Danchev & Murgia

[2025] FedCFamC1F 190

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Danchev & Murgia [2025] FedCFamC1F 190

File number:

NCC 3672 of 2024

Judgment of:

AUSTIN J

Date of judgment:

24 March 2025

Catchwords:

FAMILY LAW – PARENTING – Interim parenting orders – Where previous interim orders made – Where the parties agreed the children should continue living primarily with the mother – Where the father spends time with the children each alternate Sunday – Where the father will be free of work commitments two weekends per month – Where the elder child does not wish to spend time with the father – Where the orders will allow for the elder child’s relationship with the father to be restored – Where the younger child expresses a desire to spend more time with the father – Orders made – Where the children will spend two weekends per month with the father.  

Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 4, 60B, 60CA, 60CC, 61B, 61C, 61CA, 61D, 61DAA, 64B, 65D, 69ZL

Cases cited:

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

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Division:

Division 1 First Instance

Number of paragraphs:

47

Date of hearing:

24 March 2025

Place:

Newcastle

Counsel for the Applicant:

Mr Duane

Solicitor for the Applicant:

ALJ Legal

Solicitor Advocate for the Respondent:

Mr White

Solicitor for the Respondent:

Powe & White Family Lawyers

ORDERS

NCC 3672 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR DANCHEV

Applicant

AND:

MS MURGIA

Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	24 MARCH 2025

THE COURT ORDERS THAT:

1.All former interim orders made in respect of the following children are discharged:

(a)X, born 2014; and

(b)Y, born 2016.

2.The children shall live with the mother.

3.The parties shall take all reasonable steps to ensure the children spend time with the father as follows:

(a)from after school (or 3.30 pm) on Friday until 7.00 pm on Sunday, commencing on Friday 28 March 2025 and then on every fourth Friday thereafter;

(b)from after school (or 3.30 pm) on Friday until 7.00 pm on Sunday, commencing on Friday 18 April 2025 and then on every fourth Friday thereafter;

(c)for seven contiguous days in the Winter school holidays each year, from 9.00 am on the first day until 7.00 pm on the seventh day, subject to the father giving the mother not less than 60 days’ written notice of the days he selects;

(d)from 3.30 pm on Christmas Day until 7.00 pm on Boxing Day; and

(e)for seven contiguous days in January each year, from 9.00 am on the first day until 7.00 pm on the seventh day, subject to the father giving the mother not less than 90 days’ written notice of the days he selects.

4.For the purposes of implementing Orders 2 and 3 hereof:

(a)the father shall collect the children from school, whenever the children are to begin spending time with him following the conclusion of school during school terms;

(b)the father shall collect the children from the mother’s home on all other occasions; and

(c)the mother shall collect the children from the father’s home when they are due to return and reside with her.

5.Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

6.Any and all other outstanding applications are dismissed.

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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Danchev & Murgia has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. These reasons determine competing applications between parents for interim orders in respect of their two children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).

2. The reasons are given in short form, as permitted by the Act (s 69ZL).

   BACKGROUND

3. The parties commenced cohabitation in 2010, married in 2012, and separated in late 2022, though they remained living in a common household until early 2023.

4. Their two children, born in 2014 and 2016, are now aged 11 and nine years respectively.

5. In early 2023, the father vacated the former family home, leaving the mother and children in occupation of it. By voluntary arrangement, the children thereafter inconsistently spent alternate weekends with the father.[1] The parties’ property was divided between them by orders made with their consent in February 2024.

   [1] Child Impact Assessment Report at [7]; Mother’s affidavit at [44]–[46]

6. Unfortunately, the parties’ co-operation began to erode in mid-2024, when the father began shift work and his work roster changed. He could no longer have the children stay with him each alternate weekend. He wanted the children to stay with him whenever he was not working, but the mother declined to accede to such lack of routine. For the second half of 2024, the children generally stayed with the father on only one weekend each month.[2]

   [2] Child Impact Assessment Report at [7]

7. Evidently dissatisfied with that arrangement, the father commenced proceedings under Pt VII of the Act in November 2024, seeking orders that the children spend time with him at times correlating with his work roster. The mother responded, seeking orders to formalise the arrangement for the children to spend time with the father each alternate Sunday, regardless of his work roster. The parties also disputed whether they should share parental responsibility for the children.

8. The dispute was exacerbated in late 2024 when the father took the children from school without telling the mother. She recovered the children from him the next day and then ceased facilitating their visits with him.[3]

   [3] Child Impact Assessment Report at [8]

9. On 16 December 2024, interim consent orders were made with the parties’ consent, pending the hearing of their competing interim applications. They agreed on orders providing for the children to live with the mother and for them to spend each alternate Sunday with the father. The interim hearing was fixed for 24 March 2025.

10. The nub of the parties’ dispute is their divergent perceptions about why the elder child resists spending time with the father. The father believes the mother is influencing the children, but particularly the elder child, against him. Conversely, the mother asserts the elder child’s reluctance to spend time with the father is the product of his own experience of the father’s irascibility and detachment. The court child expert said of those divergent perceptions:[4]

    …This dispute lies at the heart of each parent’s proposal regarding the children’s best interests and will require careful consideration.

    [4] Child Impact Assessment Report at [56]

11. Obviously enough, the consideration given to the issue on untested evidence in an interim hearing cannot be as “careful” as it will subsequently be at the final trial.

    PROPOSALS AND EVIDENCE

12. The father sought the orders set out in his Initiating Application filed on 1 November 2024, in support of which he relied upon his affidavit filed on 19 March 2025.

13. The father tendered numerous text messages between the parties, but they were rejected as being either irrelevant to or insufficiently probative of any fact in issue, particularly when definitive findings to resolve disputed facts would likely be impossible.

14. The mother sought the orders set out in her Response to an Initiating Application filed on 13 December 2024, in support of which she relied upon her affidavit filed on the same date.

15. Both parties also relied upon the Child Impact Assessment Report dated 3 March 2025.

    LEGAL PRINCIPLES

16. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation (s 60B).

17. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA) and the Act specifies the criteria which must be considered when determining the form of orders which meets and promotes the child’s best interests (s 60CC).

18. Parental responsibility for children is vested in their parents (s 61C(1)), whether they live together or are separated (s 61C(2)), but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). Since legislative amendments took effect on 6 May 2024, parental responsibility orders no longer have any bearing upon determinations about with whom a child should live or spend time.

19. Such principles apply equally to interim parenting orders.

20. Being an interim hearing in respect of parenting orders, the procedure is that established by the Full Court in Goode & Goode (2006) FLC 93-286, where it was said (at [68]):

    …the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future. 

21. In Banks v Banks (2015) FLC 93-637 at [47]–[50], the Full Court observed how a paucity of uncontested evidence means only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim disputes should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at trial. The trial is the time and place to settle factual controversies. Interim hearings ought not be used for that purpose unless circumstances are urgent and there is no alternative.

    CHILDREN’S BEST INTERESTS

22. The children are not indigenous, so s 60CC(1)(b) and s 60CC(3) of the Act do not apply.

    Sections 60CC(2)(a) and 60CC(2A)

23. The children’s safety from abuse, family violence or neglect was not genuinely an issue of concern.

24. The mother vaguely alleged the father’s physical mistreatment of the children to the court child expert and in her affidavit,[5] but her allegations were far too short on detail and specificity to enable any finding the children are at risk of being physically abused by the father, particularly in the face of his denial of such allegations.[6] The father’s allegedly gruff demeanour with the children on occasions is not evidence of “abuse”,[7] but might explain the elder child’s alleged trepidation with him, which is more properly considered as an incident of his parenting capacity.

    [5] Child Impact Assessment Report at [50]; Mother’s affidavit at [35]

    [6] Child Impact Assessment Report at [52]

    [7] Mother’s affidavit at [52], [53], [56]

    Section 60CC(2)(b)

25. The elder child has told the mother of his desire not to spend time with the father, which he confirmed to the court child expert.[8] The elder child reported his relationship with the father was poor, but he gets along well with members of the paternal family.[9]

    [8] Child Impact Assessment Report at [31]

    [9] Child Impact Assessment Report at [24], [26]

26. The mother eventually submitted that the elder child’s expressed views were the singular reason why both children should only spend a few hours on each alternate Sunday with the father. That submission is rejected: first, because it assumes the elder child’s expressed views are authentic and not contrived as a result of deliberate or inadvertent influence by the mother; and secondly, because there is no logical reason why the elder child’s expressed views should assume superiority over the younger child’s views.

27. The younger child conversely expressed to the court child expert a clear desire to spend more time with the father,[10] though his asserted wish to live with the parties for equal time is likely the product of his perception of fairness.[11] His views should not be subordinated to the elder child’s views.

    [10] Child Impact Assessment Report at [36]

    [11] Child Impact Assessment Report at [37]

28. Both parties accepted the children should be the subject of identical parenting regimes and not differentiated, in which event, to give their expressed views equivalent weight, the elder child will have to spend more time with the father than he would ostensibly like and the younger child will have to spend less time with the father than he would like. A balance must be struck.

    Section 60CC(2)(c)

29. The parties did not address the developmental, psychological, emotional or cultural needs of the children.

    Section 60CC(2)(d)

30. The mother criticises the father for his irascibility, which he denies, but she does not otherwise criticise his parenting capacity.

31. The father criticises the mother for influencing the children against him, which she denies, but he does not otherwise criticise her parenting capacity.

32. Neither of those controversial issues can be resolved by definitive factual findings in this interim hearing. There is no evidence to reasonably suggest either party is deprived of the capacity to properly provide for the children’s developmental, psychological, emotional or cultural needs. Relying upon evidence which is uncontroversial, the children have experienced spending weekends of unsupervised time with the father in the past and there is no rational reason why that regime should not be restored, subject to his availability to care for them.

    Section 60CC(2)(e)

33. There is clear benefit to the children in having loving and stable relationships with both parties. No submission was made to the contrary.

34. The elder child’s relationship with the father has become strained,[12] but that is a good reason to expand, not constrict, the time the elder child spends with him. Their relationship will then have the greater opportunity to be restored.

    [12] Child Impact Assessment Report at [10], [21]

    Section 60CC(2)(f)

35. The father posited his case on the basis that his work roster was of pre-eminent importance, such that the entire family was bound to observe it, but that is not so. The maintenance of his employment is an important consideration, but the paramount consideration is the children’s best interests. Their best interests are not served by enduring the uncertainty of spending time with the father whenever it unpredictably suits him for them to do so.

36. As it transpired during submissions, the father can ensure he has two weekends per month during which he will be free of work commitments. The children can spend time with him on those weekends in regular cycles, achieving the dual objectives of giving the children reliable routine and not impinging upon the father’s work commitments.

37. The father can also take two weeks of leave from employment each year during school holidays when he will be available to care for the children.

    DISPOSITION

38. The children should continue to live primarily with the mother. That was not controversial.

39. The children should spend time regularly with the father under a regime which is mutually beneficial to the children and the parties. The children will spend two weekends per month with the father, correlating with the weekends he is not rostered to work. The weekends will start after school (or at 3.30 pm) on the Friday and finish at 7.00 pm on the Sunday.

40. The father asked that the weekends conclude on Monday mornings, but he must start work very early on some of those Mondays. The asserted availability of a paternal relative to step in for him and ensure the children are delivered to school on those Monday mornings was not a persuasive solution to the problem. To promote the stability and predictability of the regime, the weekends will end on Sunday night. This regime will apply in both school terms and during school holidays.

41. Provision is also made for the children to spend two holidays per year with the father, each of seven days duration. The holidays must be taken in the Winter and Summer school holidays. Because it is unknown when annual leave will be taken by the father, he is required to give the mother advance notice of the days he chooses within those school holiday periods.

42. Otherwise, the children will also spend part of Christmas Day with the father.

43. The children will be exchanged either at school or at the parties’ homes.

44. An order is made restraining the parties from exposing the children to denigration of one another.

45. As a stop-gap measure, an order was formerly consensually made in December 2024 for the mother to have sole-decision making responsibility for the children but, given the terms of the parties’ competing applications in this hearing, the perpetuation of that order remained controversial. Nonetheless, the issue was not mentioned at all in submissions.

46. Although both parties reported experiencing difficulty in co-operating with the other,[13] the law invests them jointly with parental responsibility for the children, which responsibility is not lost merely as a consequence of their separation. On the evidence, there is no pressing need for any decision to be made about the children’s education, health or any other “major long-term issue” (as defined in s 4(1) of the Act), in which event there seems no need to divest the father of his parental responsibility for the children or to invest the mother with sole-decision making power in respect of any issue. The parties will need to confer and negotiate on those issues, as the law requires (s 61CA and s 61DAA).

    [13] Child Impact Assessment Report at [4]–[5]

47. The parties’ retention of parental responsibility means it is unnecessary to make ancillary orders about the children’s extra-curricular activities, school information, medical events, or parental communication.[14]  

    [14] Father’s Initiating Application filed 1/11/24, proposed interim Orders 11–17, 19–23; Mother’s Response to Initiating Application filed 13/12/24, proposed interim Orders 6–7

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:      

Dated:       25 March 2025