Skerrett & Kryvenko (No 2)
[2023] FedCFamC1F 500
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCESkerrett & 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 at the hearing by electronic means being dismissed on 19 June 2023, she was granted leave to hear the oral report of the family consultant appointed on 20 June 2023 to conduct an interview with the child on 21 June 2023 which was translated by the Court appointed interpreter.
B.The mother requires the assistance of a Country L language interpreter and one will be arranged by the Court for the mention/case management hearing on 20 October 2023.
C.As the listing on 20 October 2023 is procedural only, any application by a party to appear electronically (if they are not located in Brisbane) is likely to be considered favourably, if consented to by all parties.
ADDITIONAL NOTATION
D.There is no Court by the name “Federal Circuit and Family Court of Australia”. This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
E.The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Carew J:
On 31 May 2022, I made a final parenting order by consent. At the time that order was made, the independent children’s lawyer expressed some reservation, not about the change of living arrangements for the child, that is, moving from living with his mother in City B to living with the father in Brisbane, but about the speed with which it was envisaged by that order that the child would commence spending time again with his mother. Initially, that was to be supervised and then increasing to daytime, and then, by February this year, it was envisaged that the child would be living in a week about arrangement between his parents in City B.
As it turned out, some significant changes occurred in the father’s household which resulted in him not relocating as required under that order by 4 October 2022. Those circumstances were that his now wife suffered a medical incident, and that, obviously, was an extremely traumatic experience for them. In addition to that, the father deposes in his affidavit that he made 34 unsuccessful applications for rental accommodation in the City B area in anticipation of moving to City B as required.
The sad consequence for the child, X born 2011, who is only 11 years of age and who has endured significant upheaval in his life to date, is that he has not seen his mother at all since 2 June 2022. Despite the provision in the May 2022 order for him to have regular telephone contact with his mother, that also has been very rare, save that since April of this year it seems that telephone calls are happening each Wednesday and, according to the child, that seems to be going pretty well.
The child was seen by a family consultant, Ms Q, this morning and she spent an hour interviewing him. Ms Q provided oral evidence which supports the proposition that he is well settled and happy in his father’s household. The child returned to his old primary school that he had attended prior to the mother unilaterally relocating with him in 2019 and, by all accounts, he is doing very well in his father’s care and expressed a very clear wish for that to continue. The family consultant also facilitated a video call between the child and the mother, also with the assistance of a court supplied Country L language interpreter, for a 10 minute call between the mother and the child, which again, on all accounts, went very well. I note that the family consultant indicated that the communication between the child and the mother occurred in English and that the mother sought the assistance of the interpreter on only one occasion to explain what the term “relay” meant when there was discussion about the child’s sports day.
The father and the mother both wish to vary, to different extents, the order made on 31 May 2022. On the face of it, there would appear to be a basis to find that the circumstances in which the father finds himself amount to a significant change of circumstances which would warrant a reconsideration of the parenting order. Given those circumstances, I cannot see that this is a matter that can be determined by the application of the Rice & Asplund[1] principles at a preliminary stage of the proceedings but rather a further final hearing will be required. What I propose to do in those circumstances is to make a number of orders to progress this matter to trial.
[1] (1979) FLC 90-725
I should say that the father did not formally seek any interim orders, although his outline of case indicated clearly that he was seeking to formalise the current situation whereby the child continues to live with him in Brisbane and that the child continue at E School. The independent children’s lawyer urges that certain orders be made on an interim basis, including a suspension of the order that required the father and child to relocate to City B by 4 October last year. Clearly, that has not happened and on at least a prima facie basis there seems to be good reason for that, although there will need to be some further evidence provided by the father in relation to the attempts he took to obtain rental accommodation in City B.
The mother has listed a suite of interim orders which would open up the 31 May 2022 parenting order in its entirety and seeks to vary on an interim basis some provisions. For example, she seeks that the communication she has with the child not occur in English but rather in the language of Country L. Now, whilst I certainly have sympathy for the mother’s position in relation to that, she consented to an order last year that provides for that communication to occur in English, and the family consultant indicated today that that occurred and it was a successful exchange. Whether or not that is a matter that is reconsidered on a final basis remains to be seen.
Accordingly, I propose to suspend the operation of the order requiring the father to relocate with the child to City B and the consequence will be a continuation of the arrangements that have now been in place since 2 June 2022. I will also make some provision for the mother to spend some supervised time with the child in the interim if she elects to do so.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice . Associate:
Dated: 21 June 2023
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