FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Navickas & Fried (No 3) [2024] FedCFamC2F 1779
File number(s): LEC 175 of 2021 Judgment of: JUDGE L. TURNER Date of judgment: 12 December 2024 Catchwords: FAMILY LAW – Parenting - whether children aged 6 and 4 remain living with mother or live with father - whether either party poses an acceptable risk to children - held mother poses an unacceptable risk and children unsafe in her care - children live with the father - children spend limited supervised time with mother. Legislation: Family Law Act 1975 (Cth) pt VII ss 60CC, 60CG, 61CA, 61D, 64B, 65AA, 65D, 65Y, 68B, 68C, 68P, 69ZX, 106A, 114AA, 121
Births Deaths and Marriages Registration Act 1995 (NSW)
Cases cited: Baghti & Baghti [2015] Fam CAFC 71
Banks & Banks (2015) FLC 93-637
Betros & Betros [2017] FamCAFC 90
Briginshaw v. Briginshaw (1938) 60 CLR 33
Gabbey & Cadriel [2024] FedCFamC1A 60
Heeley & Heeley [2023] FedCFamC1F 56
Isles & Nelissen [2022] FedCFamC1A97
Johnson & Page [2007] FamCA 1235
M v M (1988) 166CLR 69
Newett & Newett (No 9) [2023] FedCFamC1A 23
Oyama & Oyama [2024] FedCFamC1F 738
Potter and Potter (2007) FLC 93-326
Rod & Bloomberg [2008] FamCA 487
Division: Division 2 Family Law Number of paragraphs: 400 Date of last submission/s: 4 November 2024 Date of hearing: 11, 12, 13, 14 September 2023, 22, 23, 24, 26 April 2024, 1, 2, 3, 4, 5, July 2024 and 2, 3, 4, 5 and 6 September 2024. Place: Heard in City B and Brisbane, delivered in City B Counsel for the Applicant: Ms Decle Solicitor for the Applicant: Parker & Kissane Counsel for the Respondent: Mr Finch (11-14 September 2023) Ms Karaman (22-26 April,1- 5 July & 2-6 September 2024) Solicitor for the Respondent: Universal Law (11-14 September 2023), Doolan Wagner Family Lawyers (22-26 April 2024), Paddingtons Lawyers and Attorneys (1-5 July & 2-6 September 2024) Counsel for the Independent Children's Lawyer: Ms Smith Solicitor for the Independent Children's Lawyer: McVittie Legal ORDERS
LEC 175 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FRIED
Applicant
AND: MS NAVICKAS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE L. TURNER
DATE OF ORDER:
12 DECEMBER 2024
THE COURT ORDERS BY WAY OF FINAL PARENTING ORDER THAT:
1.All previous parenting orders made whether final or interim are hereby discharged.
2.The father, the paternal grandmother Ms C, the paternal step grandfather Mr E and the father’s partner Ms D are hereby released from any and all undertakings previously filed or provided in these proceedings in the Federal Circuit and Family Court of Australia.
3.Forthwith the child currently referred to as X Fried born in 2018 be hereby known and referred to as X Navickas-Fried with such change to be reflected on the child’s birth certificate, Medicare card, school enrolment and any and all other relevant forms of identification for the child.
4.Forthwith the child currently referred to as Y Navickas born in…
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- AGLC
- Navickas & Fried (No 3) [2024] FedCFamC2F 1779
- Case
- [2024] FedCFamC2F 1779
- Decision Date
CaseChat Overview and Summary
The court held that the mother posed an unacceptable risk to the children and that the children were unsafe in her care. Based on evidence presented, including expert testimonies and assessments, the court found that the mother's conduct and environment were detrimental to the children's welfare. The court determined that the father provided a safer and more stable environment for the children. Consequently, the court ordered that the children live with their father and that they spend limited supervised time with their mother. These supervised visits were to be managed through a contact centre to ensure the safety and well-being of the children during interactions with their mother.
The court also made several other orders, including provisions for the exchange of information between the parents, restrictions on the mother's communications with the children and their school, and requirements for the father to obtain passports for the children. Additionally, the court issued injunctions to protect the father and the children from the mother's potentially harmful actions and communications. The court directed that the mother provide an apology to her former counsel for a falsehood told during the proceedings. The final orders discharged all previous parenting orders and established new arrangements for the children's care, education, and contact with both parents.
Orders
Orders of the court
LEC 175 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR FRIED
Applicant
AND:
MS NAVICKAS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE L. TURNER
DATE OF ORDER:
12 DECEMBER 2024
THE COURT ORDERS BY WAY OF FINAL PARENTING ORDER THAT:
1. All previous parenting orders made whether final or interim are hereby discharged.
2. The father, the paternal grandmother Ms C, the paternal step grandfather Mr E and the father’s partner Ms D are hereby released from any and all undertakings previously filed or provided in these proceedings in the Federal Circuit and Family Court of Australia.
3. Forthwith the child currently referred to as X Fried born in 2018 be hereby known and referred to as X Navickas-Fried with such change to be reflected on the child’s birth certificate, Medicare card, school enrolment and any and all other relevant forms of identification for the child.
4. Forthwith the child currently referred to as Y Navickas born in 2020 be hereby known and referred to as Y Navickas-Fried with such change to be reflected on the child’s birth certificate, Medicare card, school enrolment and any and all other relevant forms of identification for the child.
5. For the purposes of Orders 3 and 4, the father, at his own expense, be authorised to apply to the Registrar of Births Deaths and Marriages New South Wales pursuant to the provisions of the Births Deaths and Marriages Registration Act 1995 in the approved forms to:
(a) Enable the name changes of the children from X (formerly Fried) to X Navickas-Fried and Y Navickas to X Navickas-Fried.
(b) Add the name of X Navickas-Fried as a sibling to the birth certificate of Y Navickas-Fried.
(c) Add the name of Mr Fried as the biological father to the birth certificate of Y Navickas-Fried.
6. For the purposes of Order 5, the mother’s signature on any approved forms be dispensed with and pursuant to section 106A Family Law Act 1975 a Registrar of the Federal Circuit and Family Court of Australia (a Registrar) be appointed to sign any required approved forms and do all acts and things necessary to ensure that the approved forms for the children are validly executed on behalf of the mother.
7. As from 4.00pm, 12 December 2024, the children X Navickas-Fried and Y Navickas-Fried (the children) live with the father.
8. Upon delivery of the children to the father the mother provide to the father:
(a) The children’s school uniforms and any related school items.
(b) The children’s scripts (including repeats) for their prescriptions.
(c) The children’s medications.
(d) Any written documentation as to the children’s NDIS support.
(e) A written list of names/addresses/contact details of the children’s NDIS support workers.
(f) A written list of names/addresses/contact details of the children’s current treating health professionals.
(g) A written list of upcoming educational/medical/health-related appointments.
9. The father have sole parental and decision-making responsibility for the children.
10. The children spend time and communicate with the mother as may be agreed to in writing between the parties but failing agreement as follows:
(a) In the last week of January 2025, for one supervised visit at a contact centre/supervision service closest to the father’s residence, for up to four (4) hours, as can be accommodated by the centre/supervision service and such costs of supervision to be borne by the mother.
(b) Thereafter supervised time as can be accommodated by a contact centre/supervision service closest to the father’s residence, for up to four (4) hours, four (4) times a year, such time to occur during school holiday periods with the costs of supervision to be borne by the mother.
(c) It is to be noted by the contact centre/supervision service that it is a court requirement that the supervisors provide a high degree of supervision at all times as to the communication and interaction between the mother and the children.
(d) The mother be at liberty to provide cards, letters and gifts to the children to coincide with birthdays, Christmas and Easter with the father permitted to open and inspect/read all such cards letters and gifts and if considered appropriate the father provide such cards letters and gifts in a timely manner to the children.
(e) The father encourage and facilitate the children communicating with the mother by cards/letters/gifts at such times as the children may request and/or in response to any communication received from the mother.
11. Pursuant to section 121 Family Law Act 1975 the father be at liberty to provide a copy of this judgment and the final parenting orders to:
(a) The children’s treating health professionals including NDIS support workers.
(b) The children’s education providers.
(c) The Department of Communities and Justice in the event that the Department of Communities and Justice become involved with the father and/or the children in respect to issues regarding the children.
(d) The police in the event that the police become involved with the father and/or the children in respect to issues regarding the children.
12. The mother provide to the father at the beginning of each year an updated and framed photograph of the mother with the father to display the photograph in the children’s play area/or bedroom.
13. The father provide to the mother at the beginning of each year an updated and framed photograph of the children.
14. Save and except for the orders contained herein the mother be restrained and an injunction issue pursuant to section 68B Family Law Act 1975 restraining the mother from:
(a) Stalking, harassing or intimidating the father or extended paternal family members including the father’s partner.
(b) Communicating with the:
(i) Children in any manner outside of these orders.
(ii) Children’s school or after school care.
(iii) Children’s health professionals including NDIS support workers.
(c) Approaching within 100 metres of the:
(i) Children’s residence.
(ii) The father and the children no matter where their location.
(iii) Children’s school or after school care.
(iv) Location of the children’s sporting activities, extracurricular activities and/or the children’s appointments with health professionals.
(d) Removing the children from any person providing care to the children.
(e) Making any negative, critical, belittling or derogatory comments in relation to the father and/or extended paternal family members, including the father’s partner, including questioning or criticising the parenting decisions and/or parenting capacity of the father to and/or in the presence or hearing range of the children.
(f) Doing or saying anything to and/or within the presence or hearing range of the children that could make the children feel fearful of the father or unsafe in the company or care of the father, with the mother to ensure that no other person does or says anything to and/or within the presence or hearing range of the children that could make the children feel fearful of the father or unsafe in the company or care of the father.
15. Order 14 are injunctions for the personal protection of the father and the children to which section 68C Family Law Act 1975 applies and accordingly any police officer made aware of these orders and who on reasonable grounds believe that such injunctions have been breached by the mother may arrest the mother without warrant and will follow the steps contained in section 114AA Family Law Act 1975.
16. For the purposes of section 68P Family Law Act 1975:
(a) The court notes that these orders are inconsistent with the interim Apprehended Domestic Violence Order made by City B Local Court in mid-2024 in which Y Navickas (now known as Y Navickas-Fried) is recorded as the aggrieved.
(b) The court notes that these orders are inconsistent with the order varying the Apprehended Domestic Violence Order made by Town F Local Court in early 2020 in which X Navickas (now known as X Navickas-Fried) is recorded as the aggrieved.
17. In regard to Orders 16 (a) and (b):
(a) The court directs the legal representatives for the mother and the legal representatives for the father to provide the explanation required by section 68P(2)(c) Family Law Act 1975.
(b) The court finds it is not in the children’s best interests to receive the explanation required by section 68P(c) Family Law Act 1975.
(c) Within fourteen (14) days from the date hereof a Registrar provide a copy of these orders to the agencies/persons required by section 68P (3) Family Law Act 1975.
18. Save and except for the orders contained herein the father be restrained and an injunction issue pursuant to section 68B Family Law Act 1975 restraining the father from:
(a) Making any negative, critical, belittling or derogatory comments in relation to the mother and/or extended maternal family members, including questioning or criticising the parenting decisions and/or parenting capacity of the mother to and/or in the presence or hearing range of the children.
(b) Doing or saying anything to and/or within the presence or hearing range of the children that could make the children feel fearful of the mother or unsafe in the company or care of the mother, with the father to ensure that no other person does or says anything to and/or within the presence or hearing range of the children that could make the children feel fearful of the mother or unsafe in the company or care of the mother.
19. The parties not consume alcohol in excess of the legal driving limit when the children are physically in their presence or care.
20. As to the exchange of information between the parties:
(a) The parties:
(i) Keep each other informed at all times of their contact and postal address, email address and mobile telephone number and inform each other within seven (7) days of any changes.
(ii) Communicate via a parenting app, such parenting app to be selected by the father and communicated to the mother (the parenting app).
(b) The father:
(i) Notify the mother as soon as practicable and within twenty-four (24) hours, via the parenting app in the event of a medical emergency for the children.
(ii) Provide the mother within seven (7) days of receipt of same a copy of the children’s school report via the parenting app.
(iii) Provide the mother within seven (7) days of receipt of same a copy of the children’s school photos.
(iv) Provide the mother within seven (7) days of receipt of same a copy of any medical reports received regarding the children via the parenting app.
21. As to passports and overseas travel:
(a) The father at his own expense obtain passports for the children X Navickas-Fried born in 2018 and Y Navickas-Fried born in 2020 (children’s passports).
(b) The mother’s signature for any applications for the children’s passports and/or renewals of the children’s passports be dispensed with.
(c) Forthwith a copy of these orders be provided to the appropriate person at the Department of Foreign Affairs and Trade by Chambers.
(d) The father retain the children’s passports.
(e) For the purposes of section 65Y Family Law Act 1975 the father be permitted to travel internationally with the children.
22. The Independent Children’s Lawyer is hereby discharged.
23. Within fourteen (14) days from the date hereof the mother write and deliver to the counsel engaged by the mother during the September 2023 final hearing, a letter of apology in respect to the lie told by the mother during cross-examination in the July 2023 final hearing as to counsel’s involvement in the final consent orders made in September 2023.
24. Within thirty (30) days from the date hereof the mother file and serve a short affidavit attaching a copy of the letter of apology referred to in Order 23.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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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