Greene & Mlakar (No 2)

Case [2024] FedCFamC1F 817

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Greene & Mlakar (No 2) [2024] FedCFamC1F 817

File number(s): NCC 3755 of 2021
Judgment of: SMITH J
Date of judgment: 25 November 2024
Catchwords: FAMILY LAW – CHILDREN – Oral decision – Interim orders – Parenting orders – Best interests of child – Where the father filed an application seeking supervised time – where the mother and ICL oppose that application – where the child has not seen the father since October 2021 – where the matter is listed for final hearing in March 2025 – where the principles of interim hearings apply – where it is in the child’s best interests for reintroduction to occur and prior to the final hearing – where the risks are ameliorated by professional supervision.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CA, 60CC, 64B, 65AA, 65D
Cases cited:

B & B (1993) FLC 92-357; [1993] FamCA 143

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Dasreef Pty Ltd & Hawchar (2011) 243 CLR 588; [2011] HCA 21

Deiter v Deiter [2011] FamCAFC 82

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Makita (Australia) Pty Ltd & Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101

SS v AH [2010] FamCAFC 13

Stott & Holgar and Anor [2017] FamCAFC 152
Division: Division 1 First Instance
Number of paragraphs: 77
Date of hearing: 21 November 2024
Place: Newcastle
Solicitor-Advocate for the Applicant: Ms Haasnoot
Solicitor for the Applicant: Umbrella Legal
Solicitor for the Respondent: Ms Woods, Koulouris & Associates Pty Ltd
Solicitor for the Independent Children's Lawyer: Ms Smith, Katie Smith Solicitor

ORDERS

NCC 3755 of 2021

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

MS GREENE

Applicant
AND:

MR MLAKAR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SMITH J

DATE OF ORDER:

25 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The Final Orders in relation to the child X (“the child”) be reconsidered pursuant to s 65DAAA of the Family Law Act 1975 (Cth).

2.From the date of these Orders, the child spend time with Mr Mlakar (“the father”) for 2 hours per fortnight, on a day to be agreed, supervised by B Contact Service as follows:

(a)On the first two occasions the father will attend with his partner Ms C and his step-children;

(b)On the next two occasions the father will attend with the paternal grandfather;

(c)On the next two occasions the father will attend with at least one of the family members as mentioned in the two previous Orders; and

(d)Thereafter the father is at liberty to spend supervised time with the child either with, or without a member of his family.

3.The time with shall commence on the first Friday on which B Contact Service is able to facilitate time.

4.Ms Greene (“the mother”) is…

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AGLC
Greene & Mlakar (No 2) [2024] FedCFamC1F 817
Case
[2024] FedCFamC1F 817
Decision Date

CaseChat Overview and Summary

In the matter of Greene and Mlakar, the father filed an application seeking supervised time with the child, while the mother and the Independent Children's Lawyer opposed the application. The matter was listed for final hearing in March 2025, and the court had to decide whether it was in the child's best interests to be reintroduced to the father prior to the final hearing. The child had not seen the father since October 2021, and the mother alleged that the father had physically disciplined the child, which the father denied. The court had to consider the principles of interim hearings and the risks associated with the father spending time with the child.

The court considered the evidence presented by the parties and the Child Impact Report prepared by the Child Court Expert. The Child Impact Report revealed that the child had a close and loving relationship with both parents and that the child's views about the father had changed over the past two years. The court noted that the child's views that he was afraid of and did not wish to spend time with the father may have been induced in him by the mother, either wholly or in part. The court also noted that the child had not seen the father since October 2021 and that the risks were ameliorated by professional supervision.

The court found that it was in the child's best interests to be reintroduced to the father prior to the final hearing. The court noted that the principles of interim hearings applied and that the risks were ameliorated by professional supervision. The court also noted that the child had not seen the father since October 2021 and that the child had expressed a desire to spend time with the father. The court found that the mother's opposition to the father spending time with the child was not sufficient to outweigh the child's best interests.

The court ordered that the child spend supervised time with the father for two hours per fortnight, supervised by B Contact Service. The court also ordered that the first two occasions the father will attend with his partner Ms C and his step-children; on the next two occasions the father will attend with the paternal grandfather; on the next two occasions the father will attend with at least one of the family members as mentioned in the two previous Orders; and thereafter the father is at liberty to spend supervised time with the child either with, or without a member of his family. The court also ordered that the father and the mother are each restrained by injunction from discussing these Orders and these parenting proceedings with the child or to physically chastise the child. The court reserved any costs application to Final Hearing.

Orders

Orders of the court

NCC 3755 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS GREENE

Applicant

AND:

MR MLAKAR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SMITH J

DATE OF ORDER:

25 NOVEMBER 2024

THE COURT ORDERS THAT:

1. The Final Orders in relation to the child X (“the child”) be reconsidered pursuant to s 65DAAA of the Family Law Act 1975 (Cth).

2. From the date of these Orders, the child spend time with Mr Mlakar (“the father”) for 2 hours per fortnight, on a day to be agreed, supervised by B Contact Service as follows:

(a) On the first two occasions the father will attend with his partner Ms C and his step-children;

(b) On the next two occasions the father will attend with the paternal grandfather;

(c) On the next two occasions the father will attend with at least one of the family members as mentioned in the two previous Orders; and

(d) Thereafter the father is at liberty to spend supervised time with the child either with, or without a member of his family.

3. The time with shall commence on the first Friday on which B Contact Service is able to facilitate time.

4. Ms Greene (“the mother”) is to do all things reasonably necessary to give effect to these orders.

5. To effect Order 1:

(a) Within 48 hours of these Orders, the father and the mother are to do all things and sign all documents to complete the intake process to engage with B Contact Service;

(b) The father and the mother will each be responsible for any fees or costs associated with the intake process;

(c) The father is responsible for the costs of the supervised visits; and

(d) The father and the mother are to comply with all reasonable directions of the Contact Service.

6. On a without admissions basis, the father and the mother are each restrained by injunction, pursuant to s 68B of the Family Law Act 1975 (Cth) from discussing these Orders and these parenting proceedings with the child or to physically chastise the child.

7. Within 48 hours of these Orders the mother is to take all reasonable steps to facilitate the child meeting with the Child Court Expert, and if the Independent Children’s Lawyer wishes to attend with the independent Children’s Lawyer, so these Orders can be explained to the child by the Child Court Expert.

8. Pursuant to ss 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

9. The parties have liberty to approach in chambers on short notice if any issues arise with the implementation of these Orders.

10. The father may file an Amended Response on or before 10 January 2025 and the mother may respond within a reasonable timeframe.

11. Reserve any costs application to Final Hearing.

12. The Final Defended Hearing commencing at 10.00 am on Monday, 17 March 2025, with a present estimate of eight (8) days in-person at the Newcastle Registry of the Federal Circuit and Family Court of Australia be confirmed.

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

The mother, supported by the ICL in effect, says that the father is an unacceptable risk of psychological harm to the child of even professionally supervised time in the circumstances where a final hearing is forthcoming. The father's position is set out in the Child Impact Report at paragraph [27]:[1] … The father denies these allegations and believes that the mother has encouraged [X] to make up this allegation so that the mother has cause to stop him spending any time with [X]. The father stated that he has in the past “smacked [X] on the bottom” but denies this was a regular occurrence… [1] ICL 1, CIR at paragraph 27. BACKGROUND The parties commenced cohabitation in 2012 and separated on a final basis in 2017. They reached final consent orders in a prior set of proceedings (P)NCC86/2018 on 6 February 2018, with the child to live with the mother, the parents to share equal responsibility, and for the child to spend time with the father each Thursday from after school until before school Friday and each alternate weekend from after school Friday until 5.00 pm Sunday. The mother initiated these proceedings on 15 November 2021, following the alleged assault on 22 October 2021. After that, all previous spend time with orders for the father were suspended and the ICL was appointed. Orders were made on 16 February 2022 for the mother to have sole parental responsibility. A Child Impact Report was prepared by Ms E, the Child Court Expert (“CCE”), on 30 May 2022, and a Family Report by the same expert on 27 October 2022. The matter was transferred to division 1 on 27 January 2023 and was listed for final hearing to commence on 2 April 2024. On 20 February 2024, it was noted that the mother had separated from her new partner Mr D and no longer had the funds to continue paying for private legal representation. Her situation, by reason of that, had also significantly changed, and accordingly on 8 March 2024 an order was made vacating the final hearing dates. Given the change in circumstances, an updating Family Report was ordered, which was prepared and released by the same Court Child Expert on 19 September 2024. On 25 September 2024, the matter was listed for interim hearing for the application before me today. The matter was heard last week. As I said, the matter has been listed for final hearing to commence on 17 March 2025. THE APPLICATION The father is seeking orders that he spend supervised time with the child for two hours per fortnight each Friday, with such time to be supervised by B Contact Service. The mother opposes the father’s application and seeks that the application be dismissed, and that he spend no time with the child pending final hearing. The ICL submits there should be no time. I note, that as an alternate position, the mother says that if the court finds it is in the child's best interest to spend supervised time with the father, that the child should undertake family therapy and complete at least four sessions prior to the recommencement of time.INTERIM HEARING

Evidence

Evidence Before The Court

There is a significant issue raised by the CCE as to whether the child's current views that he is afraid of and does not wish to spend time with the father had been, whether intentionally or inadvertently, induced in him by the mother, either wholly or in part, noting that his views appear to have changed over the last two years. THE EVIDENCE I note, the contested evidence of the parties in their affidavits, and the principles that apply to weighing such evidence, and in particular, that I am not able to make any contested findings of fact. Having said that, I take the material into account. I note that, nevertheless, that material is all substantially considered by the CCE and set out in the various reports.Child Impact Report I will start with the Child Impact Report of 30 May 2022. The issue is summarised at paragraph [5]:[2]5. It is agreed that [X] has a close and loving relationship with both parents. Prior to the alleged assault that occurred in [late] 2021, [X] was spending time with both parents that was consistent with the previous consent orders, and it was reported to be going well. The mother acknowledges that [X] continues to ask about his father and seeks to re-establish time with him, however the mother is concerned about the disclosures from the child that he is physically disciplined when in the care of the father; an allegation denied by the father. [2] ICL 1, CIR at paragraph 5. A significant aspect of the history is set out at paragraph [13]:[3]13. The parents reportedly separated in 2017 when [X] was aged 4. It was reported that the parents were effectively co-parenting [X] from this time, however both report that communication has always been strained and difficult. [X's] experience of the parental separation would be one of conflict, confusion and change, and it seems that things deteriorated between the parties quite significantly when they both re-partnered.[3] Ibid at paragraph 13. The child's interview was summarised at paragraphs [17] to [21]:[4]17. [X] described his father as “an angry dad. He’ll at me when I'm in trouble and smack my bottom”. He stated that he does not understand why he gets hit and reported feeling unsafe as a result. He then spontaneously described having spoken to the police about the hitting and how he can no longer see his father until it is safe and until the father agrees to not hit him anymore. It should be noted that the CCE did not ask [X] any questions about the incident of […]/2021 being mindful that the matter is before the local court, however [X] spontaneously reported having spoken to the police in the context of a general question about what happens when he gets in trouble with the father.18. When asked he how felt about spending time with the father, [X] stated that he missed his father and wanted to return to spending time with him “the same as it was before”, but then said that his father needed to work on ways to not hit him before he would feel safe in returning to spending time. He stated that he enjoyed [bike] riding and going on adventures with the father and he missed this.19. [X] got quite teary at one point when saying how when his father hits him he feels scared and unsafe and reported that “the girls aren't hit or yelled at”, referring to his younger step sisters. He reported that this makes him feel “disrespected and like he doesn't care about me”. He stated that he wanted the Judge to know that when he is with the father he feels unsafe and scared when he is hit. When asked if there was anything about his family that he would change [X] said “nothing about mum, she's perfect. Dad I would make the hitting stop and he be more fair”.20. [X] stated that when his father and step mother fight it is the same as at the mother's home, in that he hears yelling, but does not see any physical violence. He described a good relationship with [Ms C], his step mother, and a good relationship with her children. He reported that he thinks that [Ms C] had smacked him maybe once, but that he did not feel scared or unsafe when with her.21. [X] stated that he has found his parents' separation difficult and stated that he wanted to be able to see them at the same time, but he understood that he can't. He reported that the mother and father don't get on and described hearing his mother hang up on the father when in the car on one occasion as an example of this.[4] Ibid at paragraphs 17–21.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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