Murati & Roca [2024] FedCFamC2F 1672

Introduction

The Federal Circuit and Family Court of Australia (Division 2) recently delivered a significant ruling in Murati v Roca [2024] FedCFamC2F 1672. The case involved a parenting dispute concerning two children, aged 12 and 16, who expressed a preference not to spend time with their father. The court examined issues of family violence, the children’s best interests, parental responsibility, and the weight to be given to the children’s stated preferences. Judge A. Humphreys issued the decision on 22 November 2024, setting a precedent on balancing children’s views with their long-term welfare.

Background

The parents, Mr Murati (applicant father) and Ms Roca (respondent mother), had a strained co-parenting relationship, primarily due to historical family violence perpetrated by the father. While there was no dispute that the father had engaged in family violence, the mother had nonetheless allowed intermittent contact between the children and their father. However, at times, particularly during extended periods, the children had no contact with him at all.

The mother made significant long-term decisions without consulting the father, including relocating to a distant suburb and enrolling the children in new schools. She maintained that the children did not wish to see their father and therefore did not facilitate ongoing contact.

The father, after undertaking supervised contact, was later granted unsupervised time with the children. He sought orders for regular parenting time and joint parental responsibility, arguing that he could meet the children’s emotional and practical needs. The mother opposed this, asserting that the children had made clear their unwillingness to engage with him.

Key Legal Issues and Questions for the Court

The Court was required to consider:

1. Children’s Wishes in Parenting Orders: Whether the court should give decisive weight to the children’s reluctance to see their father, considering contradictions between their expressed views and actual interactions, as guided by section 60CC of the Family Law Act 1975 (Cth).
2. Parental Responsibility and Decision-Making: Whether the presumption of equal shared parental responsibility under section 61DAA should apply despite the mother’s history of unilateral decision-making.
3. Impact of Family Violence: Whether the father’s past family violence precluded him from maintaining a relationship with his children, given his rehabilitative efforts and any ongoing risks, as required under section 60CG.
4. Best Interests of the Children: Whether maintaining a relationship with the father was in the children’s best interests, in accordance with section 60CA.
5. Facilitation of Parent-Child Relationship: Whether the mother’s reluctance to support the children’s relationship with their father justified court intervention to ensure ongoing contact.

Case Authorities and Cited Precedents 

The judgment referenced several key cases, including:

1. Andrew & Delaine [2009] FamCAFC 182 – Considered how courts assess the weight of children’s preferences, particularly when there is a dispute between the parents regarding their influence.

Link: Full Case

• Bielen & Kozma (2022) FLC 94–123; [2022] FedCFamC1A 221 – Examined the extent to which parental influence can shape a child’s views and the court’s role in distinguishing independent preferences from external pressures.

Link: Full Case

• French & Fetala [2014] FamCAFC 57 – Emphasized the importance of a parent’s willingness and ability to facilitate a relationship between the child and the other parent, particularly when hostility exists.

Link: Full Case

• Hall & Hall (1979) FLC 90–713; [1979] FamCA 50 – Established the importance of both parents remaining involved in major decision-making concerning their children.

Link: Full Case

• Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84 – Provided legal guidance on when unsupervised time with a parent who has a history of family violence may be appropriate.

Link: Full Case

• Lainhart & Ellinson (2023) FLC 94-166; [2023] FedCFamC1A 200 – Considered how a parent’s attitude and conduct toward the other parent can affect a child’s willingness to engage in contact.

Link: Full Case

• U v U (2002) 211 CLR 23 – Reinforced that the best interests of the child must remain the paramount consideration, outweighing parental disputes and personal preferences.

Court’s Findings

1. Children’s Expressed Views – The court acknowledged that the children expressed reluctance to see their father but noted that their interactions during supervised and unsupervised visits contradicted their stated preferences. This raised concerns about external influence shaping their views.
2. Parental Responsibility – The court found that the mother had acted unilaterally in decision-making, which was contrary to the principles of shared parental responsibility. The judge ordered joint decision-making to ensure the father had an active role in important aspects of the children’s lives.
3. Family Violence Considerations – While acknowledging the father’s past conduct, the court found that he had taken significant rehabilitative steps and no longer posed a risk to the children. Consequently, his history did not justify an ongoing prohibition on unsupervised parenting time.
4. Best Interests of the Children – The court ruled that maintaining a relationship with both parents was in the children’s best interests, and that a lack of engagement with their father could have long-term negative consequences.
5. Parenting Orders – The court ordered that the children spend regular, unsupervised time with the father, arranged by agreement in consultation with them, and in the absence of agreement, at fixed times.

Legal Implications and Precedent Summary

The case reaffirmed several fundamental principles in family law. While children’s views are considered, they are not determinative, and the court assesses their preferences within the context of their overall best interests. Parental responsibility should be shared, and unilateral decision-making by one parent without justification may lead to court intervention. A history of family violence does not automatically preclude parenting time; if a parent has demonstrated rehabilitation and poses no ongoing risk, the court may still grant parenting orders. Additionally, encouraging a child’s relationship with both parents is essential, and a parent’s unwillingness to facilitate this relationship can negatively impact their position in legal proceedings.

Keywords

• Family Law
• Parenting Orders
• Parental Responsibility
• Family Violence
• Children’s Best Interests
• Court Consideration of Children’s Views
• Joint Decision-Making

Conclusion and Call to Action

The ruling in Murati v Roca [2024] highlights the complexities involved in determining parenting arrangements, particularly when children express reluctance to spend time with one parent. The case underscores that while children’s views are considered, they must be evaluated in the broader context of their long-term welfare. Additionally, the judgment serves as a reminder that both parents should play an active role in their children’s lives and that past family violence must be assessed considering current circumstances.

If you are involved in a parenting dispute, seeking professional legal advice is crucial to protecting your rights and the well-being of your children. At Pentana Stanton Lawyers, our experienced family law team is committed to helping you navigate complex family law matters and securing the best outcome for your case.

Contact us today for expert legal guidance.