Godaire & Micelli

[2021] FCCA 1774

FEDERAL CIRCUIT COURT OF AUSTRALIA

Godaire & Micelli [2021] FCCA 1774

File number(s):	PAC 2069 of 2020
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	21 July 2021
Catchwords:	FAMILY LAW – Parenting – where the father filed a Notice of Discontinuance – unchallenged evidence of significant family violence – presumption of equal shared parental responsibility rebutted – child to spend no time with the father
Legislation:	Family Law Act 1975 (Cth) s 61DA
Number of paragraphs:	7
Date of hearing:	21 July 2021
Place:	Parramatta
Appearing for the Applicant:	No appearance
Appearing for the Respondent:	In person
Appearing for the Independent Children's Lawyer:	Ms Morrison
Solicitor for the Independent Children's Lawyer:	Mahony Family Lawyers

ORDERS

PAC 2069 of 2020

BETWEEN:

MR GODAIRE

Applicant

AND:

MS MICELLI

Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	21 JULY 2021

THE COURT ORDERS THAT:

1.Discharge all prior parenting orders.

2.The Respondent Mother, Ms Micelli shall have sole parental responsibility for the child X born in 2017.

3.The child X born in 2017 shall live with the mother.

4.The child X shall spend no time with the father.

5.The Respondent Mother, Ms Micelli, is hereby authorised to remove the child from the Commonwealth of Australia for the purpose of a holiday and to that end, the necessity for the consent of the Applicant Father to the issue of a Passport for the child X be dispensed with.

6.All outstanding applications and responses be dismissed and removed from the list of cases awaiting finalisation.

7.IT IS NOTED that order 2 vests in the mother sole parental responsibility for the purposes of the Australian Passports Act 2005 (Cth) such that the Mother is accordingly authorised to obtain any passport or travel document required to facilitate the child travelling overseas without first notifying or obtaining the consent of the Father.

8.IT IS NOTED that the Applicant Father:

(a)Filed a Notice of Discontinuance in these proceedings on 18 March 2021;

(b)Has not taken up the opportunity to spend time with the child pursuant to the Orders dated 25 November 2020; and

(c)Has not seen the child since April 2019.

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 under the pseudonym Godaire & Micelli is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
(Ex-Tempore; Revised from Transcript)

JUDGE OBRADOVIC

1. These are Reasons for Judgment for final parenting Orders made pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Orders are made in accordance with Independent Children’s Lawyer proposed Minute of Order, as set out at the forefront of these reasons. The respondent mother, Ms Micelli, consents to the orders proposed by the Independent Children’s Lawyer. The applicant father, Mr Godaire, disengaged from these proceedings, filing a Notice of Discontinuance on 18 March 2021. These proceedings have therefore proceeded on an undefended basis.

2. The Court accepts based on the unchallenged evidence in the mother’s material filed in these proceedings that the father has engaged in significant family violence against the mother and that he has engaged in not only physical assault resulting in a conviction and apprehended domestic violence order, but also that he has engaged in behaviour of stalking and intimidation of the mother as set out in the filed material.

3. The Court is satisfied that the mother has at all material times provided a safe and loving home for the child, that she has met the child’s needs and that it is in the best interest of child that orders, as proposed by the Independent Children’s Lawyer and consented to by the mother, are made on a final basis.

4. The presumption of equal shared parental responsibility under s.61DA of the Act is rebutted in these proceedings as a result of the findings of family violence. In any event the disengagement from the father from these proceedings and his actions as set out in the mother’s material, particularly relating to family violence, lead to a finding that it is unlikely that the mother and the father would be able to make any joint decisions in regards to the child’s long term welfare.

5. The Court is satisfied that the orders as proposed provide appropriate safety guards for the child, and in particular, the order that the child spend no time with the father, while highly prescriptive, recognises the significant violence that the father perpetrated on the mother and that there is a significant risk to the child and indeed to the mother if orders were to be made otherwise.

6. The Court is also satisfied that the order providing for the mother to travel overseas with the child and for the issue of a passport without the consent of the father is appropriate.

7. For those reasons, orders as set out at the forefront of these Reasons for Judgment are made.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated:       3 August 2021