A court will only order a child to move from their primary carer in exceptional circumstances. It is one of the most significant decisions a family law judge can make.
However, when a parent actively damages a child’s relationship with the other parent, the court may decide that a change of residence order is necessary.
The recent Federal Circuit and Family Court of Australia (FCFCOA) decision in Beridze & Beridze demonstrates when this can occur. The case highlights the risks of parental gatekeeping, the importance of supporting a child’s relationship with both parents, and the circumstances that can justify a change of residence order.
What happened in Beridze & Beridze?
The parties married in 2000 and separated in March 2018.
Shortly after separation, the mother suffered an acute psychotic episode and was briefly hospitalised. During this period, the father cared for their daughter, who was born in 2013.
Once the mother was discharged, she resumed primary care of the child. The father moved approximately 30 kilometres away and spent time with his daughter on a fortnightly basis.
Over the following years, the mother gradually restricted the father’s involvement. She controlled contact through strict monthly calendars and refused requests for flexibility.
Eventually, she stopped overnight visits altogether. This decision was based on unsupported concerns that the child had seen the father with his new partner.
By April 2023, all face-to-face contact had ceased. Between May and December 2023, the mother also prevented the child from speaking to her father by telephone.
As a result, the father applied to the court for parenting orders.
Can a mother stop a father from seeing his child?
Generally, no.
A parent cannot unilaterally stop a child from seeing the other parent unless there is a genuine safety concern supported by evidence.
In this case, the mother alleged that the child feared her father and was at risk in his care. However, the independent Family Report and expert evidence did not support those allegations.
When the child interacted with her father away from the mother, she displayed warmth and affection. In one observed interaction, she ran upstairs and threw herself into her father’s arms.
However, when she returned to her mother, her behaviour changed dramatically. She became distressed and repeated complaints that experts considered rehearsed and age-inappropriate.
The court accepted that the mother had encouraged the child to fear her father without justification.
The Family Report writer stated that the child:
“was not free to have positive feelings or reactions to her father in the mother’s home which was best described in terms of cognitive dissonance” [56].
As a result, the child experienced significant psychological pressure. She felt torn between her parents and believed she needed to choose sides.
When will a court order a change of residence?
After finding that the father posed no risk to the child, the court examined the mother’s conduct.
The court found that she had engaged in extreme parental gatekeeping. In other words, she had unjustifiably restricted the child’s relationship with her father.
The mother also failed to meaningfully comply with interim orders that required family therapy. The court found that she remained determined to remove the father from the child’s life.
The trial judge expressed concern about the long-term effects on the child. If she remained living with her mother, the likely outcome was that she would grow up without a meaningful relationship with her father.
The judge concluded that this would cause a significant loss to the child and contribute to ongoing emotional difficulties.
The court stated:
“As I have found that the mother has no capacity to promote a relationship between [X] and her father, I am satisfied that she will, if the child remains in her primary care, continue to frustrate and disrupt their relationship.” [19]
The Full Court agreed.
It found that the mother’s inability to support the father-child relationship justified a change of residence. The court considered this necessary to protect the child’s long-term emotional and psychological wellbeing.
Why is parental gatekeeping taken so seriously?
Australian family law places significant importance on a child’s ability to have a relationship with both parents when it is safe to do so.
When one parent actively undermines that relationship, the court may conclude that the parent is not acting in the child’s best interests.
Examples of parental gatekeeping can include:
- Refusing reasonable contact without justification.
- Preventing phone or video communication.
- Making unsupported allegations against the other parent.
- Ignoring parenting orders.
- Pressuring a child to reject the other parent.
- Failing to support family therapy or reunification efforts.
In serious cases, these behaviours can lead to a parent losing primary care of a child.
How should parenting cases be run?
Another important aspect of this decision was the mother’s approach to the litigation.
Throughout the proceedings, she maintained an all-or-nothing position. She sought sole care of the child and argued that the father should have no contact at all.
Importantly, she failed to propose any alternative arrangements if the court rejected her allegations.
The Full Court criticised this approach.
Family law cases are rarely black and white. Parents who refuse to consider reasonable alternatives may appear unwilling to prioritise their child’s broader emotional needs.
Because the mother offered no workable compromise, the court was forced to choose between two extreme positions.
Ultimately, the father’s proposal for a change of residence was considered the only practical option that would preserve the child’s relationship with both sides of her family.
The mother’s appeal was dismissed, and she was ordered to pay the father’s legal costs of $19,600.
How does the court assess a child’s best interests?
Under section 60CC of the Family Law Act 1975 (Cth), the child’s best interests are the court’s paramount consideration.
One important factor is the benefit of a child having a relationship with both parents, provided it is safe.
On appeal, the mother argued that the law only required some form of relationship between the child and father, regardless of quality.
The Full Court rejected that argument.
The court explained that the benefit of a relationship cannot be assessed in isolation. Instead, the court must consider the likely nature and quality of that relationship.
The Full Court stated:
“Determining a child’s ‘best interests’ necessarily requires consideration not only of the importance of a child having some form of relationship, but also the extent of the benefit to the child from the relationship, having regard to the nature and quality of that relationship.” [26]
In other words, the court is concerned with meaningful relationships, not merely minimal contact.
What does this case mean for parents?
This decision sends a clear message to separated parents.
If you are the primary carer, the court will closely examine your willingness to support your child’s relationship with the other parent.
Actions that may damage your position include:
- Repeatedly obstructing contact.
- Ignoring court orders.
- Refusing therapy or reunification programs.
- Encouraging a child to fear or reject the other parent.
- Failing to promote a healthy parent-child relationship.
In serious cases, these behaviours can result in a complete reversal of living arrangements.
How we can help with a change of residence order
At Rowan Skinner & Associates Lawyers, our accredited family law specialists provide practical advice and representation in parenting disputes, including matters involving a change of residence order.
We can help you understand your rights, comply with court expectations, and develop a strategy that focuses on your child’s best interests.
If you need advice about parenting arrangements or a family law dispute, contact our team on (03) 9995 9155 for an obligation-free discussion.
We assist clients throughout Melbourne and the northern suburbs, including Northcote, Alphington, Carlton, Fitzroy, North Fitzroy, Kew and Heidelberg, as well as South Melbourne and South Yarra.
Rowan Skinner is a highly skilled family lawyer with over 35 years of experience across various legal roles and jurisdictions. Rowan specialises in resolving family law disputes such as divorce, financial settlements, child custody and domestic violence cases. Through his diverse and extensive experience, Rowan has a deep understanding of the complexities and nuances involved in family law. Rowan is a skilled negotiator and litigator who follows a compassionate and client-focused approach which prioritises helping you navigate what can be an emotional and challenging time.