Skerrett & Kryvenko (No 2) - [2023] FedCFamC1F 500

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Skerrett & Kryvenko (No 2) [2023] FedCFamC1F 500

File number(s): BRC 12656 of 2022

Judgment of: CAREW J

Date of judgment: 21 June 2023

Catchwords: FAMILY LAW – INTERIM PARENTING – Where the mother and father both seek to vary a previous final parenting order made by consent – Where it appears that the principles of Rice & Asplund are likely to apply in the circumstances – Where the matter cannot be finally determined on an interim basis – Where the requirement for the father to relocate with the child to City B and for the mother to spend supervised time with the child in City B be suspended until further order.

Legislation: Family Law Act 1975 (Cth)

Cases cited: Rice & Asplund (1979) FLC 90-725

Number of paragraphs: 8

Date of hearing: 21 June 2023

Place: Brisbane

For the Applicant: Litigant in person

For the Respondent: No appearance

Solicitor for the Independent Children's Lawyer: Madden Solicitors
ORDER

BRC 12656 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR SKERRETT

Applicant

AND:
MS KRYVENKO

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CAREW J

DATE OF ORDER:

21 JUNE 2023

THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.The operation of paragraph 3(a) of the Order of 31 May 2023 be suspended.
2.The operation of paragraphs 6 to 10 of the Order of 31 May 2023 be suspended.
3.In the event that the mother informs the father and the independent children’s lawyer within 14 days of the date of this Order of her intention to spend time with the child supervised at the P Contact Centre, then each parent is to sign all necessary documents and complete an intake session as required by the P Contact Centre and upon that occurring, the mother spend time with the child at the P Contact Centre for 2 hours, or such time as may be available, on each alternate Sunday.

IT IS FURTHER ORDERED THAT:
Family report
4.The parties attend all appointments required for the preparation of a family report as advised by the independent children’s lawyers, and the father ensure that the child also attend all appointments as required for that purpose.
5.In the event that either parent fails to comply with instructions to attend appointments for the purposes of a family report, that party may bear the costs throw away by their nonattendance.

Miscellaneous
6.All outstanding interim applications be otherwise dismissed.
7.The matter be listed for a mention or for the making of trial directions at 10.00am on 20 October 2023 before the Honourable Justice Carew, with all parties required to appear in person on that date unless leave is granted to appear by electronic means prior to the hearing.
8.A copy of the transcript of today’s proceedings be provided to all parties.
9.The independent children’s lawyer has liberty to apply by email to …@... on notice to the other parties.

NOTATION:
A.Notwithstanding the mother’s application to participate…

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 Skerrett & Kryvenko (No 2)

Details

AGLC: Skerrett & Kryvenko (No 2) [2023] FedCFamC1F 500
Case: [2023] FedCFamC1F 500
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia (Division 1), Mr. Skerrett and Ms. Kryvenko are engaged in a dispute regarding the variation of a final parenting order made by consent. The court is required to decide on the interim parenting arrangements pending a final hearing. The primary issue is whether the significant changes in circumstances, including the father's failure to relocate as ordered, warrant a suspension of the previous order and if interim arrangements should be put in place. Another key issue is whether the mother should be allowed to spend supervised time with the child in the interim, and if so, under what conditions.

Justice Carew held that the significant changes in circumstances, particularly the father's inability to relocate due to personal and practical difficulties, warranted a suspension of the order requiring relocation to City B. The court noted that the matter could not be finally determined on an interim basis and that the principles of Rice & Asplund might apply. Therefore, the court decided to suspend the operation of the order requiring the father to relocate with the child to City B and for the mother to spend supervised time with the child in City B until further order. The court also made provisions for the mother to spend supervised time with the child if she chooses to do so, subject to certain conditions. Additionally, the court ordered that both parents must attend all appointments required for the preparation of a family report and set a date for a mention or trial directions hearing.

The court's decision ensures that the child's current living arrangements and education continue without disruption while allowing for the mother to potentially spend supervised time with the child. The matter will be revisited at a final hearing to fully consider the application of the Rice & Asplund principles and the best interests of the child.

Orders