Pejakovski & Pejakovski (No 2)
[2023] FedCFamC1F 744
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pejakovski & Pejakovski (No 2) [2023] FedCFamC1F 744
File number(s): NCC 2997 of 2017 Judgment of: SMITH J Date of judgment: 2 May 2023 Catchwords: FAMILY LAW – CHILDREN – Consent Orders - With whom a child lives – Father to have sole parental responsibility – Child to live with father – Spend time and communicate with mother in accordance with child’s wishes – Child aged 16 years – Child conveyed view’s to the Family Consultant - Child’s views to be given significant weight Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.04 Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 1–4 May 2023 Place: Newcastle Counsel for the Applicant: Mr Kent Solicitor for the Applicant: Effective Legal Solutions Counsel for the Respondent: Mr Gallimore Solicitor for the Respondent: Katie Smith Solicitor Counsel for the Independent Children's Lawyer: Mr Teoh Solicitor for the Independent Children's Lawyer: Foat Roberts Lawyers ORDERS
NCC 2997 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PEJAKOVSKI
Applicant
AND: MS PEJAKOVSKI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
2 MAY 2023
BY CONSENT AND ON A FINAL BASIS THE COURT ORDERS THAT:
1.Pursuant to Rule 10.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Final Parenting Orders be made in accordance with the document attached hereto.
AND THE COURT NOTES THAT:
A.The attached consent final orders resolve the appropriate parenting arrangements for the child X.
B.The matter remains listed for final hearing with respect to the appropriate parenting arrangements for the child Y.
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT AND FILE NO: (P)NCC2997/2017
FAMILY COURT OF AUSTRALIA(DIVISION 1)
BETWEEN:
MR PEJAKOVSKI (Applicant)
AND:
MS PEJAKOVSKI (Respondent)
AND:
INDEPENDENT CHILDREN’S LAWYERBEFORE: Smith J
MINUTE OF ORDER BY CONSENT – PARENTING WITH RESPECT TO THE CHILD X
The Court orders, on a final basis, that:
1.All previous parenting orders with respect to X born 2006 are discharged.
2.The father shall have sole parental responsibility for X with respect to schooling only.
3.X shall live with the father.
4.X shall spend time and communicate with the mother pursuant to the X’s wishes.
5.From the time of the mother’s payment pursuant to Order 17 of property orders made in proceedings (P)NCC2997/2017 (i.e. from the time of the mother’s payment of her share of X’s school fees), the father shall be solely liable for all school fees in respect of X’s schooling.
6.Each parent shall not denigrate the other parent within the presence or hearing of X and shall remove X from the presence or hearing of anyone denigrating the other parent.
Notations
A.The parties acknowledge that the father’s sole liability for X’s school fees from the time set out pursuant to Order 5 of these orders shall not result in an adjustment to any child support assessment between the parents.
B.The father will encourage X to spend time and communicate with her mother in accordance with Order 4.
C.The Mother will return to X any of X's personal effects (including clothing; shoes; sporting equipment; accessories and jewellery; decorative room items; keepsakes i.e. trophies and schooling awards) that X may request of the Mother. The Father will encourage X to achieve this through the operation of Order 4. and in the event that this does not occur, the Mother will return the effects within 21-days.
____________________ _____________________
Applicant Father Respondent Mother
____________________ _____________________
Applicant’s Solicitor Respondent’s Solicitor
____________________
Independent Children’s LawyerNote: 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pejakovski & Pejakovski (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
Smith J:
This matter is listed before me for trial in respect of property proceedings and parenting proceedings in respect of the two children, X and Y. The parties have sensibly settled the property proceedings. The parties, with the assistance of the Independent Children’s Lawyer (“ICL”), have come to a resolution in respect of the older of those two children, in respect of whom proceedings remain on foot, X, born 2006.
X is over 16. Given that she will turn 17 this year, her views must be given significant weight. I have not received the views from the ICL at the moment. However, I note that in paragraph 155 of the Family Report which was prepared in May of last year, X conveyed to the Family Consultant the following:[1]
155.[X] wanted the CCE to make it clear to the Court that she no longer wanted to be included in Court orders and wanted to live with the father. She said she wanted the Court to know that she would “rather be homeless” than placed with the mother. She wanted the Court to know “the whole process of putting me back with Mum has damaged me and to take into account what it will be like for [Y]”.
[1] Family Report dated 11 May 2022, paragraph 155.
I note that Y is the younger child who remains subject to these proceedings.
X also said, at paragraph 159:[2]
159.[X] said “there is no place in my life that Court doesn’t touch”. She described, “There is nowhere I go where I don’t think ‘what if Court finds this out’. I can’t do anything without thinking about that”. [X] said, “I hope it finishes with Court, but Court is a massive, massive, massive part of my life”. There was a sense from [X] of apprehension about the finalisation of proceedings given its role in her life; juxtaposed with the sentiment of wanting it over.
[2] Ibid at paragraph 159.
In those circumstances, noting that there are highly contentious facts, it seems to me that the only result of these proceedings, as acknowledged by, I think, in effect, the Family Consultant, was that X’s views would need to be respected, and in that regard, I note that although the Family Consultant did not make a specific recommendation, it is clear that the difficulty of requiring X to do anything other than be freed from Court orders posed real risks to X’s psychological health.
In those circumstances, the parties have agreed with the concurrence of the ICL that the appropriate order is that all previous orders be discharged with respect to X and for the father, with whom X will live, to have sole parental responsibility with respect to schooling only.
That X shall live with her father and spend time and communicate with her mother pursuant to X’s wishes.
It is agreed that each parent shall not denigrate the other parent within the presence or hearing of X and shall remove X from the presence or hearing of anyone denigrating the other parent.
There are other orders I will come to in a moment. In respect of the issue of parenting, I am comfortably satisfied that these are appropriate orders in respect of X.
The parties have agreed that from the time of the mother’s payment pursuant to Order 17 of the consent property orders which I have entered, the father shall be solely liable for all school fees in respect of X’s schooling. The parties have created notations about this not resulting in an adjustment to child support, noting that the mother will return X’s personal effects and also notations around encouraging her to spend time.
I will make those Orders. I will enter, by consent, with the concurrence of the Independent Children’s Lawyer, the agreement reached between the parties, reduced to writing and signed by and behalf of each of the parties.
Those are my reasons.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 30 August 2023
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