Federov & Millington
[2022] FedCFamC1F 15
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Federov & Millington [2022] FedCFamC1F 15
File number(s): SYC 5881 of 2017 Judgment of: ALTOBELLI J Date of judgment: 11 January 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Application to review interim parenting orders made by Senior Judicial Registrar – Injunction made in relation to schooling – Judgment otherwise reserved. Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 11 January 2022 Place: Sydney Counsel for the Applicant and Third Respondent: Dr Brasch QC Solicitor for the Applicant and Third Respondent: Barkus Doolan Counsel for the First and Second Respondents: Mr Wilson Solicitor for the First and Second Respondents: Russell Kennedy Aitken Lawyers Solicitor for the Independent Children's Lawyer: Ms Escobar of Clayhills Escobar Solicitors ORDERS
SYC 5881 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FEDEROV
ApplicantAND: MS MILLINGTON
First Respondent
MR MILLINGTON
Second Respondent
MR ELLEFSON
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
11 JANUARY 2022
THE COURT ORDERS THAT:
1.Pending further order, the First and Second Respondent are restrained from doing any act or thing to change the enrolment and attendance by the children from B School in Suburb C, New South Wales.
2.The final hearing of this matter is expedited.
3.The matter is to be placed in the docket of a judge of Division 1 of this Court.
4.Judgment in relation to the Application for Review filed 19 November 2021 is otherwise reserved.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Federov & Millington has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
I reserve my reasons, save for the following comments. I have heard extensive submissions this afternoon, and have before me evidence about competing proposals in relation to the children, the most pressing of which is whether or not they should be permitted to start boarding school in just a few weeks’ time. I have made the order that they ought not and that they should remain at their present school in circumstances where I expect that this matter will be heard to finality in the first half of this year and where my biggest concern is about what I do not know.
What I do not know is the impact of separating siblings. I certainly do not know the impact of separating siblings who happen to be twins. Further, I do not know the impact of separating siblings who are twins and putting them in different states. I do not know the impact of such a dramatic change in the lives of these children in terms of their relationship with their mother and in a scenario where, realistically, even with the best of goodwill, there would be a significant reduction in frequency in the time that they spend with her.
I have heard that one of the girls is experiencing some mental health issues. I do not know the impact on her mental health of another major change in her life, which is inherent in the proposal to send them to boarding school. I accept that my decision may well be unpopular for the girls. I accept that it may be contrary to their views, as are represented in the Child Inclusive Conference Memorandum dated 29 September 2021. However, I must query the weight that I can place on those views at an interim hearing, and I am unsure about the maturity of these girls so I have concerns.
I accept that as a practical matter, there are risks in making the decision that I have made. It may mean a financial loss to Mr and Ms Millington. It may mean that the children lose their places at the schools in which they are currently enrolled. I accept that. I have taken all those matters into account and weighed them in the balance but still make the decision that I have made.
I am conscious that, during the course of submissions, a proposal was advanced by Mr and Ms Millington that countenances the possibility of the mother at least spending time with the children in their respective schools. Whilst I think it is a positive development, it is a development that comes very late, the inference being that it is a development that comes in response to the exchange between the bar table and bench that occurred during the course of this interim hearing. I do not know how practicable it is. I just do not know how committed Mr and Ms Millington are to such a proposal. Thus, whilst I am very conscious that the proposal is there, at this stage, I do not think I can place weight on it.
What I would like everyone to understand, and in particular what I would like the girls to understand, is that my decision today is not saying no. Rather, it is saying not yet. And, hopefully, after a more comprehensive and fulsome hearing and testing of the evidence, a judge of this Court will be in a better position to assess what is in their best interests. For the time being, the injunction that I have made stands and I will undertake to deliver my reasons for judgment as to the balance of the Application for Review filed on 19 November 2021 as soon as I can.
I certify that the preceding six (6) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli delivered on 11 January 2022. Associate:
Dated: 11 January 2022
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