Federov & Millington (No. 2)

[2022] FedCFamC1F 18

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Federov & Millington (No. 2) [2022] FedCFamC1F 18

File number(s):	SYC 5881 of 2017
Judgment of:	ALTOBELLI J
Date of judgment:	21 January 2022
Catchwords:	FAMILY LAW – PARENTING – Consent orders – Cancellation of previous orders pursuant to Family Law (Child Protection Convention) Regulations 2003 (Cth) – Independent Children’s Lawyer discharged.
Legislation:	Family Law (Child Protection Convention) Regulations 2003 (Cth) reg 15
Division:	Division 1 First Instance
Number of paragraphs:	4
Date of hearing:	21 January 2022
Place:	Sydney
Solicitor for the Applicant and Third Respondent:	Mr Millington of Barkus Doolan
Solicitor for the First and Second Respondents:	Ms Doring of 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
Applicant

AND:

MS MILLINGTON

First Respondent

MR MILLINGTON

Second Respondent

MR ELLEFSON

Third Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	21 JANUARY 2022

THE COURT ORDERS THAT:

1.The Independent Children’s Lawyer is discharged.

2.Pursuant to Part 10.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, orders are made by consent in accordance with the document marked “A” dated this day and attached hereto.

3.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

4.All outstanding applications otherwise are dismissed and the matter removed from the list of cases awaiting finalisation.

THE COURT NOTES THAT:

A.The Independent Children’s Lawyer made an application to be discharged and an order to that effect has been made.

B.The intention of the Applicant and Third Respondent is for the children to live with them in their rented home situated at Suburb D in Sydney and continue to attend school at B School in Suburb C in the State of New South Wales.

C.The Applicant and Third Respondent intend to remain living in Australia.

D.The Applicant and Third Respondent have expressed no opposition in principle to the First and Second Respondent communicating or spending time with the children in accordance with the children’s wishes.

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:

1. I provide the following short ex tempore reasons for judgment. I have just made an order under reg 15(1)(b) of the Family Law (Child Protection Convention) Regulations 2003 (Cth), the effect of which is to discharge the only relevant final order in this matter, being an order that was made in the Central Family Court, London, in 2017 (“the UK order”). Accordingly, that order has been cancelled. I do so because I am satisfied that the provisions of reg 15(2)(c) apply, and that is that the registration or enforcement of the measure in Australia (that is, the enforcement of that order) is contrary to public policy, taking into account the best interests of the children concerned. The two children are X and Y, born in 2009. They have been in the care of the First Respondent paternal aunt (“aunt”) and Second Respondent paternal uncle (“uncle”) since 17 May 2017.

2. The evidence before me leads me to say, without reservation, that the children have been cared for in the most loving of ways, and provided with parenting that was not available to them from their parents at the time.  The UK order was made in 2017.  On 17 May 2017, the aunt and uncle returned to Australia, with the children.  The UK orders were registered in Australia on 11 September 2017.  The parents of the children relocated to Sydney in 2020, and the present proceedings commenced in May 2021.  There are orders on 17 June 2021 that provide for the children to spend time with the Applicant mother on a supervised basis.

3. I am satisfied as to the UK order being contrary to public policy, because the pragmatic reality in this case is that whether I make the present order or not, these children will be living with their parents here in Australia.  That is a consensual arrangement between the adults who have cared for them (their aunt and uncle), and the adults who now propose to care for them (their parents).  Whether I make this order or not makes no difference to the reality of the life of the children.  On this basis, I am satisfied that it will be contrary to public policy not to discharge the UK order.

4. Whilst I have some reservations about whether these orders are in the best interests of the children, and whilst I have some lingering concerns about risk of harm considerations, particularly from the Third Respondent father, I am reassured by the fact that all the adults in this case concur that these orders are in the best interests of the children.  Further, I am reassured by such evidence as I have seen and heard that the Applicant mother will be adequately protective of these children.  I am satisfied, therefore, that these consent orders should be made, that they are in the best interests of the children, and that it would be contrary to public policy, in fact, not to make them.

I certify that the preceding four (4) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli delivered on 21 January 2022.

Associate:

Dated:       21 January 2022