FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Machak & Lewy [2024] FedCFamC2F 505
File number: MLC 5346 of 2019 Judgment of: JUDGE FORBES Date of judgment: 2 May 2024 Catchwords: FAMILY LAW – parenting – application by father for time with daughter – where mother seeks no time order – whether father presents as unacceptable risk due to drug use, criminal offending and family violence – where allegations of family violence not contested – best interests of the child - where supervised time will not reduce risk to emotional welfare – where risk cannot presently be ameliorated – order for father not to spend time Legislation:
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA
Cases cited:
Blann & Kenny [2021] FamCAFC 161
Blinko & Blinko [2015] FamCAFC 146
Browne v Dunn (1893) 6 R 67
Isles & Nelissen [2021] FedCFamC1F 295
Mazorski & Albright [2007] FamCA 520
Division: Division 2 Family Law Number of paragraphs: 234 Date of hearing: 12-14 February 2024 Place: Melbourne Counsel for the Applicant: Ms Daly Solicitor for the Applicant: Macgregor Solicitors Counsel for the Respondent: Ms Damon Solicitor for the Respondent: Kelly & McHale Family Lawyers Counsel for the Independent Children's Lawyer: Ms Agresta Solicitor for the Independent Children's Lawyer: Leslie Family Law ORDERS
MLC 5346 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MACHAK
Applicant
AND: MS LEWY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
2 MAY 2024
THE COURT ORDERS THAT:
1.The Respondent Mother have sole parental responsibility for the child X born in 2013.
2.X live with the Mother.
3.The Mother advise the Father of any major long term decisions made and medical emergencies in relation to X, by email.
4.The Father spend no face to face time with X.
5.The Father be permitted to send X letters, cards and gifts for X’s birthday, Easter and Christmas only, with such items to be provided via the paternal grandmother or as otherwise agreed in writing between the parties.
6.All extant orders and applications are otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B 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 and details of who can assist the parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
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…
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- [2024] FedCFamC2F 505
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CaseChat Overview and Summary
The primary legal issue before the court was whether Mr Machak presented an unacceptable risk to X, which would warrant denying him any parenting time. The court had to assess the allegations of family violence and consider the best interests of X, particularly whether supervised time would mitigate the risk to X's emotional welfare. Given that the allegations of family violence were not contested, and the risk to X's welfare could not be effectively managed through supervision, the court had to determine if it was in the best interest of X to deny Mr Machak any face-to-face contact.
The court found that the risk posed by Mr Machak’s drug use, criminal offending, and family violence was unacceptable and could not be ameliorated through supervision. Consequently, the court ruled that it was not in X's best interest to have any face-to-face contact with her father. The court also noted that supervised time would not sufficiently reduce the risk to X's emotional welfare. Therefore, the court ordered that Mr Machak have no face-to-face time with X. However, to maintain a connection, the court permitted Mr Machak to send letters, cards, and gifts to X on specific occasions, with these items to be delivered via the paternal grandmother or as otherwise agreed in writing between the parties.
The court made orders that Ms Lewy have sole parental responsibility for X, that X live with Ms Lewy, and that Ms Lewy inform Mr Machak of any major long-term decisions and medical emergencies concerning X. The court dismissed all other extant orders and applications. The court's orders were subject to specific provisions outlined in the Family Law Act 1975, and any future amendments to the orders would follow the relevant federal rules.
Orders
Orders of the court
MLC 5346 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR MACHAK
Applicant
AND:
MS LEWY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
2 MAY 2024
THE COURT ORDERS THAT:
1. The Respondent Mother have sole parental responsibility for the child X born in 2013.
2. X live with the Mother.
3. The Mother advise the Father of any major long term decisions made and medical emergencies in relation to X, by email.
4. The Father spend no face to face time with X.
5. The Father be permitted to send X letters, cards and gifts for X’s birthday, Easter and Christmas only, with such items to be provided via the paternal grandmother or as otherwise agreed in writing between the parties.
6. All extant orders and applications are otherwise dismissed.
AND THE COURT NOTES THAT:
A. Pursuant to ss.65DA(2) and 62B 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 and details of who can assist the parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
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.
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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