FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Szczepanska & Amatore [2024] FedCFamC1F 585
File number(s): NCC 1438 of 2022 Judgment of: SMITH J Date of judgment: 2 September 2024 Catchwords: FAMILY LAW – CHILDREN – Final hearing – Family violence - Where parties reached consent position on the first day of trial that the child should live with the mother and the mother have sole parental responsibility – Where only outstanding issue was mother and father’s joint proposal for child’s indefinite supervised time with father – Finding that the father presents an unacceptable risk of harm to the child – Child Court Expert does not support indefinite supervised time – ICL opposes indefinite supervised time - Finding indefinite supervised time not in child’s best interests –Orders made for no time and communication with the father – subject to Birthday and Christmas Cards permitted on mother’s review –Injunctions – DCJ to be provided with Orders and Reasons indicating there is no positive finding that the child is safe in the mother’s care. Legislation: Evidence Act 1995 (Cth) Pt 4.1, s 140
Family Law Act 1975 (Cth) Pts VII, IX, XI, XV, ss 60CA, 60CC, 60G, 65AA, 68B, 68C, 91B, 102NA, 117
Cases cited: Gorman & Huffman and Anor [2016] FamCAFC 174
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Division: Division 1 First Instance Number of paragraphs: 126 Date of hearing: 22–24 January 2024 Place: Newcastle Counsel for the Applicant: Mr Allen Solicitor for the Applicant: Koulouris & Associates Pty Ltd Counsel for the Respondent: Mr Juhasz Solicitor for the Respondent: Ann Legal Counsel for the Independent Children's Lawyer: Ms Kaiti Solicitor for the Independent Children's Lawyer: Nls Law ORDERS
NCC 1438 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SZCZEPANSKA
Applicant
AND: MR AMATORE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
2 SEPTEMBER 2024
BY CONSENT AND ON A FINAL BASIS, THE COURT ORDERS THAT:
1.Discharge all extant parenting orders.
Parental responsibility
2.The applicant mother, Ms Szczepanska (born in 1990) (“the mother”) is to have sole parental responsibility for making decisions about the major long-term issues concerning the child, X (born in 2016) (“the child”), including the care, welfare and development of the child. These issues include but are not limited to the child’s: education; religious and cultural upbringing; health; name; and any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent, or for the parties to comply with these orders.
Live with
3.The child live with the mother.
ON A FINAL BASIS, THE COURT ORDERS THAT:
No time
4.The child will spend no time with Mr Amatore (born in 1989) (“the father”).
No direct communication
5.The child will have communication with the father, and the father will have no communication with the child, except indirect communication as specified at order 9.
Injunction
6.Pursuant…
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- Szczepanska & Amatore [2024] FedCFamC1F 585
- Case
- [2024] FedCFamC1F 585
- Decision Date
CaseChat Overview and Summary
The court found that the father presented an unacceptable risk of harm to the child due to his history of violence and criminal behaviour. The ICL opposed any form of contact between the father and the child, and the Child Court Expert also did not support indefinite supervised time. The court concluded that indefinite supervised time was not in the child’s best interests, given the father's past conduct and the risk of reoffending. Consequently, the court ordered that the child would have no time or direct communication with the father, except for the limited indirect communication specified in the orders. The court also issued comprehensive injunctions to protect the mother and the child from the father's contact and proximity.
The final orders included sole parental responsibility for the mother, no direct contact between the father and the child, and restricted indirect communication through the mother. The father was allowed to send birthday and Christmas cards to the child annually, with no letters included. The father could also request school reports and photographs from the child’s school once a year. The court further requested the Independent Children’s Lawyer and Court Children’s Services to explain these orders to the child in an appropriate manner. The Department of Communities and Justice was also notified of the court’s findings and the absence of a positive safety finding in the mother’s care.
Orders
Orders of the court
NCC 1438 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS SZCZEPANSKA
Applicant
AND:
MR AMATORE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
2 SEPTEMBER 2024
BY CONSENT AND ON A FINAL BASIS, THE COURT ORDERS THAT:
1. Discharge all extant parenting orders.
Parental responsibility
2. The applicant mother, Ms Szczepanska (born in 1990) (“the mother”) is to have sole parental responsibility for making decisions about the major long-term issues concerning the child, X (born in 2016) (“the child”), including the care, welfare and development of the child. These issues include but are not limited to the child’s: education; religious and cultural upbringing; health; name; and any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent, or for the parties to comply with these orders.
Live with
3. The child live with the mother.
ON A FINAL BASIS, THE COURT ORDERS THAT:
No time
4. The child will spend no time with Mr Amatore (born in 1989) (“the father”).
No direct communication
5. The child will have communication with the father, and the father will have no communication with the child, except indirect communication as specified at order 9.
Injunction
6. Pursuant to s 68B of the Family Law Act 1975 (Cth), the respondent father, Mr Amatore (born in 1989) (“the father”) be restrained from:
(a) attempting to contact or contacting X (born in 2016) (“the child”) by any means, including through a third party; and,
(b) attempting to contact or contacting Ms Szczepanska (born in 1990) (“the mother”) by any means, including through a third party; and,
(c) approaching or coming within 100 metres of any place where the mother and / or child might reside from time to time; and,
(d) approaching or coming within 100 metres of any place where the child might attend day care or school from time to time; and
(e) approaching or coming within 100 metres of any place where the child might attend after school or extra-curricular activities from time to time; and
(f) approaching or coming within 100 metres of any place where the mother might work from time to time; and,
(g) approaching, or knowingly coming within 100 metres of, the mother; and,
(h) approaching, or knowingly coming within 100 metres of, the child; and,
(i) removing the child from the care of the mother, the child’s school or any other person or place; and,
(j) responding to any email sent by the mother pursuant to order 11 below.
Except as specifically permitted by these orders below.
7. Pursuant to s 68C the injunction in Order 6 above pursuant to s 68B of the Family Law Act 1975 (Cth), is for the personal protection of Ms Szczepanska (born in 1990) and X (born in 2016).
8. If a Police Officer believes on reasonable grounds that Mr Amatore (born in 1989), at which the injunction is directed, has breached the injunction they may arrest them without warrant.
Communication via mother
9. The father is permitted to send one birthday card and one Christmas card to the child each year to an address, including a post office box, to be provided by the mother within 14 days of these orders, providing that there are no letters in such cards.
10. The mother may, but is not required to, pass the birthday and or Christmas card to the child.
Health information from mother
11. The mother may, but is not required, to provide an update of the child’s health on one occasion a year by email to the father at an email address nominated by the father, to which email the father may not reply as noted in Order 6(j) above.
School information
12. The father is at liberty to request directly from the child’s school on one occasion each year a copy of the child’s school reports and school photographs at his own cost.
13. The school may, but is not required to, provide these, providing that the mother and / or child’s address is redacted from any such documents.
14. The father is not otherwise permitted to communicate with the child’s school.
15. The mother may provide a copy of these Orders to the child’s school from time to time.
Provision of orders
16. The mother may provide a copy of these Orders to the child’s school or educational providers, medical or allied health practitioner, or other people or organisations who care for the child from time to time, for the purpose of notifying them of her sole parental responsibility and that the child is to have no contact with the father.
Explanation to child
17. The Court requests the Independent Children’s Lawyer (“ICL”) and the Court Children’s Services (“CCS”) to liaise and to arrange for these Orders to be explained to the child in an appropriate manner.
18. A copy of this Judgment be provided to CCS and to the Court Child Expert.
Department of Communities and Justice
19. A copy of these Orders and Reasons for Judgment be provided to the Department of Communities and Justice NSW and their attention drawn to paragraphs [52]-[54] of the Judgment for the purpose of their records.
Costs
20. A party, other than the ICL, who seeks a costs order shall file an Application and supporting affidavit in accordance with the Rules.
21. If the ICL seeks costs they are to notify the parties within 28 days and either provide consent orders or notify the Court for listing for mention and determination of the ICL’s costs.
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
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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