Skerrett & Kryvenko (No 3)

Case [2024] FedCFamC1F 267

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

FIRST INSTANCE

Skerrett & Kryvenko (No 3) [2024] FedCFamC1F 267

File number: BRC 12656 of 2022
Judgment of: CAREW J
Date of judgment: 24 April 2024
Catchwords: FAMILY LAW – CHILDREN – Whether the final parenting order should be varied or discharged – Where neither parent complied with the terms of the final parenting order and sought to vary or discharge it – Where the mother represented herself with the assistance of an interpreter and McKenzie friend – Where the matter proceeded as if it were undefended although the mother was granted leave to cross-examine the family report writer and make submissions – Where the child has settled well into life with the father and his family – Where there have been significant changes to the parents’ circumstances to warrant substantial variation of the final parenting order – Where the final parenting order is discharged to limit confusion arising from substantially amending the final parenting order – Where the father will have sole parental responsibility and the child will live with the father – Where the child will spend time with the mother if the child expresses a wish to do so, and in any event, will have video calls each alternate Wednesday.  
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 64B, 65D, 65DAA, 65DAC, 69ZQ, 102NA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33, 1.04, 10.26, 10.27

Cases cited:

Baghti & Baghti [2015] FamCAFC 71

Banks & Banks (2015) FLC 93–637

Bennett & Bennett (1991) FLC 92–191

Carriel & Lendrum (2015) FLC 93–640

Doherty & Doherty [2016] FamCAFC 182

Eastley & Eastley (2022) FLC 94–094

Isles and Nelissen (2022) FLC 94–092

Johnson & Page (2007) FLC 93–344

M v M (1988) 166 CLR 69

Morgan & Valverde (2022) FLC 94–100

N and S and the Separate Representative (1996) FLC 92–655

Poisat & Poisat(2014) FLC 93–597

RCB v The Honourable Justice Forrest (2012) 247 CLR 304

Rice & Asplund (1979) FLC 90–725

Skerrett & Kryvenko [2022] FedCFamC1F 400

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

SPS & PLS (2008) FLC 93–363

Zane & Allan (2008) FLC 93–378

Number of paragraphs: 88
Date of hearing: 25 March 2024
Place: Brisbane
Counsel for the Applicant: Mr O’Meara
Solicitor for the Applicant: Hodgson Lawyers
For the Respondent: Litigant in person
Counsel for the Independent Children’s Lawyer: Ms Oakley
Solicitor for the Independent Children’s Lawyer: Forest Glen Lawyers

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:

24 APRIL 2024

THE COURT ORDERS THAT:

1.The parenting order made on 31 May 2022 is discharged.

Parental Responsibility

2.The father shall have sole parental responsibility for major long-term issues (as defined in s 4(1) of the Family Law Act 1975 (Cth))…

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Details
AGLC
Skerrett & Kryvenko (No 3) [2024] FedCFamC1F 267
Case
[2024] FedCFamC1F 267
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Skerrett & Kryvenko (No 3) involved a dispute between the father and the mother regarding the variation or discharge of a final parenting order concerning their child. The father sought to vary or discharge the final parenting order, while the mother, who represented herself with the assistance of an interpreter and a McKenzie friend, did not oppose the father's application. The matter proceeded as if it were undefended, although the mother was granted leave to cross-examine the family report writer and make submissions. The central issue before the court was whether the final parenting order should be varied or discharged given the significant changes in the parents' circumstances.

The court considered the evidence presented and concluded that the final parenting order should be discharged to avoid confusion arising from substantially amending it. The court found that neither parent had complied with the terms of the final parenting order and that there had been significant changes in the parents' circumstances. The child had settled well into life with the father and his family. The court acknowledged that the child had a strong bond with the father and his family and had settled well into life with them. Given these circumstances, the court determined that discharging the final parenting order and establishing new arrangements would be in the best interests of the child.

The court's decision resulted in the discharge of the final parenting order made on 31 May 2022. The father was granted sole parental responsibility for major long-term issues concerning the child. The child was to live with the father, but the father was to facilitate the child spending time with the mother if the child expressed a wish to do so. The father was also required to facilitate the child communicating with the mother through fortnightly video calls and on special occasions. The mother was permitted to send gifts and cards to the child on specified occasions, to be sent to the father's address. The court's orders aimed to balance the child's need for stability and continuity with the opportunity for the child to maintain a relationship with the mother.

Orders

Orders of the court

1. The parenting order made on 31 May 2022 is discharged.

Parental Responsibility

2. The father shall have sole parental responsibility for major long-term issues (as defined in s 4(1) of the Family Law Act 1975 (Cth)) concerning X born 2011 (“the child”).

3. In the exercise of the father's sole parental responsibility:

(a) The father is to advise the mother by email not less than 14 days prior to any decision about a major long-term issue intended to be made, save in the event of an emergency;

(b) The mother has 7 days to respond to the father’s email;

(c) The father is to consider the mother’s response prior to making the decision;

(d) The father is to advise the mother by email as soon as practicable of his decision; and

(e) The father is to provide an update about the child’s health, education, and welfare by sending the mother an email on four occasions each year being on or before 31 March, 30 June, 30 September, and 31 December and attaching to the email any written reports.

Lives with

4. The child shall live with the father.

Time with

5. In the event the child expresses a wish to the father to spend time with the mother, the father shall take all reasonable steps to facilitate the child doing so.

Communication

6. The father shall facilitate the child communicating with the mother at all such reasonable times as may be requested by the child but in any event:

(a) Each alternate Wednesday commencing on the first Wednesday after the date of this Order, with the father to initiate a Facetime/video call to the mother’s phone between 6.30pm and 7.00pm and facilitate the child speaking to the mother; and

(b) On the child’s birthday and on Christmas Day in each year the father is to initiate a Facetime/video call to the mother’s phone between 6.30pm and 7.00pm and facilitate the child speaking to the mother.

7. The mother is at liberty to send gifts and cards to the child on the child's birthday, Christmas, and Easter by sending them to the father’s residential address at S Street, Town T.

8. Each party is to keep the other party advised at all times of any change to their residential address, email, and/or mobile telephone number.

NOTATION

A. The mother’s email address at the date of this Order is …@...

B. The mother’s mobile phone number is ….

C. The mother’s postal address is PO Box …, Town R.

D. The father's email address at the date of this Order is …@...

E. The father’s mobile phone number is ….

F. The father’s residential address is S Street, Town T.

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.

Background

Background to the litigation

The ICL recommended the following:(a)Variation to the 31 May 2022 order as follows:(i)By discharging paragraphs 3 (save for the words “That the child live with the father”;(ii)By discharging paragraph 11 (spending time with the parents on special days);(iii)By varying paragraph 22 to reduce the frequency of telephone communication between the mother and the child to fortnightly but to automatically cease after three months if the mother does not call;(iv)By discharging paragraph 24 which is no longer applicable as the father has not moved to City B. (b)For the mother to spend time with the child as agreed between the parents;(c)The ICL opposed the personal injunctions sought by the father against the mother on the basis that the evidence did not justify such restrictions. BACKGROUND My ex tempore reasons delivered on 31 May 2022,[5] and further ex tempore reasons delivered on 21 June 2023,[6] should be read in conjunction with these reasons to provide some context to the current circumstances.[5] Skerrett & Kryvenko [2022] FedCFamC1F 400.[6] Skerrett & Kryvenko (No 2) [2023] FedCFamC1F 500. The father is a New Zealand citizen but resident in Australia and was due to undertake an Australian citizenship test in 2024, which the father contends, “upon passing, I will be an Australian citizen”. The mother was born in Country W but is resident in Australia. The parents met ‘online’ in or about 2008 while the father was living in the United Kingdom and the mother was living in Country W. They travelled extensively on holiday together during 2008 – 2010 and the father frequently sent money to the mother. In 2010, the mother informed the father that she was pregnant, and they undertook a marriage ceremony in Country W in 2010. The child was born in Country W in 2011. The father contends that unbeknown to him, at the time, the mother named another man as the child’s father on the child’s birth certificate. The father contends that the mother “blamed [Country W’s] corrupt and chaotic administration system” for naming another man as the child’s father. In late 2011, the father undertook a paternity test and the report dated 22 November 2011 confirms that the father is the child’s biological father. The child’s name was changed to X as evidenced in the Name Change Certificate registered in New Zealand in late 2011. The father contends that the mother had married Mr Z in Country W in late 2009 which was unbeknown to him until 2020. Mr Z was the person named on the child’s original birth certificate as the child’s father. The father, the mother and the child emigrated to Australia in early 2013. The father and the mother separated on a final basis on or about 18 March 2018 however they remained living under the same roof until on or about 7 March 2019, when the father returned home to find a note from the mother informing him that she and the child had left and would not be returning. Towards the end of March 2019, the father discovered that the mother had withdrawn the child from E School and moved to City B.

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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