FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Macik & Janson [2023] FedCFamC1F 143
File number(s): PAC 930 of 2020 Judgment of: HANNAM J Date of judgment: 10 March 2023 Catchwords: FAMILY LAW – INTERIM PARENTING – Oral application to vary interim orders – Where final hearing vacated – Where father seeks an increase in the child’s time with him and removal of the requirement for supervision – Where the mother seeks a suspension of the child’s time with the father – Where mother contends the father poses an unacceptable risk of harm on the basis of sexual abuse – Where mother indicates that she will seek a positive finding of sexual abuse at final hearing – Where it was previously found it would be unlikely that a trial judge at final hearing would determine the father poses an unacceptable risk – Where that assessment has not changed – Where orders are made for an increase in the child’s time with the father – Where the requirement of professional supervision is removed. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 65D Cases cited: Macik & Janson [2020] FamCA 743 Division: Division 1 First Instance Number of paragraphs: 60 Date of hearing: 6 March 2023 Place: Parramatta Solicitor for the Applicant: Mr Mokhtar, AMG Law Firm Counsel for the Respondent: Mr Hodgson Solicitor for the Respondent: Cameron Legal Counsel for the Independent Children's Lawyer: Mr Cook Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
PAC 930 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MACIK
Applicant
AND: MR JANSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HANNAM J
DATE OF ORDER:
6 March 2023
THE COURT ORDERS THAT PENDING FURTHER ORDER COMMENCING SUNDAY 12 MARCH 2023:
1.The interim orders made on 7 September 2020 in respect of the child Y born 2019 (“the child”) are varied as follows:
(a)The requirement for professional supervision of the time the child spends with the father is removed and discharged.
(b)The time the child spends with the father takes place in the presence of one or all of Ms B, Ms C or Mr D.
(c)The time the child spends with the father is increased from a period of three hours to a period of five hours.
2.In order to facilitate the time the child spends with the father pursuant to order 1, the mother or her agent is to deliver and collect the child to and from the father’s residence at E Street, Suburb F.
3.The parties are each restrained from criticising or making derogatory statements about one another in the presence or hearing of the child or permitting him to remain in the presence of any other party who is doing so.
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…
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- AGLC
- Macik & Janson [2023] FedCFamC1F 143
- Case
- [2023] FedCFamC1F 143
- Decision Date
CaseChat Overview and Summary
The case of Macik & Janson involved the parents of a young child and the mother's daughter from another relationship, who were both parties to parenting arrangements following the breakdown of the parents' relationship. The father sought variations to the interim parenting arrangements, specifically an increase in the child's time with him and the removal of formal supervision. The court had to decide whether these variations were in the best interests of the child.
The key legal issue before the court was whether the proposed variations to the interim parenting arrangements were in the best interests of the child. This required a consideration of several factors, including the child's need for a relationship with both parents, the mother's attitude towards fostering such a relationship, and the outcome of investigations into allegations of sexual abuse made by the mother's daughter against the father. The court had to weigh these factors against each other and determine whether the father's proposal would benefit the child.
In reaching its decision, the court considered the child's need for a relationship with both parents, noting that the child had only recently begun to spend time with the father. The court also took into account the mother's opposition to the child spending time with the father and her attempts to discharge the orders for such time. The court found that the mother's attitude towards promoting a relationship between the child and the father was a significant factor in its decision. The court concluded that the father's proposal for a small increase in the child's time with him and the removal of formal supervision was in the best interests of the child.
The court ordered that the interim parenting arrangements be varied to increase the child's time with the father by two hours per fortnight and to remove the requirement for formal supervision. The court also noted that the mother's daughter had received ongoing counselling through Victim Services on the basis that she had been the victim of sexual abuse, despite the allegations against the father not being substantiated.
The key legal issue before the court was whether the proposed variations to the interim parenting arrangements were in the best interests of the child. This required a consideration of several factors, including the child's need for a relationship with both parents, the mother's attitude towards fostering such a relationship, and the outcome of investigations into allegations of sexual abuse made by the mother's daughter against the father. The court had to weigh these factors against each other and determine whether the father's proposal would benefit the child.
In reaching its decision, the court considered the child's need for a relationship with both parents, noting that the child had only recently begun to spend time with the father. The court also took into account the mother's opposition to the child spending time with the father and her attempts to discharge the orders for such time. The court found that the mother's attitude towards promoting a relationship between the child and the father was a significant factor in its decision. The court concluded that the father's proposal for a small increase in the child's time with him and the removal of formal supervision was in the best interests of the child.
The court ordered that the interim parenting arrangements be varied to increase the child's time with the father by two hours per fortnight and to remove the requirement for formal supervision. The court also noted that the mother's daughter had received ongoing counselling through Victim Services on the basis that she had been the victim of sexual abuse, despite the allegations against the father not being substantiated.
Orders
Orders of the court
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Background
Background to the litigation
After hearing submissions from each of the parties in respect of their proposals, I determined that it was in the best interests of the child to vary the interim parenting arrangements by discharging the requirement for formal supervision and increasing the child’s time with the father by two hours. At the time I made those orders I indicated that I would subsequently publish my Reasons for doing so. These are those Reasons.BACKGROUND The parties commenced their relationship in 2016, began to live together the following month, and married later the same year. When the parties’ relationship began the mother’s daughter from another relationship (“the mother’s daughter”) was aged three. Neither the mother nor the mother’s daughter have had any relationship with that child’s biological father since her birth and the father for all intents and purpose has been this child’s father. In 2019 the parties’ son (“the child”) was born. The parties’ relationship which had been under strain for some time broke down a few months after the birth of the child, and the father moved out of the family home. The child and the mother’s daughter continued to live with the mother and maternal grandmother. It is the mother’s case that in early 2020 her daughter reported something to her that the mother understood to be an allegation of sexual abuse perpetrated by the father. Over the ensuing months from early 2020 to around mid-2020, the mother contends that there were ongoing disclosures made by her daughter about the alleged sexual abuse which were reported by the mother to various agencies including the Department of Communities and Justice (“the Department”). The various allegations were investigated by the Joint Child Protection Response Program (“JCPRP”)[1] team who interviewed the child on two occasions. The sexual abuse allegations were not substantiated but unhelpfully in my view, the mother’s daughter has received ongoing counselling through “Victim Services” on the basis that she has been the victim of sexual abuse.[1] The Joint Child Protection Response Program is made up of officers from police and Community Services investigates allegations of serious child abuse. On 1 May 2020 the matter was allocated into the Magellan Program[2] and an ICL was appointed. A hearing in relation to the interim arrangements for the child and the mother’s daughter (“the children”) was commenced on 29 May 2020 and was adjourned part-heard until late July 2020. In the meantime, the investigation into the allegations of sexual abuse was completed and those allegations were not substantiated. Following the resumed hearing on 10 July 2020, orders were made on 7 September 2020 (“the September 2020 orders”) for the child to spend supervised time with the father for at least 3 hours per fortnight. No orders were made with respect to the mother’s daughter spending time with the father. [2] The Magellan Program is a case management program in the Federal Circuit and Family Court Division 1 that deals with serious allegations of physical and sexual child abuse.The September 2020 orders
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The final matter that I consider relevant is the mother’s apparent attitude towards promoting a relationship between the child and the father. The mother has persistently opposed the development of the child’s relationship with the father since an early stage in the proceedings. She opposed orders for the child to spend any time with the father when such interim orders were first sought and has on two occasions since then sought to have the orders providing for that time discharged including through this oral application which was made without prior notice. CONCLUSION Having regard to each of the foregoing matters and attaching weight to those as indicated, I was satisfied that the proposal of the father for a small increase in the child’s time with him and dispensing with formal supervision was proper and in the best interests of the child.
Ratio Decidendi
Legal Principle Established
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