Perego & Perego - [2021] FCCA 1051

FEDERAL CIRCUIT COURT OF AUSTRALIA
Perego & Perego [2021] FCCA 1051

File number(s): PAC 5325 of 2020

Judgment of: JUDGE OBRADOVIC

Date of judgment: 19 May 2021

Catchwords: FAMILY LAW – Interim Parenting – short form reasons – young child – best interest of child – assessment of risk – child to live with mother – child to spend time with father initially supervised to progress to unsupervised time.

Legislation: Family Law Act 1975 (Cth), s 69ZL

Cases cited:
Goode v Goode [2006] FamCA 1346

Keats & Keats [2016] FamCAFC 156

Number of paragraphs: 35

Date of hearing: 29 April 2021

Place: Heard in Parramatta, Delivered in Canberra

Counsel for the Applicant: Mr Givney

Solicitors for the Applicant: Apex Legal

Counsel for the Respondent: Ms Giacomo

Solicitors for the Respondent: Kenneth Harrison Solicitor & Attorney
ORDERS

PAC 5325 of 2020

BETWEEN:
MR PEREGO

Applicant

AND:
MS PEREGO

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

19 MAY 2021

PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1.The child, X, born in 2017 shall live with the mother.
2.The child shall spend time with the father as follows:
(a)for a period of three months from the date of these orders on no less than two occasions of two hours each week, supervised by an appropriate supervising service or centre, as nominated by the father within 7 days;
(b)thereafter for a further period of three months, each Tuesday from 3pm to 5pm and each Sunday from 9am to 11am; and
(c)thereafter, each Tuesday from 3pm to 7pm and each Sunday from 9am to 5pm.

3.The costs of the supervision be shared equally by the parents.
4.The parents are to do all acts and things necessary to comply with the intake process of the supervisions service or centre.
5.The child communicate with the father via FaceTime or other appropriate application, each day the child is not spending time with him, between 6.00pm and 6.15pm for a period of no longer than 15 minutes.
6.The matter is listed for directions at 11:30am on 20 September 2021.
7.The parties are to file a jointly drafted agreed statement of issues 7 days prior to the directions hearing, together with an agreed minute of order for the further progress of the matter.

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.
IT IS NOTED that publication of this judgment under the pseudonym Perego & Perego is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC

These are short form reasons pursuant to s.69ZL Family Law Act 1975 (Cth) (“the Act”).
X was born in 2017. He presently lives with his mother, the respondent in these proceedings, and he has not spent any time with his father, the applicant in these proceedings, since September 2020.
The parties separated in January 2020, when X was 2 years…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Perego & Perego

Details

AGLC: Perego & Perego [2021] FCCA 1051
Case: [2021] FCCA 1051
Decision Date: 19 May 2021

CaseChat Overview and Summary

In the matter of *Perego & Perego*, heard by Obradovic J, the applicant father and respondent mother sought orders concerning their child, X, born in 2017. The dispute centred on the arrangements for the child to spend time with the father, which had become sporadic since the parents' separation in January 2020. The mother raised significant concerns regarding the child's welfare, particularly in light of a police investigation into an image found on the father's mobile phone, submitting that there was an unacceptable risk to the child if he were to spend time with the father until the investigation concluded.

The court was required to determine the best interests of the child, X, in relation to parenting orders, specifically addressing the level and nature of contact between the child and the father. This involved considering the mother's allegations of the father's past behaviour, the impact of separation on the child, and the implications of the ongoing police investigation concerning the image found on the father's phone. The court also had to balance the child's need for a relationship with both parents against any identified risks.

Obradovic J reasoned that while the mother's concerns were noted, particularly regarding the police investigation, a complete cessation of contact was not in the child's best interests. The court applied the principles of the *Family Law Act 1975* (Cth), focusing on the paramountcy of the child's welfare. The court ordered that the child live with the mother and established a phased approach to supervised time with the father, commencing with supervised visits and gradually increasing in duration and frequency. This approach aimed to reintroduce the father into the child's life in a controlled manner while acknowledging the existing concerns and the need for ongoing assessment. The court also made orders for communication between the child and father and directed the parents to share the costs of supervision and cooperate with the intake process for the supervising service. The matter was listed for further directions, with parties required to file an agreed statement of issues and a minute of order.

Orders

Orders of the court

PAC 5325 of 2020

BETWEEN:

MR PEREGO

Applicant

AND:

MS PEREGO

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

19 MAY 2021

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1. The child, X, born in 2017 shall live with the mother.

2. The child shall spend time with the father as follows:

(a) for a period of three months from the date of these orders on no less than two occasions of two hours each week, supervised by an appropriate supervising service or centre, as nominated by the father within 7 days;

(b) thereafter for a further period of three months, each Tuesday from 3pm to 5pm and each Sunday from 9am to 11am; and

3. The costs of the supervision be shared equally by the parents.

4. The parents are to do all acts and things necessary to comply with the intake process of the supervisions service or centre.

5. The child communicate with the father via FaceTime or other appropriate application, each day the child is not spending time with him, between 6.00pm and 6.15pm for a period of no longer than 15 minutes.

6. The matter is listed for directions at 11:30am on 20 September 2021.

7. The parties are to file a jointly drafted agreed statement of issues 7 days prior to the directions hearing, together with an agreed minute of order for the further progress of the matter.

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

The evidence is that the mother had access to that particular mobile phone since July 2020 and that she had been scrolling through the photographs on the father’s phone when she had located the image. She does not report any similar image being seen by her, and it is inferred that if she had seen other similar images that she would have similarly reported those matters to the Police. The mother submits that at least until the police investigation is concluded, that there should be an order for no time between the child and the father. The mother submits that there is an unacceptable risk to the child if he were to spend any time with the father. It is submitted that if the father is charged with any offences relating to the image (or any other images), then the question as to whether it is in the child’s best interests to spend any time with the father in the future looms large. The evidence before the Court As noted earlier, the parties separated in January 2020, and the parties were able to come to arrangements for the child to spend time with the father until May 2020, including overnight time, and then on one occasion in September 2020. The mother says that X would become distressed at being separated from her and that this is why she was reluctant to facilitate time. The mother’s evidence is that she never stopped the father from seeing X, and that she tried to explain to the father that the parents needed to work slowly, and work towards sleep overs, as the child was not used to being with the father. She then goes on to say that when the father threatened that he would take the child to Country B if she “did not allow him to come and take X anymore”. It is confusing that the mother is on the one hand saying she never stopped the child spending time with the father but then on the other hand saying she did not allow the father to take the child to spend time with him anymore. It is certainly agreed between the parents that the child spent overnight periods with the father following separation, that the mother then made the decision that she would not be facilitating such time anymore due to her concerns about the child’s separation anxiety, that the child did not spend time with the father from 24 May 2020 until the second week in September on one occasion supervised by the maternal grandmother and for a very limited period of time, and not again since then. The time between the child and the father has been sporadic at best. The parents are also in agreement as to the following matters:a.The parents were married in 2015.b.During the parties’ relationship, the father operated a business in which he worked long hours. c.The parents separated in January 2020. d.The child spent time with the father, including overnight time post separation. e.The parents attended a mediation in September 2020, but were unable resolve the parenting dispute. f.The child has not spent any time with the father since 13 September 2020. The mother’s evidence is that during the parties’ relationship, the father was not an interested or involved parent and that he was at times, abusive and violent towards her.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	PAC 5325 of 2020
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	19 May 2021
Catchwords:	FAMILY LAW – Interim Parenting – short form reasons – young child – best interest of child – assessment of risk – child to live with mother – child to spend time with father initially supervised to progress to unsupervised time.
Legislation:	Family Law Act 1975 (Cth), s 69ZL
Cases cited:	Goode v Goode [2006] FamCA 1346 Keats & Keats [2016] FamCAFC 156
Number of paragraphs:	35
Date of hearing:	29 April 2021
Place:	Heard in Parramatta, Delivered in Canberra
Counsel for the Applicant:	Mr Givney
Solicitors for the Applicant:	Apex Legal
Counsel for the Respondent:	Ms Giacomo
Solicitors for the Respondent:	Kenneth Harrison Solicitor & Attorney

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	19 MAY 2021