Jagic & Mattias
[2022] FedCFamC2F 1820
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jagic & Mattias [2022] FedCFamC2F 1820
File number(s): SYC 2986 of 2022 Judgment of: JUDGE MYERS Date of judgment: 20 December 2022 Catchwords: FAMILY LAW - Family Violence – Mother charged with assault on child. Legislation: Family Law Act 1975 (Cth), ss 60CC(2)(a)-(b), 60CC(3)(a)-(m)
Crimes Act 1900 (NSW) s 61AA
Division: Division 2 Family Law Number of paragraphs: 35 Date of last submission/s: 20 December 2022 Date of hearing: 20 December 2022 Place: Parramatta Counsel for the Applicant: Mr Teoh Solicitor for the Applicant: Minas & Associates Counsel for the Respondent: Ms Breeze Solicitor for the Respondent: FKG Law ORDERS
SYC 2986 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MATTIAS
Applicant
AND: MS JAGIC
Respondent
order made by:
JUDGE MYERS
DATE OF ORDER:
20 DECEMBER 2022
THE COURT ORDERS THAT:
1.The documents produced pursuant to s.69ZW(1), by the Department of Family and Community Services (NSW) and NSW Police Service, are to be forwarded to the parties’ legal representatives by way of email from the Associate to Judge Myers no later than 11:59pm this evening, 20 December 2022.
2.The Court receives into evidence the police entry for event number …, being the entry of the NSW Police Force dated 16/12/2022 forming the subject of these proceedings with respect to the alleged assault of the child, X, by the mother. This will form exhibit ‘A’ in the proceedings.
3.Pending further order, all previous orders with respect to the children living with or spending time with the parents are hereby suspended.
4.Pending further order, the children shall reside with the father and spend time with the mother on a supervised basis.
5.For the purposes of supervision, where the mothers chooses to engage with a publicly funded children’s contact service, such times shall be weekly on such dates and times as made available by the contact service.
6.The mother may at her election choose to engage a private supervision service. In such circumstances, the mother shall be entitled to select the private supervision service, where the mother pays the cost of that supervision, and supervision shall take place for three hours each week.
7.The parties shall do all acts and things and sign all documents necessary to undertake any intake assessment process, procedure, questionnaire, or the like, for the purposes of engaging the parents with a private supervision service, or publicly funded children’s contact service.
8.The parties be prohibited by injunction from physically disciplining the children or allowing any other person to do so.
9.Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children, X born in 2017, Y born in 2015 and Z born in 2019, and the Legal Aid Commission of New South Wales is requested to provide such representation. The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.
10.The Independent Children’s Lawyer shall arrange to meet the children and the parents are to make the children available on such dates and such times as requested by the Independent Children’s Lawyer.
11.The Applicant Father’s costs of today’s proceedings are hereby reserved.
12.The Court requests a copy of today’s decision to be provided to the parties.
13.The matter is to be listed before a Senior Judicial Registrar on a date and time to be advised by the Sydney Registry.
AND THE COURT NOTES THAT:
A.The children are currently in the father’s care.
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 Jagic & Mattias has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Myers J:
These are proceedings that come before the Court today in respect of three children, Y born in 2015, aged 7, X born in 2017, aged 5, and Z born in 2019, aged 3. The father comes before the Court today seeking orders on an Interim basis that the children be removed from the mother and that they spend supervised time with the mother, pending further order of the Court. The mother comes before the Court and asks that the application by the father be dismissed, but that she is prepared to accept an order without prejudice and, on a no admissions basis, that she be prevented by injunction from physically disciplining the children.
The circumstances of urgency are as follows. The mother has been only recently charged in the last week or so with an assault upon X and a breach of an ADVO as between the mother and the father, in circumstances where X has a domestic relationship with the father. The assault charges are assault occasioning actual bodily harm. The New South Wales Police entries form Exhibit ‘A’ in these proceedings. The COPS entry is entry …. It provided that the PINOP in the matter is X, Y and Z. The PINOPs are siblings. The defendant in the matter is Ms Jagic, who is their mother. The entries say:
There are currently on-going Family Law Court matters regarding the custody of the PINOPs between the defendant and her ex-husband, [Mr Mattias], who is the father of the three children.
The Court is on notice that the children currently live with the mother and spend unsupervised time with the father some four nights a fortnight. Mr Teoh of Counsel has advised the Court that there has been two separate occasions where there has been consent orders with respect to the father spending unsupervised time with the children. The police incorrectly set out the custody of the PINOPs is split between Mr Mattias and the defendant fifty-fifty. What the COPS entries go on to state is this:
On the 23rd of November 2022, about 8:00pm [X] required to urgently use the toilet. The defendant took [X] to the bathroom to use the toilet, where [X] missed the toilet and urinated on the tiles of the bathroom.
The defendant open hand slapped [X] on the left side of her buttocks leaving a visible handprint and welt from the assault. The assault was witnessed by [Y], the older sister of [X], who was in the bathroom when the incident occurred.
It says that:
About 3.15pm [Mr Mattias] picked up the PINOPs from school in [Suburb B]. Upon picking the PINOP’s up [X] begun to complain about her buttocks stating she was in pain. [Mr Mattias] asked what had happened and [Y] stated that [X] was struck by the defendant. [Mr Mattias] located a large handprint and welts on the left side of [X]’s buttocks.
[Mr Mattias] captured photos of the marks.
On the 24th of November 2022, [Mr Mattias] dropped the PINOP’s off to school where [X] continued to complain of pain. [Mr Mattias] later returned to the PINOP’s school about 11:00am and spoke with the school principal and captured another photo of the injury.
The injury was still visible and the photo’s depict red handprints. Further bruises have formed where the assault occurred on [X].
[Mr Mattias] attended [Suburb B] Police Station to report the matter to the police.
Due to family court orders and recent allegations of assault, police hold concerns for the PINOP’s. Police believe that a provisional Apprehended Domestic Violence Order is necessary for the PINOPs safety and to reduce the escalation of any further offences.
The father relies upon those facts. The father also says that there are further marks including some marks on the little girl’s shoulder blade.
The mother has been charged. She faces those charges in the Local Court in early 2023. The mother provides no evidence in her affidavit as to the assault. Ms Breeze of Counsel has indicated to the Court that the mother has chosen to remain silent in circumstances where she is facing criminal charges. She has exercised her right to remain silent, but in doing so has failed to put any evidence before the Court about the circumstances in which the bruising took place.
Contained in the father’s affidavit material are photographs depicting the child’s buttocks. I have said to Ms Breeze of Counsel earlier on in the proceedings that I have sat here and witnessed and looked at possibly hundreds of photographs of what is alleged to be bruising in other cases. Never in the hundreds of photographs that I have seen or witnessed in those other cases have I seen so clearly the hand imprint the type of which can be seen on this little girl’s buttocks and the large bruising to a buttocks. I cannot imagine the force that it would have taken to bruise a child in that way. The Court has no evidence from an expert about that force but is clearly, in the view of the Court, not such that it might be classified as a lawful correction, or fall within the categories of behaviour that might be exempted, where a parent seeks to chastise a child, under Section 61AA of the Crimes Act 1900 (NSW).
The state of the parties’ background is as follows. The father has two convictions for resist arrest. He has some drug possession and supply charges. The supply charges ultimately saw him sentenced to a six year period of incarceration, with a two and a half year non-parole period. The Court is aware that the mother makes allegations as to family violence as against the father. The mother was presumably a complainant. There was an ADVO application made as against the father. The father sought to defend that ADVO application. The ADVO as against the father was dismissed last week. There is an ADVO as against the mother for the protection of the father.
Ms Breeze tells the Court that the Court can take some safety in the fact that there is an ADVO in place for the protection of the children. The Court notes that the ADVO in place against the mother for the father’s protection was breached by the mother in February 2022. The mother pleaded guilty and was convicted of the breach on 22 April 2022. The mother now faces a further ADVO, breach ADVO and the assault occasioning the actual bodily harm charges.
The Court turns to the paramount considerations, the best interests of these children. The Court weighs and balances what is in the best interests of the children, having regard to those matters set out in section 60CC(2)(a) and (b), (3)(a) through to (m). The Court considers the benefit of the child having a meaningful relationship with both parents. These are difficult interim proceedings. There is clearly some benefit of the children having a relationship with the father and, until such time as this application was brought before the Court, and in urgent circumstances, the Court would have easily found that there was a benefit of these children have a meaningful relationship with their mother.
This is a difficult matter compounded by the fact that the mother has chosen to remain silent and say nothing. She could have filed evidence in support of her application today. She could have provided significant evidence about the circumstances in which the alleged assault took place, but she has chosen to say nothing in circumstances where she is facing the charges in the Local Court and possibly a recall on the bond from the previous breach ADVO.
The Court considers that it is necessary to protect these children from physical or psychological harm from being exposed to abuse, neglect or family violence, and more of this is really a case about family violence and abuse. Striking a child in this manner is abusive. It is family violence, and it is an assault. It is the view of the Court that the Court can take no comfort in the fact that there is an ADVO in place for the protection of the children in circumstances where the mother has already breached an ADVO for the protection of the father. Whilst Ms Breeze might make some suggestions about the circumstances in which it took place, again, there is little evidence before the Court about it such that the Court can give any weight to the submissions of counsel for the mother.
The Court cannot take any comfort in the fact there is an ADVO in place. It has been put in place because the Local Court holds fears for the safety of the children. The Court is concerned that these children will be subjected to abuse or family violence in circumstances where one of them is a witness to the mother’s alleged assault. The mother seeks to defend the charges against her. It is the view of the Court that the Court does need to step in now and act protectively by removing these children where the mother has, on the face of the material, struck one of the children so hard it has caused an enormous hand mark and welt across this child’s buttocks, to the point where it cannot be excused as simply lawful correctional undertaken for the purpose of chastisement that is lawful. It is well outside of that.
The suggestion that the issue of risk might be mitigated by the mother providing an undertaking not to physically chastise the children, again, is such that the Court cannot rely on that undertaking in circumstances where there is no evidence about what took place with respect to the alleged assault from the mother’s point of view. I know what it says in the COPS entries, but I just do not know enough about it. The mother just offers no evidence.
It is her choice to offer no evidence, and that is what she has chosen to do. It puts the Court in an extremely difficult position because all the Court has at the moment is the mother’s say-so that she will defend the charges. She could plead guilty ultimately, the Court just does not know what will happen where the mother has not committed herself to any story at this stage. The Court is not satisfied that the undertaking proposed by the mother or the fact there is an ADVO in place will continue to protect these children from suffering physical or psychological harm as a result of being subjected to or exposed to abuse, neglect or family violence.
The Court does not have any views from the children, given the urgency in which this case has come before the Court. It is the view of the Court that it will be necessary to appoint an Independent Children’s Lawyer, and I propose to make that order following the delivery of this decision.
Noting the paramount consideration with primacy over all others, the Court is of the view that supervision can mitigate the issue of risk between the mother and the children for the purposes of ensuring the children continue on with their relationship with the mother. The Court has heard that the usual services, C Counsellors, D Counsellors and some of the other contact service providers are unavailable for a significant period of time. The Court is aware that there are private supervision services, and the counsel for the father does not want to be heard against that.
Ms Breeze of counsel suggests that the mother is not in a position to be able to fund that, but in circumstances where there is little evidence before the Court for the purposes of submissions in these proceedings, the Court cannot really make findings about the mother’s capacity. Mr Teoh suggests that the mother’s financial statements, in circumstances – it was either the property and parenting proceedings – suggests that the mother leases an expensive Motor Vehicle and asks the Court to draw an inference that the mother can afford to pay the costs of supervision.
It is the view of the Court that, if the Court orders supervised time of the frequency of at least every week, it will ensure that the meaningful relationship between the children and the mother is at least maintained in some manner until such time as the charges as against the mother are either heard and the mother is convicted or acquitted in the Local Court.
From the Court’s point of view, the nature of the relationship between the children and the father seems to be untainted and, presumably, a loving one - and the Court probably would have said, given the amount of time the children were spending with the mother up until recent events, would have been a loving one. The Court does not know what the nature of the relationship between the children and the mother is at the moment, whether it might be characterised by fear. It is a distinct possibility where the mother offers no evidence about the circumstances of the alleged assault and its aftermath.
It is unimportant for the Court to try and take into account the nature of the relationship between the children and any other person or any other relative, including a grandparent. This is not a case about either parent failing to take the opportunity to participate in making long-term decisions in relation to the child, spending time with the child or communicate with the children. It is not a case about each of the child’s parents fulfilling or failing to fulfil their obligations to maintain the children.
There will be a significant change in the children’s circumstances. They will be removed from their primary carer. They will go and be placed with the father, who has been spending four nights a fortnight with the children. But the Court has done so in circumstances where it is the view of the Court the middle child, X, has been physically assaulted by the mother significantly, such that she has had welts and bruising left on her buttocks, to the extent that the mother has been charged with assault occasioning actual bodily harm. The police have deemed it necessary, for the protection of all three children, to take out an ADVO.
There will be a change in the children’s circumstances but, given what has transpired, where the mother offers no evidence, it is the view of the Court that the change, whilst not necessarily perfect for the mother’s relationship with the children and probably detrimental towards that relationship, it is protective of them. In that regard, the detriment caused by the children being removed from the mother is outweighed by the necessity of the Court to mitigate risk.
This is not a case about the practical difficulty and expense of the children spending time with or communicating with a parent. I know that there is some issues about whether the mother can afford to pay for the supervised time. She is in the middle of property and parenting proceedings with the father, and that is not a matter the Court can give great weight to for the purposes of today.
The Court is asked to take into account the capacity of the parents, including the capacity to provide for the needs of the children, including their intellectual and emotional needs. The mother raised allegations the father of historic drug use. She raises allegations against the father with respect to family violence. She raises a number of allegations against the father that would go towards issues with respect to capacity, but the Court views those allegations in circumstances where, for some period of time, the children have been spending unsupervised time with the father four nights a fortnight. The Court is not in a position to make any finding the father lacks the capacity to provide for the needs of the children, including their intellectual and emotional needs.
The mother’s assault upon X is significant in the view of the Court, and I say this in circumstances where the evidence is not tested. The mother has chosen to remain silent. So the only evidence before the Court that the Court – has available to it is the evidence of the police and the evidence of the father. The mother has provided no evidence. The evidence in respect of the assault causes the Court to question the mother’s capacity to provide for the needs of the children, including their intellectual and emotional needs.
If the police facts are right, the mother was overcome, so overwrought, that she violently struck one of her children because she did something such as accidentally urinating, on the ground. It demonstrates to the Court serious questions about the mother’s capacity to provide for the needs of the children, including their intellectual and emotional needs, if she has to resort to what appears to be extremely hard belting of the child, such that is left the bruises of the type that are depicted in the father’s affidavit and referred to by the New South Wales Police.
The Court cannot be satisfied, for instance, that the grandparents would be able to provide for the needs, that is, that the maternal grandparents, will be able to provide for the needs of the children, including their intellectual and emotional needs, whereas, again, as I have said, the mother offers no evidence about the alleged assault or its aftermath. I do not know whether the grandparents were around. There are so many things the Court does not know that would have ordinarily given it comfort, but the mother has chosen to remain silent.
There is nothing in the maturity, sex, lifestyle or background of the parents the Court gives weight. The Court is not aware the children are Aboriginal or Torres Strait Islander children. Striking of a child in the manner that would leave the bruising the type of which the police have raised concerns about, the Court has seen photographs of and is highly concerned about, such that the police have taken out an ADVO for the protection of all three children and charged the mother with assault occasioning actual bodily harm is such that it calls into question the mother’s attitude towards the children and the responsibilities of parenthood.
The father has, in the view of the Court, acted appropriately. It was suggested by Ms Breeze of counsel that the father delayed, sat on his hands and did nothing. Mr Teoh of counsel has explained the father’s delay in filing in the proceedings in circumstances where he filed them two days after the mother was actually charged, when the father was sure – when he came – in the view of the Court, was sure when he came before the Court that the matter was serious enough the Court would entertain it, in circumstances where the police had acted.
There is family violence. It involves the child. The child has been physically struck violently in the view of the court, causing the child significant bruising and a hand mark across her buttock. There is also the allegation with respect to the child being struck or having bruises on the shoulder. The Court cannot make any findings about that, but for the purposes of today, the Court can make findings this child has suffered family violence in what appears to be a violent assault. It was not, in the view of the Court, for the purposes of lawful correction and does not fall within the said exceptions contained within the Crimes Act.
It is the view of the Court the mother is the perpetrator of that family violence in circumstances where it is the only finding available to the Court where the mother has chosen to remain silent. She has not denied the matter. She has offered no evidence. As Ms Breeze said, it is her right to do so, but in circumstances where she could have put evidence on before the Court. She is not in a position where she cannot provide evidence, instead, she has chosen not to provide evidence.
The Court notes the allegations of family violence levelled against the father, but the Court says they are untested and, in circumstances where the father has not been convicted, the Court simply cannot test those allegations. It might ultimately be the case that the father is found to have been a perpetrator of family violence upon the mother, but for the purposes of today, the Court cannot make that finding.
There are ADVOs. The ADVOs are against the mother. There is the ADVO against the mother for the father’s protection. The mother has breached the ADVO. She has been convicted of that breach or, admittedly, dealt with pursuant to section 10, where probably no conviction has been recorded. But that is a matter that was before the Local Court in April. The mother has now found herself in receipt of a further charge of breach ADVO in respect of the father’s ADVO against her for the protection of all three children.
The Court can draw some inference about the nature of the order. The police say very clearly, due to the Family Court order and the recent allegations of assault, the police hold concerns for the PINOPs, being the children. The police believe that an apprehended violence order is necessary for the PINOPs’ safety and to reduce the escalation of any further offences. They are concerned. The police are concerned about the mother’s behaviour. The Court draws the relevant inferences.
These are interim contested proceedings where the evidence is not tested. It is not appropriate, in the view of the Court, to apply the presumption in favour of equal shared parental responsibility. It chooses not to do so. The Court does not propose to consider the provisions of section 65DAA.
For the reasons set out above the Court makes the following orders:
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Myers. Associate:
Dated: 20 December 2022
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