meaningful", when used in the context of "meaningful relationship", is synonymous with "significant" which, in turn, is generally used as a synonym for "important" or "of consequence"… when considering the primary considerations and the application of the object and principles, a meaningful relationships or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.