Sitch & Kovacic

Case [2024] FedCFamC1F 736

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Sitch & Kovacic [2024] FedCFamC1F 736

File number: MLC 12957 of 2021
Judgment of: WILLIAMS J
Date of judgment: 6 November 2024
Catchwords: FAMILY LAW – PARENTING – Leave for mother to proceed undefended – Extensive history of family violence perpetrated by the father upon the mother and children – Unacceptable risk of harm to the children as a result of family violence perpetrated by the father – Children to have no contact with the father – Mother to have sole decision-making responsibility
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) pt VII ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61C, 61D, 61DAA, 61DAB, 67Z, 102NA

Family Law (Amendment) Act 2024 (Cth)
Cases cited:

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Mazorski v Albright [2007] FamCA 520

McCall & Clark (2009) FLC 93-402; [2009] FamCAFC 92

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 487
Division: Division 1 First Instance
Number of paragraphs: 110
Date of hearing: 21 October 2024
Place: Melbourne
Counsel for the Applicant: Mr Thistleton
Solicitor for the Applicant: Marcou & Associates Pty Ltd
The Respondent: No appearance
Counsel for the Independent Children's Lawyer: Ms Villella
Solicitor for the Independent Children's Lawyer: Perry Weston Lawyers

ORDERS

MLC 12957 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS SITCH

Applicant
AND:

MR KOVACIC

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

21 OCTOBER 2024

THE COURT ORDERS THAT:

1.There be orders, in terms of the Minute of Orders dated 21 October 2024 (“the Minute”) and further:

(a)The Minute be placed upon the court file and marked Exhibit “A”.

(b)Upon delivery of the Copy to the court, the within orders be extracted and the Copy be attached thereto.

AND THE COURT NOTES THAT:

A.Pursuant to ss 65DA(2) and 62B of the Family Law Act1975 (Cth), 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 Annexure A and these particulars are included in these orders.


EXHIBIT “A”

1.The mother have leave to proceed on an undefended final basis with her Amended Application for final parenting orders dated 30 August 2024.

2.All previous parenting orders be discharged in relation to the children:

(a)X, male, born 2008;

(b)Y, male, born 2011; and

(c)Z, male, born 2018

collectively known as (“the children”).

3.The mother have sole decision-making responsibility for the children.

4.The children live with the mother.

5.The father spend no time and have no communication with the children or any of them.

6.The mother be authorised to apply to the Registrar of Births Deaths and Marriages in the State of Victoria to remove the middle name from the name of the child presently known as X born 2008, AND IT IS REQUESTED that the Registrar do make all necessary alterations to remove the middle name from…

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AGLC
Sitch & Kovacic [2024] FedCFamC1F 736
Case
[2024] FedCFamC1F 736
Decision Date

CaseChat Overview and Summary

In this case, Ms Sitch and Mr Kovacic, who have three children, came before the court to resolve their parenting dispute. The final orders were made on 21 October 2024 in the absence of Mr Kovacic, who neither attended court nor filed any trial documents. The court was required to determine whether the mother should be granted leave to proceed undefended, and if so, what parenting orders should be made in the best interests of the children. The key legal issue was whether the history of family violence perpetrated by the father against the mother and children warranted no contact between the children and the father, and whether the mother should have sole decision-making responsibility. The court found that the extensive history of family violence, including physical and verbal abuse towards the mother and children, as well as the father's criminal activities and substance abuse, posed an unacceptable risk to the children's safety. Therefore, the court granted the mother leave to proceed undefended and made orders that the father have no contact with the children and that the mother have sole decision-making responsibility. The court also made orders to facilitate the children's travel outside Australia and to remove their names from the Family Law Watchlist.

The court concluded that the safety and well-being of the children were paramount and that the father's history of family violence and criminal conduct made it unsafe for him to have any contact with the children. The mother's evidence was accepted as credible and the court found that the father's breaches of the Family Violence Intervention Order and his criminal convictions demonstrated a pattern of unacceptable behaviour that posed a significant risk to the children. The court was satisfied that the orders made were in the best interests of the children and would promote their safety and well-being.

Orders

Orders of the court

MLC 12957 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS SITCH

Applicant

AND:

MR KOVACIC

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

21 OCTOBER 2024

THE COURT ORDERS THAT:

1. There be orders, in terms of the Minute of Orders dated 21 October 2024 (“the Minute”) and further:

(a) The Minute be placed upon the court file and marked Exhibit “A”.

(b) Upon delivery of the Copy to the court, the within orders be extracted and the Copy be attached thereto.

AND THE COURT NOTES THAT:

A. Pursuant to ss 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 are set out in Annexure A and these particulars are included in these orders.

EXHIBIT “A”

1. The mother have leave to proceed on an undefended final basis with her Amended Application for final parenting orders dated 30 August 2024.

2. All previous parenting orders be discharged in relation to the children:

(a) X, male, born 2008;

(b) Y, male, born 2011; and

(c) Z, male, born 2018

collectively known as (“the children”).

3. The mother have sole decision-making responsibility for the children.

4. The children live with the mother.

5. The father spend no time and have no communication with the children or any of them.

6. The mother be authorised to apply to the Registrar of Births Deaths and Marriages in the State of Victoria to remove the middle name from the name of the child presently known as X born 2008, AND IT IS REQUESTED that the Registrar do make all necessary alterations to remove the middle name from the name of the child and to record the child’s new name as X (with no middle name).

7. The Court declares that pursuant to Section 11 of the Australian Passports Act 2005 (Cth), the Court is satisfied that it is not practicable to obtain the consent of the father (MR KOVACIC) to enable the children to obtain an Australian Passport to travel outside of the Commonwealth of Australia.

8. The mother (MS SITCH) be permitted to make an application to the Department of Foreign Affairs Australian Passport Office for Australian Passports for the children or any of them:

(a) X, male, born 2008;

(b) Y, male, born 2011; and

(c) Z, male, born 2018

and the consent of the father (MR KOVACIC) to the application be dispensed with AND IT IS REQUESTED that the Australian Passport Office do accept the passport application of the mother for the children (or any of them) without the consent of the father, AND thereafter those passports for the children (or any of them) be held in the possession and safekeeping of the mother.

9. The children or any of them, be permitted to travel outside of the Commonwealth of Australia without the permission of the father.

10. The Court requests that the Australian Federal Police remove the names of the children:

(a) X, born 2008;

(b) Y, born 2011; and

(c) Z born 2018

from the Family Law Watchlist list at all points of international arrivals and departures in Australia.

11. The mother be permitted to provide to any of the children’s and/or her own treating professionals, a copy of the Family Report by Senior Child Expert, Ms B, dated 16 August 2023 (“the Family Report”).

12. The order of a Judicial Registrar dated 4 April 2022 appointing the Independent Children’s Lawyer be discharged.

13. All extant Applications and Responses are otherwise dismissed.

14. Pursuant to ss.62B and 65DA(2) 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 are set out in Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

A. A five-year final Family Violence Intervention Order made at the application of the Victoria Police (Case Number …) dated late 2021 and valid until late 2026, remains in place for the children’s and the mother’s protection from the father and these Final Parenting Orders are consistent with that Family Violence Intervention Order.

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

On 21 October 2022 final parenting orders were made as sought by the mother and Independent Children’s Lawyer in the absence of the father, who did not attend court nor file trial documents. The parties were advised reasons would be delivered at a later date. These are my reasons for the orders made.BACKGROUND I adopt the background to the dispute from the chronology of events referred to in the mother’s Outline of Case document filed 14 October 2024, because the father did not file an Outline of Case nor any trial material and did not appear at the hearing. The relevant chronology of events is as follows. Both the mother and the father are currently aged 37 years. The mother and father commenced cohabitation in early 2003, and according to the mother the relationship was characterised by the father’s insidious family violence, long-standing substance abuse issues, his criminality, and problematic mental ill-health. Their eldest son, X, was born in 2008, their second son, Y, was born in 2011, and the youngest son, Z, was born in 2018. In early 2021, the parties finally separated after the father abducted Z and drove dangerously with him, whilst he was affected by an illicit drug. The father was arrested, charged, later convicted, served a custodial sentence, placed on a Community Corrections Order, and a Family Violence Intervention Order (FVIO) was obtained upon the application of Victoria Police. From January 2021, the mother contends the father persistently breached the FVIO and was subsequently charged and convicted for his breaches. In early 2021 the father assaulted the mother, and threatened to burn the house down. This occurred in front of the children in their family home. During the attack, the father also directly assaulted the children. At the time of the attack, the father was on bail and on a Community Corrections Order with a FVIO in place. Thereafter the father was denied bail in the Magistrates Court and County Court of Victoria (“the County Court”). In mid-2021, the father also applied to the Supreme Court of Victoria for bail and was refused. A copy of the judgement is annexed to the mother’s trial affidavit. In late 2021, the father was sentenced in the County Court, received a custodial sentence and was placed on another Community Corrections Order. A copy of the judgement of the County Court is annexed to the mother’s trial affidavit. In late 2021, Victoria Police successfully applied for a five-year final FVIO in favour of the mother and the children. The father continued to breach the intervention order. On 22 November 2021, the mother filed an Initiating Application in this Court. On 12 January 2022, a s 67Z Report was received from the Department of Families, Fairness and Housing (“DFFH”) which recommended there should not be any contact between the father and the children. In early 2022, the father was again arrested and placed in custody due to persistent breaches of the FVIO. The mother believes the father was again convicted and placed on another Community Corrections Order.

Evidence

Evidence Before The Court

This case was heard after the enactment of the Family Law (Amendment) Act 2024 (Cth). The legislative changes therefore apply to this case and the consideration of best interest factors below reflects the relevant legislation as at the date of final hearing. Evidence The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)). Section 140 of the Evidence Act 1995 (Cth) provides:(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:(a) the nature of the cause of action or defence; and(b) the nature of the subject- matter of the proceeding; and(c) the gravity of the matters alleged. The mother relied upon her trial affidavit. The affidavit recounted the history of the parties’ relationship. I have examined that evidence and do not propose to repeat it in these reasons. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.The legal principles applicable to parenting disputes Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how the court is to determine what is in a child’s best interest by reference to general considerations (s 60CC(2)). Section 60CC(2) sets out a non-hierarchical list of considerations which I must take into account. These include arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child; and each person who has care of the child, any views expressed by the child; the developmental, psychological, emotional and cultural needs of the child, the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs and the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so. When considering those matters, the court must include consideration of any history of family violence abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and any family violence order that applies or has applied to the child or a member of the child’s family.

Decision

Reasons for decision

I have considered all relevant sections of s 60CC in reaching my decision, although I have not specifically referred to each consideration: Banks & Banks [2015] FamCAFC 36. Decision making Section 61C(1) of the Act provides that each parent has parental responsibility, regardless of whether they lived together or are separated (s 61(C)(2)), subject to any contrary order of the court (s 61C(3) and s 61D). Orders made allocating parental responsibility for a child in relation to “major long-term issues” to more than one person, may provide for joint or sole decision-making in relation to all or specified major long-term issues (s 61D(3)). The Act defines major long-term issues (s 4(1)) as the child’s education, religion, culture, health, name, and change living arrangements. Section 61DAA defines the requirements of joint decision-making, which are to consult each other in relation to each such decisions and to make a genuine effort to come to a joint decision. A person who has parental responsibility for a child is not required to be consulted by another person, in respect of minor decisions for the child which are outside “major long-term issues” (s 61DAB). Turning now to the general considerations.GENERAL CONSIDERATIONSWhat arrangements would promote the safety of the children In the mother’s trial affidavit at paragraphs [21] to [62], she details extreme family violence perpetrated by the father to the mother, children, and family pets, from the commencement of the relationship until the date of separation in early 2021. This includes physical violence towards the mother such as kicking, attempted strangulation, verbal abuse, sexual abuse, coercive and controlling conduct, and physical and verbal violence perpetrated on the children. She also refers to the father’s criminal activities, use of illicit drugs, and the criminal activities of his family members. The Senior Court Child Expert, in the Family Report noted that the father did not appear to deny the mothers allegations of family violence. At paragraph [63] onwards, the mother refers to the father’s continuing family violence in early 2021. On the day of separation, in early 2021, the father was verbally abusive to the mother in front of the children and was affected by an illicit drug. The mother went to work whereupon the father attended her workplace and threatened to ram the door if the mother did not let him into the premises. The father subsequently rammed his car into a window, shattering the window. He then kicked in the shattered window, entered the building, abused the mother, and threatened to stab anyone in the building. The mother called the police, but the father had already left and abducted the youngest child, Z. When the father arrived home with the child, the police were waiting for him, arrested him, and returned the child to the mother. The police obtained a FVIO against the father on behalf of the mother, to protect her and the children. In early 2021, the father persistently breached the FVIO and contact the mother by phone on 166 occasions. Two days later, he was arrested for the breaches. The father was charged with a series of breaches of the FVIO, as set out in paragraph [65] of the mother’s trial affidavit.

Ratio Decidendi

Legal Principle Established

Turning now to the general considerations.GENERAL CONSIDERATIONSWhat arrangements would promote the safety of the children In the mother’s trial affidavit at paragraphs [21] to [62], she details extreme family violence perpetrated by the father to the mother, children, and family pets, from the commencement of the relationship until the date of separation in early 2021. This includes physical violence towards the mother such as kicking, attempted strangulation, verbal abuse, sexual abuse, coercive and controlling conduct, and physical and verbal violence perpetrated on the children. She also refers to the father’s criminal activities, use of illicit drugs, and the criminal activities of his family members. The Senior Court Child Expert, in the Family Report noted that the father did not appear to deny the mothers allegations of family violence. At paragraph [63] onwards, the mother refers to the father’s continuing family violence in early 2021. On the day of separation, in early 2021, the father was verbally abusive to the mother in front of the children and was affected by an illicit drug. The mother went to work whereupon the father attended her workplace and threatened to ram the door if the mother did not let him into the premises. The father subsequently rammed his car into a window, shattering the window. He then kicked in the shattered window, entered the building, abused the mother, and threatened to stab anyone in the building. The mother called the police, but the father had already left and abducted the youngest child, Z. When the father arrived home with the child, the police were waiting for him, arrested him, and returned the child to the mother. The police obtained a FVIO against the father on behalf of the mother, to protect her and the children. In early 2021, the father persistently breached the FVIO and contact the mother by phone on 166 occasions. Two days later, he was arrested for the breaches. The father was charged with a series of breaches of the FVIO, as set out in paragraph [65] of the mother’s trial affidavit. In early 2021, the father was sentenced to imprisonment and a Community Corrections Order. The father did not comply with the terms of the Community Corrections Order because he did not supply drug screen results as required. The next day, the father was again arrested for other offences, which were not related to family violence. In paragraphs [69] to [71] of her trial affidavit, the mother refers to the events of a Sunday in early 2021 when the father physically assaulted the mother in the presence of the children, attempted to strangle her, and told the children that he was going to kill himself and the mother by burning the house down with them inside. At that time, the children were aged twelve, ten, and three years old. The father was charged with numerous criminal offences, all of which are referred to in paragraph [75]. He unsuccessfully applied for bail to the Magistrates Court, County Court, and Supreme Court. The father pleaded guilty to various charges and was sentenced in late 2021 in the County Court, and a copy of the sentencing judgement is annexed to the mother’s trial affidavit as annexure 4.