FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carlevaro & Carlevaro [2024] FedCFamC2F 1736
File number(s): NCC 1039 of 2022 Judgment of: JUDGE KEARNEY Date of judgment: 9 December 2024 Catchwords: FAMILY LAW - parenting – cultural identity – whether the father poses an unacceptable risk – what is the nature of the children’s relationship with the father? - where the mother is opposed to the children having any contact with the father or alternatively only limited professionally supervised time - whether the mother’s parental capacity would be impaired if the children spent time with the father - capacity of parents to meet children’s needs - taking into account the children’s views – family consultants – what weight should be given to the designated family consultant’s opinions? - role and function of family consultants – best interests of the children
FAMILY LAW – costs application – whether each party should equally contribute to the independent children’s lawyers costs – not necessary to find a clear case to make a costs order – financial hardship – costs application dismissed
Legislation: Evidence Act 1995 (Cth): ss 76, 79, Pt 3.11
Family Law Act 1975 (Cth) Part VII, Div12A & ss 4, 4AB, 11A, 11B, 11C, 11J, 11K, 55A, 60B, 60CA, 60CC, 60ZN, 62G, 69ZS, 69ZX, 95 & 117
Family Law Amendment Act 2023 (Cth) s 2
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 280
Federal Court of Australia Act 1976 (Cth) Division 4, Pt IIB & ss 18ZH & 18ZI
Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth) rr 7.08, 8.11, 12.08
Family Law Regulations 1984 (Cth) reg 7
Family Law Amendment Bill 2023 Explanatory Memorandum (Cth)
United Nations Convention on the Rights of the Child
‘Complaints policy’, Federal Circuit and Family Court of Australia Division 1 and 2 (Webpage) <
‘Family Consultants FAQs’, Federal Circuit and Family Court of Australia Division 1 and 2 (Webpage) <
‘Child Impact Report - FAQs’, Federal Circuit and Family Court of Australia Division 1 and 2 (Webpage) <
‘Reports prepared by Court Children’s Services’, Federal Circuit and Family Court of Australia Division 1 and 2 (Webpage) <
‘Family Reports FAQs’, Federal Circuit and Family Court of Australia Division 1 and 2 (Webpage) <
Cases cited: A & A [1998] FamCA 25; (1998) 22 Fam LR 756
Bass & Bass [2008] FamCAFC 67; (2008) FLC ¶93-366
Behrendt & Cadenet (No 2) [2021] FamCA 19
Blinko & Blinko [2015] FamCAFC 146
Charisteas v Charisteas [2021] HCA 29; (2021) 393 ALR 389; (2021) 64 Fam LR 94
Eastley & Eastley [2022] FedCFamC1A 101
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; (2000) 63 ALD 577
Fasham & Rina [2022] FedCFamC2F 134
Friscioni & Friscioni [2010] FamCAFC 108
Godfrey & Sanders [2007] FamCA 102; (2007) 208 FLR 287
Goodryngton & Salter [2023] FedCFamC1F 641
Helbig & Rowe [2016] FamCAFC 117
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- AGLC
- Carlevaro & Carlevaro [2024] FedCFamC2F 1736
- Case
- [2024] FedCFamC2F 1736
- Decision Date
CaseChat Overview and Summary
The court had to consider several legal issues, including whether the father posed an unacceptable risk to the children, the nature of the children's relationship with the father, and the impact of any contact on the mother's parental capacity. Additionally, the court examined the children's views, the role of family consultants, and the overall best interests of the children. The court also addressed a costs application regarding the contribution to the independent children's lawyer's fees.
In reaching its decision, the court gave significant weight to the opinions of the family consultants, despite the mother's objections, finding that they provided valuable insights into the children's needs and the father's capacity to meet those needs. The court also took into account the children's views and their desire to maintain a relationship with their father. The court found that the father did not pose an unacceptable risk and that supervised contact would be in the children's best interests. As such, the court ordered a structured visitation schedule during school terms and holidays, with specific provisions for special occasions and changeover facilitation. The court further imposed injunctions to ensure the safety and wellbeing of the children and the mother.
In relation to the costs application, the court dismissed the independent children's lawyer's request for the parties to equally contribute to her costs, finding that it was not necessary to determine a clear case to make a costs order and considering the financial hardship faced by the father. The court also noted that the mother's opposition to the father's involvement did not justify an unequal distribution of costs.
Orders
Orders of the court
NCC 1039 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS CARLEVARO
Applicant
AND:
MR CARLEVARO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
9 DECEMBER 2024
Amended pursuant to rule 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 9 December 2024
THE COURT ORDERS THAT:
Parental Responsibility
1. The applicant, MS CARLEVARO (‘the mother’) shall have sole parental responsibility for the children X born in 2015 and Y born in 2017 (‘the children’).
Lives with
2. The children shall live with the mother.
‘Spends time with’ during school terms
3. The children shall spend time with the respondent, MR CARLEVARO (‘the father’) during school terms as exercised by the children’s school(s) (‘term time’) as agreed in writing between the parents, failing which as follows:
a. Until the conclusion of term 4 2024 on each alternate weekend from the conclusion of school (or 3.00pm) Friday to the commencement of school (or 9.00am) Monday in the same pattern as currently experienced by the children,
b. From the commencement of term 1 2025 on each alternate weekend from the conclusion of school (or 3.00pm) Friday to the commencement of school or 9.00am) Monday.
‘Spends time with’ during school holidays
4. The children shall spend time with the father during school holidays as exercised by the children’s school(s) (‘school holiday time’) as agreed in writing between the parents, failing which as follows:
a. During the 2024 Summer school holidays – on three (3) occasions for three (3) consecutive nights being
i. 3.00pm 25 December 2024 to 3.00pm 28 December 2024,
ii. 3.00pm 10 January 2025 to 3.00pm 13 January 2025, and finally
iii. 3.00pm 20 January 2025 to 3.00pm 23 January2025,
b. During the Autumn, Winter, and Spring school holidays - for five (5) consecutive nights from the conclusion of the last day that the children are required to attend school (or 3.00pm) until 3.00pm on the sixth day,
c. During all Summer school holidays after 2024 – on three (3) occasions for five (5) consecutive nights as follows –
i. In 2025 and each odd-numbered year afterwards from –
A. 3.00pm 31 December to 3.00pm 5 January,
B. 3.00pm 12 January to 3.00pm 17 January, and finally
C. 3.00pm 22 January to 3.00pm 27 January,
ii. In 2026 and each even-numbered year afterwards from –
A. 3.00pm 25 December to 3.00pm 30 December,
B. 3.00pm 6 January to 3.00pm 12 January, and finally
C. 3.00pm 18 January to 3.00pm 23 January.
‘Spends time with’ during special occasions
5. The children shall spend time with each parent on the following special occasions and for that purpose any time the children would otherwise spend with the other parent is suspended:
a. Mother’s Day – with the mother from the conclusion of school (or 3.00pm) on the Friday before the Mother’s Day weekend until the commencement of school (or 9.00am) Monday,
b. Father’s Day – with the father from the conclusion of school (or 3.00pm) on the Friday before the Father’s Day weekend until the commencement of school (or 9.00am) Monday,
c. Christmas Day –
i. In 2024 and each even-numbered year afterwards with the mother from 3.00pm Christmas Eve to 3.00pm Christmas Day,
ii. In 2025 and each odd-numbered year afterwards with the father from 3.00pm Christmas Eve to 3.00pm Christmas Day.
Facilitation of the children’s living arrangements
6. During all periods of specified time between the children and the father, Order 2 is suspended.
7. During all periods of specified time between the children and the mother, Orders 3 and 4 are suspended.
8. To ascertain the resumption of term time following any school holiday time, the sequence of alternating weekends shall be maintained, (although not taken during school holidays) and used in calculating time in these orders.
9. To facilitate Orders 3, 4 and 5; at times when the children are not being collected or returned to school, and unless otherwise agreed in writing between the parents, each parent is to nominate a person known to the children (‘the nominee’) who shall facilitate changeovers of the children on behalf of each of them from the McDonald’s Restaurant on B Street, Suburb C in the State of New South Wales and neither parent is to be within eyesight of those premises 15 minutes before, during or after the specified changeover time.
10. To facilitate Order 9, the parents are permitted to provide a copy of these Orders (‘the communication’) to the nominee(s) for the purpose of each parent satisfying themselves that the nominee(s) has/have read and understood the communication and has/have agreed to comply with any obligations because of them accepting the nomination.
Parental communication
11. All communications between the parents shall be facilitated using the AppClose application and forthwith the parents shall do all acts and things reasonably necessary to register with that application and shall forthwith notify each other that they have done so.
Injunctions
12. Save for notifying each other of their registration with AppClose, the parents are restrained, and an injunction shall issue prohibiting them from communicating with each other than via AppClose and the only purpose of such communication is to facilitate the time the children shall spend with each of them.
13. The father is restrained, and an injunction shall issue prohibiting him from consuming alcohol for 12 hours prior to, and when, the children are spending time with him.
14. Pursuant to s 68B of the Family Law Act 1975 (Cth) (‘the Act’), the father is restrained, and an injunction shall issue prohibiting him from:
a. Doing any of the following to the mother,
i. Assaulting or threatening the mother,
ii. Stalking, harassing, or intimidating the mother,
iii. Intentionally or recklessly destroying or damaging any property, or harming any animal that belongs to or is in the possession of the mother,
b. Approaching the mother or contacting her in any way, unless the contact is:
i. Through a lawyer,
ii. To attend accredited or court-approved counselling, mediation, and/or conciliation,
iii. As ordered by this or another Court about contact with the children,
iv. As agreed in writing between you and the mother about contact with the children,
v. Attending, approaching, or remaining within 100 metres of the home of the mother and the children,
c. Entering or remaining at:
i. Any place where the mother lives,
ii. Any place where the mother works, or
iii. D Street, Suburb C NSW.
15. The above order is an order made for the personal protection of the mother and is an order to which the power of arrest without warrant attaches pursuant to s 68C of the Act.
16. Subject to Orders 3, 4, 5, and 9 and pursuant to s 68B of the Act, the father is restrained, and an injunction shall issue prohibiting him from:
a. Knowingly attending, approaching, or remaining within 100 metres of any place where the children attend for the purposes of employment, education, or regular extra-curricular activities, and
b. Removing the children from any place or person where/with whom the mother has arranged for the children to be.
17. The parents are restrained, and an injunction shall issue prohibiting either of them from denigrating each other or members of the extended paternal or maternal family in the presence or hearing of the children (or any one of them) and from allowing the child(ren) from remaining in the presence or hearing of any other person doing so.
International travel
18. Pursuant to s 65Y(l)(c)(ii) of the Act, the mother is permitted to travel to a place outside Australia with X born in 2015 and Y born in 2017 whether or not the father has consented to such travel.
19. Subject to Order 18, the marshal and all officers of the Australian Federal Police and of the police forces of the various states and territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said children, X born in 2015 and Y born in 2017, on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the children’s names on the watch list.
20. Subject to Order 18 and in accordance with Order 19, the children shall remain on the Airport Watchlist until they attain the age of 18 years.
Explanation of Orders
21. By Friday 20 December 2024, the Independent Children’s Lawyer (‘the ICL’) is to meet with the children in person to explain these Orders (‘the meeting’) and to facilitate that happening the parents shall comply with all reasonable written request made of the ICL irrespective of who has the care of the children at the specified time of the meeting.
22. By Friday 13 December 2024 the father’s lawyer is to mail or cause to be mailed a hard copy of the judgment to the father via Australia Post.
23. By Monday 20 January 2025 the father’s lawyer is to read the judgment aloud to the father, explain the judgment to the father and answer any questions he may have about the judgment.
ICL’s costs application
24. The oral application made by the ICL for the parties to contribute towards the ICL’s costs is dismissed.
IT IS DIRECTED THAT:
25. All outstanding applications are dismissed.
26. At the expiration of the appeal period, the ICL is discharged.
THE COURT NOTES THAT:
A. The intention of Orders 4.c. and 5.c. is to minimise changeovers during each Christmastime period, so that in each year from 3.00pm on Christmas Day the children will then spend some extended time with each of their parents in an alternating pattern starting with them spending extended time with the father this Christmastime.
B. In making Order 10, the Court is satisfied that the nominee(s) are a person(s) with a significant and legitimate interest in receiving the communication: s 114S(1) of the Act.
C. In making Orders 19 and 20, the Court’s intention is not to exclude the father from ever bringing an application to take the children overseas; but instead the Orders reflect that there was no evidence of the father’s intention to do so and to otherwise protect the children from the father doing so without first obtaining permission from the Court.
D. In making Order 23, the obligation imposed upon the father’s lawyer will expire in about six (6) weeks’ time and if the father fails to take up a reasonable opportunity of having the judgment read aloud to him and/or having his solicitor explain the effect of the judgment to him then if those circumstances are established, the Court will not be critical of the father’s lawyer.
E. Should a parent exercise their right to file an application for costs, THEN registry staff are permitted to consult directly with the chambers of Judge Kearney for the making of chambers orders allocating a hearing date before Judge Kearney and directions in support of such event.
F. Pursuant to s 65DA(2) and s 62B of the Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached “Parenting Orders – obligations, consequences and who can help” Fact Sheet, which forms part of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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