Vrolijk & Beaulne

Case [2023] FedCFamC1F 416

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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Vrolijk & Beaulne [2023] FedCFamC1F 416
Case
[2023] FedCFamC1F 416
Decision Date

CaseChat Overview and Summary

The case of Vrolijk & Beaulne involves a dispute between the father and the mother regarding the care and residence of their child. The father, born in Australia, has been working casually as a labourer, while the mother, who relocated from Country B to Australia, is currently unemployed and caring for the child full-time due to visa restrictions. The father has a daughter from a previous relationship but has no contact with her. The parents have a contentious history, including allegations of family violence by the father and his subsequent legal charges. The child currently resides with the mother in City K, with the father having supervised contact in City K and via FaceTime. The court was required to decide on the best interests of the child, including whether the mother should be permitted to relocate the child to Country B and the extent of the father’s involvement.

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

Full text does not contain this section.

Background

Background to the litigation

Both parties filed a Case Outline and a Summary of Argument that they sought to rely on. The Court was assisted by a Family Assessment Report dated 9 December 2022 prepared by Child Court Expert, Ms J. BACKGROUND The father was born in Australia in 1977 and is presently 46 years of age. The mother was born in Country B in 1982 and is presently 40 years of age. The mother moved to Australia with the child in early 2021, with the intention to relocate and reside with the father. The father maintains employment on a casual basis as a labourer. Prior to the father’s present employment, the father was employed on a full-time basis as a public servant however, following an incident in the former matrimonial home, the father was charged and subsequently, his employment was terminated. The mother is currently unemployed and is engaged in the full-time care of the child. Due to a restriction and condition of her current visa, the mother is unable to obtain employment. In Country B, prior to relocating, the mother maintained specialist employment and operated a business on her father’s property. The father has a daughter from a previous relationship who is 13 years of age. The father’s daughter lives interstate and at present, the father spends no time with her. The father is presently living and working in H Town, a remote community. The mother and the child reside in City K, roughly 400km away. The child lives with the mother and in accordance with the Orders of 21 July 2022, the father spends time with the child for a period of two hours, every third week, at D Contact Centre in City K. The father also has FaceTime with the child during the first week of every month. The FaceTime communication is supervised by a Pastor from the mother’s church. The parties met online in 2019 and commenced a long distance relationship in or about mid‑2019. The father travelled to visit the mother in Country B on two occasions in 2019. The first visit being in mid-2019 and the second visit in late 2019. During the father’s second visit, the parties decided to get married and in late 2019, the parties engaged in a religious marriage ceremony. The parties’ marriage was never formalised. The father returned to Australia 10 days after the religious marriage ceremony. Shortly thereafter the mother discovered she was pregnant. The parties planned for the father to return to Country B for the birth of the child, however Covid-19 restrictions prevented the father’s travel. The child was born in Country B in 2020. In early 2021, the mother and child travelled from Country B to Australia with the intention to relocate and live with the father. The mother and child spent a period of 14 days in hotel quarantine in Brisbane following which they briefly spent some time with the paternal grandmother before returning to L Town with the father. The father had not met the child prior to the mother and child leaving their hotel quarantine in early 2021. In approximately the following month, the parties reaccommodated to M Town, a remote community, about 250 km from City K, where the father was employed as a public servant.

Evidence

Evidence Before The Court

Consideration was given to the objections to affidavits of evidence by application of the Rules in s 135 of the Evidence Act.EVIDENCE OF THE PARTIESThe father The father confirmed that the parties underwent a religious commitment ceremony conducted by a person who was not authorised to solemnise a marriage. By reason of the father’s employment as a public servant, the mother undertook the majority of the domestic duties. As discussed, the parties lived at M Town with other people which was effectively a residential compound. The father was shown an aerial map of the location and whilst the accommodation was adequate, the evidence readily supports a finding that the family lived in what could only be described as remote and isolated accommodation. The compound was able to be locked. The parties owned a small motor vehicle however, the father acknowledged that it was suited only to sealed or high quality unsealed road surfaces and for any other driving, a four wheel drive, usually a work vehicle, was necessary. It is likely that the mother and child were ill prepared for the remoteness of the father’s accommodation. The distances that were required to be travelled were extensive and the catchment area often required the father to be absent from the home for extended periods of time. It was his estimate that he ate meals with the family at home, on a minimum of three times per week but only occasionally would he eat lunch. The father joined the public service in 2008 and he agreed that as part of his training, but in any event consistent with his hobby interests, he underwent extensive weapon safety training. The father’s evidence is that he was diligent in keeping his skills to an appropriate level, would undergo regular training in weapon management and was broadly familiar with a document relating to weapon safety guidelines. The parties separated after the mother alleged that in mid-2021, the father pointed a weapon at the child and handled another weapon in a threatening manner towards the child and the mother. Following separation, the mother and child were removed to City K and there was an investigation by the father’s employer as to the father’s conduct. In mid-2021, the father was charged with four offences. The matter was listed for hearing in the Local Court of City K. The father entered a plea of not guilty and in late 2021, the father was found not guilty on three of the four charges but he was found guilty on a weapons related charge. No conviction was recorded and the father was fined including an amount by way of victims of crime levy. Immediately after the separation of the parties, the father was the subject of a s 41 Domestic Violence Order (“DVO”). The father challenged the DVO and following a hearing in early 2022, the DVO was discharged and the application dismissed. The mother has alleged that in the short time that the parties were together, the father perpetrated family violence not just arising out of the alleged assault using weapons but also in terms of his conduct being aggressive, threatening and coercive towards her.

Decision

Reasons for decision

The matters raised as between the parties would readily support a finding that the presumption of equal shared parental responsibility would not be in the child’s best interests. There is little likelihood that the parties are able to reach consensus and the issues that impact upon the child need to be the subject or ready resolution and determination which would not be possible if any action required was dependent on the parties reaching agreement.CONCLUSION The focus has been upon a consideration of the orders that would best maintain the child having a meaningful relationship with the father in circumstances where there is little other option but for the child to reside in the primary care of the mother. The complication is that the mother’s circumstances in Australia are dire. With the wisdom of hindsight, there may well have been a level of naivety on the part of the parties that it was viable for the mother and the child to leave Country B and enter into a life with the father in an isolated and remote area. Moreover, the inability of the mother to secure an appropriate visa enabling stability of residence in Australia, as opposed to a torturous process of going through the motions of visa rejection in anticipation of a favourable exercise of ministerial discretion, is untenable. Given that the primary care of the child should remain with the mother, her personal circumstances are difficult in that she is not able to secure employment, is reliant upon a Centrelink benefit or pension in respect of the child rather than in her own right and where the father does not contribute financially by way of Child Support. Those considerations must be tempered by a focus on the needs of the child and in particular, that where there is uncertainty if the mother is permitted to relocate as to whether she will genuinely support the child’s relationship with the father, I consider that whilst the mother should be permitted to relocate the child’s residence to Country B, it should not occur for a period of 24 months during which time the child will spend gradually increasing unsupervised time with the father and enable the mother an opportunity to demonstrate both compliance with Court Orders but also to undertake the therapeutic assistance as suggested by the Court Child Expert. The mother’s proposal for immediate relocation of the child is compromised by the uncertainty that she and the father have the financial ability to give effect to the orders that she seeks. Moreover, the evidence of Mr E is that the visa process will take between two and four years and so there is some reasonable certainty that the mother would not be deported during the period that is contemplated by these Orders. Were the visa process to become expedited and the mother not able to remain in Australia at an earlier time, then that would be the basis for the earlier relocation of the mother and child relocating to Country B. I have given careful consideration to the separate proposals of the parties. The advantages and disadvantages are self-evident and doing the best I can, I consider that over a period of eighteen months a relationship will better develop between the child and the father, the mother’s financial circumstances in Country B will likely crystallise and there will be an opportunity for the mother to recognise that her own view of the father must be subordinate to the child’s best interests being served by a relationship being developed.

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.