Prusak & Galka
[2022] FedCFamC1F 225
•8 April 2022
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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Prusak & Galka has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
The proceedings for determination concern parenting arrangements for X (“X”) who was born in 2007 and is nearly fifteen years old.
Before commencing to determine the dispute between the parents, it is necessary that I satisfy myself that I have jurisdiction to make such a determination because these proceedings were instituted in the Family Court of Australia, as it then was, before 1 September 2021. As I will explain later in these reasons, I am satisfied that I have such jurisdiction.
The mother seeks orders giving her sole parental responsibility for X and providing for X to have contact with her father as she wishes. She also seeks orders to facilitate overseas travel for X without the father’s involvement. The mother in submissions adopted the position of the Independent Children’s Lawyer (“ICL”) who submitted a Minute of Orders that incorporated the mother’s application but also provided for the father to be informed in relation to X’s welfare.
The father seeks shared parental responsibility; that X chooses where she lives and “formal minimal contact times”. He opposes the orders the mother seeks in relation to travel and wishes to be involved in any proposed travel arrangements. In cross-examination, he said that X should spend time with him on one school day each week from 6.00 pm to 8.00 pm and on one day of each weekend from 9.00 am to 9.00 pm. He did not ask for holiday time, at least for the next six months. He proposed that he would collect X and return her. He sought interim orders only. After six months, he proposed that the litigation resume to determine final arrangements.
The father later changed his position and suggested that a period of six hours would be more appropriate on the weekend day.
X’s parents separated in 2008 when she was six months old. X remained in the care of her mother. X spent time with her father on an informal basis as agreed between her parents. The mother asserts that father did not contribute to X’s financial support with the exception of payments totalling about $3,000 in 2010. The father denies that assertion and deposed that he provided “occasional financial support”, paid for medical insurance and for some school activities. The evidence does not establish that he has provided financial support since 2010.
The mother asserts, and the father denies, that their marriage was characterised by violence and excessive alcohol use on the part of the father and by his use of demeaning and degrading language towards her.
The mother deposed that between 2008 and about 2018, the father spent time with X sporadically, at intervals ranging from a few times each week to a “handful of occasions each year”. He disputes that evidence but concedes that, from the time that the mother and Mr C commenced their relationship, he spent less time with X.
It is the father’s case that the mother was responsible for curtailing his time with X and that the reason X does not have a relationship with him at this time is that she is influenced by her mother.
In early 2016, the father’s relationship with his then partner ended. On 23 April 2016, the father sent a text to the mother saying “I feel like crap. Binge drinking, no job, nowhere to live, divorce 2.0, lack of money, stupid shit in my head. I am a worthless dummy”.
In late 2016, the father worked in Country D and then in Country F until July 2017. He deposed that he had “a few” conversations with X during that period.
In November 2016, the mother and Mr C commenced to live together and they have now married.
There does not appear to have been any face to face contact between X and her father from late 2016 until April 2017. The mother deposed that the father spent time with X on two occasions in April 2017, once in May 2017, once in June 2017 and on 15 July 2017.
On 22 July 2017, the father took X to a concert and then to dinner. The mother collected X from the restaurant because she saw the father drinking with friends. No other children were present. The mother deposed that the father sent her a text calling her an offensive name.
The father took X to the movies on 3 September 2017 and attended her end of year drama performance in December 2017, when the mother alleged he was affected by alcohol and appeared unkempt and dirty. Mr C also deposed that the father appeared affected by alcohol.
The father spent time with X on five occasion in 2018, the last being her end of year drama performance in December 2018. He did not then spend any time with her until the orders were made on 22 May 2019.
In March 2019, the mother asked the father to agree to her taking X overseas for an extended period of six months during which time she proposed that X would study by distance education. The father did not agree. There ensued correspondence between the parents and between the father and X which is attached to the mother’s affidavit. X had her own mobile phone and the father sent her texts. On 13 March 2019, the father sent a text to X saying, inter alia, “I feel they want to steal you from me and from this country for good…” and “So far I am putting a formal stopper for you to travel overseas…”. X responded to that text from the father about his opposition to the proposed trip on 19 March 2019 saying “Your long message just really upset me”. The father in cross-examination said that he wasn’t sure that message came from X and that it may have been sent by the mother. He said that he was agitated when he involved X in the dispute about the proposed trip.
The mother started these proceedings on 23 April 2019 when she filed an application seeking orders that she have sole parental responsibility for X; that X spend time with her father as agreed or in accordance with X’s wishes and that X be permitted to travel overseas with the mother.
On 22 May 2019, orders were made which provided for X to spend day time only time with her father before leaving Australia and permitting overseas travel for five months.
On 18 November 2019, the parents participated in a Child Responsive Program Interview. X was interviewed on 3 February 2020. The father, although invited to attend on 3 February 2020, did not. In cross-examination he was unable to give any explanation for his failure to attend. A Memorandum was issued.
The reporter stated the parameters of the dispute:
•[The mother] alleged that, throughout their relationship, [the father] was a violent and controlling partner. She alleged that [the father] habitually struck her across the head, and on one occasion dragged her by her hair and threw objects at her. [The mother] alleged that [the father] frequently used sexist language to denigrate her and undermine her self-esteem. She alleged that, on one occasion [the father] “smashed” her lap top computer, and on another occasion threw a large rock into the windscreen of her brand new car. [The mother] claimed that, since separating from [the father] he has been convicted of family violence offences, and that there is currently an Apprehended Violence Order (AVO) protecting [his] former partner from him.
•[The father] claimed that [the mother] has fabricated the allegations of family violence in order to retain control of [X]. He agreed that that there is a current two year AVO against him and that he was convicted of family violence-related offences in 2019, in relation to a woman named “[Ms E]”.
The father told the reporter that he was a “moderate drinker”.
In relation to the father, the reporter stated:
•[The father] said that he and [X] are “best friends” and that they have a “great relationship”. He claimed that the reason [X] has not spent regular time with him up until recently, is because [the mother] refuse to allow it. [The father] said that, he “needs” to spend increased time with [X] now because she is failing mathematics, and that he seeks to tutor her. [The father] said that he also seeks to take [X] to church and to connect her to her [European] culture and religion. He said that he wishes to introduce [X] to art, literature, music and dancing. He said, “She needs me to open her eyes up to the world”. [The father] expressed concern about [X] playing AFL football. He said, “She’s a girl after all, she shouldn't be playing football, she should be dancing”. [The father] expressed concern about what might happen to [X] if [the mother] were to pass away. He said that, for this reason, he does not want [the mother] to have sole parental responsibility for [X].
•[The father] expressed concern about [X] possibly developing an “interest in boys” in the near future. He said that he is “ready with a machine gun and a shovel” for when this happens. When asked about [X’s] social networks, [the father] said that has “no idea” who [X's] friends are.
The reporter spoke to X alone and stated that she appeared to be nervous and worried and, at times, cried during the interview. The reporter stated:
•[X] described her mother as a “nice Mum” who “takes care of me and makes sure everything is fine”. She said that [Mr C] is “funny and nice” and that she “gets along well” with him.
As to X’s views of her father, the reporter stated:
•[X] said that she does not feel safe while in the care of [the father] because of his alcohol use. She said that, in November 2019 when she attended the [theatre] performance with her father, he took alcohol in to the venue, which she said he continued to drink throughout the show. [X] said that [the father] embarrassed her with his behaviour, which she attributed to his alcohol consumption. [X] said that she does not want to have any face to face time with her father at this time. She said that, when she declines to spend time with [the father], he typically “harasses” her mother and blames [the mother] for this, which she says is distressing and unfair. [X] recalled some positive memories of her father, but said that, currently, her father seems to want to control her life by trying to prevent her from travelling, for no apparent reason. [X] said that [the father] continues to communicate with her via the online messaging system, WhatsApp, and said that she is content to remain connected to her father in this way, at the present time.
X said, “her message for the Judge is, ‘I just want Dad to leave me alone and stop harassing Mum’”.
The reporter noted that X appeared to be doing well socially and developmentally and that her relationship with her mother appeared to be positive.
In relation to X’s relationship with her father, the reporter stated:
•It would appear that [X's] relationship with [her father] has broken down. If [X] has experienced her father as unreliable or unpredictable due to his alleged alcohol use, as [X] and [the mother] claim, it is understandable that [X] is currently resisting spending time with [him].
The reporter was in some doubt about whether the father would pursue the matter but stated, “[i]t is unclear if further assessment would shed any more light on this matter”.
The mother deposed that X spent time with her father in accordance with the orders but was increasingly reluctant to go. The mother, Mr C and X left Australia on 13 June 2019 and returned on 1 November 2019. Contact between the father and X resumed on their return.
The mother deposed that on 29 November 2019, when the father had arranged to take X to the theatre, he appeared to be under the influence of alcohol and she told X to call her if X were uneasy. The mother decided to collect X from the theatre and she deposed that the father’s speech was not coherent, the smell of alcohol was stronger and he was even more unsteady on his feet.
The mother looked at X’s phone and saw messages that X had sent to a friend while she was with her father. The messages, which are annexed to the mother’s affidavit, said:
•Kill me now. Please
•I’m with my dad and I hate him
•My dad is so fucking drunk
•He brought a small bottle of alcohol. He [is] drunk. Yelling at the stage. I just want to die anytime I am with him.
The next day, the mother spoke to X who told her that the father had been drinking and yelling at the performers but that she did not feel unsafe because there were a lot of people present. X said, “…It’s just that I don’t enjoy being around him when he behaves like that and the experience has really upset me”.
The father denies that he had consumed alcohol on that occasion.
X refused to spend time with her father after that. The father refused to consent to the renewal of X’s passport.
On 10 March 2020, orders were made appointing an Independent Children’s Lawyer (“ICL”) for X and, by consent, requiring the father to submit for alcohol testing within 14 days and then every 28 days and suspending the father’s time with X until satisfactory test results were provided. The father was required to do what was required for X’s passport to be renewed. The orders provided for the father to file a response and an affidavit within 14 days.
The father did not provide the test results.
The matter was before the Court on 18 May 2020 and the father did not appear and he had not filed a response or affidavit in relation to the mother’s application.
An addendum to the Child Responsive Memorandum was provided on 4 June 2020. The Memorandum stated:
[The father] was interviewed again on 4 June 2020. [He] said that he was not aware of the reason for him being interviewed at this time. He said that he had no new information to add to this assessment, but reiterated that he still wishes to spend time with [X]. He said, “I want access to the child”, although he did not propose a specific parenting arrangement, instead suggesting that [X] could spend time with him during the day “once or twice a week and in school holidays”. [The father] said that he has not had any contact with [X] since November 2019.
[The father] said that he has not yet undergone any drug testing and he denied [X's] allegation that he was intoxicated on the last occasion that he spent time with [X].
[The father] said that he does not plan to file any documents to the Court.
The reporter stated:
It is difficult to gain much of a sense of [the father’s] motivation for seeking to spend time with [X], particularly as he has not undertaken any testing for alcohol and his alleged alcohol use is a primary factor in this matter. [The father] was vague when asked about his proposal for parenting arrangements and the Family Consultant was left with the impression that he had not given it much consideration.
It may be that, if [X's] time with [the father] has been sporadic until 2019, as [the mother] claims, that the two simply have not established a sound relationship. Given [X's] advancing maturity, and the Family Consultant notes that [X] is about to turn 13 years, it may be that the Court could place considerable weight on [X’s] views in this matter.
On 9 June 2020, orders were made suspending contact and providing for the father to make an application for time with X once he had completed three months of alcohol testing.
On 19 August 2020, an order for costs was made against the father who had still not filed any response or affidavit.
On 25 August 2020, the father filed an affidavit setting out his evidence and stating that he had difficulty in complying with the testing regime because of the pandemic. He filed a Response to Initiating Application on 28 August 2020 disputing the mother’s application for sole parental responsibility and seeking time with X each weekend and school holiday time.
On 2 March 2021, orders were made for the filing of trial affidavits and foreshadowing that the matter would be listed as an undefended hearing.
The mother deposed that in March 2021 X told her she had received messages from her father but that she did not want to see him.
The notes of the father’s treating general practitioner, on 10 April 2021 record the father’s consumption of alcohol as 700ml of whiskey per day for four months. The father disputes the accuracy of that record although he conceded drinking four bottles of whiskey in the month prior to visiting the doctor. The father deposed that he cut down on his drinking after April 2021.
The father filed an affidavit sworn on 9 June 2021.
On 19 July 2021, the father had still not filed the required testing results and the call-over listing was vacated.
On 20 August 2021, orders were made for the father to provide test results for a test taken on 10 June 2021 and directing the father to attend for testing in September and October.
On 25 August 2021, the general practitioner’s notes recorded him asking the father if he needed help with excessive drinking and the father’s declining.
On 9 November 2021, the matter was referred to Court-Based Family Dispute Resolution Conference which took place, without success, on 16 December 2021.
On 17 February 2022, I listed the matter for final hearing on the basis that it would proceed with or without the father’s participation.
The mother relied on an affidavit sworn by her on 3 May 2021 and an affidavit of Mr C sworn 5 May 2021.
The father filed his trial affidavit sworn 31 March 2022. That affidavit annexed a number of testing results as follows:
·Test performed on 22 September 2021 indicated raised CDT “is not high enough to indicate probable recent or ongoing excessive alcohol use”.
·Test performed 28 October 2021 recorded normal range of CDT.
·Test performed 9 February 2022 recorded raised levels of CDT “not high enough to indicate probable recent or ongoing excessive alcohol use”.
·Test performed 16 March 2022 recorded normal range of CDT.
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.
Had the father complied with the testing regime, and the test results supported his assertion that he was not drinking to excess, the mother would have been in a position to reassure X that his drinking would not be an issue.
He was unable to concede that anything he had done had caused X to form her current attitude towards him. He insisted that X’s views were a result of her mother’s influence.
The mother alleges that the father both perpetrated verbal and physical family violence and that he subjected her and later X to his excessive consumption of alcohol. The father denies both of those allegations but there is some objective evidence which suggests that the mother’s version of events is the more reliable.
·The father was charged and convicted of common assault in relation to an incident with a security guard in April 2006.
·In December 2006, a midwife at a hospital made a report to the Department of Community Services (“DCS”) (as it then was) that the mother, at an ante natal visit, reported being hit by the father on her head.
·In 2007 a report to DCS, apparently from nursing staff at X’s birth, refers to the father smelling of alcohol when the mother was giving birth and later in the birthing suite and the father behaving aggressively. Security was alerted because the father had a verbal altercation with “another lady” on the ward. The father’s behaviour was described as “bizarre”.
·The father, in his affidavit sworn 31 March 2022, conceded that in 2007, before X was born, he put a brick through the front windscreen of the car which the mother had bought for herself because the car had an automatic transmission and not, as he asserted had been agreed, a manual transmission. He deposed that he acted “out of anger and frustration”.
·In January 2009, the police were called in relation to an incident at a camping ground where the father, in an intoxicated state, was prying into the campsites of young women. The police noted:
After speaking to [the father] police could not establish any intent behind [his] actions and it was evident that he was the victim of his own drunken circumstances… It was decided in the best interests of [the father] that his vehicle would be conveyed to a remote part of the camping grounds where he could sleep it off…
·The father deposed that records of a medical practice in August 2015 noted that he drank eight standard drinks three or four times per week.
·On 23 August 2015, the father’s general practitioner noted that the father drank eight standard drinks on three or four days each week.
·In February 2016, the police were called in relation to an incident between the father and his then partner, Ms G. The police noted that the father was moderately affected by alcohol and issued a “move on direction” to the father.
·On 10 January 2017, an application for an Apprehended Violence Order (“AVO”) against the father by a woman named Ms H was listed before a magistrate. That application was again listed on 29 May and 22 August 2017. The outcome is not known.
·On 21 November 2017, the police were called to an incident between the father and Ms H at her home. The father told the police that they had been drinking and police noted that he appeared to be affected by alcohol. The father was charged with common assault but not convicted.
·On 18 June 2018, police were called to an incident between the father and a woman with whom he had been in a relationship for a few months, Ms E. The father was arrested. Police applied for an ADVO and the father was charged with two counts of assault. He was convicted and fined in relation to each charge and received a community corrections order.
·The father told the reporter in the interviews for the Memorandum in 2019 that “there is a current two year AVO against him and that he was convicted of family violence-related offences in 2019, in relation to a woman named ‘Ms E’”.
·On 4 April 2019, police recorded that the father was affected by alcohol, crossing the road, stopping traffic. Police recorded that he was “well effected by intoxicating liquor” and “extremely belligerent towards police”.
·X’s contemporaneous text messages to her friend in 2019 while at the theatre with her father refer to his being drunk, bringing alcohol to the theatre and yelling at the performers.
·Police records state that on 24 August 2020, late at night, the father was “slightly intoxicated”.
·On 10 April 2021, the father’s general practitioner, Dr J, made a referral for the father to the K Clinic and noted:
1) Alcohol addiction seeks help with detoxing
This patient has been drinking 700ml of whiskey a day for 4 months. He is anxious and well motivated to detox and has successfully detoxed before…
·On 25 August 2021, Dr L noted:
alcohol abusing
needs valium to relieve abstinent syndrome[e]
discussed counselling
·In his cross-examination of the mother, the father conceded that he said to her, in about August 2007, “You look disgusting with your runny nose and red eyes, I find you repulsive” but put to the mother that he said those words as a joke to cheer her up.
·The father cross-examined the mother about his saying to her that he would shoot her when he was angry that X had worn a devil costume to a Halloween Party and suggested his saying “I will shoot you” was not a threat. In a text message in relation to the same incident the father said that would kick the mother “up the bum” but in cross-examination said his words were “metaphorical”.
·In emails to the mother from the father in 2017 he referred to Mr C as “fat bastard”, “some fat motherfucker” and “fatfuck”. He said to the mother, referring to Mr C, “Go suck the fat fuck ha ha”. The father wrote, “You are a fuckwit…a complete one”. And referred to her as “a fool like you”.
I do not accept the father’s evidence that he has not perpetrated verbal or physical violence or that he has not excessively consumed alcohol. The evidence set out above makes it more likely that the mother’s version of his behaviour is more accurate.
Having regard to all of these matters, I give the greatest weight to X’s views. I accept that the views she has expressed are her own and that she does not want to spend time with her father.
SHOULD INTERIM ORDERS BE MADE?
The father seeks orders for the next six months only, so that the hearing would proceed after that time to determine what final orders should be made.
Both the mother and the ICL oppose that application and submit that final orders should be made.
One of the matters that I am required to consider in determining this application is whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Because I do not propose to make orders for X to spend specified time with her father, I am not persuaded that, at the end of a six month period, there will have been any change in the position of both parents. Either the father will have been able to persuade X to have some contact with him or he will have been unable to achieve that goal. If X wants to have contact with her father, that will occur.
If X is unpersuaded, further evidence is unlikely to alter the outcome.
The proceedings have been on foot now since 2019. The father has had opportunities to engage with a scheme to re-introduce contact with X since the orders of 10 March 2020 but has failed to do so or to adequately explain that failure.
Final orders will be made.
PARENTAL RESPONSIBILITY
In circumstances where the father has been the perpetrator of family violence, his damaging the mother’s car is a sufficient example, the presumption in favour of joint parental responsibility is rebutted.
X attends a private school. The father was consulted before X was enrolled and agreed. The mother has no plan to change X’s school and agrees that the father could receive information from the school.
X’s school is a Christian school and there is no plan to change X’s religion.
X has no present health concerns but the mother agreed that she would tell the father if X had a major medical issue.
The father conceded that the mother has made appropriate decisions for X.
There has been no contact from X to her father since 2019.
There is no evidence that he has participated in decision making for X for many years. When he was asked by the mother, on two occasions, to facilitate travel for X and to renew her passport after she returned to Australia, he refused on both occasions, leading to court proceedings.
The father has not demonstrated that he and the mother can co-operatively make significant decisions for X.
The father’s evidence in relation to this issue is limited to his statement that he is worried what will happen to X if the mother is no longer able to care for her. Since an order for parental responsibility is not relevant in such circumstances, that evidence is not relevant.
The orders will provide for the mother to have sole parental responsibility.
JURISDICTION
I have had the advantage of reading the decision of Aldridge J in Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208 where his Honour stated:
It is plain that the legislature did not intend to deprive the Court of jurisdiction in matters already filed in it that had not been the subject of transfer from [the Federal Circuit and Family Court of Australia (Division 2)]. This is because the Family Court of Australia continued in operation, albeit under a new name, with the clear intention that it would continue to operate as a superior court of record. There is no provision in any of the legislation which provides for matters filed in the Family Court of Australia to be transferred to any other court. They remain in the Family Court of Australia with the obvious legislative intent that they be heard and determined by it in the exercise of the jurisdiction provided by s 31 of the [Family Law Act 1975 (Cth)].
…
In short, the legislature intended that the jurisdiction of the Family Court of Australia, by whichever name it is called, continue in respect of proceedings filed in it.
Further, his Honour stated:
It seems therefore, that to the extent necessary, words should be implied into s 25 of the [Federal Circuit and Family Court of Australia Act2021 (Cth)] so as to make it clear that Division 1 acquired the jurisdiction in respect of matters filed in it prior to 1 September 2021, as was previously conferred by s 31 of the Family Law Act. The same result could be achieved by reading Sch 1, Item 36 of the [Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth)], which repealed s 31 of the [Family Law Act 1975 (Cth)], as being read subject to the words, that the repeal did not apply to matters currently before the Court.
Such an approach clearly gives effect to the intention of the legislature that the jurisdiction of the Family Court of Australia was to be maintained. See the similar approach adopted by the Full Court in Wallace & Stelzer and Anor (2013) FLC 93-566 and Duarte and Anor & Morse (2019) FLC 93-902. It is worth noting that in both these matters, the High Court of Australia refused to grant special leave to appeal against the Full Court decisions.
Having satisfied myself that, for the reasons set out above, I have jurisdiction to consider the application before me, it is not necessary to consider the efficacy or validity of the use of s 52 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 8 April 2022
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