TADIC and CUPIC - [2013] FCWA 43

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: TADIC and CUPIC [2013] FCWA 43

CORAM: WALTERS J

HEARD: 9-16 APRIL 2013

DELIVERED : 22 APRIL 2013

FILE NO/S: PTW 2123 of 2011

BETWEEN: BORIS TADIC
Applicant
AND
IVANA CUPIC
Respondent

Catchwords:

FAMILY LAW – PARENTING – family violence – Where mother subjected to denigration and abuse by father both prior to and after separation –Where father spends supervised time with the parties' child – Where father seeks to dispense with the requirement for supervision – Where single expert witness recommended that supervision should continue until father has been psychiatrically assessed – Where father seeks equal shared parental responsibility and mother seeks that she be granted sole parental responsibility – Where parties are wholly unable to negotiate anything – Where father has strong views, sense of entitlement and limited insight – Where father is preoccupied with his negative views of mother and her family – Mother granted sole parental responsibility – Orders made for supervision to continue until father has been psychiatrically assessed and has completed relevant parenting programs

Legislation:

Family Law Act 1975 (Cth), s 4, s 4AB, s 60B, s 60CA, s 60CC, s 61DA, s 64B, s 65D, s 65DAA, s 65DAC, s 65DAE,
Evidence Act 1995 (Cth), s 140

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant
Respondent: Mr F Castiglione QC

Solicitors:

Applicant:
Respondent: G G Legal

Case(s) referred to in judgment(s):

A v A (1998) 146 FLR 188
B & B (1993) FLC 92-357
Chappell& Chappell (2008) FLC 93-382
Collu & Rinaldo [2010] FamCAFC 53
Goode & Goode (2006) FLC 93-286
Hungerford & Tank [2007] FamCA 637
Jets & Maker(2007) FLC 93-344
Johnson and Page (2007) FLC 93-344
M & M (1988) 166 CLR 69
M & S (2007) FLC 93-313
Marsden & Winch (No 3) [2007] FamCA 1364
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
McLay & McLay (1996) FLC 92-667
Mills & Watson (2008) 39 Fam LR 52
Moose & Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461
Pender & Haywood [2007] FamCA 1526
Re F – Litigants in Person Guidelines (2001) FLC 93-072
Re L, V, M & H (Children) [2000] 2 WLR 339
Re M (Contact Violent Parent) (1999) 2 FLR (UK) 321
Richards & Brown (2011) FamCA 662
Saxena & Saxena (2006) FLC 93-268
Sealey & Archer [2008] FamCAFC 142
Taylor & Barker (2007) FLC 93-345
W & W (2005) FLC 93-235

Preamble

1This case is about the parenting arrangements for [Senka Tadic], who is now four years of age. [Senka] was born in 2009. She has no siblings, and has lived with her mother since her parents separated in late 2009.
2The primary issues in the case were these:
a)Should there be an order for equal shared parental responsibility, or should Senka's mother have sole parental responsibility for her?
b)Should Senka live with her mother, or should she live partly with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: TADIC and CUPIC [2013] FCWA 43
Case: [2013] FCWA 43
Decision Date: 22 APRIL 2013

CaseChat Overview and Summary

Tadic v Cupic is a family law matter concerning the parenting of a child following the separation of the parents. The dispute arose when the father sought to have the requirement for supervised visits with the child removed, as well as seeking equal shared parental responsibility. The mother, on the other hand, sought sole parental responsibility, given the history of family violence and the father's lack of insight and preoccupation with his negative views of the mother and her family. The Family Court of Australia was required to determine whether the father should have unsupervised access to the child, and whether either parent should have sole or equal shared parental responsibility.

The court examined the history of family violence, including the mother's experience of denigration and abuse by the father both before and after their separation. The court also considered the father's strong views, sense of entitlement, and limited insight, as well as his preoccupation with his negative views of the mother and her family. The court gave weight to the single expert witness's recommendation that supervision should continue until the father had been psychiatrically assessed and had completed relevant parenting programs. The court also noted the parties' inability to negotiate any arrangement for the child's care.

In light of the history of family violence, the father's lack of insight and preoccupation with his negative views of the mother and her family, and the expert's recommendation, the court found that the mother should be granted sole parental responsibility. The court also ordered that the father's supervised visits with the child should continue until he had been psychiatrically assessed and had completed relevant parenting programs. The court recognised the importance of ensuring the child's safety and wellbeing, and the need for the father to address his issues before any unsupervised contact with the child could be considered.

Orders