Melbourne Family Lawyers Win International Parenting Dispute for Mother in Family Court of Australia at Melbourne

31 October 2017

Alison Loach, a Senior Consultant with Melbourne Family Lawyers, advised a client that she had a strong case and that she should pursue the case all the way through to a final hearing before Justice Austin in the Family Court of Australia.  On 15 September 2017, after hearing the evidence and submissions from Counsel, the Judge decided that our client should have sole parental responsibility for all major long-term issues in respect of the children in her care- a boy aged 8 years old and a girl aged 5 years old.  The father’s Application for an order that there be equal shared parental responsibility for the children was dismissed.  In order to avoid identification of the parties to the dispute and their children, the Family Court has published this decision under the pseudonym, Maziar & Maziar.

The relevant facts of this case are that the family moved to Australia from the United Kingdom in 2013.  Within weeks of arriving in Australia, the Husband returned, on his own, to UK in order to complete some job training.  After returning to Australia temporarily in December 2014, the marriage broke down and the Husband returned to live in UK in mid-2015.

As a result of negotiations conducted , the parties managed to agree on most of the parenting arrangements for the children and final orders were made by consent specifying that the children should live with the mother and that children should spend time with the father at least once a year in UK at times to be agreed and also in Australia should the father be in Australia.  The parties also agreed to an order that the children could communicate with the father using FaceTime or telephone each alternate day for up to 20 minutes. 

As the parties had resolved by consent where the children would live, and the contact the children would have with each parent, the only outstanding issue the Judge had to decide was whether the mother should have sole parental responsibility for the children or whether there should be equal shared parental responsibility.

The Judge decided that the presumption of equal shared parental responsibility should not apply in this case because of past family violence between the spouses.  The Judge went further to say that, in this case, even if there was no family violence, the presumption of equal shared parental responsibility was rebutted because the evidence revealed that the children’s best interests would not be served by such an order.  The evidence which the Judge referred to was the following:

Both parties agreed that the communication between them was poor, each tended to blame each other for the lack of communication.No matter who was to blame, the result is that the parties cannot communicate effectively.

If parents cannot communicate effectively, then it is not appropriate to make an order for shared parental responsibility as the law requires the parties to consult and make a genuine effort to compromise their dispute over any major long term issue relating to the children.If an order for shared parental responsibility is made, and the parties cannot agree on a major long term issue relating to the children, then the only solution which the Family Law can offer is for a Court to decide the issue. That would be expensive, impractical and should be avoided.In the case before the court, there was evidence of the parties having had a number of past and current disagreements over important issues related to the children.The Judge had little practical option but to decide that the mother should have sole parental responsibility for all major long-term issues in respect of the children.The judge commented that the father’s opinion that it would be “fair” for both parties to share parental responsibility was unconvincing to say the least.

Related Articles

  • What do I do if we can’t agree on parenting arrangements for the children? 3 April 2019 - The Family Law Act states that each parent has parental responsibility for their child up until the age of 18 years. This is the case whether you are still together as a family or separated.
  • Should I change Family Lawyers in my Family Law Court Case? 18 January 2019 - Are you having doubts about whether you are being well-represented in your Family Law dispute?
  • Recognition of Foreign Marriages and Same-Sex Divorces in Australia 9 March 2018 - We are often asked about whether Marriages which originated outside Australia are recognised under the Family Law of Australia.
  • Can I apply for a Divorce if I am no longer living in Australia? 5 October 2016 - Melbourne Family Lawyers represents many clients who do not live in Australia. If you are living overseas, we can still represent you and apply for a Divorce in Australia under certain circumstances.
  • Melbourne Family Court allows Mother and Child’s Relocation to USA 21 June 2016 - In January 2015, our client, 30 year old USA citizen Miranda (not her real name) was referred to Melbourne Family Lawyers by United States Embassy staff in Melbourne, as her marriage to her 35 yo Australian Husband, Bruce (not his real name) had broken down. Miranda’s legal problem was that she wanted to return home to the United States, with her 3 year old daughter, but her Husband objected to such an arrangement.
  • The Best Family Law Advice from Melbourne Family Lawyers 20 July 2015 - At Melbourne Family Lawyers, we don’t offer a “free” first consultation and use it to market our services to you. The first meeting with one of our lawyers is scheduled for one hour because we know it will take a bit of time to listen to your story so that we can understand your situation and what is important to you and what you would like to achieve.
  • Beware of Family Lawyers offering Free Initial Consultations 26 November 2014 - Have you come across the recent advertising from Family Lawyers offering “free initial consultations”? Have you stopped to think why those lawyers are doing that?
  • Winning International Child Custody Cases 8 May 2014 - At Melbourne Family Lawyers, we like to win the Court Cases which cannot be settled out of Court! This year we have had great success in running (and winning) two cases in the Federal Circuit Court involving young mothers wanting to return to their overseas country of origin with their young children. These cases needed to be decided by a Judge as the children’s parents could not come to an agreement as to with whom, or where, the child should live.
  • What to Expect from a Family Lawyer 8 November 2013 - A Family Lawyer will advise you as to his or her opinion as to where you stand when applying the applicable Family Law to your particular situation. However, a Family Lawyer will never be able to provide you with a definitive outcome in your case as the outcome of your case will depend on the following.
  • How do I settle my Family Law Custody Dispute in Melbourne if I am overseas or interstate? 22 July 2013 - The Family Law Courts in Melbourne (being the Family Court of Australia and the Federal Circuit Court of Australia) have jurisdiction to determine a Family Law dispute if at least one of the parties to the dispute is either.
  • Which Family Law Court in Melbourne? 8 April 2013 - Clients are sometimes confused about which Family Law Court is appropriate to hear their case in Melbourne. This is understandable as there are three separate courts on the same street in Melbourne which have jurisdiction on Family Law related issues.
  • Can I move out of Victoria without a Family Law Court Order? 1 March 2013 - Whether you are allowed to move out of your current home to a new place depends on a number of factors.
  • Can I apply for a Divorce in Australia if I was married overseas? 1 February 2013 - An Australian Court has the jurisdiction to grant a Divorce if you were married outside of Australia, as long as at least one of the following pre-conditions apply:
  • Finding the Best Family Law Firm in Melbourne 15 January 2013 - So your spouse has just announced, "It's over!" and you need to find a law firm to help guide you through one of the most stressful situations you are going to face. Where do you start? Do you go back to your local conveyancing law firm who looked after the purchase of your home?
  • Social Networks - a Divorce Lawyer’s Nightmare or Dream- depending whose side you are on! 11 April 2012 - Watch Out- Social Networks- A Divorce Lawyers Nightmare (or Dream) What you say on FaceBook or Twitter may well end up as evidence in the Family Law Courts!
  • Family Law Disclosure Rules 22 January 2009 - A direct extract from Family Law Rules- Parts 13.1 and 13.2
Talk to us now for advice about your situation by phoning (+61) 03 9670 9677
Call +613 9670 9677
Make an Enquiry Book an Appointment
  • Melbourne Family Lawyers Melbourne Office:
    4th Floor, 271 William Street
    Melbourne VIC 3000
    (+613) 9670 9677
  • Melbourne Family Lawyers Brighton Office:
    Suite 13, 214 Bay Street
    Brighton VIC 3186
    (+613) 9670 9677