FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Matevosian & Bystrom [2024] FedCFamC1F 915
File number(s): BRC 12317 of 2021 Judgment of: JARRETT J Date of judgment: 23 April 2024 Catchwords: FAMILY LAW – PARENTING – Emotional and psychological risk of harm to children from parenting conflict – children living primarily in respondent’s household will promote their routine and stability – respondent to have sole parental responsibility Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CC, 61C, 61DA, 62G Cases cited: Carter & Wilson [2023] FedCFamC1A 9 Division: Division 1 First Instance Number of paragraphs: 62 Date of hearing: 22 & 23 April, 2024 Place: City F Counsel for the Applicant: Ms Gajic-Pavlica Solicitors for the Applicant: Morton & Morton Counsel for the Respondent: Ms Pendergast Solicitors for the Respondent: Carswell & Company Counsel for the Independent Children’s Lawyer: Ms Marsden Solicitors for the Independent Children’s Lawyer: Swanwick Murray Roche Lawyers ORDERS
BRC 12317 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MATEVOSIAN
Applicant
AND: MR BYSTROM
Respondent]
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
23 APRIL 2024
THE COURT ORDERS THAT:
1.The respondent have sole parental responsibility for the children X born 2016, W born 2017, Y born 2018 and Z born 2020.
2.The children live with the respondent.
3.The children spend time with the applicant as agreed between the parties in writing, and failing agreement as follows:
(a)each alternate weekend from after school or 3:00pm Friday until before school or 9:00am Monday;
(b)four nights in the Term 1, 2 and 3 school holidays, commencing at 9:00am on first day and concluding at 4:00pm on the last day, with this time to occur during the first week of the school holidays in even-numbered years, and in the second week in odd-
(c)numbered years, with the applicant to give to the respondent at least 28 days’ written notice of the dates she wishes the children to spend time with her;
(d)four nights each second week in the Christmas school holidays, commencing at 9:00am on the first day and concluding at 4:00pm on the last day, with this time to occur during the first, third and fifth weeks in even-numbered years and in the second, fourth and sixth weeks during odd-numbered years, with the applicant to given to the respondent at least 28 days’ written notice of the dates she wishes the children to spend time with her and providing that:
(i)the children are returned to the respondent at least two days prior to the commencement of the new school year; and
(ii)the children spend time period from 4:00pm Christmas Eve to 9:00am Boxing Day with the respondent in odd-numbered years;
(e)from 9:00am to 4:00pm on Mother’s Day if the children are not otherwise spending time with the applicant; and
(f)from 4:00pm on the day before Easter Sunday until 4:00pm on the day after Easter Sunday in even-numbered years, if the children are not otherwise spending time with the applicant.
4.On…
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CaseChat Overview and Summary
The key legal issues the court had to decide included the allocation of sole parental responsibility, the specific time-sharing arrangements, and additional directives to ensure the children's wellbeing. The court had to weigh the evidence presented regarding the children's needs, the parenting capacity of both parties, and the potential impact of the proposed arrangements on the children. The court also considered recommendations from the Independent Children's Lawyer, who advocated for the children's best interests.
The court, after careful consideration of the evidence and submissions, determined that sole parental responsibility should be awarded to Mr Bystrom. The children would primarily reside with him, which the court found would promote their routine and stability. The court devised a detailed time-sharing schedule for the children to spend time with Ms Matevosian, ensuring that the children’s routine was maintained and their emotional needs were met. The detailed schedule included specific provisions for school holidays, special occasions, and communication between the children and the non-residential parent. The court also included stringent conditions to ensure the children's safety and wellbeing, such as restrictions on alcohol and drug use, requirements for suitable transportation and accommodation, and directives for medical and counselling support. The court further mandated that both parents engage in ongoing counselling and refrain from engaging in any behaviours that could negatively impact the children.
The final orders of the court provided for Mr Bystrom to have sole parental responsibility for the children, who will primarily reside with him. The court set out a comprehensive schedule for the children’s time with Ms Matevosian, along with numerous conditions to safeguard the children's welfare, including provisions for communication, medical care, and restrictions on substance use.
Orders
Orders of the court
BRC 12317 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS MATEVOSIAN
Applicant
AND:
MR BYSTROM
Respondent]
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
23 APRIL 2024
THE COURT ORDERS THAT:
1. The respondent have sole parental responsibility for the children X born 2016, W born 2017, Y born 2018 and Z born 2020.
2. The children live with the respondent.
3. The children spend time with the applicant as agreed between the parties in writing, and failing agreement as follows:
(a) each alternate weekend from after school or 3:00pm Friday until before school or 9:00am Monday;
(b) four nights in the Term 1, 2 and 3 school holidays, commencing at 9:00am on first day and concluding at 4:00pm on the last day, with this time to occur during the first week of the school holidays in even-numbered years, and in the second week in odd-
(c) numbered years, with the applicant to give to the respondent at least 28 days’ written notice of the dates she wishes the children to spend time with her;
(d) four nights each second week in the Christmas school holidays, commencing at 9:00am on the first day and concluding at 4:00pm on the last day, with this time to occur during the first, third and fifth weeks in even-numbered years and in the second, fourth and sixth weeks during odd-numbered years, with the applicant to given to the respondent at least 28 days’ written notice of the dates she wishes the children to spend time with her and providing that:
(i) the children are returned to the respondent at least two days prior to the commencement of the new school year; and
(ii) the children spend time period from 4:00pm Christmas Eve to 9:00am Boxing Day with the respondent in odd-numbered years;
(e) from 9:00am to 4:00pm on Mother’s Day if the children are not otherwise spending time with the applicant; and
(f) from 4:00pm on the day before Easter Sunday until 4:00pm on the day after Easter Sunday in even-numbered years, if the children are not otherwise spending time with the applicant.
4. On each of the children’s birthdays, the children spend time with the party they are not otherwise spending time with as agreed between the parties in writing and failing agreement from after school until 6:00pm if on a school day, and from 1:00pm until 5:00pm if on a non-school day.
5. On each party’s birthday, if the children are not otherwise spending time with that party, the children spend time with that party as agreed between the parties in writing and failing agreement from after school until 6:00pm if on a school day, and from 1:00pm until 5:00pm if on a non-school day.
6. The children’s time with the applicant be suspended or not occur:
(a) from 9:00am until 4:00pm on Father’s Day;
(b) from 4:00pm on the day before Easter Sunday until 4:00pm on the day after Easter Sunday in odd-numbered years;
(c) for a period of two consecutive weeks during the Christmas school holidays to enable the children to holiday with the respondent provided:
(i) the respondent gives the applicant 60 days’ written notice of the period that the children will be spending time with him;
(ii) the period is not to include the period from 4:00pm Christmas Eve to 9:00am Boxing Day without the written agreement of the applicant; and
7. Changeovers shall occur at the children’s school if on a school day, and if not on a school day then at Town B’s.
8. The children’s time with the applicant be suspended if she does not have a suitable motor vehicle in which to transport the children ensuring that each child is transported in a car seat appropriate for the child’s age in accordance with the applicable legislation.
9. Should the applicant not have appropriate accommodation where the children are able to have their own beds in a room separate from any other adults in her household, the children’s overnight time with the applicant be suspended and they be limited to spending time with her each alternate weekend between 9:00am and 6:00pm on Saturday and Sunday.
10. The children will communicate with the party they are not otherwise spending time with by video communication each Tuesday between 5:00pm and 5:30pm or at such other time as agreed between the parties in writing, and for the purposes of such communication:
(a) the party the children are not otherwise spending time with shall be responsible for initiating the communication; and
(b) the party the children are spending time with will ensure that the children are available to receive the call and speak freely and without restriction to the other party.
11. In the event of childhood illness lasting more than 48 hours or requiring medical or allied health treatment or emergency, the party with whom the child or children are spending time shall contact the other party as soon as practicable to inform them and provide details of the treating medical or allied health practitioner or hospital.
12. These orders provide the necessary authority for both parties to obtain any information, document or report at the requesting party’s cost from any treating medical or allied health practitioner or hospital regarding the children’s welfare and development.
13. These orders provide the necessary authority for both parties to obtain any information, document, report or photographs, at the requesting party’s cost, from the children’s day care, school, vacation care, extracurricular activities provider or sporting bodies regarding the children’s welfare and development.
14. The respondent shall take all necessary steps to ensure the children’s regular and continued attendance at counselling at a counselling service appropriate to the needs of the children as recommended by the children’s treating counsellor and shall provide a copy of these orders to the counsellor.
15. The parties will each continue to engage in counselling as recommended by their counsellor and shall continue in their attendance until such time as their counsellor provides written confirmation that their attendance is no longer required.
16. The parties shall communicate with each other via email communication except in the case of urgent matters in which telephone call, social media, or text message as appropriate will be used.
17. Each of the parties, their servants and agents be hereby restrained by injunction from denigrating the other party or their family and from discussing any issue in dispute between the parties with or in the presence or hearing of the children and from permitting any other person to do so.
18. Neither party shall drink alcohol in excess of the legal driving limit when the children are in their respective care or for 12 hours prior to the children coming into their care or allow the children to be in the presence of any person who is excessively affected by alcohol.
19. Neither parent use illicit or non-prescription drugs at any time the children are in their care or for 48 hours prior to the children coming into their care or allow the children to be in the presence of any person who is using illicit or non-prescription drugs or who reasonably appears to be affected by illicit or non-prescription drugs.
20. Unless otherwise agreed by the parties in writing and notwithstanding that the respondent has sole parental responsibility, the children remain at their current state school for the duration of their primary schooling.
21. The respondent shall provide to the applicant all necessary medications prescribed for the children whilst the children are in the applicant’s care and the applicant shall ensure that the children are given all medications prescribed to them and return any excess medications to the respondent at the conclusion of the children’s time with her.
22. The applicant is discharged from her undertaking filed 9 August, 2023.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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