FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Prusak & Galka [2022] FedCFamC1F 225
File number(s): SYC 2544 of 2019 Judgment of: REES J Date of judgment: 8 April 2022 Catchwords: FAMILY LAW – JURISDICTION – Where proceedings were initiated in the Family Court of Australia prior to 1 September 2021 – Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208 followed – Legislative intent that the jurisdiction of the Family Court of Australia continue in the Federal Circuit and Family Court of Australia (Division 1) in respect of proceedings filed in it – Where the Court is satisfied that Division 1 has jurisdiction to hear and determine this application.
FAMILY LAW – PARENTING – Where the father has perpetrated verbal and physical violence – Where the father has consumed excessive alcohol – Greatest weight to be afforded to the child’s wishes – Orders for the child to live with her mother and spend time with the father according to her wishes – Mother to have sole parental responsibility.
Legislation: Family Law Act 1975 (Cth) ss 31, 60CC
Federal Circuit and Family Court of Australia Act2021 (Cth) ss 25, 52
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Sch 1
Cases cited: Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208
Duarte and Anor & Morse (2019) FLC 93-902
Wallace & Stelzer and Anor (2013) FLC 93-566
Division: Division 1 First Instance Number of paragraphs: 91 Date of hearing: 5-6 April 2022 Place: Sydney Counsel for the Applicant: Ms Spain Solicitor for the Applicant: Edwards Family Lawyers Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Shea Independent Children's Lawyer: Crawford Ryan Lawyers Pty Ltd ORDERS
SYC 2544 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PRUSAK
Applicant
AND: MR GALKA
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
REES J
DATE OF ORDER:
8 APRIL 2022
THE COURT ORDERS:
1.That all previous parenting orders in relation to the child, X (“X”), born 2007, be discharged.
2.That the Mother have sole parental responsibility for X.
3.That X live with the Mother.
4.That X spend time and communicate with the Father in accordance with her wishes.
5.That each parent shall keep the other informed of their contact details, including their telephone number(s) and email address, and shall notify the other parent of any change in these details within 48 hours of such change.
6.That the Mother is to ensure that X has the Father’s current telephone number(s) and email address, and is to inform X within 48 hours of receiving notice from the Father of any change in these details.
7.That the Mother is to notify the Father as soon as practicable in the event X is hospitalised or suffers any major illness or injury.
8.That the Mother is to do all things necessary within 14 days to authorise B School to provide the Father with a copy of X’s school reports upon his request and at his…
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- Prusak & Galka [2022] FedCFamC1F 225
- Case
- [2022] FedCFamC1F 225
- Decision Date
CaseChat Overview and Summary
The central legal issues in this case were the jurisdiction of the court to hear the proceedings and the determination of parenting orders in the best interests of the child. The court had to consider whether it had jurisdiction to continue hearing the matter following the commencement of the Federal Circuit and Family Court of Australia and whether the evidence supported awarding sole parental responsibility to the mother and granting the child the right to direct her own contact with the father. The court also had to weigh the importance of the child's wishes and views, given her age and the circumstances of the case.
In its judgment, the court followed the decision in Cirillo & Cirillo (No 4) and found that the jurisdiction of the Family Court of Australia continued in the Federal Circuit and Family Court of Australia (Division 1). The court determined that the child's views held significant weight due to her age and the evidence presented. The court found that the father's behaviour, including verbal and physical violence and excessive alcohol consumption, had negatively impacted his relationship with the child. As a result, the court awarded sole parental responsibility to the mother and ordered that the child live with her, while permitting the child to spend time with the father according to her wishes. The court also imposed restrictions on the father's alcohol consumption during contact with the child.
The court made several orders to facilitate the child's contact with both parents and to ensure her safety and well-being. These orders included provisions for the exchange of contact details, notification of changes, and arrangements for the child's school reports. The court also imposed restrictions on the father's alcohol consumption during contact with the child. Furthermore, the court ordered the parents to obtain and maintain current passports for the child and to facilitate any required visas for overseas travel. The court appointed the Registrar to execute any necessary deeds, documents, or instruments if either party failed to do so. Lastly, the court ordered the parties to share the costs of the Independent Children’s Lawyer in the proceedings.
Orders
Orders of the court
SYC 2544 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS PRUSAK
Applicant
AND:
MR GALKA
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
REES J
DATE OF ORDER:
8 APRIL 2022
THE COURT ORDERS:
1. That all previous parenting orders in relation to the child, X (“X”), born 2007, be discharged.
2. That the Mother have sole parental responsibility for X.
3. That X live with the Mother.
4. That X spend time and communicate with the Father in accordance with her wishes.
5. That each parent shall keep the other informed of their contact details, including their telephone number(s) and email address, and shall notify the other parent of any change in these details within 48 hours of such change.
6. That the Mother is to ensure that X has the Father’s current telephone number(s) and email address, and is to inform X within 48 hours of receiving notice from the Father of any change in these details.
7. That the Mother is to notify the Father as soon as practicable in the event X is hospitalised or suffers any major illness or injury.
8. That the Mother is to do all things necessary within 14 days to authorise B School to provide the Father with a copy of X’s school reports upon his request and at his expense (if any).
9. That the Father be and hereby is restrained from consuming any alcohol while spending time with X or for at least 12 hours prior to spending time with X.
10. That pursuant to Section 65Y(2) of the Family Law Act 1975 (Cth) the Mother be permitted to travel overseas with X during any periods X is living with the Mother pursuant to these Orders or at such other times as the parties agree upon in writing.
11. That for the purpose of Order 10 above the Mother shall give the Father no less than thirty (30) days’ written notice (“the Notice”) of the intention to travel and shall:
(a) Provide to the Father particulars of such holiday including a copy of the travel itinerary, country(ies) to be visited and the periods of such proposed travel; and
(b) Provide to the Father copies of the confirmed return airline tickets and details of flights and accommodation.
12. That the parties shall do all acts and things necessary to obtain and keep current passports for X, including all acts and things necessary to renew same, and the parties do all acts and things necessary to facilitate the issue of any required visas or any other requirement of the authorities of the destination country(ies), any fees for which shall be paid by the travelling parent.
13. That pursuant to Section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) X be entitled to have an Australian travel document including but not limited to an Australian Passport and to give effect to this Order, the Mother be permitted to unilaterally complete, sign and lodge any application for issue or renewal of X’s passport or any other document required to allow X to travel outside the Commonwealth of Australia.
14. That the Mother shall hold X’s passport.
15. That in the event that either party fails to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Federal Circuit and Family Court of Australia at Sydney be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such failure by way of affidavit.
16. That within 28 days the Father pay to Legal Aid NSW the sum of $5,246.00 being his share of the costs of the Independent Childrens’ Lawyer in these proceedings.
17. That within 28 days the Mother pay to Legal Aid NSW the sum of $3,596.00 being her share of the costs of the Independent Childrens’ Lawyer in these proceedings NOTING that the Mother has already paid an initial contribution of $1,650.00.
18. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
There were no test results provided for any test before 22 September 2021. In cross examination, the father said that he did not do a test in November 2021 because he was busy with work. He was overseas from 24 December 2021 to late January 2021 but did not do a test before he left. There is no explanation for his failure to have a test in January 2022. CONSIDERATION It is not in dispute that it is of benefit to children to have a meaningful relationship with each of their parents but whether that is the case for this child will be determined having regard to the matters which are required to be considered by s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”) in so far as they are relevant. X will be 15 years old in 2022. Her views must carry considerable weight. There is no evidence to suggest that X’s views have significantly changed since she participated in the interviews for the Memorandum on 3 February 2020. Clearly, she has the means to contact her father if she wishes and he conceded that she has not made contact with him since late 2019. She has not responded to messages that he sent her as recently as January 2022. The father said, in cross-examination, that he had sent X photographs from his trip to Europe in December 2021 and January 2022 and that he had sent her pictures of his cat and kittens. He did not say that he had attempted to engage with X about her school, her activities or her thoughts about seeing him. The mother gave evidence that she was happy for X to contact her father and for X to organise to see him if that was what X wanted. The mother in answer to questions from counsel for the ICL said that recently X had a conversation where she said that she was feeling more confident and was considering contacting her father. I do not accept, as the father asserts, that X’s views are the product of her mother’s influence. It is more likely that X’s views are formed as a result of her lived experience of her father and, in particular, of the effect of alcohol consumption on his behaviour when she is with him and of his harassment of her mother. I accept that X has a positive and loving relationship with her mother and with Mr C. I accept that she does not have such a relationship with her father. The father in cross examination said that there is no relationship at the present time with X. Even on his own evidence, the father has been a sporadic and inconsistent presence in X’s life. On his own evidence, the father has not provided regular financial support for X. The father’s failure to comply with the orders relating to testing for alcohol consumption after March 2020, knowing this was the only basis upon which he would be able to continue to spend time with X, suggests that he was unwilling to co-operate with the testing regime; or that he was unable to organise himself to have the required testing; or that he knew the test result would not assist his case. In any of those events, his actions do not speak well of his ability to parent X.