Mestronov and Mestronov - [2007] FamCA 1627

FAMILY COURT OF AUSTRALIA

MESTRONOV & MESTRONOV

[2007] FamCA 1627

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of children – Relevant principles – Independent children’s lawyer to liaise with children’s schools

Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

D & D [2005] FamCA 356
R & R: Children's Wishes (2000) FLC 93-000
H & W (1995) FLC 92-598

APPLICANT:

Ms Mestronov

RESPONDENT:

Mr Mestronov

INDEPENDENT CHILDREN’S LAWYER:

T J Mulvany

FILE NUMBER:

MLF

1475

2003

DATE DELIVERED:

10 October 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

8 & 9 October 2007

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr T. Mulvany

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

TJ Mulvany & Co

Orders

That the Order made by me on 8 October 2007 be, and is hereby, a final order.
That in addition to the time which child S born … February 1998 spends with the mother pursuant to paragraph 9 of the Order made on 8 October 2007, the mother be entitled to spend time with S each alternate weekend during school term as follows:-
(a)From after school care at 5:30pm on Friday to the commencement of school on Monday;
(b)If the Monday of any such alternate weekend is a non-school day for S, the weekend time be extended to the commencement of school on Tuesday;
(c)The alternate weekend time commence on the first weekend following the commencement of each school term AND IT IS NOTED that the next such weekend commences on 12 October 2007;
(d)For the purpose of this Order, school terms are a reference to the holidays applicable to the school attended by S.
That the mother and Mr Mulvany, in his capacity as independent children’s lawyer for the children D born … February 1995 and S, do all acts and things necessary to attend upon the Principal of C School, Mr B (“the principal”) and, at the discretion of the Principal, the school counsellor, Ms L, for the purpose of the mother familiarising herself with the school and to ensure that the said principal and the school recognise the equivalency of the responsibilities of the mother with the responsibilities of the father in relation to the child D, D’s school life and D’s education generally and, in the sole discretion of Mr Mulvany, Mr Mulvany report back to the father and/or D the outcome of those discussions.
IT IS REQUESTED that the Director of Victoria Legal Aid grant an extension of assistance to the independent children’s lawyer which will enable him to comply with his obligations under of this Order.
That the mother and the father each do all acts and things necessary to ensure that their joint parental responsibility in matters relevant to D’s education be exercised with the express written consent of both of them in the case of:-
(a)Work experience for D;
(b)Overseas travel…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mestronov and Mestronov

Details

AGLC: Mestronov and Mestronov [2007] FamCA 1627
Case: [2007] FamCA 1627
Decision Date: 10 October 2007

CaseChat Overview and Summary

In *Mestronov and Mestronov*, Bennett J of the Family Court of Australia made orders concerning the parenting arrangements for two children, D and S. The dispute involved the mother's time with the children and the exercise of parental responsibility, particularly in relation to their education. The court was required to determine the specific terms of the mother's time with child S, including alternate weekend arrangements during school terms, and to establish a framework for the parents to jointly exercise their parental responsibility concerning D's education.

The court's reasoning focused on ensuring the children's welfare and facilitating effective co-parenting. Bennett J varied the existing orders to grant the mother additional time with S on alternate weekends during school terms, with specific provisions for the commencement and duration of this time. Furthermore, the court addressed the need for clear communication and joint decision-making regarding D's educational matters, including work experience, overseas travel, and alternative educational pathways. To achieve this, the court mandated that the independent children's lawyer, Mr. Mulvany, facilitate communication between the parents and school principals, and ensure that the parents' joint parental responsibility in these specific areas was formally recognised and exercised with mutual written consent. The orders also clarified the process for serving documents on schools and outlined the consequences of contravening the parenting orders.

Orders

Orders of the court

That the Order made by me on 8 October 2007 be, and is hereby, a final order.

That in addition to the time which child S born … February 1998 spends with the mother pursuant to paragraph 9 of the Order made on 8 October 2007, the mother be entitled to spend time with S each alternate weekend during school term as follows:-

(a) From after school care at 5:30pm on Friday to the commencement of school on Monday;

(b) If the Monday of any such alternate weekend is a non-school day for S, the weekend time be extended to the commencement of school on Tuesday;

(c) The alternate weekend time commence on the first weekend following the commencement of each school term AND IT IS NOTED that the next such weekend commences on 12 October 2007;

(d) For the purpose of this Order, school terms are a reference to the holidays applicable to the school attended by S.

That the mother and Mr Mulvany, in his capacity as independent children’s lawyer for the children D born … February 1995 and S, do all acts and things necessary to attend upon the Principal of C School, Mr B (“the principal”) and, at the discretion of the Principal, the school counsellor, Ms L, for the purpose of the mother familiarising herself with the school and to ensure that the said principal and the school recognise the equivalency of the responsibilities of the mother with the responsibilities of the father in relation to the child D, D’s school life and D’s education generally and, in the sole discretion of Mr Mulvany, Mr Mulvany report back to the father and/or D the outcome of those discussions.

IT IS REQUESTED that the Director of Victoria Legal Aid grant an extension of assistance to the independent children’s lawyer which will enable him to comply with his obligations under of this Order.

That the mother and the father each do all acts and things necessary to ensure that their joint parental responsibility in matters relevant to D’s education be exercised with the express written consent of both of them in the case of:-

(a) Work experience for D;

(b) Overseas travel or excursions outside Australia for D;

That for the purpose of implementation of the previous paragraph requiring that the consent of each parent be obtained in relation to certain matters:-

(a) Mr Mulvany be responsible for service of a sealed copy of this Order on the Principal of C School;

(b) The mother write to the said Principal in the first quarter of 2010 confirming that her consent is required in relation to work experience and overseas travel to be undertaken by D and him entering into any alternative educational course.

That Mr Mulvany, in his capacity as independent children’s lawyer for the children D and S, do all acts and things necessary to advise the Principal or other proper officer of Y Primary School (“the principal”) of:-

(a) the equivalency of the responsibilities of the mother with the responsibilities of the father in relation to the child S, S’ school life and S’ education generally;

(b)

the living and spending time arrangements pertaining to S during school terms pursuant to this Order and the Order made on 8 October

2007 -

and, in the sole discretion of Mr Mulvany, Mr Mulvany provide a copy of any correspondence sent to the school in this regard.

That for the avoidance of doubt, where a document or information is required by this Order or the Order made on 8 October 2007 to be sent to or served on a the Principal or proper officer of a school attended by either of the children:-

(a) It is sufficient for such service to be effected by prepaid post;

(b) The recipient may, in his or her absolute discretion, provide the document or information to any member of staff of the school;

(c) It is not required that any such information or documentation or the provision of it be discussed with or come to the attention of D and/or S.

That all exhibits and subpoenaed documents tendered in these proceedings be returned (to the party on whose behalf the exhibit was tendered) at the expiration of one calendar month unless an appeal is lodged.

10.

That all extant applications be removed from the pending list of cases maintained by the Court.

11.

That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

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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