FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Jagic & Mattias [2023] FedCFamC1A 57
Appeal from: Jagic & Mattias [2022] FedCFamC2F 1820 Appeal number(s): NAA 287 of 2022 File number(s): SYC 2986 of 2022 Judgment of: AUSTIN J Date of judgment: 3 May 2023 Catchwords: FAMILY LAW – APPEAL – Where the mother appeals from interim parenting orders reversing the residence of the parties’ three young children and requiring them to spend professionally supervised time with her, at her cost – Where the father and the Independent Children’s Lawyer opposed the appeal – Where the primary judge found the mother assaulted the middle child and the children needed protection against the risk of suffering harm caused by their subjection to abuse by her – Where the mother was charged and exercised her right to silence – Where the father’s evidence of the mother’s culpability was unchallenged before the primary judge – Where no error of principle was identified – Where the mother lead no evidence of her supposed incapacity to pay for supervision – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CC, 68B, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28, 132
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Crimes Act 1900 (NSW) s 61AA
Evidence Act 1995 (NSW) s 89
Cases cited: Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17
Cimorelli & Wenlack [2020] FamCAFC 58
Fowler & Northwood (2022) FLC 94-114; [2022] FedCFamC1A 173
G v H (1994) 181 CLR 387; [1994] HCA 48
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Katsilis v Broken Hill Pty Ltd (1977) 18 ALR 181
Lim & Zong (2020) FLC 93-939; [2020] FamCAFC 20
Marvel v Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
Mead v Mead (2007) FLC 93-327; [2007] HCA 25
Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12
Number of paragraphs: 65 Date of hearing: 3 May 2023 Place: Sydney Counsel for the Applicant: Mr Jackson Solicitor for the Applicant: FKG Law Counsel for the Respondent: Mr Givney Solicitor for the Respondent: Apex Legal Counsel for the Independent Children's Lawyer: Mr Kelly Solicitor for the Independent Children's Lawyer: Mason Mia & Associates ORDERS
NAA 287 of 2022
SYC 2986 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS JAGIC
Appellant
AND: MR MATTIAS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
AUSTIN J
DATE OF ORDER:
3 May 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 20 February 2023 is dismissed.
2.The appeal is dismissed.
3.The appellant shall pay the respondent’s costs of and incidental…
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- AGLC
- Jagic & Mattias [2023] FedCFamC1A 57
- Case
- [2023] FedCFamC1A 57
- Decision Date
CaseChat Overview and Summary
The appeal, filed by the mother against interim parenting orders made by the Family Court, concerns the custody and access arrangements for three children born in 2015, 2017, and 2019. The parties, who had been living together since 2012, separated in late 2020 or early 2021, with proceedings under Pt VII of the Federal Circuit and Family Court of Australia Act 2021 being initiated in May 2022. The initial interim parenting orders, agreed upon by the parties, allowed the children to live with the mother while spending substantial time with the father, including four nights per fortnight and other special occasions. These orders were later modified to expand the father's access, including half of all school holidays. The situation escalated when the middle child reported being hit by the mother, leading to the mother being charged with assault and bound by an apprehended domestic violence order. The children have been primarily in the care of the father since this incident.
The legal issues before the court involved the interpretation and application of the best interests principle in determining the appropriate residence and contact arrangements for the children. The court was tasked with assessing the implications of the alleged assault on the children's welfare and the need for professional supervision during the mother's contact with them. The mother argued against the interim orders that required the children to live with the father and have supervised weekly contact with her. The father and the Independent Children’s Lawyer opposed the appeal, maintaining that the new arrangements were in the children’s best interests.
In dismissing the appeal, the court considered the evidence and submissions from both parties, the Independent Children’s Lawyer, and the children's welfare reports. The court found that the alleged assault and the resulting apprehended domestic violence order significantly impacted the children's safety and well-being, justifying the shift in residence and the imposition of professional supervision. The court concluded that the orders made by the primary judge were appropriate under the circumstances, emphasizing the paramount importance of the children's safety and best interests. Consequently, the mother's appeal was dismissed, and the interim parenting orders were upheld.
The legal issues before the court involved the interpretation and application of the best interests principle in determining the appropriate residence and contact arrangements for the children. The court was tasked with assessing the implications of the alleged assault on the children's welfare and the need for professional supervision during the mother's contact with them. The mother argued against the interim orders that required the children to live with the father and have supervised weekly contact with her. The father and the Independent Children’s Lawyer opposed the appeal, maintaining that the new arrangements were in the children’s best interests.
In dismissing the appeal, the court considered the evidence and submissions from both parties, the Independent Children’s Lawyer, and the children's welfare reports. The court found that the alleged assault and the resulting apprehended domestic violence order significantly impacted the children's safety and well-being, justifying the shift in residence and the imposition of professional supervision. The court concluded that the orders made by the primary judge were appropriate under the circumstances, emphasizing the paramount importance of the children's safety and best interests. Consequently, the mother's appeal was dismissed, and the interim parenting orders were upheld.
Orders
Orders of the court
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Background
Background to the litigation
The appeal is dismissed for the reasons which follow.Background The parties commenced cohabitation in 2012. Their three children were born in 2015, 2017 and 2019. They were aged between seven and three years at the time of the hearing before the primary judge. The parties separated in either late 2020 or early 2021. Then, in May 2022, proceedings were instituted by the mother under Pt VII of the Act seeking orders in respect of the children. Interim parenting orders were first made in June 2022, with the parties’ consent. The orders provided for the children to live with the mother and to spend substantial and significant time with the father. Slightly different arrangements were made for the youngest child, but the parties acknowledge the essential effect of the orders was to ensure the children spend four nights per fortnight and other special occasions with the father. A second set of interim parenting orders was made with the parties’ consent in October 2022, expanding the time the children spend with the father, which expansion included one-half of all school holiday periods. On 23 November 2022, the children visited the father. The middle child reported she had been recently hit and injured by the mother, which report was corroborated by the eldest child. The father subsequently reported the alleged assault to the police, which report resulted in the mother being charged with assault and bound by an apprehended domestic violence order for the protection of all three children. The children have been in the primary care of the father since about that time. Within the next few weeks, an interim application was filed by the father to vary the consent orders made in October 2022. He sought to reverse the children’s residence and to impose professional supervision on the time spent by the children with the mother, which application she opposed. The interim dispute was heard by the primary judge on 20 December 2022, following which the fresh interim orders were pronounced and ex tempore reasons for judgment were delivered. The appealed orders provide for the children to live with the father and to spend time with the mother once per week under professional supervision, paid for by her. The Independent Children’s Lawyer (“the ICL”) was appointed by one of the orders made by the primary judge. The ICL was joined to the appeal, appeared, and opposed it, as did the father.The appeal The mother sought leave to appeal, but it is unnecessary. Save for an irrelevant procedural order (Order 11), the orders from which the mother appeals (Orders 3 to 7 inclusive) are all parenting orders from which the right of appeal unconditionally lies (ss 26(1)(c), 28(1)(b) and 132(1)(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)). The most recent iteration of the appeal is found within the mother’s Summary of Argument, filed on 21 February 2023, which amends the grounds of appeal set out within the Amended Notice of Appeal filed on 20 February 2023. The requirement for the mother to file and serve an Amended Notice of Appeal is dispensed with under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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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