Marecki & Samra

Case [2022] FedCFamC1F 808

Federal Circuit and Family Court of Australia

(DIVISION 1)

Marecki & Samra [2022] FedCFamC1F 808

File number(s): MLC 8264 of 2021
Judgment of: HARTNETT J
Date of judgment: 21 October 2022
Catchwords: FAMILY LAW – Parenting – Interim Orders – Where the father sought a change in the child’s primary residency from that of the mother to him – Where the father sought orders that the child spend time with the mother each alternate weekend and each Wednesday after school – Where the father alleged the child only attends school when the father takes the child to school – Where the mother has had difficulty in having the child attend school – Father to assist with taking the child to and from school – Application otherwise dismissed.
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D, 65AA

Cases cited:

Deiter v Deiter [2011] FamCAFC 82

George v George [2013] FamCAFC 182

Goode v Goode (2006) FLC 93-286

Mazorski v Albright (2007) 37 Fam LR 518

McCall v Clark (2009) FLC 93-405

SS v AH [2010] FamCAFC 13

Division: Division 1 First Instance
Number of paragraphs: 97
Date of hearing: 5 September 2022
Place: Melbourne
Counsel for the Applicant: Mr Gates
Solicitor for the Applicant: Plaza Legal (now Mukushi Cohen Lawyers)
Counsel for the Respondent: Mr Allen
Solicitor for the Respondent: Aston Legal Group
Solicitor for the Independent Children's Lawyer: Wilkinson & Associates Family Lawyers

ORDERS

MLC 8264 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR MARECKI

Applicant
AND:

MS SAMRA

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HARTNETT J

DATE OF ORDER:

21 October 2022

THE COURT ORDERS THAT:

1.The child, X born 2015 (“the child”), continue to live with the mother.

2.At the written request of the Independent Children’s Lawyer both parties attend for alcohol and drug testing on a random basis not more than on one occasion each between now and the trial management hearing on 6 March 2023 and for that purpose:

(a)the request for hair follicle testing and urine testing are to be sent by email and not more frequently than twice each month and both parties to undergo the test within 24 hours of receiving the request and to be at the laboratories specified by the independent children’s lawyer and not at any other laboratory;

(b)collection is to be conducted by a qualified and certified collector;

(c)chain-of-custody procedure is to be applied to the sample. Testing is to be conducted at an approved AWDTS Clinic laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing;

(d)to give effect to this Order:

(i)both parties are required to maintain their head hair at a length of not less than four (4) centimetres; neither head nor body hair is to be cut, bleached or dyed between the date of this Order and…

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AGLC
Marecki & Samra [2022] FedCFamC1F 808
Case
[2022] FedCFamC1F 808
Decision Date

CaseChat Overview and Summary

The case of Marecki & Samra involved the parents of a child who had separated and were disputing the arrangements for the child's care. The father sought an increase in his time with the child, while the mother argued for continued primary care. The court considered the matter at an interim hearing, examining various aspects of the child's welfare and the parents' circumstances.

The primary legal issues for the court to determine were the best interests of the child, the impact of any changes to the child's circumstances, and the ability of both parents to provide a safe and nurturing environment. The court examined the child's school attendance and engagement, the parents' capacity to care for the child, and the presence of any family violence or neglect. The mother's decision to cease contact between the child and the father following the death of her sister was also considered, as was the father's history of emotional abuse and harassment towards the mother.

The court found that the mother's decision to relocate and cease contact with the father was beneficial for the child, as it removed the child from exposure to parental conflict and family violence. The court acknowledged the child's disrupted relationships but noted the certainty and safety provided by the mother's care. The court also found that the father's allegations of neglect and drug use by the mother were not substantiated, and that the mother's care of the child had improved over time. The court concluded that the child's best interests would be served by maintaining the existing care arrangements, with the mother as the primary caregiver.

The final orders of the court were that the child would continue to reside primarily with the mother, with the father having regular supervised contact. The court also noted the importance of the child's education and attendance at school, and ordered both parents to cooperate in ensuring the child's attendance and engagement. The court further noted the father's history of emotional abuse and harassment, and ordered him to refrain from any further contact with the mother or the child outside of the supervised contact arrangements.

Orders

Orders of the court

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Background

Background to the litigation

No challenge in the form of cross-examination of either of the parties as to the contents of their respective affidavits occurred nor was any sought, it being an interim hearing. Relevant background The father was born in 1982 and was aged 39 years at the time of the hearing. The mother was born in 1975 and aged 46 years at the time of the hearing. The father is currently self-employed as a tradesperson. The mother is currently engaged in part-time employment at C Store. The mother’s hours of employment facilitate her primary care of the child. The parties commenced cohabitation in late 2014 and were never married. They separated on a final basis on 20 January 2021. During the parties’ relationship, they lived in rental accommodation with the paternal grandfather at D Street, Suburb E (“the Suburb E property”). Following separation on 20 January 2021, the father vacated the Suburb E property and began living with the paternal grandmother and paternal uncle at F Street, Suburb G (“Suburb G”). At that time the child was in the father’s care two to three nights per week. In or around mid- 2021, the mother and child moved to a rental apartment at H Street, Suburb J (“the Suburb J property”). The father moved back into the Suburb E property with the paternal grandfather. The father alleged the mother began decreasing his time spent with the child which caused considerable conflict between the parties. In early 2021, the mother discovered that her sister had died. Shortly after her sister’s death, the mother ceased all time between the child and father. The father concedes the mother was deeply affected by her sister’s sudden death.[4] The father made numerous requests of the mother to reinstate the time the child spent with him. These requests were refused by the mother. Around this time, the father moved in with his new partner, Ms K (“Ms K”). [4] Father’s affidavit filed 14 July 2022, paragraph 18. In early 2021, an Interim Intervention Order (“IVO”) was made against the father listing the mother and the child as affected family members. The IVO was made as a result of the harassment and emotional abuse directed at the mother by the father post separation. The Department of Health and Human Services (“DHHS”), now Department of Fairness, Families and Housing (“DFFH”), received a notification as to the mother’s care of the child. DFFH reported in response that it was apparent the child had missed some school which was believed to be as a result of the maternal aunt’s passing. However, the school raised no significant concerns for the child or the mother, and the school continued to remain in a position to monitor the family.[5] [5] Section 67Z Report dated 2 September 2021, p.2. In mid-2021, DFFH Child Protection (“Child Protection”) received a further notification in relation to the child alleging that the mother was withholding contact between the child and the father. Further allegations were made in relation to the mother engaging in illicit substance use, the maternal uncle’s incarceration for drug offences, and the child’s poor school attendance. Child Protection completed a criminal check in relation to the maternal uncle, and found no pending charges or convictions pertaining to drug offences. Child Protection also contacted the child’s school. The school confirmed that the child had missed three weeks of school in Term 2, and three days in Term 3.[6][6] Section 67Z Report dated 2 September 2021, p.2.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It was the opinion of the Court Child Expert that the mother’s decision to relocate from the paternal father’s family home benefitted both the child and herself. The child is no longer exposed to parental conflict and family violence, and although his relationships have been disrupted, he has certainty and safety in his mother’s care.[44] Section 60CC(3)(c)-(ca) the parents opportunity to participate in decision making, spend time and communicate with the child and the fulfilment of the parent’s obligations to maintain the children[44] Child Impact Report dated 29 November 2021, p.7. The mother has a current Interim IVO against the father which lists herself and the child as protected persons. The father as a result cannot attend the school outside of court orders without the mother’s prior written agreement.[45] [45] Father’s affidavit filed 1 September 2022, paragraph 14. The mother is alleged not to have responded to the father’s requests to attend the school assembly in late 2022, to see the child be presented with a special award, despite the father receiving an invitation from the child’s teacher on the Compass portal.[46][46] Father’s affidavit filed 1 September 2022, paragraph 13. The father currently pays child support to the mother for the support of the child. The mother otherwise financially supports the child. Otherwise these matters are canvassed elsewhere in these reasons. Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances The child has been living with the mother since the parties’ separation. Any change to his residency may cause further disruption to him and aggravate or trigger problematic behavioural traits. During COVID-19 lockdowns, the child appeared disengaged with his school, and struggled with online learning. Given the resumption of onsite learning, the child has appeared more engaged with the school. As referred to at [41], the mother and child are living with Mr L. The father is aware that they are living in a shared house but feels this maybe inappropriate accommodation as Mr L is an unknown man to the child.[47] The father alleges the child does not have his own bed and sleeps in the mother’s bed. The mother denied this and asserted that in this property both the mother and the child have their own bedroom, and there is now more space for the child to play and enjoy himself in comparison to the previous residence occupied by the mother and child.[48] The mother has not disclosed her new address to the father. [47] Father’s affidavit filed 14 July 2022, paragraph 29.[48] Mother’s affidavit filed 1 September 2022, paragraph 10(a). It was the father’s position that the child should live with him during the school term to ensure the child attends school daily, save if the child is unwell. The father believes the child “deserves the best chance at reaching his developmental milestones and enjoying being enriched from a proper education”.[49]Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis[49] Father’s affidavit filed 14 July 2022, paragraph 45.

Ratio Decidendi

Legal Principle Established

In mid-2022, Mr L dropped the child off at changeover at the mother’s request, due to the father intimidating the mother at the previous changeover. The father stated he did not know this person and neither did the child.[17] It was the mother’s evidence that the child and Mr L have a “great relationship”, and the father is well aware of Mr L having previously interacting with him during the course of their relationship.[18] Consideration[17] Father’s affidavit filed 14 July 2022, paragraph 42.[18] Mother’s affidavit filed 1 September 2022, paragraph 15(a). Primary considerationsSection 60CC(2)(a) the benefit of the child of having a meaningful relationship with both of the child’s parents It is common ground between the parties that the child will benefit from having a positive and meaningful relationship with both of his parents. The mother was willing to support the re‑introduction of time spent between the child and the father provided such time was supported by a family therapist.[19]Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, exposed to, abuse, neglect or family violence[19] Child Impact Report dated 29 November 2021, p.9. The father submitted the child is at risk of neglect and psychological harm in the mother’s care. That risk arises by virtue of the mother’s neglect primarily in her failure to ensure the child’s attendance at school. Additionally the father alleges drug use by the mother. The father alleges that the child has had over 40 absent days from school across his first school year in 2021 without explanation due to the mother feeling it is not important to send the child to school.[20] The father further alleges that even on the days that the child attended school, he was late to arrive and unsettled according to his teachers.[21] The school has informed the father, as alleged by the father, that on three separate occasions when a psychologist was arranged specifically to work with the child, the child was not in attendance.[22][20] Father’s affidavit filed 14 July 2022, paragraph 36.[21] Father’s affidavit filed 14 July 2022, paragraph 40. [22] Father’s affidavit filed 14 July 2022, paragraph 41. The mother contends the child’s attendance at school this year has improved from last year. This 2022 year, the child has been absent in Term 1 for over 10 days, Term 2, for over 10 days, and Term 3 for over 10 days. The father alleges the child has missed further days of school, including but not limited to four days in mid to late 2022, additional to that asserted by the mother. Further the child has arrived late to school on a number of days whilst in his mother’s care.[23] The father alleges the only time the child has attended a full day of school is when the father takes him to school. The father claimed he received positive feedback from the child’s teachers when he is delivered to school by the father, in that the child is settled, focused and ready to learn. The poor school attendance of the child, as claimed by the father, has meant the child cannot properly form friendship groups or enjoy team peer activities.[24][23] Father’s affidavit filed 1 September 2022, paragraph 4.[24] Father’s affidavit filed 1 September 202, paragraph 5.