Carvallo & Tusek - [2023] FedCFamC2F 1043

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carvallo & Tusek [2023] FedCFamC2F 1043

File number(s): PAC 1540 of 2021

Judgment of: JUDGE STREET

Date of judgment: 25 August 2023

Catchwords: FAMILY LAW – PARENTING - undefended – no time

Legislation:
Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited: A & Z [2006] FamCA 179
Ashworth & Ashworth [2023] FedCFamC2F 617
Blinko & Blinko [2015] FamCAFC 146
Brown & Brown [2004] FamCA 1067
M v M (1988) 82 ALR 577
Marvel no. 2 (2010) FamCAFC 101
SS & AH [2010] FamCAFC 13 at [100]
Stott & Holgar & Anor [2017] FamCAFC 152
Tate & Tate [2000] FamCA 1040

Division: Division 2 Family Law

Number of paragraphs: 88

Date of hearing: 22 May 2023

Place: Sydney

Applicant: No appearance

Counsel for the Respondent: Ms D Kaiti

Solicitor for the Respondent: Solve Legal

Solicitor for the Independent Children’s Lawyer: Harb Lawyers
ORDERS

PAC 1540 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CARVALLO

Applicant

AND:
MS TUSEK

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

22 MAY 2022

THE COURT ORDERS ON A FINAL BASIS THAT:
1.The matter proceed as an undefended hearing.
2.That the respondent mother have sole parental responsibility for the children X (born in 2012), Y (born in 2014), and Z (born in 2016).
3.The children live with the respondent mother.
4.The children spend no time with the applicant father.
5.The children X (born in 2012), Y (born in 2014), and Z (born in 2016) have their names removed from the airport watch-list.
6.The Court reserves written reasons.
7.Upon delivery of the Courts written reasons, the Independent Children’s Lawyer be discharged from the proceedings.
8.The applicant father pay the Independent Children’s Lawyer’s costs in the amount of $4,400, unless otherwise entitled to have the same waived.

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).
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 this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
INTRODUCTION

These proceedings were commenced on 25 March 2021, and on 12 December, this Court made orders fixing the matter for a parenting hearing today. The applicant father was present at the time that order was made,…

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.

Continue reading Carvallo & Tusek

Details

AGLC: Carvallo & Tusek [2023] FedCFamC2F 1043
Case: [2023] FedCFamC2F 1043
Decision Date

CaseChat Overview and Summary

The case before the Court involved an application by Mr Carvallo for parenting orders in relation to his three children with Ms Tusek. The application was heard by Judge Street in the Federal Circuit and Family Court of Australia. The children, X, Y, and Z, have not seen their father since the parents separated in July 2018. The Court was required to determine whether the children should spend time with their father, and if so, under what conditions. The Court also needed to decide on the allocation of parental responsibility between the parents.

The Court considered the legal principles and statutory provisions relevant to parenting disputes, particularly the best interests of the children as the paramount consideration. The Court examined the evidence provided by the parties, including affidavits, a family report, and interviews with the children. The Court assessed the risk factors associated with family violence, drug abuse, and mental health issues, as well as the parents' capacity to provide for the children's needs.

In its judgment, the Court found that the father's drug abuse and history of family violence posed an unacceptable risk to the children and the mother. The Court accepted the evidence of physical violence and controlling behaviour by the father and found that there was little prospect of the risk being ameliorated if the children were to spend time with him. The Court also noted the children's expressed fears about their father and their desire to continue living with their mother. The Court concluded that sole parental responsibility should be allocated to the mother, and that the children should not spend time with their father. The Court made orders for the children to live with the mother and spend no time with the father, and for the mother to have sole parental responsibility.

The Court's decision was based on the significant risk of harm to the children and the mother if the father were to have contact with them. The Court found that the mother had been the primary carer for the children and had a strong, loving relationship with them. The father's failure to engage in the proceedings and his ongoing drug use and lack of insight into his past behaviour supported the Court's decision to limit his contact with the children. The Court considered the recommendations of the Independent Children's Lawyer and the family consultant, who both supported orders for the children to have no time with their father and for the mother to have sole parental responsibility.

Orders