Father Opposes Mother's Sole Parental Responsibility
Todora & Todora [2022] FedCFamC1A 151 (27 September 2022)
The father filed an appeal from orders providing for the mother to have sole parental responsibility and allowing the mother to return to Country B with the child. The Court, in resolving this dispute, relied upon the child's best interests.
Facts
The parties met online in 2011 or 2013. At that time the parties were living in their countries of origin. For the father, that was Country J and for the mother, Country B. The parties married in late 2015 and lived in City H, Country J. That arrangement was never intended to be permanent as the parties were proposing to move to either Country F or Australia.
Australia was chosen but by the time visas were obtained in 2016 the mother was pregnant. In early 2016 the parties travelled to City G, Country B so that the mother could have family support after the birth. The father returned to Country J and travelled to Australia in August 2016. The child was born in 2016 in City G, Country B.
The father travelled to City G briefly in December 2016 to meet the child. The mother obtained a visa for permanent residency in Australia in March 2017 but, by that time, she had informed the father that she did not wish to continue in the relationship or move to Australia. In December 2017, the mother and child travelled to Australia to attempt to restore the marriage and for the child to spend time with the father.
The mother and the child were habitually living in Country B and came to Australia in October 2019 so that the child could spend time with the father. The father had obtained return airfares for the mother and child who were due to return to Country B on 31 May 2020.
The primary judge made orders for the child to live with the mother who was to have sole parental responsibility for her and allowed for the mother to return to Country B with the child. Consequent orders provided for the child to spend time with the father. The primary judge found that the father assaulted the mother in January 2020. In early February 2020, the mother decided to leave Australia. The father agreed and changed the return date on the tickets to March 2020.
The father commenced these proceedings. The effect was that the child was administratively placed on the Family Law Watchlist, thereby preventing her from leaving Australia. The mother attempted to do so on 14 February 2020 with the child, but was intercepted by the Australian Federal Police. The primary judge found that a number of disadvantages would arise if the child was to live in Country B with the mother, as opposed to living primarily with her in Australia.
Issue
Whether or not the primary judge erred by making an order for sole parental responsibility in favor of the mother.
Applicable law
Analysis
The father’s primary submission was that the allegations of assault were fundamentally inconsistent with subsequent text messages and emails from the mother. He also submitted that the primary judge should not have relied upon a WhatsApp message. The father was unable to take us to the asserted text messages and emails. No such text messages or emails were relied upon by counsel for the father at the trial.
Contrary to the oft made submission by the father that the child has a right to have both parents involved in her life and, while that is certainly an aim of the Act (see s 60B of the Act), neither that Act nor the Constitution of the Commonwealth of Australia provides such a right. The child’s right is to have parenting orders that are in her best interests (s 60CA and s 60CC of the Act). The difficulties arising from the selection of the child’s school amply justify the conclusion that the parties cannot communicate to make decisions in the best interests of the child.
Until the father commenced proceedings, thus triggering the Family Law Watchlist, the common intention of the parties was that the child’s habitual place of residence was Country B, not Australia. The clearest evidence of that is the purchase by the father of return airfares in 2019 and his re-booking of the return flight for March 2020. He submitted that the mother would not have come to Australia if he had not done so.
Conclusion
The Application in an Appeal filed on 18 August 2022 is dismissed. The appeal is dismissed. Order 1 made on 22 July 2022 is discharged and the Court requests that the Australian Federal Police remove the name of the child X from the Family Law Watchlist at all points of international arrivals and departures in Australia. The appellant will pay the costs of the respondent fixed in the sum of $4,111 and the costs of the Independent Children’s Lawyer of $4,111 within 28 days.
