FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pasztor & Pasztor [2024] FedCFamC1F 411
File number PAC 5389 of 2021 Judgment of WILSON J Date of judgment 19 July 2024 Catchwords FAMILY LAW – PARENTING – application for sole parental responsibility by the father – children under the primary care of the mother – mother’s allegation of sexual abuse by the father – allegation not made out, orders made in accordance with the independent children’s lawyer proposal. Legislation Evidence Act 2008 s 140
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 64B(2)(c), 65AA
Cases cited Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
GLJ v The Trustees of the Roman Catholic Church of the Diocese of Lismore (2023) 97 ALJR 857
Honeysett v R (2014) 253 CLR 122
Isles v Nelissen (2022) 65 FamLR 288
Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381
Kuhl v Zurich Financial Servies Australia Ltd (2011) 243 CLR 361
Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369
Division Division 1 First Instance Number of paragraphs 179 Date of last submission 13 June 2024 Date of hearing 19, 20 February, 6, 7, 8, 9 May, 11, 12 and 13 June 2024 Place Parramatta Counsel for the applicant Mr D. Keserovic Solicitors for the applicant Unified Lawyers Counsel for the respondent Mr L. Karp Solicitors for the respondent MacArthur Law Group Counsel for the independent childrens lawyer Mr C. Sperling Solicitors for the independent childrens lawyer Phillip A Wikins & Associates ORDERS
PAC 5389 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MR PASZTOR
Applicant
AND MS PASZTOR
Respondent
INDEPENDENT CHILDREN'S LAWYER
Intervener
ORDER MADE BY
WILSON J
DATE OF ORDER
19 JULY 2024
THE COURT ORDERS THAT –
1.Ms Pasztor (“the Mother”) have sole parental responsibility of the children in relation to decisions concerning the long term care, welfare and development of the children. Provide that for the purposes of exercising of such parental responsibility the mother shall –
(a)notify the father Mr Pasztor (“the Father”) of any proposed decision relating to the long-term care and welfare of each of the children, including but not limited to –
(i)proposed decisions about which school each of the children shall attend; and
(ii)proposed decisions about elective surgery, treatment of ongoing health conditions, appointment of treaters or frequency of therapies, orthodontic treatment and other long term medical issues affecting each of the children
(b)ensure that such notification is given to the father in writing and not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency;
(c)reasonably consider any views expressed by the father in respect of such proposed decisions; and
(d)communicate to the father in writing her decision in the exercise of parental responsibility within 48 hours of having made…
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- Pasztor & Pasztor [2024] FedCFamC1F 411
- Case
- [2024] FedCFamC1F 411
- Decision Date
CaseChat Overview and Summary
The primary legal issues involved interpreting the best interests of the children under the Family Law Act 1975 (Cth) and determining the appropriate parenting arrangements given the allegations that were not substantiated. The court had to balance the mother's allegations with the need to ensure the children's welfare and stability. The court also had to consider the proposal made by the independent children's lawyer, who recommended specific parenting arrangements based on the evidence presented.
In its decision, the court followed the proposal of the independent children's lawyer, which recommended that the mother have sole parental responsibility for the children's long-term care, welfare, and development. The father was granted specific visitation rights and responsibilities, including the requirement to notify the mother of any proposed decisions about the children's long-term care and to reasonably consider the father's views. The court also outlined detailed arrangements for the children's time spent with each parent, including specific times during school terms, school holidays, and special occasions. The court emphasised the importance of respectful communication between the parents and provided specific guidelines for how the parents should interact with each other regarding the children.
The court's final orders provided for the mother to have sole parental responsibility for the children's long-term care, with the father having specified visitation times. The orders also included detailed provisions for communication, changeovers, medical information sharing, and the involvement of the independent children's lawyer. The court restrained both parents from discussing the proceedings with the children and from encouraging the children to express particular views about their living arrangements. The mother was also required to engage in counselling and provide certain information to the independent children's lawyer and the father.
Orders
Orders of the court
PAC 5389 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN
MR PASZTOR
Applicant
AND
MS PASZTOR
Respondent
INDEPENDENT CHILDREN'S LAWYER
Intervener
ORDER MADE BY
WILSON J
DATE OF ORDER
19 JULY 2024
THE COURT ORDERS THAT –
1. Ms Pasztor (“the Mother”) have sole parental responsibility of the children in relation to decisions concerning the long term care, welfare and development of the children. Provide that for the purposes of exercising of such parental responsibility the mother shall –
(a) notify the father Mr Pasztor (“the Father”) of any proposed decision relating to the long-term care and welfare of each of the children, including but not limited to –
(i) proposed decisions about which school each of the children shall attend; and
(ii) proposed decisions about elective surgery, treatment of ongoing health conditions, appointment of treaters or frequency of therapies, orthodontic treatment and other long term medical issues affecting each of the children
(b) ensure that such notification is given to the father in writing and not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency;
(c) reasonably consider any views expressed by the father in respect of such proposed decisions; and
(d) communicate to the father in writing her decision in the exercise of parental responsibility within 48 hours of having made any such decision.
LIVE WITH
2. The children live with the mother.
SPEND TIME WITH
3. The children spend time with the father as follows –
(a) during school terms, for the first weekend of each month from after school or 3.00pm Friday until before school or 9.00am Monday.
(b) Commencing in term 3 2024, for one half of the terms 1, 2 and 3 school holiday period being the first half in even numbered years commencing after school or 3.00pm on the last day of the children’s attendance of the school term until 5.00pm on the mid-point and the second half in odd numbered years from 5.00pm on the mid-point until before school or 9.00am on the first day of the children’s attendance of the school term.
(c) During the term 4 school holiday period as follows –
In 2024 as follows –
(i) from after school or 3.00pm on 20 December 2024 until 12.00 noon Christmas Day.
(i) From 5.00pm 1 January 2025 until 5.00pm 8 January 2025.
(ii) From 5.00pm 15 January 2025 until 5.00pm 22 January 2025.
(d) In 2025, and each year thereafter ending in odd numbered years from after school or 3.00pm on the last day of the children’s attendance of the school term until 5.00pm 7 January and the second half in 2026 and each year thereafter in even numbered years from 5.00pm 7 January until before school or 9.00am at the commencement of the new school term.
4. Such further and other times as agreed by the mother and father in writing.
SCHOOL HOLIDAY DEFINITION
5. For the purpose of these orders school holidays shall be defined as the periods of times and date published by the NSW Department of Education and shall for the purpose of calculating any school holiday period –
(a) the holidays shall be taken to commence on the afternoon of the last day of school term day in NSW provided that if the children have different school terms the school term shall be the last day of school for the last child;
(b) the holidays shall be taken to conclude on first day of school the following term provided that if the children have different school terms the school term shall be the first day of school for the first child; and
(c) pupil free days at the commencement or conclusion of the holidays shall not be included as part of the holidays.
6. The father’s time with the children during school terms pursuant to order 3(a) shall recommence as follows –
(a) if the father had the care of the children in the last week of school holidays, in the second week of school term; or
(b) if the father did not have the care of the children in the last week of school holiday, in the first week of school term.
CHANGEOVERS
7. For the purposes of facilitating changeover unless otherwise agreed in writing between the father and the mother –
(a) if changeover in orders coincides with the commencement or conclusion of schools, changeover shall occur at the children’s school(s);
(b) otherwise changeover is to occur at the McDonalds at Suburb B; and
(c) for the purposes of such changeover, each of the parents shall ensure that they speak respectfully and courteously to the other parents.
SPECIAL DAYS
8. Each of the parents shall spend special occasion time with the children as follows –
24-26 December
(a) Notwithstanding any other order, in 2025 and each odd ending year thereafter, the children spend time with the father from 2.00pm on 24 December to 2.00pm on 25 December.
(b) Notwithstanding any other order in 2025 and each odd ending year thereafter, the children spend time with the mother from 2.00pm on 25 December to 2.00pm on 26 December.
(c) Notwithstanding any other order in 2026 and each even ending year thereafter, the children spend time with the mother from 2.00pm on 24 December to 2.00pm on 25 December.
(d) Notwithstanding any other order in 2026 and each even ending year thereafter, the children spend time with the father from 2.00pm on 25 December to 2.00pm on 26 December.
COMMUNICATION
9. The mother and the father –
(a) shall forthwith advise each other of their email address and a telephone contact number, and thereafter shall advise the other of any change to such details prior to such change including the details of the new email address and/or telephone contact number;
(b) for the purposes of communicating other than in the event of an emergency, the mother and the father shall communicate via the AppClose application and for this purpose –
(i) each of the mother and father must download AppClose; and
(ii) the father shall be responsible for the payment of the subscription.
(c) For the purposes of communicating in relation to any of the children in the event of an emergency, the parents shall use text message or telephone.
10. Each of the children are at liberty to contact either parent when in the care of the other and that each parent shall do all acts and things to facilitate that child’s request to contact the other parent.
11. Each parent shall be at liberty to contact each of the children on days of special significance including but not limited to birthdays, Christmas, Easter, Mother’s Day and Father’s Day and that the parent with care of the children shall facilitate the call.
PROVISION OF INFORMATION
12. The parents shall communicate in relation to matters pertaining to the children’s parenting arrangements and the children’s care, welfare and development –
(a) for all non-urgent matters, being those that do not require a response within 48 hours, by “AppClose” application;
(b) for all urgent matters, being those that require a response within 48 hours, in the first instance by text message; and
(c) all communication between the parents shall be respectful and courteous and limited to matters relating to the children.
MEDICAL INFORMATION
13. The father shall be at liberty to communicate with each of the children’s medical providers in relation to the children’s health and wellbeing, and to facilitate such communication occurring, the mother shall ensure that the father is provided with details of each of the children’s current treating general practitioner and paediatrician and shall notify the father within 48 hours of a consultation between the child and the general practitioner taking place, and shall advise the father no less than fourteen days prior to scheduling any non-urgent medical appointment in relation to the child, and shall provide the father with details of such medical practitioner and shall provide the father with a copy of any report generated as a result of such appointment within seven days of receiving same.
14. The mother shall keep the father informed of the following –
(a) any medical appointments or hospitalisation of the child or children and the contact details of that practice, doctor, specialist or hospital;
(b) any medication prescribed for the child or either of them and the administration of it; and
(c) the name and address of any school, training and other education facility attended by the child or either of them and any change to those details.
15. The father shall not attend any appointment referred to above in orders 13 and 14 without the prior written consent of the mother.
EXTRA-CURRICULAR ACTIVITIES
16. The mother shall notify the father of each of the children’s enrolment in any extra‑curricular activities and each parent shall ensure the children’s attendance at such extra-curricular activities.
17. Each parent is restrained from attending any extra-curricular activity for the children while the children are in the care of the other parent unless there is a written consent of the other parent provided prior to attending any such event on any such occasion.
NON-DENIGRATION
18. Neither parent shall themselves denigrate, nor allow any third party to denigrate the other parent or members of the other parent’s family in the presence or hearing of any of the children.
NOTIFICATION OF MEDICAL EMERGENCY
19. In the event of any child suffering a medical emergency requiring medical attention while living with either parent –
(a) the other parent is to be notified as soon as practicable, and within an hour of the medical emergency occurring.
(b) The other parent is to be provided with the full details of the practitioner or medical facility upon which the child or children has attended as soon as practicable.
(c) The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and that information relating to any child is to be shared with the other parent upon request.
SCHOOL - PROVISION OF INFORMATION
20. The mother shall give all consents, sign all documents and do all things necessary to ensure that the father can obtain the following from each of the children’s school(s)/ after school care(s) at his own cost –
(a) copy of all school reports, progress reports and photo order forms; and
(b) in the event of any of the children being taken from school for an emergency, remedial or correctional treatment, that both parents be informed as soon as practicable.
RESTRAINTS
21. Each parent be and hereby is restrained from –
(a) discussing these proceedings with any child or in their presence or hearing;
(b) showing any child any documents relating to these proceedings;
(c) questioning any child in relation to their views or preferences concerning their living arrangements or the time they spend with the other parent;
(d) encouraging any child to express particular views or preferences in relation to their living arrangements or the time they spend with the other parent; and
(e) physically disciplining the children and shall do all acts and things to ensure no third person does so.
22. The mother shall be restrained from relocating the children’s residence from outside the greater Sydney metropolitan area unless otherwise agreed between the parents in writing.
RELEASE OF REPORT OF MS C
23. The mother and father be granted leave to provide to the children’s treating medical consultants a copy of these orders together with the report of Ms C.
COUNSELLING FOR THE MOTHER
24. The mother shall engage in counselling with a consultant/counsellor/therapist experienced in family conflict allegations when not substantiated for not less than six (6) months and shall within seven days do all acts and things to make the first available appointment with such consultant/counsellor/therapist.
25. The mother shall follow all reasonable requests, referral and recommendations of the consultant/counsellor/therapist.
26. The mother shall be permitted to provide to the consultant/counsellor/therapist a copy of these orders, the report prepared by Single Expert Ms D dated 3 August 2023, a copy of these orders and any reasons for judgement.
27. The mother shall provide a letter of attendance to the ICL and father upon completion of the therapy/counselling.
28. The mother shall provide an authority to permit the ICL to speak with the consultant/counsellor/therapist.
INDEPENDENT CHILDREN’S LAWYER
29. The appointment of the independent children’s lawyer shall be extended for a period of 12 months following the date of the final orders and shall thereafter be discharged.
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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