Felipe & Tsvetanov
[2024] FedCFamC1F 572
•27 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Felipe & Tsvetanov [2024] FedCFamC1F 572
File number(s): NCC 4114 of 2021 Judgment of: SMITH J Date of judgment: 27 August 2024 Catchwords: FAMILY LAW - PARENTING – Final Hearing – Oral decision – Matter substantially resolved – One issue remaining – Father’s international travel with child – Father’s alcohol misuse significant issue – Consent orders for ongoing hair follicle testing for father’s alcohol use – Mother seeks restriction on father’s international travel with child till age 10 – Father opposes restriction – Risk of alcohol misuse overseas prior to child having self-protective capacity outweighs benefits of travel – Child not to travel overseas with father till age 10.
FAMILY LAW - COSTS – ICL seeks half costs from each party with 4 years to pay – Each party to pay half of ICL’s costs within 4 years.
Legislation: Family Law Act 1975 (Cth) Pts VII, XI, XV, ss 60CC, 102NA, 117 Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Division: Division 1 First Instance Number of paragraphs: 44 Date of hearing: 26–27 August 2024 Place: Newcastle Counsel for the Applicant: Mr Graham Solicitor for the Applicant: Umbrella Legal Counsel for the Respondent: Mr Taylor Solicitor for the Respondent: Ann Legal Counsel for the Independent Children's Lawyer: Mr Willoughby Solicitor for the Independent Children's Lawyer: Foat Roberts Lawyers ORDERS
NCC 4114 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FELIPE
Applicant
AND: MR TSVETANOV
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
27 AUGUST 2024
THE COURT ORDERS THAT:
1.The child, X (born in 2019) be permitted to travel internationally with Mr Tsvetanov (born in 1979) (“the father”) from the time the child attains the age of 10 years.
2.Ms Felipe (born in 1982) (“the mother”) will pay all costs of obtaining the child’s passport and of its renewal, until the child reaches the age of 10.
3.From the age of 10 the mother and the father will equally bear the costs of obtaining or renewing the child’s passport.
4.The mother will hold the passport in her safekeeping and provide a copy of it to the father when he travels internationally with the child.
5.The mother shall pay the costs of the Independent Children’s Lawyer in the amount of $6,519.50, payable on or before 26 August 2028.
6.The father shall pay the costs of the Independent Children’s Lawyer in the amount of $6,519.50, payable on or before 26 August 2028.
THE COURT NOTES THAT:
A.These Orders are to be read in conjunction with the Consent Orders entered on 26 August 2024 which continue.
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 Felipe & Tsvetanov has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
SMITH J:
These are short oral reasons for decision in a final hearing concerning the appropriate final parenting orders to make for X (born in 2019) aged 5 (“the child”) pursuant to the Family Law Act 1975 (Cth) (“the Act”) as now in force.
The applicant mother is Ms Felipe (born in 1982) aged 42 (“the mother”) and the respondent father is Mr Tsvetanov (born in 1979) aged 45 (“the father”).
The matter was listed for a five-day final hearing which commenced before me yesterday, with all parties, including the Independent Children’s Lawyer (“ICL”), represented by counsel.
At the end of yesterday, the parties and the ICL, proposed a very sensible suite of orders which resolved 99% of the issues, and which I approved and entered.
However, there was one issue on which the parties were unable to agree.
That is the age from which the father should be able to travel with the child overseas. The mother says age 10. The father says immediately, or as refined in oral submissions from when the father has completed the regime of courses and hair follicle testing set out in the consent orders made yesterday.
If the mother succeeds, she says she will pay the whole cost of the child’s passport until he is age 10, otherwise it is agreed the cost of the child’s passport should be equally shared.
A very short trial of the matter has been conducted on that single issue before me today, together with the ICL’s application for costs.
The material before me for the mother is:
(1)Third Amended Initiating Application filed 5 July 2024;
(2)Trial Affidavit of Ms Felipe filed 5 July 2024;
(3)A series of CCTV videos of the father’s very concerning attendance at the mother’s house in 2021, which resulted in an ADVO against the father for the protection of the mother, child and maternal grandmother;
(4)Notice of Child Abuse, Family Violence and Risk filed 10 December 2021; and
(5)Submissions bundle and Case Outline filed 14 August 2024.
The material before me for the father is:
(1)Further Amended Response filed 5 July 2024;
(2)Affidavit of Mr Tsvetanov filed 5 July 2024;
(3)Affidavit of Ms B, the paternal grandmother, filed 5 July 2024;
(4)Affidavit of Dr C, an expert in Drug Testing, filed 24 March 2023;
(5)Affidavit of Dr C filed 2 February 2023;
(6)Notice of Child abuse, family violence or risk filed 25 January 2022; and
(7)Submissions bundle and Case Outline filed 23 August 2024.
The material before me for the ICL is:
(1)Single Expert Witness Family Report prepared by Mr D dated 10 April 2023;
(2)The ICL’s Case Outline dated 23 August 2024; and
(3)The ICL’s proposed minute of order as to costs.
The material before includes the parties’ proposed consent orders, all but two of which have been made.
No party was required for cross examination and the single issue was addressed by way of oral submissions.
For context, the single expert recorded, under the heading “Child Safety and Wellbeing” at [42] of his report that:
42. The mother reported her concerns about the wellbeing and safety of the child specifically, and almost exclusively, in relation to the father’s alcohol use and intoxication. …
There is significant evidence that the father poses a risk to the child by reason of his alcohol use. Properly understood, unless the father could persuade the Court that the laboratory erred in their measuring of a hair length sample as raised in his evidence, a difficult task indeed, even his own expert Dr C did not really support his case.
It was in this context that the father, very sensibly, conceded at trial, first sole parental responsibility to the mother rather than equal shared parental responsibility, and that the child should live primarily with the mother rather than as he proposed in a week about arrangement.
Significantly, the father also consented to a suite of orders, made yesterday afternoon, that require him to:
… undertake and complete an accredited Parenting after Separation Course and a Drug and Alcohol course conducted by either [E Service] or [F Service], or such other Australian Accredited Provider and provide the certificate of completion to the Mother.
The consent orders made yesterday afternoon also make provision for time between the father and the child to be relatively limited until the father complies with that order, and further imposes a regime of hair follicle testing for alcohol running until 31 December 2025, and which reduces his time with the child and introduces paid supervision if he produces a result at or above a set amount.
It is implicit in the consent orders that the father acknowledges that the evidence establishes a risk issue for his use of alcohol. That is not the same as acknowledging all of the alleged facts, but it is a significant and appropriate concession.
As I indicated to the parties, I would not have approved consent orders which did not provide for such a regime of testing without having a full trial.
The mother points to the expert report at [113]:
113. However, there are other aspects of this matter that do indeed highlight the report writer’s concerns regarding the father’s alcohol use. There are numerous 3rd party accounts of the father’s inappropriate use of alcohol, and of intoxication (in police EVENT notes, DUI convictions, and the father’s assertions that alcohol use is required in his work, when subpoena suggests it is not). It is concerning to the report writer that the father sees any self-imposed restrictions of his alcohol use as an unfair invasion of his rights rather than being a solution to the mother’s, or the Court’s concerns regarding his alcohol use.
I also note the expert’s recommendation at [142] that:
142. All time that the child spends with the father is subject to the Court’s satisfaction that the child’s time spent with the father will not subject to environments of alcohol abuse, or alcohol intoxication of the father.
That brings us to the issue in dispute.
The mother proposes an order, which was Order 26 of the minute of order handed to me yesterday, with the notification that unlike the other orders, it was not agreed to, stating:
26. The child be permitted to travel internationally with the Father from the time the child attains the age of 10 years.
The mother had also proposed Order 23, that the parties pay for the child’s passport equally but she hold the passport, however in submissions said that, to avoid arguments, she would agree to pay the passport cost solely until the child reaches age 10 if her Order 26 is made. The mother will hold the child’s passport either way.
The father’s submissions were that he had bent over backwards in agreeing to the consent orders to meet the mother’s concerns, and that he should be granted the same indulgence as the mother to travel internationally with the child. He has family in New Zealand, and in the United States of America, and would like to travel at least once to each place with the child before he turns 10. It was acknowledged that the orders he seeks should await until he has successfully complied with the testing regime, rather than commencing today as initially proposed.
The mother pointed to the risks of travelling outside Australia inherent in the father’s long term alcohol misuse. Her submission was that overseas there is no immediate and easily accessible support network, and that this risk should not be taken until an age when the child has sufficient self-protective capacity to seek help if the father abuses alcohol, which she submitted was 10. She also noted there is no evidence his relatives cannot travel to Australia.
The ICL takes no position on this issue.
Pursuant to s 60CC of the Act, and noting the objects, I am required to prioritise the child’s safety. The evidence of risks of alcohol misuse are significant. Whilst it is good that the father consented to these sensible consent orders, rather than putting everyone including himself through a full trial, the conditions around his alcohol use and testing were conditions that I would have required of any consent orders, and was the inevitable result based on the filed evidence before me on which I determine this issue.
The father’s agreement to these sensible orders on the first day of the final hearing does not satisfy me that he has developed great insight into the risks his alcohol consumption poses, which might have been the case had he had this epiphany before then.
On balance, I am satisfied that the benefits to the child of travel overseas with the father prior to age 10 are outweighed by the risks posed by the possibility that the father will misuse alcohol while travelling in a foreign country before the child is clearly old enough to telephone for help and exercise some basic self-protective capacity if need be. I accept 10 is a reasonable age for that.
Accordingly, I make orders as proposed by the mother at the original Order 26.
I also order, as she agreed, that the mother will pay all costs of obtaining the child’s passport and of renewal until the child reaches age 10, after which the parties will pay equally for any renewal.
The mother will hold the passport and give it to the father when he travels overseas with the child.
On costs, the ICL’s primary application is that each party bear the ICL’s costs equally in the sum of $6,519.50, payable within 4 years, i.e., by 26 August 2028. That is approximately $31 per week.
Both parties oppose the order but indicate they would consent to an order paying half of those costs, being $3,260, over the same time frame, i.e. $15 per week over 4 years.
The mother alleges hardship. She has paid $245,000 plus in legal fees. She works on an average wage. The child needs surgery soon and she will have a bill of $2,613.
The father incurred costs in a similar vicinity to the mother’s, and is still paying money off. He generally alleges financial hardship.
The ICL has not distinguished between the parties, despite the mother’ substantial success in these proceedings, noting that she made unilateral decisions throughout the proceedings which impacted the ICL’s costs.
Section 117 of the Act controls the issue. I note the observations of Justice Kirby in CDJ v VAJ (1998) 197 CLR 172. There is no legal aid. The father is on the s 102NA scheme, but that is no impediment.
The financial burden in providing a child representative should generally fall on the parents, and equally, when they can pay, and not the public purse. This is relevant to the capacity to maintain this essential service and provide it as broadly as required.
On balance I am satisfied, particularly noting the 4 year time allowed to pay, that it is appropriate to require both parents to pay the ICL’s costs in the sum of $6,519.50, payable on or before 26 August 2028, and I will enter an order accordingly.
I’m told there are no extant applications. Unless anyone wishes to raise any issue with me, I will remove the matter from the list of matters before the Court and adjourn.
Those are my reasons.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 27 August 2024
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