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

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.

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