Bakula & Maciel - [2021] FedCFamC2F 629

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bakula & Maciel [2021] FedCFamC2F 629

File number(s): PAC 237 of 2017

Judgment of: JUDGE OBRADOVIC

Date of judgment: 22 December 2021

Catchwords: FAMILY LAW – Parenting – young children – no relationship with father since separation – serious family violence perpetrated by the father – lack of capacity and insight – unacceptable risk of harm – mother to have sole parental responsibility for the children – children to live with mother – children spend no time with the father.

Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA 68B

Cases cited: Banks & Banks [2015] FamCAFC 36
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Salah & Salah [2016] FamCAFC 100
Slater & Light [2011] FamCAFC 1
Starr & Duggan [2009] FamCAFC 115

Division: Division 2 Family Law

Number of paragraphs: 88

Date of hearing: 13, 14 and 15 October 2021

Place: Parramatta

Counsel for the Applicant: Mr Greenaway

Solicitors for the Applicant: The Parks Legal

Counsel for the Respondent: Mr Fermanis

Solicitors for the Respondent: Phillip A Wilkins & Associates

Counsel for the Independent Children’s Lawyer Mr Hill

Solicitors for the Independent Children’s Lawyer Kathryn Renshall Lawyers
ORDERS

PAC 237 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BAKULA

Applicant

AND:
MR MACIEL

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

22 DECEMBER 2021

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The mother shall have sole parental responsibility for X born in 2015 and Y born in 2016 (“the children”).
3.The children shall live with the mother.
4.The children shall spend no time with the father.
5.Pursuant to section 68B of the Family Law Act 1975 (Cth), the father be and is hereby restrained by injunction from:
a.   Approaching or attempting to contact the mother or the children except through a legal practitioner;
b.   Coming within 200 metres of the mother and/or the children, including but not limited to the mother’s residence and the children’s school; and
c.   Approaching the mother, in the event that both parents are present at the same time.
6.The father is granted leave to publish the Report of Dr B and the Court’s Reasons for Judgment delivered on 22 December 2021 to all of the treating medical and allied health practitioners of the father.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Bakula & Maciel [2021] FedCFamC2F 629
Case: [2021] FedCFamC2F 629
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was asked to determine parenting arrangements for two children, X and Y, who had not seen their father since June 2018. The father had a history of violence and anti-social behaviour, and the mother had been granted an apprehended domestic violence order against him. The primary issues were parental responsibility and the extent of time the children should spend with the father. The mother sought sole parental responsibility and no contact with the father, while the father proposed supervised contact six times a year. The Independent Children’s Lawyer recommended no contact with the father and an order to restrain him from approaching the mother and children.

The Court considered the primary and additional considerations outlined in section 60CC of the Family Law Act 1975 (Cth), including the need to protect the children from harm and the benefit of having a meaningful relationship with both parents. The Court noted that the father’s history of violence and mental health issues posed a significant risk to the children. The father had threatened to kill the children and had assaulted the mother. The children did not recognise their father from photographs and did not have established relationships with him. The Court found that the father’s capacity to parent the children was significantly impaired by his violent and anti-social behaviours and mental health issues.

Based on the evidence presented, the Court concluded that it was in the children’s best interests for the mother to have sole parental responsibility and for the children to have no contact with the father. The Court found that even supervised contact would have a substantial and negative impact on the mother and her ability to parent the children. The Court also ordered that the father be restrained from approaching the mother and children, and that he could provide a copy of the expert report and the Court’s reasons for judgment to his treating medical and allied health professionals.

The Court’s orders included granting sole parental responsibility to the mother, requiring the children to live with her, prohibiting the father from spending any time with the children, and imposing restrictions on the father’s contact with the mother and children. These orders were intended to ensure the safety of the mother and children and to provide the children with a stable and secure environment.

Orders