Cizik & Jandova

Case [2024] FedCFamC1F 796

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Cizik & Jandova [2024] FedCFamC1F 796

File number(s): PAC 2256 of 2020
Judgment of: CURRAN J
Date of judgment: 22 November 2024
Catchwords: FAMILY LAW – PARENTING – Where mother seeks children spend no time with father – Where older child is neurodiverse – Where mother alleges father perpetrated family violence during and after relationship – Where father poses risk to children arising from family violence, mental health and lack of insight – Where father alleges mother has exposed children to neglect – no evidence of neglect – Where father is a risk to the children’s and the mother’s safety – Where father has limited capacity to provide for the children’s developmental, psychological, emotional and cultural needs – Orders made for mother to have sole decision making responsibility – Where long-term supervision is considered – Where orders made for children to spend no time and have no communication with father
Legislation:

Australian Passports Act 2005 (Cth) s 11

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61B, 61C, 61CA, 61D, 64B, 65DAAA, 65Y, 68B, 114AB

Mental Health (Forensic Provisions) Act 1990 (NSW) s 32

Cases cited:

Bielen & Kozma (2022) FLC 94-123

Corporate Affairs Commission NSW v Yulli (1991) 172 CLR 319

Eastley & Eastley (2022) FLC 94-094

Isles & Nelissen (2022) FLC 94-092

Keighley & Keighley [2023] FedCFamC1A 146

Norton v Landell [2015] FamCA 125
Division: Division 1 First Instance
Number of paragraphs: 382
Date of hearing: 26, 27, 29 & 30 August 2024
Place: Sydney
Counsel for the Applicant: Mr Fantin
Solicitor for the Applicant: Jack Rigg Solicitors
Counsel for the Respondent: Ms Mattar
Solicitor for the Respondent: Choice Law Group
Counsel for the Independent Children's Lawyer: Dr McConaghy
Solicitor for the Independent Children's Lawyer: Ark Law Lawyers

ORDERS

PAC 2256 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR CIZIK

Applicant
AND:

MS JANDOVA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

22 NOVEMBER 2024

ON A FINAL BASIS THE COURT ORDERS THAT:

1.The mother shall have sole parental responsibility and sole decision-making authority in relation to all long-term decisions for the children, X born 2015 and Y born 2016 (“the children”).

2.The children live with the mother.

3.The children spend no time and have no communication with the father.

4.Pursuant to s 68B of the Family Law Act 1975 (Cth) the father is restrained from contacting NSW Police for the purpose of requesting a welfare check on the children.

5.Upon the expiration of the current Apprehended Domestic Violence Order in late 2025 and pursuant to s 68B of the Family Law Act 1975 (Cth), for the personal protection of the mother and children, the father is restrained from contacting the mother and children (or any of them) in any manner whatsoever, and from entering into any place where they live, work and/or attend education or extracurricular activities.

6.For the purpose of s 11(1)(b) of the

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AGLC
Cizik & Jandova [2024] FedCFamC1F 796
Case
[2024] FedCFamC1F 796
Decision Date

CaseChat Overview and Summary

In the matter of Cizik & Jandova, the Federal Circuit and Family Court of Australia adjudicated a dispute regarding the parenting arrangements for two children. The mother sought sole parental responsibility and that the children not spend any time with the father, while the father proposed shared care arrangements. The mother alleged that the father had perpetrated family violence during and after their relationship, and that he posed a risk to the children due to his mental health issues and lack of insight. The father, in turn, alleged that the mother had exposed the children to neglect, though no evidence of neglect was found.

The court was tasked with determining whether the father posed a risk to the children's safety and whether he was capable of meeting their developmental, psychological, emotional, and cultural needs. The court had to consider the best interests of the children in line with section 60CC(2) of the Family Law Act 1975, which includes assessing the safety of the children and the capacity of each parent to provide for their needs. The court also had to evaluate the cumulative effect of the evidence presented to determine the likelihood of future harm.

The court found that many of the mother's allegations against the father were substantiated, and that the father indeed posed a risk of physical and psychological harm to the mother and children. The father's history of family violence, lack of insight, and refusal to engage in meaningful support or counselling, compounded by his untreated mental health issues, indicated that he was unfit to have unsupervised contact with the children. The court concluded that the father's proposals for parenting orders were not in the children's best interests due to the significant risk of exposure to family violence and psychological harm. Consequently, the court ordered that the mother have sole parental responsibility and sole decision-making authority over the children, with no contact between the children and the father.

The final orders made by the court included that the mother would have sole parental responsibility and sole decision-making authority, that the children would not have any contact with the father, and that the father was restrained from contacting the police or the family for welfare checks. The court also imposed restrictions on the father's ability to contact the mother and children post the expiration of the current apprehended domestic violence order. The mother was granted the authority to apply for and renew passports for the children and to travel both within and outside Australia without the father's consent. Both parents were prohibited from engaging in certain behaviours that could harm the children's well-being.

Orders

Orders of the court

PAC 2256 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR CIZIK

Applicant

AND:

MS JANDOVA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

22 NOVEMBER 2024

ON A FINAL BASIS THE COURT ORDERS THAT:

1. The mother shall have sole parental responsibility and sole decision-making authority in relation to all long-term decisions for the children, X born 2015 and Y born 2016 (“the children”).

2. The children live with the mother.

3. The children spend no time and have no communication with the father.

4. Pursuant to s 68B of the Family Law Act 1975 (Cth) the father is restrained from contacting NSW Police for the purpose of requesting a welfare check on the children.

5. Upon the expiration of the current Apprehended Domestic Violence Order in late 2025 and pursuant to s 68B of the Family Law Act 1975 (Cth), for the personal protection of the mother and children, the father is restrained from contacting the mother and children (or any of them) in any manner whatsoever, and from entering into any place where they live, work and/or attend education or extracurricular activities.

6. For the purpose of s 11(1)(b) of the Australian Passports Act 2005 (Cth) the children are permitted to have an Australian passport and travel internationally pursuant to s 65Y of the Family Law Act 1975 (Cth).

7. The mother is permitted to apply for and/or renew an Australian passport for the children and the father's consent is not required.

8. The mother shall be at liberty to travel with the children both within and outside of the Commonwealth of Australia and does not require the father’s consent.

9. Each parent is restrained from the following:

(a) Physically assaulting the children for any reason, including disciplining the children;

(b) Communicating with the children, or within probable hearing distance of the children, about any disagreement or dispute between the parents; and speaking in a derogatory manner about the other parent or any member of the other parent’s family;

(c) Allowing the children to remain in the presence or probable hearing distance of any person speaking about any disagreement or dispute between the parents or speaking in a derogatory manner about the other parent or any member of the other parent’s family; and

(d) Speaking to the children about the proceedings or showing the children any application, affidavit, report, or any other document related to the proceedings or causing or allowing any other person to do so.

10. The Independent Children's Lawyer be discharged.

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 proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The single expert opined, and I agree, that safeguarding the mother’s privacy is a protective factor that will enable the mother to assume responsible care of the children.CONCLUSION ON PARENTING ORDERS I am satisfied on the balance of probabilities that many of the allegations made by the mother against the father concerning his conduct towards her are true. I have set out my specific findings above. That behaviour supports the finding that I make that the father presents a risk of physical and psychological harm to the mother. He assaulted her on more than one occasion and made threats of harm that caused her to be fearful. He also presented a risk of psychological harm to her and the children for many reasons including his conduct and his lack of insight as detailed above. The father displayed no insight into his behaviour or its impact. He failed to engage with any professional counselling, parenting education or other meaningful supports. He took no responsibility for the impact of his actions. In respect of the present case, s 60CC(2)(a) requires the court to consider the arrangements that would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the children, and any person who has care of the children. The determination of arrangements that would promote the safety of the children and any person caring for the children must be considered in the context of findings as to the alleged risk posed, its gravity, the likelihood of it occurring and whether there are arrangements which may ameliorate the identified risk. It is necessary to then consider what orders should be made that are in the best interests of the children which promote their safety. The discretion to consider which arrangements would be in the best interests of the children is informed by the characterisation of the risk. The risks to the children from the father as set out earlier in these reasons are both physical and psychological. That exposure to psychological harm has continued notwithstanding the orders for the time to be supervised time. The single expert opined that there was a high likelihood that if time was unsupervised the father would expose the children to psychological harm. I accept her opinion and am persuaded by it. I consider that to be so due to the history of family violence including threats perpetrated by him against the mother, his lack of insight as opined by the single expert, the rigidity of his views about welfare checks and the boys’ diagnoses, his dishonesty and false denials as to his conduct including incidents of family violence, his minimisation of his conduct and his lack of engagement in respect of his mental health history. The risks I have found to the children and the mother arising from the father’s conduct, identified issues of his untreated mental health, and his lack of insight leave no doubt that his proposals for orders are not in the children’s best interest. There would be a significant risk of the children and mother being exposed to family violence and his dysregulated behaviour, including at changeover. This risk arises due to the cumulative effect of the family violence, dysregulated mental health and lack of insight as to the impact of his behaviours.

Ratio Decidendi

Legal Principle Established

Section 60CC(2) identifies the matters that the court is to take into account in determining what is in the best interests of a child, those being:(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:(i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child);(b) any views expressed by the child;(c) the developmental, psychological, emotional and cultural needs of the child;(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;(f)anything else that is relevant to the particular circumstances of the child. Assessment of safety considerations Pursuant to subsection 60CC(2)(a) of the Act the Court is required to have regard to what arrangement would promote the safety of the child and each person who has care of the child (whether or not a person has parental responsibility for the child) in determining what is in the best interests of the children. Safety is not defined in the Act. A statutory provision, per Gaudron J in Corporate Affairs Commission NSW v Yulli (1991) 172 CLR 319 at 340, is interpreted to give its “meaning and effect according to ordinary grammar and usage”. The definitions of “safety” according to the Macquarie Dictionary are:1. the state of being safe; freedom from injury or danger.2. the quality of insuring against hurt, injury, danger or risk. The interpretation which would best achieve the purpose or object of the Act is to be preferred to each other interpretation. To promote the safety of the child and each person who has care of the child, according to the ordinary meaning of the word, requires an assessment of the likelihood of hurt, injury, danger, or risk occurring. To make orders using this definition of safety is the interpretation which best achieves the purpose of Part VII, ensuring the best interests and safety of children. The consideration of safety in s 60CC(2)(a) requires analysis of allegations of risk of harm and is informed by the established case law. Per Isles & Nelissen (2022) FLC 94-092, the task of assessing risk is an evidence based analysis following the consideration of the factual circumstances, including historical conduct. Findings of past conduct will assist in the prospective assessment as to whether there is a possibility of harm arising in the future. In Eastley & Eastley (2022) FLC 94-094 (“Eastley”), the Full Court observed the need for a trial judge to consider the cumulative effect of the whole of the evidence in determining an assessment of risk, rather than merely dealing with each individual allegation in an isolated fashion:33.…the law did not require the primary judge to assess the potency of the risk of harm posed to the children by reference to the evidence concerning individual events in isolation from the remainder of the evidence. On the contrary, the primary judge was required to assess the level of risk posed to the children on the whole of the evidence, since the strength of the evidence lies in its cumulative effect, much like how the strength of rope derives from the combination of its individually weaker strands (Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 127–130 and 141; Savage v Lunn [1998] NSWCA 203; J.D Heydon, Cross on Evidence (LexisNexis Australia, 13th edition, 2021) at [1110] and [9040]).