Junge and Padovan - [2017] FCCA 1350

FEDERAL CIRCUIT COURT OF AUSTRALIA

JUNGE & PADOVAN

[2017] FCCA 1350

Catchwords:
FAMILY LAW – Parenting – whether unacceptable risk of abuse – child pornography found on computer Father used – whether Father involved in inappropriate conduct with a child – issues of credit – detailed review of evidence – finding of unacceptable risk of abuse – no contact.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZT, 69ZV, 70NAE

Cases cited:

Betros (2017) FamCAFC 90

MRR v GR [2010] HCA 4

Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768
W and W (abuse allegations: unacceptable risk) [2005] FamCA 892
WK v SR (1997) FLC 92-787

Applicant:

MS JUNGE

Respondent:

MR PADOVAN

File Number:

WOC 656 of 2015

Judgment of:

Judge Altobelli

Hearing dates:

8 – 10 May 2017

Date of Last Submission:

10 May 2017

Delivered at:

Wollongong

Delivered on:

11 July 2017

REPRESENTATION

Counsel for the Applicant:

Mr Ford

Solicitors for the Applicant:

Acorn Lawyers

The Respondent appeared in person.

Counsel for the Independent Children’s Lawyer:

Mr David as Solicitor-Advocate

Solicitors for the Independent Children’s Lawyer:

Hansons Lawyers

ORDERS

The Applicant Mother have sole parental responsibility for the child, [X] (DOB: omitted).
The child live with the Applicant Mother.
The child spend no time with the Respondent Father.
Pursuant to Section 68B of the Family Law Act 1975, the Father be restrained and prohibited from stalking, approaching or contacting the Mother and the child.
Pursuant to Section 68B of the Family Law Act 1975, the Father be restrained and prohibited from approaching or entering any educational facility that the child or mother are enrolled in, or any place of employment where the Mother works, or any residence where the Mother and child may reside or frequent from time to time.
Both parents are to refrain from making critical or derogatory remarks about each other or members of each other’s family in the presence or within the hearing of the child; and that both parents are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other parent or members of their family in the presence or within the hearing of the child.
Pursuant to Section 11 of the Australian Passports Act 2005 (Cth), the Applicant Mother is to have sole parental responsibility for an application to apply for, or renew an Australian Passport for the child namely [X] born (omitted) 2010, such passport shall be issued to the Mother without the consent of the Father.
The Applicant Mother be permitted to travel outside the Commonwealth of Australia with the child.
The Applicant Mother provide, or cause to be provided, to the Father information of:
(a)Any serious medical problems or illnesses suffered by the child; and
(b)All school reports, reports on progress and behavioural issues and other school circulars in relation to the child.
The Father’s Contravention Applications filed 24 April 2017, 21 March 2017 and 27 October 2016 be dismissed.

IT…

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 Junge and Padovan

Details

AGLC: Junge and Padovan [2017] FCCA 1350
Case: [2017] FCCA 1350
Decision Date: 11 July 2017

CaseChat Overview and Summary

In the matter of Junge and Padovan, heard by Judge Altobelli, the dispute concerned parenting orders for a child, [X]. The Applicant Mother sought sole parental responsibility and orders for the child to live with her, with no time spent with the Respondent Father. The application also sought to restrain the Father from stalking, approaching, or contacting the Mother and child, and from attending specified locations.

The court was required to determine the best interests of the child, [X], in light of the allegations and the history of the proceedings. This involved assessing the level of risk posed by the Father to the Mother and child, and whether the existing parenting arrangements were appropriate and safe. The court also considered the Father's contravention applications.

Judge Altobelli ordered that the Applicant Mother have sole parental responsibility for the child, and that the child live with the Mother. The Father was ordered to spend no time with the child. Crucially, the Father was restrained and prohibited from stalking, approaching, or contacting the Mother and child, and from entering specified locations such as educational facilities and places of employment. Both parents were ordered to refrain from making derogatory remarks about each other in the child's presence. The Mother was granted sole responsibility for passport applications for the child and permitted to travel internationally with the child. The Father's contravention applications were dismissed.

Orders

Orders of the court

The Applicant Mother have sole parental responsibility for the child, [X] (DOB: omitted).

The child live with the Applicant Mother.

The child spend no time with the Respondent Father.

Pursuant to Section 68B of the Family Law Act 1975, the Father be restrained and prohibited from stalking, approaching or contacting the Mother and the child.

Pursuant to Section 68B of the Family Law Act 1975, the Father be restrained and prohibited from approaching or entering any educational facility that the child or mother are enrolled in, or any place of employment where the Mother works, or any residence where the Mother and child may reside or frequent from time to time.

Both parents are to refrain from making critical or derogatory remarks about each other or members of each other’s family in the presence or within the hearing of the child; and that both parents are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other parent or members of their family in the presence or within the hearing of the child.

Pursuant to Section 11 of the Australian Passports Act 2005 (Cth), the Applicant Mother is to have sole parental responsibility for an application to apply for, or renew an Australian Passport for the child namely [X] born (omitted) 2010, such passport shall be issued to the Mother without the consent of the Father.

The Applicant Mother be permitted to travel outside the Commonwealth of Australia with the child.

The Applicant Mother provide, or cause to be provided, to the Father information of:

(a) Any serious medical problems or illnesses suffered by the child; and

(b) All school reports, reports on progress and behavioural issues and other school circulars in relation to the child.

10.

The Father’s Contravention Applications filed 24 April 2017, 21 March 2017 and 27 October 2016 be dismissed.

Background

Background to the litigation

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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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