FAMILY COURT OF AUSTRALIA
Melson & Divjak [2021] FamCA 622
File number(s): MLC 6164 of 2018 Judgment of: MCEVOY J Date of judgment: 24 August 2021 Catchwords: FAMILY LAW – CHILDREN – Where orders were largely made by consent – Where the outstanding issues in dispute included minor differences as to the time the children would spend with the father, the changeover location, schooling for the children and overseas travel while COVID-19 restrictions remain – Where orders made substantially in the terms sought by the father. Legislation: Family Law Act 1975 (Cth) Cases cited: In the Marriage of Paisio & Paisio (1979) FLC 90-659
Koyroyshs & Koyroyshs [2020] FamCA 626
P & L [2006] FamCA 947
Quincy & Quincy [2021] FamCA 14
Sinclair & Sinclair [2020] FamCA 1054
Yung & Duan (No. 2) [2021] FamCA 428
Number of paragraphs: 36 Date of hearing: 17 - 19 August 2021 Place: Melbourne Counsel for the Applicant: Mr McIvor Solicitor for the Applicant: Berry Family Law Solicitor for the Respondent: Mr Rothschild ORDERS
MLC6164/2018 BETWEEN: MR MELSON
Applicant
AND: MS DIVJAK
Respondent
ORDER MADE BY:
MCEVOY J
DATE OF ORDER:
19 AUGUST 2021
BY CONSENT IT IS ORDERED THAT:
1.The parties have equal shared parental responsibility for the children X and Y both born … 2017 ("the children").
2.The children live with the mother.
3.The children spend time with the Father as follows:
(a)Until the second Friday of the Victorian school term one in 2022, in a fortnightly cycle as follows:
(i)Commencing 27 August 2021 in week one of the fortnightly cycle each alternate weekend from 6:00pm on Friday or one hour prior to the Jewish Sabbath (whichever is the earlier) until 5:00pm on Sunday.
(ii)In week two of the fortnightly cycle (commencing 19 August 2021) from 6:00pm Thursday until 5.00pm or one hour prior to the Jewish Sabbath (whichever is earlier) Friday; and
BY THE COURT IT IS ORDERED THAT:
(b)From the second Friday of the Victorian school term one in 2022; in a fortnightly cycle as follows:
(i)In week one of the fortnightly cycle (commencing on the second Friday of term one) from 3:30pm on Friday (or if a school day, the conclusion of the school day) until 9:00am Monday (or if a school day, the commencement of school); and
(ii)In week two of the fortnightly cycle from conclusion of school or if a non-school day 6.00pm on Thursday (calculated as having commencing on the third Thursday of term one) until conclusion of school or otherwise, if a non school day one hour prior to the Jewish Sabbath or 5pm (whichever is earlier) on Friday.
(c)From the second Thursday of the Victorian school term one in 2023; in a fortnightly cycle as follows:
(i)In week one of the fortnightly cycle (commencing on the second Thursday of term one) from 3:30pm on Thursday (or if a school day, the conclusion of the school day) until 9:00am Monday (or if a school day, the commencement of school); and
(ii)In week two of the…
Continue reading Melson & Divjak
Sign in free to access the full text
- AGLC
- Melson & Divjak [2021] FamCA 622
- Case
- [2021] FamCA 622
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific arrangements for the children's time with each parent, including the timing and duration of these periods, particularly in relation to school holidays and religious festivals. Further issues for determination included the location and method of changeovers between parents, the schooling arrangements for the children, and the conditions under which overseas travel might be permitted, especially in light of ongoing COVID-19 related government restrictions. The court also considered a dispute regarding a non-denigration order and the specific wording of that order.
McEvoy J's reasoning focused on the best interests of the children. The court found the father's proposed changeover arrangements to be more consistent with the children's best interests, as they minimised the need for the children to walk considerable distances and clearly delineated the responsibilities of each parent for drop-off and pick-up. Regarding schooling, the court noted a lack of evidence presented by the mother for her specific proposal and, in light of the parties' agreement for equal shared parental responsibility, declined to make orders mandating attendance at a particular school or requiring the father to facilitate language classes. However, an order was made for the parties to use their best endeavours to agree on schooling arrangements. The court also addressed the non-denigration order, clarifying that it applied only to the mother and her family, and found no difficulty with the father's proposed wording.
The court made orders by consent covering a comprehensive range of parenting matters, including equal shared parental responsibility, specific time arrangements for the children with both parents, provisions for religious festivals, school holidays, changeover locations, communication protocols, and health-related matters. The court also issued injunctions restraining the removal of the children from Australia and requested their names be placed on the Family Law (Airport) Watchlist. All previous parenting orders and extant applications were dismissed.
Orders
Orders of the court
MLC6164/2018
BETWEEN:
MR MELSON
Applicant
AND:
MS DIVJAK
Respondent
ORDER MADE BY:
MCEVOY J
DATE OF ORDER:
19 AUGUST 2021
BY CONSENT IT IS ORDERED THAT:
1. The parties have equal shared parental responsibility for the children X and Y both born … 2017 ("the children").
2. The children live with the mother.
3. The children spend time with the Father as follows:
(a) Until the second Friday of the Victorian school term one in 2022, in a fortnightly cycle as follows:
(i) Commencing 27 August 2021 in week one of the fortnightly cycle each alternate weekend from 6:00pm on Friday or one hour prior to the Jewish Sabbath (whichever is the earlier) until 5:00pm on Sunday.
(ii) In week two of the fortnightly cycle (commencing 19 August 2021) from 6:00pm Thursday until 5.00pm or one hour prior to the Jewish Sabbath (whichever is earlier) Friday; and
BY THE COURT IT IS ORDERED THAT:
(b) From the second Friday of the Victorian school term one in 2022; in a fortnightly cycle as follows:
(i) In week one of the fortnightly cycle (commencing on the second Friday of term one) from 3:30pm on Friday (or if a school day, the conclusion of the school day) until 9:00am Monday (or if a school day, the commencement of school); and
(ii) In week two of the fortnightly cycle from conclusion of school or if a non-school day 6.00pm on Thursday (calculated as having commencing on the third Thursday of term one) until conclusion of school or otherwise, if a non school day one hour prior to the Jewish Sabbath or 5pm (whichever is earlier) on Friday.
(c) From the second Thursday of the Victorian school term one in 2023; in a fortnightly cycle as follows:
(i) In week one of the fortnightly cycle (commencing on the second Thursday of term one) from 3:30pm on Thursday (or if a school day, the conclusion of the school day) until 9:00am Monday (or if a school day, the commencement of school); and
(ii) In week two of the fortnightly cycle from 3:30pm on Thursday (calculated as commencing on the third Thursday of term one) (or if a school day, the conclusion of school) until conclusion of school or otherwise if a non-school day one hour prior to to the Jewish Sabbath or 5pm, whichever is earlier on Friday.
Jewish religious holidays and special occasions
4. That notwithstanding any of the provisions of Orders 3 and 6 hereof, the children spend time with the Father as follows:
(a) In each year, during the following Jewish religious festivals, as follows:
(i) Pesach (Passover), for two nights;
(ii) Shavuot (Pentecost), for two nights;
(iii) Sukkot (Tabernacles), for two nights;
(iv) Simchat Torah, for one night;
(v) Purim, for one night; and
(vi) Rosh Hashana (New Year), for two nights;
Such time to commence from 5:00pm, or 1 hour prior to the commencement of the festival, (whichever time is the earlier) from the eve of the first day of the festival and extending until 6:00pm, or 30 minutes after the conclusion of the festival (whichever is the later), which time shall be additional to the provisions set out in Order 3.
For the avoidance of doubt should any of the Jewish religious days fall on a day when the Father shall be spending time with the children pursuant to Order 3, the time pursuant to Order 3 shall not be suspended.
BY CONSENT IT IS FURTHER ORDERED THAT:
(b) On the Father's birthday (…) from 6.00pm (or the conclusion of school/kindergarten if a school/kindergarten day) on … until 9.00pm (or one hour prior to the Jewish Sabbath should the birthday fall on a Friday) on ….
(c) On the children’s birthday (…); if the children are in the mother’s care, from 4:30pm until 7:30pm save that if the children shall be spending time with the Father then his time shall be suspended from 4:30pm until 7:30pm.
(d) On Father's Day in each year from 6:00pm on the eve of Father's Day until 7:30pm on Father's Day, save that once the children shall commence school then until 9:00am on Monday (or if a school day, the commencement of school).
5. That notwithstanding any of the provisions in Orders 3 and 6 hereof, the children spend time with the Mother as follows:
(a) On the Mother's birthday (…) from 6.00pm or the conclusion of school if it is a school day on … to 9.00pm on …;
(b) On Mother's Day in each year from 6:00pm on the eve of Mother's Day until 7:30pm on the day of Mother's Day save that once the children shall commence school then until 9:00am on Monday (or if it is a school day, the commencement of school).
BY THE COURT IT IS FURTHER ORDERED THAT:
(c) In each year, for the following Orthodox Christian religious festivals;
(i) Christmas Eve on 6 January;
(ii) Christmas Day on 7 and 8 January;
(iii) St Stephen’s day;
(iv) 13 to 14 January; Orthodox New Year;
(v) The Easter Weekend, from 10:00 am in the morning on Good Friday until 6:00 pm in the evening on Easter Monday; and
(vi) St Georges’ Day.
School holidays
6. That the children spend time with the father during school holidays as follows:
(a) During the children's first year of school (Prep) the children spend one block of 5 nights with the Father during each of term one, term two and term three school holidays from 5:00pm on the first Tuesday until 5:00pm on the following Sunday;
BY CONSENT IT IS FURTHER ORDERED THAT:
(b) During the first summer school holidays (conclusion of Prep) from 4:00pm on the first Friday of the school holidays until 4:00pm on the next following Wednesday and each alternate week thereafter (and for the avoidance of doubt, the first Friday of the school holidays shall be regarded as the first day of the school holidays).
(c) Commencing from the beginning of grade one and each year thereafter, during each of the term one, term two and term three school holidays, from the conclusion of school on Friday of the last week of term until 6:00pm (or 30 minutes after the conclusion of the Sabbath, whichever is the later) on the mid Saturday.
(d) Commencing from the conclusion of the grade one school year, during the summer school holidays from 4:00pm on the first Friday of the school holidays in even numbered years and from 4.00pm on the second Friday in odd numbered years until 4:00pm on the next following Friday and each alternate week thereafter (and for the avoidance of doubt, the first Friday of the school holidays shall be regarded as the first day of the school holidays); and
BY THE COURT IT IS FURTHER ORDERED THAT:
(e) Commencing from the conclusion of the grade three school year and thereafter, for half of the long summer holidays each year, as agreed and failing agreement, the second half, from 4.00pm 11 January to 4.00pm 27 January.
BY CONSENT IT IS FURTHER ORDERED THAT:
7. For avoidance of doubt the time pursuant to Order 3 shall be suspended during all Term holidays and shall recommence at the beginning of the following term as if the term holidays had not occurred.
8. The children spend such other time with the father as the parties may agree.
Changeover
9. That changeover take place as follows:
(a) On a school day when the children shall be attending at school, at the children's school.
BY THE COURT IT IS FURTHER ORDERED THAT:
(b) If not a school day or in the event that the children shall not be attending school on that day, then:
(i) At the commencement of time with the father changeover shall take place at the 7 Eleven store at B Street, Suburb C, or the father’s residence, at the mother’s election; and
(ii) At the conclusion of time with the father changeover shall take place at a suitable service station proximate to the mother’s residence or at the mother’s residence, at her election.
BY CONSENT IT IS FURTHER ORDERED THAT:
(c) For the avoidance of doubt, the expression "school" includes crèche and kindergarten and the expression "if not a school day" means a day that the school was closed for students or a day that the children or either of them shall not be at school.
Communication
10. The parties may communicate with each other on issues relating to the children via SMS, WhatsApp, Skype, email, phone or other agreed electronic medium.
General
11. In the event that either party withholds the children or any one of them from the other by reason of ill health, the first party must provide a doctor's certificate to the other party within 24 hours specifying that the child or children were too ill to spend time with the other party and the medical reason for that opinion; and in the event that such doctor's certificate is not provided, the other party will have make up time equal to the time forgone on the weekend or day(s) of their choice, such choice to be notified to the first party within 2 days of the weekend or day(s) of the other party’s choice.
12. Each party do all acts and things and sign all such documents as may be required to keep the other advised of any medical or health issues relating to the children or any one of them including but not limited to providing particulars of any medication that has been prescribed to the children and ensuring that the medication is provided to the other party at changeover, together with the name and contact details of the treating doctor.
13. In the event that the children or any one of them has any significant injury, medical condition, serious non-routine medical issue or is hospitalised, the parent with whom the children are with at the time must, as soon as practicable, notify the other parent and provide details of the medical issue, the name of the children's treating medical practitioner, dental or other health specialist and each party is permitted to liaise directly with such treating medical practitioner, dental or other health specialist in relation to the children’s health and welfare.
14. In the event of a medical emergency where one party is not contactable, the parent with whom the children are with at the time may give permission for the children to receive the recommended medical treatment and must notify the other parent as soon as practicable.
15. The parties must advise the other as to details of the children’s treating medical, dental and/or allied health professionals including the name and contact details so that each party may liaise with the same and obtain copies of reports at their own expense.
16. In the event that any party makes an appointment for the children to see or consult with a medical, dental or allied health professional, then the other party must be provided with particulars of that appointment as soon as practicable so as to allow the other party to attend.
17. Each party, by themselves, their servants and agents is restrained from taking the children to any psychologist, counsellor, therapist or similar practitioner without the written consent of the other party or order of a Court save that the parties may comply with any reasonable directions by the children's general medical practitioners or school to be referred to such professional and must inform the other party of any such appointment as soon as practicable.
18. Each party be at liberty to provide a copy of these orders to:
(a) The children's medical practitioners and/or health professionals;
(b) Such school or kindergarten or crèche as the children shall attend.
19. Each party be permitted to:
(a) Obtain copies of the children's medical, counselling, dental and health records;
(b) Consult with each of the children’s medical, consulting, dental and health practitioners.
20. The parties by themselves, their servants and agents be restrained from enrolling the children in any extracurricular activities that shall impinge or infringe upon the other party's time with the children without the written consent of the other party.
21. Should the children have any birthday party invitation or similar where such party or event shall take place when the children shall be living with the other party, then the party in receipt of the invitation must provide a copy of the invitation to the other party as soon as practicable and advise the other party in the event that the invitation shall not be in writing and the parent caring for the children shall facilitate the children attending such party or event.
22. Each party must notify the other party of the children's crèche, play-group, kindergarten, school, sporting and extracurricular activities.
23. Each party be permitted to obtain copies of all crèche, kindergarten and school notices or other reports and any other communication from the children’s crèche, kindergarten or school and shall have full access to any portal.
24. Each party be permitted to attend any of the children's sporting events, crèche, kindergarten and school events, parent teacher interviews or similar save that each party may arrange their own separate parent teacher interview.
BY THE COURT IT IS FURTHER ORDERED THAT:
25. The parties by themselves, their servants and agents be restrained from denigrating or insulting the other party or the other party's family (including but not limited to referring to the father as “F”) or permitting any person to denigrate or insult the other party or the other party's family in the sight, presence or hearing of the children including by social media, text message or other communication that the children may be able to access.
BY CONSENT IT IS FURTHER ORDERED THAT:
26. Each party must within 7 days advise the other of their telephone number, email address or residential address (save that the mother may advise the suburb rather than the particulars of her address) and must within 24 hours of such change advise particulars of that change.
27. Each of the parties must encourage the children to develop a relationship with the other party independent of how that party feels about the other party.
28. The parties be restrained from exposing the children to passive smoking, excessive alcohol use, substance abuse, violence or sexual activity.
29. Each party must return to the other party at the commencement of the next period any clothing, toys or other items purchased by the other party for the children unless otherwise advised in writing and for the avoidance of doubt the expression "in writing" includes email and text messages.
BY THE COURT IT IS FURTHER ORDERED THAT:
30. Further to Order 1, no later than 30 June 2022 the parties each advise the other of the school(s) that they propose the children attend in 2023 and thereafter they use their best endeavours to reach agreement as to which school the children shall be enrolled at.
Overseas Travel
31. The parties each have liberty to apply with respect to overseas travel with the children, provided that either:
(a) There are no extant Government Restrictions on International Travel associated with the COVID19 pandemic; or
(b) The party making such application has obtained all necessary Exemptions for such proposed travel.
32. Until further Order each of the mother MS DIVJAK born … 1977 and the father MR MELSON born … 1965, by themselves, their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal X and Y both born … 2017 ("the children") from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the children’s names on the Family Law (Airport) Watchlist in force at all points of arrival and departure from in the Commonwealth of Australia and maintain the children’s names on the Watchlist until the court orders their removal.
33. As soon as practicable the Court forward a copy of this Order to the Australian Federal Police.
BY CONSENT IT IS FURTHER ORDERED THAT:
34. All previous parenting orders be discharged.
BY THE COURT IT IS FURTHER ORDERED THAT:
35. All extant applications be dismissed.
36. The final day of hearing on 20 August 2021 be vacated.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
All things considered it would seem that there is at present a difficulty or a potential difficulty with changeover where it occurs on Friday afternoons, or on the occasion of Jewish religious feasts, and the children are not being collected from school, kindergarten or crèche. In my assessment the solution proposed by the father is more consistent with the best interests of these children than the alternative proposed by the mother because it provides a regime where the children are deposited closer to the father or indeed at his residence when time with him commences and minimises any requirement that they walk any considerable distance. It also places the obligation on the father to return the children either to the mother’s home directly, or to another service station which is proximate to her home if the mother wishes that to be the place of changeover. Insofar as the mother says that the father’s proposal involves the expenditure by her of greater sums on petrol, it is not at all clear to me on the existing evidence that this is so. For these reasons there will be orders in the terms sought by the father. Non-Denigration – calling the Father “F” (Order 25) The mother objected to the father’s non-denigration order in relation to the restraint on calling the father “F”, a word which the father maintains means “uncle”, rather than “papa” which he considers more suitable as the child’s father. The mother maintains that she is not able to control what the children call their father. Counsel for the father noted, correctly, that the restraint would only apply to the mother and her family. There is accordingly no difficulty with the father’s proposed non-denigration order. Schooling and language classes (Order 30 and Notation A) The mother sought an order that the children attend the local primary school closest to her home and an order that the children be allowed to attend weekend language classes, including that the father facilitate the attendance of the children at these classes when they are in his care. The mother’s solicitor conceded that there was no evidence before the Court about which local primary school the children should attend, or as to the details of the language classes. The proposal for the children to attend a particular primary school was apparently raised by the mother on the third day of the trial. Counsel for the father indicated that the father may be open to the children attending the local primary school, but said that he needed time to make enquiries and consider alternative schools. He also indicated that the father had no objection to the children attending language classes when they were in the mother’s care. In circumstances where there was an absence of evidence in relation to these matters, and where the parties had agreed to equal shared parental responsibility, it would not be appropriate to make orders requiring the father to take the children to language classes when they are in his care, or that the children should attend a particular school. There will, however, be an order in the terms sought by the father requiring the parties to use their best endeavours to come to a decision as to which school the children should attend in 2023, and a notation indicating that the father does not object to the children attending language classes when they are in the mother’s care. Travel (Orders 31-33)