Danchev & Murgia

Case [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…

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AGLC
Danchev & Murgia [2025] FedCFamC1F 190
Case
[2025] FedCFamC1F 190
Decision Date

CaseChat Overview and Summary

The case of Danchev and Murgia involved the parents of two children who had separated in late 2022, though they remained living together until early 2023. The father vacated the family home in early 2023, and the children alternated weekends between the parents. The parties began to disagree about the arrangements when the father commenced shift work, and he sought to have the children stay with him more often. The father commenced proceedings under the Family Law Act, seeking orders that the children spend time with him when he was not working. The mother sought orders for the children to spend alternate weekends with the father. The dispute escalated when the father took the children from school without telling the mother. The court made interim orders providing for the children to live with the mother and spend alternate Sundays with the father. The dispute centred on the elder child's resistance to spending time with the father, with the parents blaming each other for the child's attitude.

The court had to decide whether the children should spend more time with the father, given that he would be free of work commitments for two weekends per month. The court had to balance the children's best interests against the parties' competing proposals, while considering the statutory criteria. The court also had to decide whether to make orders that would allow for the restoration of the elder child's relationship with the father. The court had to determine the appropriate parenting orders that would promote the children's best interests and protect them from parental denigration.

The court found that the children's best interests would be promoted by spending two weekends per month with the father, as this would allow for the restoration of the elder child's relationship with the father. The court found that the parties' competing proposals should be balanced by giving effect to the agreed arrangements for the children to spend alternate weekends with the father. The court found that the statutory criteria required it to consider the children's relationship with both parents, the benefit to the children of having a meaningful relationship with both parents, and the need to protect the children from harm. The court found that the father's proposal would allow for the restoration of the elder child's relationship with him, while the mother's proposal would not. The court found that the parties' property had been divided by consent, and that there was no need to make parental responsibility orders. The court found that the children's best interests would be protected by restraining the parties from denigrating each other in the presence or hearing of the children. The court dismissed the outstanding applications.

The court made orders that the children would live with the mother and spend two weekends per month with the father, as well as seven days during the winter school holidays and seven days in January each year. The court also made orders that the father collect the children from school on the weekends he was to have them and that the parents collect the children from each other's homes. The court made orders that the parties were restrained from denigrating each 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. The court dismissed the outstanding applications.

Orders

Orders of the court

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.

Background

Background to the litigation

The reasons are given in short form, as permitted by the Act (s 69ZL).BACKGROUND 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. Their two children, born in 2014 and 2016, are now aged 11 and nine years respectively. 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] 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] 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. 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] 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. 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] 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

Evidence

Evidence Before The Court

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 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. 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. 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. Both parties also relied upon the Child Impact Assessment Report dated 3 March 2025.LEGAL PRINCIPLES 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). 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). 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. Such principles apply equally to interim parenting orders. 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. 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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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