Petrovic and Petrovic - [2016] FamCA 912

FAMILY COURT OF AUSTRALIA

PETROVIC & PETROVIC

[2016] FamCA 912

FAMILY LAW – CHILDREN – Interim parenting – With whom the children live– Assessment of family violence risks posed by the father – Need to protect the children from harm– Nature of the children’s relationships – Capacity to provide for the children’s needs – Best interests of the children – No time with father and restraint on contact – History of contraventions of apprehended domestic violence orders.

Family Law Act 1975 (Cth)ss 60CA,60CC, 61C, 61DA, 65DAC, 68B, 68C

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
Kuebler& Kuebler (1978) FLC 90–434
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT:

Ms Petrovic

RESPONDENT:

Mr Petrovic

INDEPENDENT CHILDREN’S LAWYER:

Crawford Ryan Lawyers

FILE NUMBER:

PAC

1425

2015

DATE DELIVERED:

31 October 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

12 October 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Morrison

SOLICITOR FOR THE RESPONDENT:

In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Carroll

Orders

pending further order

The mother have sole parental responsibility for the children B born … 2002, C born … 2005 and D born … 2010 (“the children”).
The children live with the mother.
The children spend no time with the father.
Pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) the father is restrained from approaching, contacting or communicating with the children or coming within 500 meters of the children’s home, school or extracurricular activity location:
(a) IT IS NOTED that the above order 4 pursuant to s 68B of the Act is an injunction made for the personal protection of the children to which s 68C would apply and accordingly any police officer made aware of these orders and who on reasonable grounds believes that such orders and injunctions have been breached by the father, by either harassing, molesting, stalking or physically harming or threatening to harm any of the children, may arrest the father without warrant.
Pursuant to s 68B of the Act, the father is restrained from approaching, contacting or communicating with the mother or coming within 500 meters of the mother’s home or place of employment:
(a) IT IS NOTED that the above order 5 pursuant to s 68B of the Family Law Act 1975 is an injunction made for the personal protection of the mother to which s 68C of the Act would apply and accordingly any police officer made aware of these orders and who on reasonable grounds believes that such orders and injunctions have been breached by the father, by either harassing, molesting, stalking or physically harming or threatening to harm the mother, may arrest the father without warrant.
The mother may travel outside the Commonwealth of Australia with each of the…

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 Petrovic and Petrovic

Details

AGLC: Petrovic and Petrovic [2016] FamCA 912
Case: [2016] FamCA 912
Decision Date: 31 October 2016

CaseChat Overview and Summary

The case of *Petrovic and Petrovic* concerned parenting orders made by Hannam J in the Federal Circuit Court of Australia. The dispute involved the mother and father of three children, B, C, and D, and the orders addressed the children's living arrangements, time spent with each parent, and protective measures for both the children and the mother.

The court was required to determine the appropriate parenting orders, including who should have parental responsibility, where the children should live, and the extent of contact the father should have with the children. Additionally, the court considered the necessity and scope of injunctions to protect the children and the mother from the father. The court also addressed the mother's request to travel internationally with the children.

Hannam J made orders granting the mother sole parental responsibility for the children, stipulating that the children live with the mother and spend no time with the father. The court also issued injunctions under section 68B of the *Family Law Act 1975* (Cth), restraining the father from approaching, contacting, or communicating with the children or coming within 500 meters of their home or school. Similar injunctions were made restraining the father from approaching, contacting, or communicating with the mother or coming within 500 meters of her home or place of employment. The court noted that these injunctions were for personal protection and that police officers could arrest the father without a warrant if they reasonably believed the orders had been breached. Finally, the mother was permitted to travel outside of Australia with the children between 30 December 2016 and 9 January 2017.

Orders

Orders of the court

pending further order

The mother have sole parental responsibility for the children B born … 2002, C born … 2005 and D born … 2010 (“the children”).

The children live with the mother.

The children spend no time with the father.

Pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) the father is restrained from approaching, contacting or communicating with the children or coming within 500 meters of the children’s home, school or extracurricular activity location:

(a) IT IS NOTED that the above order 4 pursuant to s 68B of the Act is an injunction made for the personal protection of the children to which s 68C would apply and accordingly any police officer made aware of these orders and who on reasonable grounds believes that such orders and injunctions have been breached by the father, by either harassing, molesting, stalking or physically harming or threatening to harm any of the children, may arrest the father without warrant.

Pursuant to s 68B of the Act, the father is restrained from approaching, contacting or communicating with the mother or coming within 500 meters of the mother’s home or place of employment:

(a) IT IS NOTED that the above order 5 pursuant to s 68B of the Family Law Act 1975 is an injunction made for the personal protection of the mother to which s 68C of the Act would apply and accordingly any police officer made aware of these orders and who on reasonable grounds believes that such orders and injunctions have been breached by the father, by either harassing, molesting, stalking or physically harming or threatening to harm the mother, may arrest the father without warrant.

The mother may travel outside the Commonwealth of Australia with each of the children with such travel to occur between 30 December 2016 and 9 January 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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