FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Salera & Baranski [2024] FedCFamC2F 632
File number(s): DGC 3914 of 2019 Judgment of: JUDGE BURT Date of judgment: 22 May 2024 Catchwords: FAMILY LAW – Parenting – one child aged 5 years – very short relationship – mother alleges that the father has behaved in a physically and emotionally abusive manner – allegations that the paternal family have also perpetrated family violence – threats to harm mother and child – father says that all allegations are false and that the mother has behaved abusively towards him – father interviewed by police on numerous occasions, no charges laid – extensive Child Protection involvement – extensive intervention order proceedings – Court declaring the mother a vexatious litigant and ordering an extended litigation restraint order – pending criminal proceedings in respect of allegations that the mother assaulted her father’s partner – mother initially being the primary carer – spend time with the father being initially supervised, progressing to unsupervised, and then to overnights – mother withheld the child 10 weeks before the final hearing, resulting in the making and execution of a recovery order – the child’s time with the mother being supervised prior to the hearing – mother having fixed and destructive hostility towards the father and the paternal family – credibility findings in respect of the mother – fabrication of evidence and attempts to mislead the Court – no findings of family violence perpetrated by the father – mother posing an unacceptable risk of emotional and psychological harm to the child – child thriving in the care of the father and his partner – consideration of indefinite supervision order – held – father have sole parental responsibility – live with the father and spend supervised time with the mother four occasions each year. Legislation:
Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 60B, 60CC, 61DA, 65D, 65DAA
Cases cited: Adamson & Adamson [2014] FamCAFC 232; (2014) FLC 93-622; (2014) 51 Fam LR 626
B and B [1993] FamCA 143; (1993) FLC 92-357; (1993) 16 Fam LR 353
Bielen & Kozma [2022] FedCFamC1A 221; (2022) FLC 94-123; (2022) 66 Fam LR 59
Carlson & Fluvium [2012] FamCA 32
Champness & Hanson [2009] FamCAFC 96; (2009) FLC 93-407
Godfrey & Sanders [2007] FamCA 102
Grella & Jamieson [2017] FamCAFC 21
In the Marriage of Hall [1979] FamCA 73; (1979) FLC 90-713; (1979) 5 Fam LR 609
Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092; (2022) 65 Fam LR 288
Johnson & Page [2007] FamCA 1235; (2007) FLC 93-344
Loddington & Derringford (No 2) [2008] FamCA 925
Masson v Parsons [2019] HCA 21; (2019) 59 Fam LR 503; (2019) 368 ALR 583; (2019) 266 CLR 554
Mazorski & Albright [2007] FamCA 520; (2008) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405; (2009) 41 Fam LR 483
Potter & Potter [2007] FamCA 350;…
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- Salera & Baranski [2024] FedCFamC2F 632
- Case
- [2024] FedCFamC2F 632
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CaseChat Overview and Summary
The court needed to decide whether the allegations of family violence were substantiated and whether the mother posed a risk to the child’s emotional and psychological well-being. It also needed to determine the best spending time arrangements for the child, considering their thriving condition in the father's care and the mother's demonstrated hostility towards the father and his family. The court concluded that the mother's allegations were fabricated and that she posed a risk to the child’s well-being. The court found no evidence of family violence by the father and determined that the child was best served by spending most of their time with the father, with supervised visits to the mother.
The court ordered that the father have sole parental responsibility for the child. The child was to live with the father and spend time with the mother under strict supervision on four occasions each year. The court also imposed several communication and information-sharing requirements to ensure a smooth transition and ongoing contact between the child and the mother. Restrictions were placed on the mother to prevent her from exposing the child to parental conflict and negative comments about the father. The court authorised the father to change the child’s name and to apply for an Australian passport without the mother’s consent. The father was also granted the authority to remove the child from Australia for travel purposes.
Orders
Orders of the court
DGC 3914 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR SALERA
Applicant
AND:
MS BARANSKI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BURT
DATE OF ORDER:
22 MAY 2024
THE COURT ORDERS THAT:
1. All previous parenting orders be discharged.
2. The father have sole parental responsibility for the child X born in 2018.
Live/Spend Time/Communication Orders
3. X live with the father.
4. X spend time with the mother as follows:
(a) professionally supervised on four occasions each year by agreement and failing agreement, in the first week of the Term 1, 2 and 3 Victorian school term holidays, and in the first week of the long summer holidays;
(b) the supervision to occur for no more than three hours;
(c) the supervision to be carried out by C Contact Service or such other professional supervision service as agreed between the parents in writing;
(d) the supervision to be solely at the mother’s expense;
(e) the supervision occur at a venue as agreed between the parents and failing agreement, as nominated by the father;
(f) changeover to occur at a venue as agreed between the parents and failing agreement, as nominated by the father; and
(g) at such other times as agreed in writing by the parties in advance.
5. X communicate with the mother via FaceTime or other video means as follows:
(a) on X’s birthday each year from 10.30am to 11am if a non-school day or 5.30pm to 6pm if a school day;
(b) on Mother’s Day each year from 10.30am to 11am;
(c) on Christmas Day each year from 10.30am to 11am;
(d) at such other times as agreed between the parents in writing;
(e) the mother to initiate the calls to the father and the father to facilitate same; and
(f) the father be authorised to terminate the call if the mother engages in any behaviour from which these orders restrain her.
6. The mother be authorised to send gifts and/or cards to X on her birthday and at Christmas, and for the purposes of same, the father provide the mother with a Post Office Box address within 14 days of the date of these orders.
Information Sharing
7. The father provide the mother with a mobile number for the purpose of communicating with X pursuant to order 5 herein within seven days.
8. The father advise the mother at least seven days prior to any communication between her and X of any change to the mobile number in order 7 herein.
9. The parents communicate only via AppClose and such communication be limited to emergencies relating to X and/or arrangements for supervised time, and such communications are to be child focussed, respectful and civil.
10. The father advise the mother in the event X attends a new school.
11. The mother be authorised to obtain from X’s school information usually disseminated to parents (at her own expense) including (but not limited to) school reports, newsletters and the like.
12. The father advise the mother as soon as practicable of any serious illness/injury to X and provide her with the details of the treating medical practitioner/s, and the mother be authorised to obtain information from the treating medical practitioner/s.
13. The father be authorised to provide these orders to:
(a) any school or other educational facility that X attends;
(b) any medical practitioner or allied health professional that X attends on or may attend upon;
(c) any professional supervisor/supervision agency; and
(d) any other person/organisation who is required to obtain information in relation to X.
Restraints
14. The mother, her servants and agents, are hereby restrained by injunction from:
(a) exposing X to parental conflict;
(b) denigrating or saying negative things about the father, his family or any household members, to or in the hearing or presence of X, or allowing anyone else to do so;
(c) discussing the Court proceedings with X, or in her hearing or presence, or allowing anyone else to do so; and
(d) discussing future spend time arrangements that are not consistent with these orders.
Change of Name
15. Pursuant to s.26 of the Births, Deaths and Marriages Registration Act 1996 (Vic), the father be authorised to apply to the Registrar of Births, Deaths and Marriages for the state of Victoria for X to now be registered as X Baranski-Salera, and for that purpose:
(a) the father be authorised to provide a copy of these orders to the Registrar of Births, Deaths and Marriages for the state of Victoria;
(b) the father be solely responsible for the cost of any change to X’s name; and
(c) the mother’s consent is not required.
Passport
16. Pursuant to s.11(1)(b) of the Australian Passports Act 2005, the father be authorised to sign and execute any documents necessary for X to obtain an Australian passport or to extend any existing passport, without first obtaining the written consent of the mother, and the father be at liberty to provide a sealed copy of these orders to the Australian Passport Office.
Overseas Travel
THE COURT REQUESTS THAT:
17. The Australian Federal Police remove the name of X born in 2018 from the airport watch list at all points of international arrival and departure in Australia.
THE COURT ORDERS THAT:
18. Pursuant to s.65Y of the Family Law Act 1975, the father is authorised to remove X from the Commonwealth of Australia for the purpose of travel at his discretion.
General
19. The order appointing the independent children’s lawyer be discharged.
20. All extant parenting applications be otherwise dismissed.
21. Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A. Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of these orders are set out in Attachment A.
B. Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to communicate to the public an account of family law proceedings which identifies a party to the proceedings, a witness in the proceedings, a person related to, or associated with, a party to the proceedings, or a person who is, or alleged to be, in any other way concerned in the matter to which the proceedings relate, unless specifically authorised by the court.
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
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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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