Ibragimova & Pokorna
[2024] FedCFamC1F 914
•12 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ibragimova & Pokorna [2024] FedCFamC1F 914
File number(s): BRC 16577 of 2023 Judgment of: JARRETT J Date of judgment: 12 December 2024 Catchwords: FAMILY LAW – CHILDREN – Where the respondent sought to relocate the residence of the children interstate until further order – Where the respondent’s case was built on financial hardship – Where the respondent’s proposal lacked specificity and was not made out – Application in a Proceeding dismissed. Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: C and S [1998] FamCA 66
Marvel & Marvel (No.2) [2010] 43 FamLR 348
Morgan & Miles [2007] FamCA 1230
Division: Division 1 First Instance Number of paragraphs: 38 Date of hearing: 12 December 2024 Place: Brisbane Counsel for the Applicant: Mr Slade Jones Solicitors for the Applicant: Hede, Byrne & Hall Solicitors for the Respondent: Litigant in person Solicitors for the Independent Children’s Lawyer: Legal Aid Queensland ORDERS
BRC 16577 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR IBRAGIMOVA
Applicant
AND: MS POKORNA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
12 DECEMBER 2024
THE COURT ORDERS THAT:
1.From the 15 December 2024, order 2 of the orders made 5 March 2024 be discharged.
2.The respondent is restrained and an injunction hereby issues restraining the respondent from relocating the children’s residence more than 140km from Brisbane City Hall.
3.The children spend time with the applicant at all times as agreed between the applicant and the respondent in writing and failing agreement:
(a)every second Saturday and Sunday between 9:00am and 4:00pm on each day; and
(b)commencing in the December 2024 school holidays, from 9:00am until 4:00pm for up to three consecutive days during each school holiday period, with such time to commence on the Sunday immediately following the end of the school term.
4.In relation to the time the children spend with the applicant pursuant to these orders:
(a)time will be supervised by the paternal grandmother or such other person or organisation as agreed between the parties in writing;
(b)the applicant will have leave from his employment;
(c)changeover will occur at the Town B Community Venue unless otherwise agreed between the parties in writing; and
(d)the applicant will not attend any C Organisation meetings or music gigs at licensed venues with the children.
5.Leave is given to the parties to provide to their treating health professionals including their psychologists a copy of the affidavit of Ms D filed 27 August 2024 and affidavit of Dr E filed on 16 October 2024.
THE COURT FURTHER ORDERS THAT:
6.The respondent file and serve an amended response by 4:00pm on 26 December 2024 particularising the orders she seeks the Court to make on a final basis.
7.The application be adjourned to 10:00am on 10 March 2025 for final hearing (with an estimated hearing time of five (5) days) in the Federal Circuit and Family Court of Australia (Division 1) sitting at Brisbane.
8.In the event of any applicable filing, setting down, hearing, mediation or enforcement fee or fees (“the fees”) not having been reduced on the basis of financial hardship, the party responsible for the payment of the fees or any of them, pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2022.
9.Each party file and serve on each other party no later than 4:00pm on 10 February 2025:
(a)one (1) consolidated affidavit setting all evidence in chief given by that party; and
(b)one (1) consolidated affidavit of each witness intended to be relied upon at trial setting out all evidence in chief of that witness.
10.Each party file and serve on each other party no later than 4:00pm on 24 February 2025, a case outline setting out:
(a)a precise minute of the final orders sought;
(b)a relevant chronology;
(c)a list of affidavits intended to be relied upon at trial; and
(d)a list of the issues arising in the application (both factual and legal) by reference to s 60CC of the Family Law Act 1975 (Cth) and for each issue so identified a reference to the evidence (in each affidavit relied upon by that party) upon which that party intends to rely in respect of that issue.
11.No party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.
12.In the event that either party wishes to cross examine any author of a report prepared pursuant to s 62G(2) of the Family Law Act 1975 (Cth) at the final hearing, that party shall provide written notice to the report writer of such intention no later than fourteen (14) days prior to the commencement of the hearing.
13.In the event that no such notice is given to the report writer in accordance with the previous order and the report writer is otherwise unavailable, the report authored by that person will be admitted into evidence without cross examination unless the trial judge otherwise orders.
IT IS NOTED:
A.In the event that neither party files the affidavits of evidence in chief upon which they wish to rely at the trial in accordance with these directions, it is likely that the trial dates will be vacated with an order requiring the parties to apply for reinstatement of the proceedings within three months of such an order.
B.Requests for parties or witnesses to appear by electronic means must be made in accordance with rule 15.16 (and rule 15.17 if applicable) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Failure to comply each of the provisions of that rule and its sub-rule will likely result in the refusal of any such request.
C.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) 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 “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these orders.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JARRETT J:
These proceedings concern parenting orders for two children: X and Y, 10 and eight years of age, respectively. The parties have litigated about their arrangements before. Proceedings were first commenced in January 2020 by the children’s mother, although they were resolved by consent orders made on 29 September 2020 in the Federal Circuit Court of Australia, as it was then known. By those orders, the children live with the respondent to the present proceedings, their mother, and spend time with the applicant to the present proceedings, their father, every second weekend during school term and for block periods during the school holidays.
The present proceedings were commenced in December 2023 by the applicant as a result of the respondent unilaterally stopping time between the children and him. According to his evidence, that was not the first time she had done that, such episodes having occurred in mid and late 2017 and then again in 2019. When he commenced the present proceedings, the children had not spent time with him since September 2023.
On a final basis, he seeks orders that the children live with him and spend time with the respondent. The respondent’s case is that the children face risks of harm in the applicant’s care. The risks are said to comprise a risk of sexual abuse by others whilst in the applicant’s care (rather than from the applicant himself) and a risk to their psychological welfare because the applicant takes the children to his C Organisation meetings and performances at local hotels. She also says that they are at risk of harm from him because he does not accept that they suffer from many of the ailments with which, she says, the children have been diagnosed.
The respondent has not particularised the orders that she says should be made on a final basis at any stage of these proceedings. That is despite saying that she would do so upon receipt of the single expert’s reports. They have been in her hands for months now and there is still no proper appreciation of what orders she asks for on a final basis. It is a mystery.
On 5 March this year, a senior judicial registrar ordered that the time-spending arrangements between the children and the applicant, pursuant to the 2020 final orders, be suspended. In their stead interim orders were made for the children to spend supervised time with the applicant at a professional supervision centre for not less than one two-hour visit each alternate weekend.
The children and I have the benefit of an independent children’s lawyer. The independent children’s lawyer has filed a case outline with some proposed orders. Further, there has been a report prepared by a family consultant, Ms D, and a forensic psychiatrist, Dr E.
The application comes before me today upon the application of the respondent for interim orders permitting her to live with the children in City F, Victoria. They presently reside with her in Suburb G, in New South Wales. It might be, having regard to what has fallen from the bar table, that they live somewhere else, but I do not know.
The respondent proposes supervised time between the children and the applicant in Victoria on an ad hoc basis, at the applicant’s discretion. Interestingly, she proposes that the children spend school holiday time with the applicant, being three consecutive days from 9.00 am to 4.00 pm, supervised by the applicant’s mother, the paternal grandmother, in Region H.
The applicant opposes the orders permitting the children to live in City F and seeks that the present orders for the children to spend a time with him be discharged, and fresh orders made permitting time, supervised by his mother between he and the children.
The independent children’s lawyer also opposes the respondent’s application. She proposes orders which are not unlike those proposed by the applicant.
The respondent attempted to rely upon the following documents:
(a)three affidavits deposed by her and filed on 22 January 2024, 12 February 2024 and 20 November 2024;
(b)an affidavit of Ms J filed on 26 February 2024;
(c)an affidavit of Ms K filed on 26 February 2024; and
(d)affidavits of Mr L, Ms M, Mr N, and Ms O all filed on 20 November 2024.
I say that she attempted to rely on those documents because the two earlier affidavits deposed by her and filed in January and February 2024 were ultimately not relied upon. No leave was given for her to rely upon more than one affidavit deposed by her. She was also limited to the first 10 annexures in that affidavit, in accordance with the Rules.
The applicant relied upon his affidavit filed on 12 December 2024 and he provided a case outline, as did the respondent.
The applicant is 51 years of age. The respondent is 41 years of age. They married in early 2010 and separated in June 2017. Proceedings concerning the children were commenced in January 2020 and consent orders were made in September 2020 as I have already recorded. The present proceedings came about because the respondent, she says, was afeared that the child Y had reported sexual abuse to her and was at risk of sexual harm in the applicant’s care.
Trouble had been brewing well before that, however, when one has regard to the evidence concerning the children’s medical conditions. The respondent asserts that the children suffer from a number of medical conditions, and that they are under the care of a number of treating medical professionals. The applicant has his doubts about the need for all of that medical treatment and at points in these proceedings, has asserted that the respondent suffers herself from a mental health condition that might explain the over-medication of the children.
I indicated to the respondent at the commencement of these proceedings that, on an interim application like this where there are factual disputes between the parties, it is generally impossible and almost always inadvisable to attempt to determine where the true facts of the matter lie. That is a matter for a trial where the Court has the forensic advantage of seeing witnesses cross-examined and their evidence otherwise challenged so as to assist it to come to a conclusion about the true state of the facts. So, I do not intend to embark upon any attempt to disentangle the parties’ allegations, one against the other now, about matters concerning the medical treatment of the children.
What is clear enough for the purposes of this proceeding is that according to the forensic psychiatrist, Dr E, the respondent does not suffer from a mental health condition, although there are certain personality traits that have been identified by Dr E which might be informing some of her behaviour. According to Dr E’s evidence, a final determination about that depends upon the findings of facts that the Court might make in the course of the trial. Similarly, Dr E did not think that there was any mental health condition that afflicted the applicant, and to a lesser extent, there was some suggestion that there may be some personality traits that have informed some of his behaviour.
It is clear enough that what the respondent is now asking the Court to order will work a significant change for these children. It will change where they live and it will change the opportunity that they have to spend time with one of their parents – in this case, the applicant. At the moment that time is happening with predictable regularity and there is no suggestion that the time that has been occurring has not been beneficial for the children.
The difficulties in making an order now which essentially permits the children to live in City F with the respondent is highlighted in any number of cases where what is euphemistically described as “interim relocation”, is sought. It is as well to refer to at least one of those to remind myself and the parties about the difficulty involved in the exercise that I am asked to undertake. In Marvel & Marvel (No.2) [2010] 43 FamLR 348, the Court observed:
[122]In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123]Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Moreover, specifically in the context of interim relocation cases, in Morgan & Miles [2007] FamCA 1230, Boland J said this:
[88]It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.
Those comments appearing in C and S [1998] FamCA 66 are as follows:
In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.
Here, the respondent says that the orders that she seeks are in the best interest of the children because they will promote stability for the children. She is, she says, without accommodation now in Queensland or New South Wales, although she may be able to move to live with her grandmother who lives about an hour or so away from where she presently resides. On offer is rent-free accommodation in City F provided by her father. She says that that is a far more attractive proposition than living in Region P or in New South Wales in a place that she cannot afford to rent. She is, she says, unemployed, and has for some time been under financial strain. Her evidence suggests that she has received loans from other people – friends and family – although no such loans appear in her financial statement that she has filed for the purposes of these proceedings. That contradiction was not adequately explained.
For his part, the applicant says that the children’s interests are best promoted by them remaining where they can access regular and frequent time with him. It will not happen if they live in City F. For them to spend regular and frequent time with the applicant if they were living in City F, it will require him to travel there on a regular basis.
The proposals that have been put up by the respondent lack specificity, although she says that she would accommodate the applicant’s requests. I am not so sure that I have the confidence that she has in her ability to meet those requests or her willingness to do so in the event that the children lived in City F and the applicant made more demands of her than she anticipates.
In any event, I am not satisfied that the applicant has the wherewithal to make regular and frequent trips to City F for the purposes of spending time with the children in the long term. Instead, he says that he is able to pay to the respondent the sum of $800 per week to assist her with her financial capacity. He pays child support.
Much is made of the fact that he did fall into arrears at one point, but the evidence seems to suggest that the arrears were generated as a result of a reassessment, having regard to the amount of time that the children were spending in the respondent’s care, something which came about, ultimately as a result of her unilateral decision. That was confirmed, of course, subsequently by an order of the Senior Judicial Registrar based on the evidence that was before her then.
The evidence from the respondent is that rent for accommodation in the area in which she presently resides start at about $750 per week. The fact is, however, that she was residing in accommodation that she had been in for some time which she, herself, brought to an end. Her evidence is that it is presently being advertised for rental. I was taken to no evidence that suggests that that accommodation is no longer available for her to rent again. The amount that the applicant is offering to pay on a weekly basis would be sufficient to cover the rent on the property she presently occupies. In any event, as his evidence demonstrates, there are other places available for significantly less rent.
Ultimately, I am not satisfied that the respondent’s case built on financial hardship is made out. It might be that she has a shortfall of expenses over income on a weekly basis, but she is not without assistance and her own evidence demonstrates that in the last few months, she has been able to call on financial assistance from others. It has been provided to her when required. The proceedings have now been set down for trial to commence on 10 March 2025, and so the amount of time between now and then, in the scheme of things, is very short.
There is no reason to think that the arrangements that these children are used to, in terms of the regularity of time that they have been able to spend with the applicant, should be interrupted. The orders that the applicant proposes and the orders proposed by the independent children’s lawyer will see that regular time continue, albeit in a slightly different form. It would be supervised by the maternal grandmother.
In that sense, it is useful to record now that in her submissions, the respondent indicated that the orders sought by the independent children’s lawyer would be appropriate orders in the event she was not of the view that the children should relocate to City F. Those orders provide for the children to spend time with the applicant every second Saturday and Sunday between 9 am and 4 pm each day, and commencing in April 2024 school holidays, for four consecutive days during each of the school holidays. The respondent’s orders set out in her application in the proceeding, insofar as they deal with school holiday time, propose that the children would spend time with the applicant for three consecutive days, from 9 am to 4 pm supervised by the paternal grandmother. When I asked the respondent when that time should start, she indicated that the current school holidays that have either started or are about to start would be an appropriate time for the commencement of those orders.
I am not satisfied that it is in the best interest of these children for them to reside in City F until there as a trial of these proceedings. They should remain residing at a place where the regularity of time that has existed up till now can continue. That means that they should reside in Queensland or perhaps New South Wales, but it appropriate to limit, in terms of a geographical distance that the respondent can reside with the children, to the 140-kilometre limit that both the applicant and the independent children’s lawyer propose.
It seems to me that the best interests of these children are served by promoting the stability that comes from them continuing with the medical specialists and carers that they presently see, albeit perhaps with the change of school early next year. Whether there is a change of school or not is something that might well be the subject of discussion between the parties before the matter returns to court in March and it might be that having regard to the period of time before the next trial, the parties are able to reach an accommodation about that so as to limit the changes for the children.
But it seems that whatever order is made, whether it is one for them to reside in City F or one for them to continue to reside here, there will be changes for them and that will be something that is unavoidable. The issue really is reducing the number of those changes and an order which requires the respondent to reside with the children within 140 kilometres of the Brisbane GPO will reduce the number of changes for them until the Court is satisfied, having had the opportunity of properly considering all of the evidence, and deciding that it is ultimately in the best interest of these children for different orders to be made.
It might be the case, of course, that when the respondent files her amended response and sets out the orders that she seeks to be made on a final basis, it will not include any order for relocation. I do not know.
Another aspect of the matter which did not garner attention during the course of the argument, but which, in my view, is somewhat significant, is that at the time the recommendations were made by Ms D, there was no proposal by the respondent to relocate. Certainly, there was none recorded by Ms D and her recording of the respondent’s proposal, at that stage, carried with it the same ambivalence that her response to the applicant’s application initiating proceedings carries. That is to say, she was unable to articulate any final relief with any clarity or particularity. The only orders that she seems set on is that the children should live with her and that she have sole parental responsibility for them.
Given the short period of time between now and the next trial, I am satisfied that the orders proposed by the independent children’s lawyer are appropriate and in particular, those orders that appear under subheading “(B) in the event the respondent is injuncted from relocating more than 140 kilometres from Brisbane City Hall with the children”.
I decline to formally order that the applicant pay $800 per week to the respondent. I decline to make the order on the basis that the applicant has informed the court, by his counsel, that he intends to pay the respondent $800 per week, commencing immediately. As Mr Slade Jones says, in the event that he fails to make those payments, that will be taken into account at the end of the trial. He will be shown to be untrustworthy, effectively. The respondent says that she will need that, and in her submissions to me earlier today, she said that she did not trust him to do it. Well, at the end of the day, I have to make decisions about people’s parenting capacity. I have to make orders that are based on my assessments of those capacities. I can make orders until the cows come home, and if parties follow those orders, then all that really tells me is that they can follow orders. I am much more interested in making an assessment about a party’s capacity to make proper child-focused parenting decisions and that is best done without the requirement of an order forcing somebody to do something. The applicant has said he will do it. It is plainly in the best interest of these children that he does it and he does it promptly. Let us see how he goes.
As to the question of financial disclosure, I do not see that it has any relevance to these proceedings and I decline to make that order.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 28 April 2025
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