Popovic & Popovic (No 3)
[2024] FedCFamC2F 300
•6 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Popovic & Popovic (No 3) [2024] FedCFamC2F 300
File number(s): PAC 4697 of 2022 Judgment of: JUDGE STREET Date of judgment: 6 March 2024 Catchwords: FAMILY LAW – PARENTING – interim application after matter not reached – stood over till final hearing date Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Division: Division 2 Family Law Number of paragraphs: 8 Date of hearing: 6 March 2024 Place: Sydney Solicitor for the Applicant: Ms W Elias of Godden Lawyers Solicitor for the Respondent: Mr L Terry of Maclarens Lawyers Independent Children’s Lawyer: Ms C Lam of Christina Lam & Associates ORDERS
PAC 4697 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR POPOVIC
Applicant
AND: MS POPOVIC
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
6 MARCH 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding dated 28 February 2024 is stood over to the final parenting hearing date 5 August 2024.
2.Order 1 of the orders dated 28 February 2024 is varied so that the final hearing dated 5, 6 & 7 August 2024 is now a final parenting hearing and will take place via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
3.The property matter is fixed for a final hearing commencing at 10:00AM on 1 May 2024 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
4.Pursuant to s 102NA, neither party is permitted to cross examine the other.
5.The parties are directed to file an agreed balance sheet identifying the items in dispute on or before 11 April 2024.
6.Leave is granted to the parties to file any supplementary affidavits in respect of the property hearing on or before 11 April 2024.
7.The parties are directed to file and serve any supplementary case outlines including any objections to the material filed on or before 24 April 2024.
8.Leave is granted to the parties to provide any revised tender bundle material, if they see fit, seven (7) days prior to the hearing date by USB or email.
THE COURT NOTES THAT:
A.By reason of the s102NA order, the parties are entitled to Legal Aid representation, through Commonwealth funding, at the final hearing.
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).
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 by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
These are parenting and property proceedings that were commenced on 26 August 2022 and, unfortunately, were not reached at the intended hearing in February 2024 and had been fixed for a final parenting hearing on 5 August 2024. An application in a case was filed by the applicant father (“the father”) seeking to progress from supervised time in relation to the youngest of the four children, currently aged eight, to progress meaningful time. This is a case where the respondent mother (“the mother”) contends there should be a no-time order and takes issue with the parenting capacity of the father, identifying in that regard alleged controlling behaviour and dysfunctional relationship with three of the siblings of the relevant child in question, who do not appear to have a meaningful relationship with the father.
The issue in relation to parenting capacity is one, in this case, that should be determined at a final hearing, and can be in August. Ms Elias identified that in the family report there were recommendations to advance meaningful time with the youngest child and identified that the child’s views were in support of progressing that time and that the father had undertaken courses that were referred to. That report also recommended psychotherapy by the father, and the father has not taken any steps beyond apparently consulting a a relative, who has some psychology qualification.
The parenting capacity issue apparent on the material is one that, on one view, would have expected to identify the need for psychiatric assessment and proper psychological therapy, consistent with the recommendation of the report, to support parenting capacity. What has been put on by the father was an affidavit by him as to his desire to see his youngest daughter and also an affidavit by his partner as to her willingness to assist and a contention by the father that he could not afford the supervision. The Court was informed the father has been attending approximately once a month. The orders would have facilitated much greater attendance by the father given he has a full-time job.
There is little material before the Court to persuade the Court that the father is unable to attend supervision more regularly. The Court accepts that there may be an issue relating to his financial capacity to have attended that will be determined appropriately at the final hearing, if necessary. The Court is not, however, persuaded, where the contentions between the parties are no time and that there is a real issue as to parenting capacity by the father, that it is appropriate to bring the matter on for an earlier interim hearing than the intended final hearing date. At that final hearing date, the Court can make findings in respect of parenting capacity which may well facilitate the Court being able to determine the competing positions and, if appropriate, advance meaningful time by the father with the daughter, but the Court is not persuaded that it is appropriate to bring that application on at this stage in circumstances where those findings cannot be made.
The Court was informed that the ICL supported that position of standing the application over for the final hearing, and the Court was also informed that that was the position of the mother. The Court has taken into account the principles in ss 43, 60B and 69ZN of the Family Law Act 1975 (Cth) (“the Act”), the overarching purpose in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and obviously that the most important factor is the paramount consideration of the best interests of the children under s 60CA of the Act. The Court is satisfied that it is in the best interests relevantly of the youngest child in this case to stand the application over to a final hearing, and it is for these reasons the Court has made the order standing that application over.
The Court did indicate that if there was able to be identified a community centre where supervision could take place at a less expensive nature, then it would expect the parties to have discussions through the ICL to seek agreement upon the same, and if there is such a cheaper location identified, that the Court may entertain a further application if filed by the father in that regard. The ICL indicated that she would take steps to ascertain whether there is any such other alternative.
The Court also took the view that it was appropriate to sever the issue of property in respect of what is a small property pool and in respect of which the issues are quite confined and neither party contended that the hearing should take more than one day. Accordingly, the Court varied the orders that have been made on 28 February 2024 so that the hearing on 5 August 2024 is confined to parenting and procedural orders to facilitate the property matter being finally determined on 1 May 2024. The Court also made orders for the hearing to be by way of video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) in respect of both property and parenting. Both parties indicated a preference to have the hearing in person because of what was said to be the issues upon which cross-examination may be required. Cross-examination of complex and significant issues does not require the hearing to be in person. The Court is satisfied that it is more consistent with the principles the Court is required to apply under s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) that the matter proceed by way of video and/or audio-link under Part 6 Division 6, and it is for that reason the Court varied the order for the hearing in person at Parramatta and that it made the order in respect of video and/or audio-link in the property hearing.
Accordingly, the Court makes the above orders.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of Judge Street. Associate:
Dated: 12 March 2024
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