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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jagic & Mattias

Details

AGLC: Jagic & Mattias [2022] FedCFamC2F 1820
Case: [2022] FedCFamC2F 1820
Decision Date

CaseChat Overview and Summary

In these proceedings, Mr Mattias has applied for interim orders concerning the care and supervision of their three children, Y, X, and Z, following an incident in which the mother, Ms Jagic, allegedly assaulted the middle child, X, causing significant bruising and a visible handprint on her buttocks. Ms Jagic has been charged with assault occasioning actual bodily harm and is due to face the Local Court. She has chosen not to provide any evidence in response to the father’s allegations. The court must decide whether the children should be removed from the mother’s care and whether supervised contact should be permitted.

The court considered the best interests of the children, weighing the benefit of maintaining a relationship with both parents against the need to protect them from potential harm. The court noted the severe bruising inflicted on X and the mother's failure to provide any evidence or explanation. The court also considered the history of family violence and ADVOs between the parties, including the mother's previous breach of an ADVO. The court concluded that the children needed protection from further harm and that supervised contact with the mother would mitigate the risk while allowing the children to maintain a relationship with her. The court ordered that the children reside with the father and spend supervised time with the mother, either through a public or private supervision service.

The court made several orders to protect the children and ensure their welfare. The children were to reside with the father, and the mother was to have supervised contact. An Independent Children’s Lawyer was appointed to represent the children’s interests. The court also prohibited the parties from physically disciplining the children and enjoined them from engaging in any form of family violence. The father’s costs were reserved for further determination. The matter was listed for a future hearing before a Senior Judicial Registrar.

Orders