Melson & Divjak

Case [2022] FedCFamC1F 945

Federal Circuit and Family Court of Australia

(DIVISION 1)

Melson & Divjak [2022] FedCFamC1F 945

File number: MLC 6164 of 2018
Judgment of: CARTER J
Date of judgment: 2 December 2022
Catchwords: FAMILY LAW – CHILDREN – Rice & Asplund – where there has been a sufficient change in circumstances since previous final orders were made – allocation of parental responsibility – best interests of the children – where the children have a close and loving relationship with both parents – where the mother is unable to prioritise the children’s welfare over her hostility towards the father – where the mother presents a risk of emotional harm to the children –where the mother raises sexual abuse allegations against the father but asserts the father does not present an unacceptable risk – where the mother fails to promote a meaningful relationship between the father and children – where the parties are unable to promote a positive parenting relationship – whether the children should be permitted to travel overseas. 
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA, 67ZC

Cases cited:

AMS v AIF [1999] HCA 26

Oberlin & Infeld [2021] FamCAFC 66

Rice & Asplund (1979) FLC90-725  
Division: Division 1 First Instance
Number of paragraphs: 268
Date of last submissions: 8 September 2022
Date of hearing: 5 – 8 September 2022
Place: Melbourne
Counsel for the Applicant: Mr Peter Kistler
Solicitor for the Applicant: Pentana Stanton Lawyers
Counsel for the Respondent: Mr Rory McIvor
Solicitor for the Respondent: Berry Family Law
Counsel for the Independent Children's Lawyer: Mr Doug McLeod
Solicitor for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS

MLC 6164 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS DIVJAK

Applicant
AND:

MR MELSON

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

CARTER J

DATE OF ORDER:

2 December 2022

Amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 8 December 2022

THE COURT ORDERS THAT:

1.All prior parenting orders be discharged.

Parental Responsibility

2.The father have sole parental responsibility regarding the health and education of X and Y born 2017 (“the children”).

3.The father forthwith notify the mother in writing of any decision he makes in the exercise of his sole parental responsibility for the children’s health and education.

4.The parties otherwise have equal shared parental responsibility for the children.

Living Arrangements

5.The children live with the father.

6.For a period of not less than 12 weeks from the date of these orders, the children shall spend time with the mother for up to two hours, each alternate week, with such time to be professionally supervised by an agreed supervisor, and failing agreement, as nominated by the Independent Children’s Lawyer, with the mother to meet the costs of such supervision. Changeovers to take place at times, and places and in a manner as is directed by the supervisor.

7.Thereafter, and provided the mother has…

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AGLC
Melson & Divjak [2022] FedCFamC1F 945
Case
[2022] FedCFamC1F 945
Decision Date

CaseChat Overview and Summary

The case of Melson & Divjak involved the father, supported by the Independent Children's Lawyer, seeking primary care of the children, along with professionally supervised visitation for the mother. The children, born in 2017, have been primarily cared for by their mother and have not re-partnered since the parents' separation in 2018. The dispute arose from the mother's concerns about the children's safety in the father's care, which she used to justify withholding the children from spending time with their father. The father sought to address these issues and ensure the children's well-being and development, particularly in terms of their language and social skills.

The legal issues before the court involved determining whether the changed circumstances since the 2021 final orders warranted a new inquiry into the children's care and whether the father should be granted primary care. The court had to consider the parents' capacity to meet the children's needs, the impact of separation from either parent, and the practical difficulties or expenses associated with the children spending time with each parent. The court also needed to weigh the mother's allegations against the father against the evidence of the father's involvement and commitment to the children's welfare.

In its reasoning, the court found that the mother's allegations of abuse and neglect were not substantiated and that the father had been significantly involved in the children's care. The court was satisfied that the father, with the support of his family, would ensure the children were emotionally well-supported during the transition to his care. The court noted that the children would benefit from starting kindergarten and later integrating into school, which would provide further support and stability. The court concluded that the 2021 final orders, which provided for the children to spend substantial time with their father, should be reinstated, as they offered an effective stepping stone for the transition.

The court ordered that the 2021 final orders be reinstated, providing for the children to spend three nights on alternate weekends with their father and an evening in the other week. This arrangement was deemed to provide an effective stepping stone for the children to transition into their father's care.

Orders

Orders of the court

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Background

Background to the litigation

The father, with the support of the Independent Children’s Lawyer sought that the children be placed in his primary care, and that for a period the mother’s time be professionally supervised.Background and procedural history The mother is 45 years old and lives with the children in the Suburb R area. She was born in Country S. She became an Australian citizen in around 2009. She is employed as a professional and is enrolled as a student but is currently not actively studying. The mother has not re-partnered. The mother has no family support in Australia, however has received occasional support from the local church and community. The father is 57 years old. He was born in Country T. The father lives in an apartment in Suburb U, owned by his sister Ms D. However, when the children are in his care, he resides in Suburb V with the paternal grandmother, Ms G, the paternal aunt, and his adult son of a previous relationship, Mr W (“Mr W”) who is 23 years old. The father has not re-partnered. He is employed as a manager at his sister’s company. The children are in good health and according to the parties, are trilingual, speaking English, Country O and Country AA languages. The father said the children understand limited Country AA language as it is the language he speaks with the paternal grandmother and paternal aunt. The children speak Country O language to the mother which is her native language. It is, in my view, quite regrettable that the parties had been unable to reach an agreement to ensure the children commenced pre-school this year. They are due to begin their primary education in 2023. The parties have now agreed the children will commence at BB Pre-school to commence in 2022. It is hoped that their attendance at pre-school will assist the children with their language and social skills which the father, Child Protection and the Family Report writer have all identified as under-developed. The parties met in late 2015. They do not agree as to when they commenced living together, with the mother asserting their cohabitation began sometime in 2016 and the father in early 2017. Nothing, in my view, turns on those dates. The children were born in 2017. It is common ground that shortly following the children’s birth, the parties were living together. The parties separated in 2018. The mother obtained an Intervention Order naming herself and the children as affected family members. That was made final in late 2018 for two years. Following separation, the mother declined to make the children available to spend time with the father. The father initiated family law proceedings on 4 June 2018. In the course of those proceedings, the mother made a number of allegations against the father, asserting that the children were at risk in his care. She did not formally make any allegations of sexual abuse perpetrated by him on the children. Orders were initially made for the father to have supervised, day time visits. The reports of the supervisors were very positive regarding the father’s interactions with the children. Further orders were made in February 2020 that further progressed the children’s time with him to three nights and a full day each alternate week.

Evidence

Evidence Before The Court

It is abundantly clear these are significant and material changes to the circumstances that existed at the time the 2021 final orders were made. As indicated, I am readily satisfied those changed circumstances and events are sufficient to provoke a new inquiry. The evidence Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities. It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it. As I have already indicated, the trial proceeded in person. At the final hearing the mother was assisted by a Country O language interpreter. The mother answered all questions in English and occasionally used the assistance of the interpreter to clarify any questions or words she was unsure of. The mother relied on two affidavits filed on her behalf of 3 September 2022. The longer of those was a heavily redacted version of her first trial affidavit that had been filed on 3 August 2022. The father objected to the mother being permitted to rely on the shorter of those affidavits. I determined at the outset of the trial that the mother could rely on that affidavit. The father relied on his affidavit filed 11 August 2022. He also relied on affidavits from his sister, Ms D, and his son Mr W filed on 11 August 2022. Their evidence was not subject to challenge. The Mother As observed, the mother’s case is quite perplexing. In the previous proceedings, it is apparent the mother made various allegations regarding the children’s safety in the father’s care. Those complaints by her were used to justify her decision, at various times to suspend the children’s contact with their father. Initially following the parties’ separation, the mother withheld the children from spending time with their father. She withheld them again in early 2020, following orders being made increasing the children’s time with their father. Time then did not occur for approximately four months and the children were restricted to spending time with their father via video conferencing. The mother asserted inter alia, that the health of the father and his mother was poor and prevented them from providing a safe environment. Time was reinstated in July 2020, although that was not without issue. I note that at interview in 2020 with Ms E, the mother expressed disappointment that the children’s time with their father had been reinstated despite the safety concerns the mother had raised. Despite the allegations as to abuse and neglect made by the mother, the 2021 final orders which provided for the children to spend substantial and significant time with their father were largely made by consent. Fairly promptly after those orders were made, the mother again raised serious concerns about physical and sexual abuse, and risks to the children in the father’s household. Once again the mother withheld the children.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Whilst the mother implied the father should be paying more for the support of the children than he is assessed to pay, there was no focus on this issue at trial. There was no meaningful evidence adduced to support a finding that either parent is not fulfilling their obligations to maintain the children.The likely effect of a change in the children’s circumstances, including the likely effect of a separation from a parent or other significant persons in their lives The children have been primarily cared for by their mother throughout their lives. However, I do not agree with the mother’s position that moving the children into the father’s primary care would cause the children “permanent psychological damage” and have a “life-long negative impact” on them. Certainly I accept that moving into their father’s primary care would be a significant – and challenging – change for them. However, the father has also been significantly involved in their care, with orders providing for the children to spend significant and substantial time at various times, although that has not been without interruption. As Ms E articulated, the children would find the transition difficult. Nevertheless, I am satisfied that the father, with the support of his family, will ensure the children are emotionally well supported to manage the transition into his care. He impressed as an attuned parent, ready and willing to engage professional supports if needed, to assist the children. Ms E said that the children now starting kindergarten will provide an important support network for them. She said next year, they would then be integrated into school, with peer groups. This would provide further supports and stability for the children. I note that at the conclusion of the hearing before me, the 2021 final orders were to be reinstated. Those orders provide for the children to spend three nights on alternate weekends with their father, and an evening in the other week. This seems to me to provide an effective stepping stone for the children to transition into their father’s care. The practical difficulty and expense associated with the children spending time and communicating with a parent, and whether that difficulty substantially affects the children’s right to maintaining personal relations and direct contact with both parents on a regular basis There are no practical difficulties or expenses that affect the children’s ability to spend time or communicate with each parent. The capacity of the children’s parents and any other significant person to provide for their needs, including their emotional and intellectual needs Each of the parties are able to meet the children’s physical needs. In relation to the children’s educational needs, it is concerning that there was no agreement for the children to be enrolled in kindergarten until the conclusion of the evidence before me. This is particularly concerning given the concerns raised by Child Protection and Ms E regarding the children’s social and verbal development.