Petrescu & Aling

Case [2025] FedCFamC1F 336

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Petrescu & Aling [2025] FedCFamC1F 336

File number(s): PAC 896 of 2023
Judgment of: ANDERSON J
Date of judgment: 19 May 2025
Catchwords: FAMILY LAW – PARENTING – Where the mother had a seriously disadvantaged and horrific childhood – Where there is an age difference between the parties of thirty years – Where the parties met at a time when the mother was only 17 years of age and the father was 47 years of age – Where the Court finds that a significant power imbalance existed between the parties for the duration of their relationship – Where the mother has been and continues to be deeply and negatively affected by the events of her childhood and her relationship with the father – Where the court is satisfied that the risks to the child if orders are made for frequent and/or unsupervised time and/or frequent time cannot be ameliorated – Consideration of the impact on the mother in the event of any order for unsupervised time between the child and her father
Legislation:

Australian Passports Act 2005 (Cth) s 11(1)(a)

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) s 68B, S 62B, s 65DA(2), s 64B, s 65D, s 60B, s 61C(1), s 61C(3), s 61D, s 61B, s 61D(3), s 4(1), s 61DAA, s 60CA, s65AA, s 60CC, s 60CC(2), s 60CG, s 4AB, s 4AB(3), s 4AB(4), s 60CA, s 60CC(2)(a), s 60CC(2)(b), s 60CC(2)(c), s 60CC(2)(d), s 60CC(2)(e), s 60CC(1)(b), s 60CC(3), 60CC(2)(f), s 117(1), s 117(2), s 117(2A), s 117(4), s 117(5)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

A & A (1998) FLC 92-800

Attwood & Attwood [2022] FedCFamC1F 6

Bayer & Imhoff [2010] FamCA 532

Board of Examiners v XY [2006] VSCA 190

Briginshaw v Briginshaw (1938) 60 CLR 336

CDJ v VAJ (No 2) (1998) 197 CLR 172

Dunst & Dunst [2016] FamCAFC 15

Grant & Grant (1994) FLC 92-506

Hedlund v Hedlund [2021] FedCFamC1A 84

Hollier v Australian Maritime Safety Authority [No 2] [1998] FCA 975

Hollister & Gosselin [2016] FamCA 759

Jacob v Lawrence (No 2) [2013] FamCA 544

Lenova & Lenova (Costs) [2011] FamCAFC 141

Nardini & Legal Aid NSW [2019] FamCA 340

PBF & TRF (2004) 33 FamLR 123

Russell & Russell v Close SA 45 of 1992

Scott v Secretary, Department of Social Security [No 2] [2000] FCA 1450

Slater & Light [2013] 48 Fam LR 573
Division: Division 1 First Instance
Number of paragraphs: 198
Date of hearing: 14 April – 17 April 2025
Place: Parramatta
Counsel for the Applicant: Ms Vogel
Solicitor for the Applicant: Gorval Lynch
Counsel for the Respondent: Mr Alexander
Solicitor for the Respondent: Kovacevic Lawyers
Counsel for the Independent Children's Lawyer: Ms Rebehy
Solicitor for the Independent Children's Lawyer: Venus & Smart

ORDERS

PAC 896 of 2023

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

MR PETRESCU

Applicant
AND:

MS ALING

Continue reading Petrescu & Aling

Sign in free to access the full text

Details
AGLC
Petrescu & Aling [2025] FedCFamC1F 336
Case
[2025] FedCFamC1F 336
Decision Date

CaseChat Overview and Summary

Petrescu v Aling involved a dispute between the parties regarding the care and custody of their child, X. The father sought sole parental responsibility and sole decision-making authority, while the mother argued for sole parental responsibility and restricted contact with the father. The legal issues before the court included the assessment of the parents' suitability to care for the child, the impact of the parents' relationship on the child, and the risks associated with unsupervised contact between the father and the child. The court was also required to determine the appropriate parenting arrangements for the child's welfare.

The court found that the mother had a significantly disadvantaged childhood and that there was a substantial power imbalance between the parties due to their age difference when they met. The court was concerned about the father's lack of insight into his behaviour towards the mother and his disrespectful attitude towards women. The evidence presented indicated that the father's behaviour had a toxic impact on the mother and the family unit, and that unsupervised contact between the father and the child could cause psychological harm. The court concluded that the risks to the child could be mitigated by supervised contact with the father. Consequently, the court awarded sole parental responsibility and sole decision-making authority to the mother and ordered supervised contact between the father and the child.

The court further granted an injunction restraining the father from approaching certain locations and ordered that the father pay a portion of the Independent Children's Lawyer's costs. The court emphasised the importance of protecting the child from the negative effects of the parents' relationship and ensuring the child's welfare in its final orders.

Orders

Orders of the court

PAC 896 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR PETRESCU

Applicant

AND:

MS ALING

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

19 MAY 2025

THE COURT ORDERS THAT:

1. All previous parenting orders are discharged.

Parental Responsibility

2. The mother shall have sole parental responsibility for X born 2018, and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) (‘the Act’) affecting the child.

Parenting arrangements

3. The child live with the mother.

4. The child spend supervised time with the father as follows:

(a) On the last Sunday of the months August and November in 2025;

(b) Thereafter, on the last Sunday of the months February, May, August and November in each calendar year

5. It is a condition of Order 4 that such time be supervised by B Family Services, Suburb D.

6. In order to facilitate Orders 4 and 5 herein:

(a) Within fourteen (14) days of the date of these orders, each party shall do all acts and things and sign all documents as may be necessary to undertake any intake procedures;

(b) The parties shall meet the costs of the supervision agency on a joint and equal basis;

(c) The parties do follow the reasonable recommendations and advice of the Director of the Contact Service at B Family Services, Suburb D.

7. In the event that B Family Services, Suburb D is unable to facilitate time between the child and the father then the child shall spend time with the father under the supervision of such other agency as may be agreed between the parties such time to occur on the same terms and conditions as referred to at Orders 4, 5 and 6 herein.

8. Subject to the direction of the Director of the Contact Service at B Family Services, Suburb D, the father be permitted to bring members of his family to join him during supervised time with the child.

Provision of cards, letters and gifts

9. The father be at liberty to send letters, cards and/or gifts to the child on the occasions of Easter, Christmas and the child’s birthday in each year.

10. For the purposes of Order 9 herein:

(a) Within twenty-eight (28) days of the date of these Orders the mother shall nominate a postal address for the father to send letters, cards and/or gifts;

(b) The letters, cards and/or gifts sent by the father shall be age appropriate, child-focused, and shall not reference these proceedings, any dispute between the parties or denigrate the mother or any other member of the maternal family;

(c) The mother is permitted to open any letter, card and/or gift sent by the father to determine whether the father has complied with the terms of Order 10(b) herein and if not, the mother is at liberty to withhold the cards, letters and/or gifts from the child; and

(d) The mother shall encourage the child to respond to the father in writing to acknowledge receipt of any cards, letters and/or gifts sent by him.

11. Within fourteen (14) days of any such change occurring, the mother shall notify the father in writing of any change to her postal address.

Communication

12. The parties shall keep each other advised of his/her mobile telephone number and email address and advise the other party of any change to these details within twenty-four (24) hours of any change.

Restraints

13. Pursuant to s 68B of the Act, the father be restrained, and an injunction is hereby granted restraining him from:

(a) Attending at, or being within, 200 metres of the residential address of the mother, or any premises at which the child is living or temporarily residing; and

(b) Attending at the child’s school;

(c) Attending at the mother’s place of employment.

14. Pursuant to s 68B of the Act, the parties be restrained and an injunction is hereby granted restraining each of them from:

(a) Abusing, denigrating or criticising the other parent or members of his/her family to or in the presence or hearing of the child or allowing any third party to do so;

(b) Abusing, denigrating or criticising the other parent or members of his/her family on any form of social media;

(c) Discussing these proceedings, or any allegation made in these proceedings, with the child, or allowing any third party to do so.

Costs

15. Within twenty-eight (28) days of the date of these Orders, the father do pay to Legal Aid New South Wales his share of the costs of the Independent Children’s Lawyer fixed in a sum of $9,714.45 including GST.

Discharge of Independent Children’s Lawyer

16. The appointment of the Independent Children’s Lawyer be discharged.

Other

17. Pursuant to s 62B of the Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

18. Pursuant to s 65DA(2) of the Act, the particulars of the obligations that these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Fact Sheet, attached hereto and these particulars are included in these Orders.

19. All other applications pursuant to Part VII of the Act are dismissed.

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

I have determined that the risks to the child can be ameliorated by limited time being spent between the child and the father on condition that such time is supervised.BACKGROUND The father is aged fifty-seven (57) years.[1] He is a self-employed sole trader and deals in various household products.[2] He has a male child with his former wife. That child is aged about fourteen (14) years. [1] Father’s affidavit filed 23 February 2023, paragraph 2.[2] Father’s affidavit filed 23 February 2023, paragraph 3; Family Report dated 9 April 2025, paragraph 36. The mother is aged twenty-seven (27) years.[3] She is unemployed and suffered from a horrifyingly wicked childhood. The child’s maternal grandmother was a drug addict and, on the mother’s oral evidence, had consumed with regularity, illicit substances of every description. She worked as a prostitute and exposed the mother and her siblings to such work by inviting men unknown to the children into the family home. As a consequence of her mother’s neglect, the mother gave evidence that she was responsible for the care of her siblings. At one juncture, the mother was removed from her mother’s care by the Department of Communities and Justice and placed into the care of her maternal grandmother. Her horrific childhood was aptly summarised by a psychologist engaged by the parties as follows:[The mother] reports cumulative developmental adversity.…She was raised by her mother and step-father. She reports that her mother was physically and emotionally abusive to her and that she was sexually abused by her step-father and his friend. Police have informed her of multiple reports received of child endangerment for herself and her siblings during her childhood.[4][3] Mother’s affidavit filed 27 March 2023, paragraph 2.[4] Report of Dr E dated 15 February 2024, paragraph 11. The mother met the father for the first time in May 2015 when she commenced working for him in a sales role. At that time, the mother was aged seventeen (17) years. The father was aged forty-seven (47) years.[5] I find that the mother was impoverished in every way at the time that she met the father. She had little clothing, no money and no support from those persons such as her mother who ought to have protected her. It follows that perhaps for the first time in her life, and on meeting the father, the mother considered that she met someone who might provide her with safety and stability. Indeed, the mother says that the father “would take me shopping and spend hundreds of dollars on his preference of clothing for me”.[6] She was reliant on the father for her income but says that she wanted to escape from her life in City C and “start a life for myself away from the dysfunction of my childhood”.[7] The father agreed under cross-examination by the Independent Children’s Lawyer that the mother has “vulnerabilities” given her difficult upbringing.[5] Mother’s affidavit filed 27 March 2023, paragraph 10.[6] Mother’s affidavit filed 27 March 2023, paragraph 15.[7] Mother’s affidavit filed 31 January 2024, paragraph 12.

Evidence

Evidence Before The Court

The proceedings also involved a dispute about whether an order ought to be made allocating sole parental responsibility and sole-decision making authority to the mother.EVIDENCE On 16 September 2024, the Honourable Justice Riethmuller made directions with respect to the preparation of the competing applications for trial. Pursuant to His Honour’s orders, affidavits for the purposes of trial ought to have been filed by 27 January 2025 (in the case of the father) and 10 February 2025 (in the case of the mother). In the face of the parties’ failure to comply with His Honour’s orders, I made orders on 28 March 2025 permitting the parties to rely upon affidavits, which had previously been filed in these proceedings. I also made an order permitting each of the parties to file a further brief affidavit. The orders were made in circumstances where:(a)The father’s solicitor made an application to withdraw as the father’s legal representative. I granted that application on the basis that the father had failed to meet the terms of his solicitor’s retainer. Propitiously, the father re-engaged his solicitor prior to the commencement of trial; and(b)The father made an application to adjourn the trial ten (10) business days prior to the date allocated for its commencement. I dismissed that application having regard to, among other things, the longevity of the proceedings and the demands on the resources of the Court. Further, I considered it to be in the child’s interests that the litigation between her parents be brought to an end. As a consequence of orders made by me on 28 March 2025, the father relied on:(a)An Amended Initiating Application filed on 29 November 2024;(b)The father’s affidavits filed on 23 February 2023, 16 May 2023[20], 28 June 2024 and 4 April 2025; and(c)Tendered documents.[21][20] Two affidavits were filed in the name of the father on 16 May 2023. The father relied on the affidavit filed at 4.50pm.[21] Exhibits F1 and F2. The father also sought to cross-examine a psychologist, Dr E, who prepared a report specifically in relation to the risk presented to the child by the father. That report was dated 15 February 2024. Although the father failed to give notice to the psychologist that he wished to cross-examine her, the psychologist ultimately made herself available for cross-examination by electronic means. For her part, the mother relied on:(a)An Amended Response to Initiating Application filed on 6 August 2024;(b)The mother’s affidavits filed on 27 March 2023, 12 May 2023, 31 January 2024 and 7 April 2025; and(c)Tendered documents.[22][22] Exhibits M1 to M6. The Independent Children’s Lawyer relied on a Family Report prepared by a psychologist and clinical expert dated 9 April 2025. She also relied on some tendered documents.[23][23] Exhibits ICL1 to ICL10. At the commencement of the trial, I advised counsel that I would exclude all annexures to each party’s Affidavit having regard to r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). I advised counsel that annexures to affidavits and documents referred to in tender bundles would not be considered by me until the relevance and probative value of each document was established during any evidence-in-chief and/or cross-examination of the parties.LEGAL PRINCIPLES

Decision

Reasons for decision

Finally, and in early 2023, the mother obtained an Apprehended Domestic Violence Order against the father, which order identified the mother and the child as protected persons.[92] The father was arrested for a breach of that order in early 2024 after the mother alleged that the father “rang her several times…that [the father] had abused her and physically threatened to murder and assault her”.[93] The father was ultimately released with no charge. Neither party was cross-examined in any detail about these events. Accordingly, and although I am unable to make any finding about the matters alleged by the mother to police and the father’s denial of those allegations, I do consider that the facts referred to by me illuminate the toxicity of the parties’ relationship and the complete dysfunction of the family unit. It is another factor, which I bring to account when considering the evidence of the two experts to the effect that transitioning between her two parents on a regular basis is likely to cause the child psychological harm.Conclusion as to the relationship between the parties, consequences of that relationship for this litigation and the father’s lack of insight[92] Family Report dated 9 April 2025, paragraph 21.[93] Father’s affidavit filed 28 June 2024, paragraph 73(a). As identified at the outset of this judgment, I hold concerns about the father’s lack of insight with respect to his behaviour towards the mother. For example, and when asked by the Single Expert whether he has any regrets about his behaviour, the father responded as follows:…he said that he regrets that he never stopped trying to please [the mother], including after they separated. As an example, he said that when he came to her home to look after [the child], he would mention that he needed a bed for the night and offer to give her a “root” and that she would tell him she wanted “five roots”.[94][94] Family Report dated 9 April 2025, paragraph 51. The father was cross-examined with respect to this evidence but particularly the words “he never stopped trying to please her”. He said he was “lured in” by the mother and treated with contempt. He expressed a view that he ought to have ended the relationship much earlier than he did in circumstances where the tenor of the father’s evidence was that he was being “taken for a ride”. At no stage, however, did the father express regret about the power imbalance, which undoubtedly existed between the parties by dint of the significant age difference between them. Further, the father seems not to have learned anything because on interview by the Single Expert, the father indicated that he continues “to date women who are younger than he and said that he has been on dates with women who are 20 years or 30 years younger”.[95][95] Family Report dated 9 April 2025, paragraph 45. I have concluded that the father has adopted a disrespectful attitude towards women, and I share Dr E’s concern as expressed during cross-examination that:(a)The father will “continue to disregard and dismiss women”; and(b)The father has not demonstrated any insight with respect to the fostering of a relationship with the mother who at the time the parties met was “such a young girl”.

Ratio Decidendi

Legal Principle Established

An injunction is not, by definition, a “parenting order”.[156] The Act provides separate powers for making injunctions, parentings orders, or other orders in relation to the welfare of a child.[157] Section 68B of the Act is not, therefore, technically subject to the paramountcy principle — the words of the section lack any express reference thereto. This issue has been addressed in many authorities and, as summarised in Attwood & Attwood [2022] FedCFamC1F 6, has to some extent been reconciled:31.… Section 68B(1) of the Act states that the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child. Section 68B(2) also states that the making of the order may occur in any case in which it appears to the Court to be just or convenient to do so.32.The Full Court in Bennett v Bennett (2001) FLC 93–088 determined that the power in s 68B was not subject to the express legislative requirement that the Court must regard the best interests of the child as the paramount consideration; and even if s 68B were subject to the “best interests” principle, it is doubtful that this would displace the established common law principles contained in the authorities such as In re Boaler [1915] 1 KB 21; Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29 and Coco v R (1994) 179 CLR 427. However, the Full Court in Flanagan and Handcock (2001) FLC 93–074 considered this and referred to CDJ v VAJ (No 1) (1998) 197 CLR 172 which decided that orders that are not a parenting order do not directly invoke the application of the paramountcy principle. Nevertheless the Court agreed with the Full Court that the consideration of what is in the best interests of the child are “powerful matters to be weighed up against a competing principle such as finality”. The Full Court therefore held that in respect of the issue of an injunction under s 68B, it is incorrect to state that the “paramountcy principle” applies. However, the best interests principle needs to be given careful consideration, especially where the orders sought to be made intimately concern the welfare of the children.33.Thus, whilst the best interests of the child is not stated explicitly as the governing principle when making an injunction under s 68B, for all practical purposes the concept provides a useful framework within which to explore whether … the injunction is appropriate for the welfare of the child, and is otherwise just or convenient.[158](Emphasis added)[156] Hedlund v Hedlund [2021] FedCFamC1A 84 [118].[157] Family Law Act 1975 (Cth) s 65D(1), s 67ZC. [158] Attwood & Attwood [2022] FedCFamC2F 6, [31]–[33]. Given my concerns with respect to the father’s behaviour, I find that it is appropriate for me to make an order restraining the father from coming within 500 metres of any place where the child resides, attending at the child’s school or at the mother’s place of employment.