Veselov & Galdin
[2021] FedCFamC1F 190
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Veselov & Galdin [2021] FedCFamC1F 190
File number(s): SYC 737 of 2019 Judgment of: HARPER J Date of judgment: 5 November 2021 Catchwords: FAMILY LAW – PARENTING – REVIEW OF REGISTRAR’S DECISION – Where proceedings listed for final hearing in May 2022 – Judicial determination of number of nights the child is to spend with the father on a one-off basis – Where the mother proposes four nights and the father proposes five nights – No meaningful difference between the two proposals – Mother alleges child returns dysregulated and anxious from time with the father – Father argues child is happy and secure – Court unable to make material findings of fact in interim proceedings – Where father seeks additional night each fortnight – Where child is set to commence primary school next year – Change in the child’s routine with commencement of school a factor against additional night during term on interim basis before final hearing – Partial consent orders made. Legislation: Family Law Act 1975 (Cth) s 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.07(1)
Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Tibb v Sheean (2018) 337 FLR 149; (2018) 58 Fam LR 351; [2018] FamCAFC 142
Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 5 November 2021 Place: Sydney Solicitor for the Applicant: Britluchot Lawyers Solicitor for the Respondent: J Burke Law Counsel for the Independent Children's Lawyer: Mr Fermanis Solicitor for the Independent Children's Lawyer: Ark Law Lawyers ORDERS
SYC 737 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VESELOV
ApplicantAND: MS GALDIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARPER J
DATE OF ORDER:
5 NOVEMBER 2021
BY CONSENT, THE COURT ORDERS THAT:
1.Orders 1(a) to (f) of the orders of Senior Judicial Registrar Hoult made on 14 September 2021 in respect of X, born … 2016 (“X”) be discharged.
2.Until the commencement of Order 5 herein, X spend time with the father as follows:
(a)commencing 5 November 2021, from 4.00pm on Friday until 4pm on Sunday and each alternate week thereafter;
(b)commencing 10 November 2021, from 10.00am on Wednesday until 1pm on Thursday and each alternate week thereafter; and
(c)commencing 13 November 2021, from 10.00am on Saturday until 4.00pm on Sunday and each alternate week thereafter.
THE COURT FURTHER ORDERS THAT:
3.X spend time with the Father from 4.00pm on 5 January 2022 until 4.00pm on 10 January 2022.
4.Order 2 above be suspended from 4.00pm on 10 January 2022 until 4.00pm on 19 January 2022, during which X shall live with the mother.
5.Commencing 2 February 2022, X shall spend time with the father during school terms as follows:
(a)In Week One, from the conclusion of school on Friday until the commencement of school on Monday and each alternate week thereafter; and
(b)In Week Two, from the conclusion of school on Wednesday until the commencement of school on Thursday.
BY CONSENT, THE COURT FURTHER ORDERS THAT:
6.The parties shall facilitate changeover for the above orders as follows:
(a)Order 2(a), the father or his nominee shall collect X from the B Childcare at the commencement of that time and return X at the front of ALDI located in the C Shopping Centre at the conclusion of that time;
(b)Order 2(b), the father or his nominee shall collect X from D Train Station at the commencement of that time and return X to E School located at Suburb F at the conclusion of that time;
(c)Order 2(c), the father or his nominee shall collect X from the front of G Shopping Centre at the commencement of that time and return X at the front of ALDI located in the C Shopping Centre at the conclusion of that time; and
(d)Order 3, the father or his nominee shall collect X from the front of G Shopping Centre at the commencement of that time and return X at the front of ALDI located in the C Shopping Centre at the conclusion of that time.
(e)Order 5, changeovers shall take place at the school attended by X.
BY CONSENT, THE COURT NOTES THAT:
7.The parents and the Independent Children’s Lawyer will be attending a COMP Mediation through Legal Aid.
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 the pseudonyms Veselov & Galdin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).[1]
EX TEMPORE REASONS FOR JUDGMENT
HARPER J
[1] Veselov & Galdin
These are parenting proceedings between the Applicant Father, Mr Veselov (“the father”), and the Respondent Mother, Ms Galdin (“the mother”). There is an Independent Children’s Lawyer (“ICL”) appointed to advocate for the interests of the child who is the subject of the proceedings, X, born in 2016 (“the child”).
I am told that the proceedings are listed for final hearing in May 2022. On 14 September 2021, Senior Judicial Registrar Hoult made a number of interim orders for the child to spend time with the father, noting that she lives primarily with the mother. The mother filed an Application in a Proceeding on 28 September 2021 seeking a review of Orders 1(c), (d), and (e) of the senior judicial registrar's orders of 14 September 2021. Those orders are as follows:
1.That the child X born … 2016 (“the child”) spend time with the father as follows:
…
(c) Commencing 13 October 2021:
(i) Each alternate Wednesday from 10:00am to the following Thursday at 4:00pm;
(d) Commencing 16 October 2021:
(i) Each alternate Saturday from 10:00am to the following Sunday at 4:00pm;
(e) Commencing 22 October 2021:
(i) Each alternate Friday from 10:00am to Sunday 4:00pm
The application for review was listed before me on 5 November 2021.
An application for review of a judicial registrar's decision exercising delegated power is now dealt with in Part 14.3 of the Federal Circuit and Family Court of Australia Family Law Rules 2021 (Cth). Rule 14.07(1) makes clear that the Court must hear an application for review as an original hearing. Accordingly, the parties relied upon the material which was before the senior judicial registrar, and again, for the purpose of the review hearing.
The ICL also relied upon a range of subpoenaed documents. However, for reasons which I explain later, many of those documents ceased to be relevant. On 5 November 2021, the parties engaged in a process of negotiation about the areas of true dispute in relation to the orders made by the senior judicial registrar, and with the assistance of the ICL, produced a document called “Aide Memoire to the Court”. That document, which I will mark Exhibit “1”, set out in four paragraphs and one notation the areas where the parties agree there should be an adjustment to the senior judicial registrar's orders, and those where there was a difference of opinion.
The areas of agreement were set out in paragraphs 1 and 4 of Exhibit 1, and I will make orders in accordance with those paragraphs, noting that I have deleted wording in paragraphs 4(a), (b), (c), and (d) in order to reflect the ultimate agreement of the parties. The ultimate effect of these changes, in relation to changeover prior to the child commencing school in 2022, will be that the changeovers take place in front of G Shopping Centre when the father is collecting the child, and that the father shall return the child to the front of Aldi located at C Shopping Centre at the conclusion of his time.
The remaining areas of dispute, as they evolved on 5 November 2021, relate to what happens in the holiday period of January 2022, and also whether the father should spend an additional night with the child in the second week of a two-week cycle, that is, on both Wednesday and Thursday evenings. I note that there is agreement between the parties that the child should spend Wednesday night of the second week of the two-week cycle with the father, but the mother does not agree that the child should also spend Thursday night with the father.
This is, in effect, an interim hearing, and the statutory pathway must be followed. The Court must consider the primary and additional considerations set out in s 60CC of the Family Law Act 1975 (Cth) to determine what is in the best interests of the child, which is the paramount consideration. The Full Court, in decisions such as Tibb v Sheean (2018) 337 FLR 149, has made clear that whilst it is necessary to consider each factor under s 60CC, it is not necessary to expressly discuss each one. It is the issues as presented by the parties which will determine what is relevant to be discussed. This is in accordance with other Full Court decisions such as Banks & Banks (2015) FLC 93-637.
I have already set out earlier in these reasons the areas of remaining dispute. The first issue to consider is whether the child should spend a block of four or five nights with the father in January 2022. Specifically, the father’s proposal is that the child spend time with him from 4.00pm on 5 January 2022 to 4.00pm on 10 January 2022, while the mother says the time should be from 4.00pm on 5 January 2022 to 4.00pm on 9 January 2022. The ICL supports the block of five nights as proposed by the father.
On an interim basis, it is, of course, almost impossible for the Court to divine why there is any meaningful difference between a four night block or a five night block. The mother contended that her position should be seen against allegations of family violence made in her affidavit material, and her evidence that the child is unlikely to cope with an extra night. This is because when the child returns from her time with the father, she is often in a deregulated state and makes commentary upon her experience, which suggests she experiences some anxiety.
The father, for his part, has given evidence that the child is happy and secure when in his care, and has, in fact, expressed the view that she doesn't want to return to the mother.
I am unable to make any factual findings about those differing factual assertions, but I do not ignore them. The allegation of family violence is, of course, always concerning, but it is patently obvious that both parents and the ICL consider that the child should be spending overnight time with her father.
The ICL contended that in relation to the January 2022 proposals, the father's proposal may well have the advantage for the child of providing an additional night of quality time with the father.
The problems of dysregulation which the mother points to are not sufficient, in my view, to outweigh the potential for the child to enjoy an extra night of quality time with the father in the school holidays. Accordingly, I am satisfied on an interim basis that it is in the child's best interests to spend five nights, rather than four, with the father between 4.00pm on 5 January 2022 and 4.00pm on 10 January 2022.
I note here that the determination of that question then led to a consent position in relation to suspending the child's time with the father from 4.00pm on 10 January 2022 until 4.00pm on 19 January 2022, where it is agreed the child shall live with the mother.
The remaining issue relates to the second week of the two-week cycle, upon which the parties are otherwise agreed. It was common ground that the child will be attending a bilingual school located in Suburb L, a suburb of Sydney. There is also agreement that once the child commences school, changeovers will take place at the school. Accordingly, the father's proposal for two nights in the second week would require him to collect the child from school on Wednesday evenings, deliver her to the school on Thursday mornings, collect her on Thursday evenings, and then deliver her to school again on Friday mornings.
The mother contended that the father works full-time on Wednesdays and Thursdays, so that it will not, in fact, be him who collects the child from school, and therefore, he may not spend the available time with the child. I found that submission difficult to follow because it is entirely routine for parents, even both parents, to work. That simply means that parents who are required to collect a child from school must either do so and arrange their work affairs accordingly, or make an arrangement for another person to collect the child if they are unable get there in time. That is not any sufficient reason, in my view, for denying the child an extra night in the second week with the father.
A more compelling reason, in my view, is that the child will be commencing school for the first time in 2022. The mother contended that there would be a level of disruption to the child's life if she is becoming used to the routine of school, while still being collected by a different parent every second week. For what I understood to be similar reasons, the ICL did not support the additional night in the second week with the father. The father, in submissions, pointed out that, in fact, he will be spending less time with the child on either proposal once the child commences school, but that seems to be an inevitable consequence of the legal requirement for the child to attend school.
The father also pointed to the comments of the Family Consultant, Ms K, at paragraph 69 of her report, which was dated 16 September 2020. In that paragraph, Ms K commented that whilst the child was still too young to navigate an equal week about parenting arrangement, she was dealing with the arrangements that currently existed at that time because she spends only two days away from each of the parents, or grandparents, at a time. This is likely a contributing factor to the child’s apparent capacity to cope with the current arrangement.
However, there is more force, in my view, in the reality that the child will be commencing school, which will be an entirely new experience for her, and something in respect of which she may take time to become accustomed to.
There is considerable authority that in dealing with interim applications, this Court should, overall, proceed cautiously. Weighing the competing submissions and the other matters which have been pointed to by the parties and the ICL, on balance, I am persuaded that I should accede to the mother's proposal concerning one night of time in week two of the two-week cycle.
It is, of course, important to bear in mind that the parties will have the benefit of a final hearing only a few months hence, commencing on 23 May 2022. If, by then, it is apparent that the child may well benefit from an extra night in the second week of a two-week cycle, that is a matter which the trial judge can, of course, have drawn to his or her attention. Accordingly, I make the orders set out at the commencement of these reasons.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Harper delivered on 5 November 2021. Associate:
Dated: 12 November 2021
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