Veselov & Galdin (No 2)
[2022] FedCFamC1F 415
Federal Circuit and Family Court of Australia
(DIVISION 1)
Veselov & Galdin (No 2) [2022] FedCFamC1F 415
File number(s): SYC 737 of 2019 Judgment of: HENDERSON J Date of judgment: 24 May 2022 Catchwords: FAMILY LAW – CHILDREN – Where the parties narrowed the issues for determination to when the child commences spending 5 nights a fortnight in the fathers care – the break-up of that time – whether changeover is to occur at the mother’s residence Legislation: Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3) Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 23 May 2022 Place: Sydney Counsel for the Applicant: Mr Steward Solicitor for the Applicant: J Burke Law Counsel for the Respondent: Mr Jauncey Solicitor for the Respondent: Britluchot Lawyers Counsel for the Independent Childrens Lawyer: Mr Sperling Solicitor for the Independent Childrens Lawyer: Ark Law Lawyers ORDERS
SYC 737 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VESELOV
Applicant
AND: MS GALDIN
Respondent
order made by:
HENDERSON J
DATE OF ORDER:
24 MAY 2022
BY CONSENT AND ON A FINAL BASIS, THE COURT ORDERS THAT:
1.That all prior parenting orders be discharged.
Parental Responsibility
2.That the mother Ms Galdin ("the Mother") and the father Mr Veselov ("the Father'') have equal shared parental responsibility for the child X born in 2016 (the child").
Schooling
3.That the Mother and Father shall consult with each other in writing as to their proposals prior to any change in any school (including for high school) for X AND in the event that there is no agreement about which school X is to attend, the Mother and Father shall then do all such things to arrange to attend on a Family Relationships Centre to attempt to resolve this issue prior to commencing any family law court proceedings.
4.That each of the Father and the Mother authorise any school that X may attend to provide to both the Mother and to the Father: -
(a)Copies of all reports of X to both the Mother and the Father;
(b)Copies of Newsletters and announcements of all school/day care activities or other material pertaining to the education of X to both the Mother and the Father.
(c)Requests for school photos.
5.That each of the Mother and the Father authorise staff members at any school that X may attend to discuss X’s progress with that parent AND THAT these orders shall be deemed as the Father and Mothers' authorisations to any school that X attends to do this.
6.That the Father and Mother may attend events which parents are invited to attend such as a special day, prize day, school sports carnivals and parent teacher interviews and all extracurricular activities in which X participates.
7.That a copy of these X may be provided by either the Mother or the Father to any school attended by X.
Medical
8.That during any period during when X is with either parent, in the event that X is hospitalised or receives medical attention, the parent X is then with shall notify the other parent as soon as practicable (and in any event within two (2) hours) after X’s first contact with either the medical practitioner, medical centre or hospital, and also provide that other parent with details including the details of the illness, injury, treating doctor and the prognosis and treatment of X.
9.That the parent X is then with shall ensure the other parent is informed as soon as is reasonably practicable of:
(a)Any medical problems or illness suffered by X;
(b)Any medication that has been prescribed for X or over-the-counter medication given to X.
10.That the Mother and Father consult in relation to the attendance of X on any medical specialist (such medical specialist include any specialist medical practitioner; dentist, orthodontist, speech pathologist, ophthalmologist, occupational therapist or other therapist (hereafter referred to as "consultant") PROVIDED FURTHER THAT:
(a)In the event that X is referred to such consultant the parent who made the referral shall inform the other in writing within 24 hours of such referral to any such specialist medical appointment;
(b)That the parent who makes the initial appointment shall within 24 hours after the initial appointment is made and prior to the first appointment advise the other parent and authorise the consultant to discuss any matters with the other parent;
(c)That the parent who obtains the referral shall do all acts and things to ensure that the other parent is provided with copies of any test results, letters, referrals that he or she has received from and by any such consultant within 24 hours of receipt of such material by that parent and a copy of these orders provided to such consultant shall be sufficient authority for this to occur.
(d)That each parent be permitted to attend upon such appointments, such attendance or attendances to be at the sole discretion of any such consultant and such attendance may be in person or by telephone or other electronic device.
Communication between the Mother and Father
11.That otherwise than as provided for in these orders for the purposes of the Mother and Father communicating with each other in relation to matters regarding X, the Mother and Father shall communicate:
(a)By email or text in the case of non-urgent matters; and,
(b)By telephone or text if it is an urgent matter or a matter requiring an immediate response.
12.That each of the Mother and Father shall respond to the others email and text messages as soon as messages AND for the purposes of these orders the term "in writing" may include email or text message.
13.Without admission the Mother and Father are to communicate with each other in a civil and polite manner.
Restraint on involving X
14.That other than informing X of these orders the Mother and Father each be restrained from discussing these proceedings with X or within her presence or within her hearing and ensure as far as possible that no other person (other than the Independent Children's Lawyer) discusses these proceedings with X or within her presence or within her hearing.
15.That the Mother and Father each be restrained from showing X any of the affidavits, judgments or orders, applications or reports prepared for the purpose of these proceedings and each be restrained from showing X any material annexed or exhibited to such documents.
16.That the Mother and Father each be restrained from communicating with each other through X.
Non-Denigration
17.That each of the Mother and Father are restrained from criticising or speaking badly of the other parent, or other parent's family, including each parents partner or their children AND that this restraint be in the presence of or the hearing of X and includes any written communication including electronic means of communication.
18.Both the Father and Mother shall use their best endeavours to ensure no third party denigrates, criticises, or speaks in a derogatory fashion about the other parent or the other parent's partner or family either to or in the presence of X.
Notification of Change of Details
19.The Mother and Father notify the other not later than seven (7) days PRIOR to any change to their address, landline telephone number, mobile telephone number, email address, facsimile number or postal address including the details of such new address or number.
Specific Issues Orders
20.That neither the Father nor the Mother consume alcohol in excess of .05 blood alcohol concentration nor consume more that the prescribed dosage or any prescription medication or nor consume illegal drugs during any period that X is in that parent's care and each parent shall do all acts and things necessary to ensure no other person consume illegal drugs in the presence or company of X.
21.That the Mother and Father agree that in the event that there is any parenting matter of the children that they are unable to resolve that they will both make all necessary arrangements to attend upon a Family Relationships Centre to seek to resolve such issue prior to commencing any new family law proceedings in any court.
22.That the Mother and the Father shall ensure the punctual attendance of X on each school day and in the event X is unable to attend school on any day then the parent in whose care the child is then shall provide to the other parent and to the school a medical certificate detailing the illness or condition X presented with and the time X (in the opinion of the medical practitioner) is required to be absent from school, the provision of which shall occur within 24 hours of that date.
23.That each parent will ensure that when X is to be with the other parent that that parent ensure X attends with any clothing, books or school material that are required for her school or extra-curricular activities.
24.That the Mother and Father:
(a)jointly confer and consent to enrolment of X in any extracurricular activities;
(b)will ensure that X attends such extra-curricular activities which X may be enrolled; and
(c)no extra-curricular activities will take precedence over X’s time with either parent in accordance with these orders.
Live and Spend Time
25.X live with the Mother.
During School holidays
26.X will spend time with the Father at the end of Term 2 2022 for 5 consecutive nights during the holiday period, and in the absence of agreement such time being from 9am on the first day after the conclusion of school term to 6pm on the sixth day after the conclusion of school term.
27.X will spend time with the Father at the end of Term 3 2022 for 6 consecutive nights during the holiday period, and in the absence of agreement such time being from 9am on the first day after the conclusion of school term to 6pm on the seventh day after the conclusion of school term.
28.During the December 2022/January 2023 School holiday period as follows:
(a)From 2pm 25 December 2022 until 6pm on 1 January 2023;
(b)From 9am on 8 January 2023 until 6pm on 14 January 2023;
(c)From 9am on 22 January 2023 until 6pm on 26 January 2023.
29.Thereafter during each of the NSW school holidays at the end of Terms 1, 2 and 3 for one half of each school holiday with each parent as agreed between the parties and, failing agreement:
(a)In each odd numbered year with the Father for the first half, and with the Mother for the second half; and
(b)In each even numbered year with the Mother for the first half, and with the Father for the second half.
30.Thereafter during each of the December January NSW school holidays for one half of each school holiday with each parent as agreed between the parties and, failing agreement:
(a)In each odd numbered year with the Father for the first half, and with the Mother for the second half; and
(b)In each even numbered year with the Mother for the first half, and with the Father for the second half.
31.That for the purpose of the above Order:
(a)The gazetted NSW school holiday periods do not include pupil free days and/or staff development days;
(b)The gazetted NSW school holiday periods are deemed to conclude at 6:00pm on the day immediately prior to the first day of student attendance of the next term and reach the midway point at 6:00pm on the middle day of the holiday period.
32.The child shall spend Christmas with each parent as follows:
(a)In 2023 and each odd-numbered year thereafter, with the Mother from 2:00pm on Christmas Eve until 6:00pm on 26 December and with the Father from 2:00pm on 26 December until 6:00pm on 28 December; and
(b)In 2024 and each even-numbered year thereafter, with the Father from 2:00pm on Christmas Eve until 6:00pm on 26 December and with the Mother from 2:00pm on 26 December until 6:00pm on 28 December.
Special Days
33.X shall spend time with the Mother and Father on special occasions as agreed between the Mother and Father and, in default of agreement, as follows:
(a)on Father's Day weekend, with the Father from 3 PM on the Friday before Father's Day, until 9am on the Monday immediately after Father's Day;
(b)the child's time with the Father shall be suspended over the Mother's Day weekend;
(c)If X’s birthday
(i)If X’s birthday falls on a school day, the parent she is not then with shall collect X from school at the conclusion of school until 7 .30pm when X shall be returned to the parent's home (or such other location as agreed in writing) AND
(ii)If X’s birthday falls on a weekend or other non-school day, the parent she is not then with shall collect X from the other parent's home (or other location as agreed) at 10.00am until 2.00pm when X shall be returned to the parent's home (or such other location as agreed in writing).
Electronic Communication
34.X be at liberty to contact her parent who she is not then with by Skype or FaceTime or WhatsApp (or its equivalent)
(a)between 7 .00pm and 7 .30pm each Tuesday, Thursday and Saturday;
(b)X’s birthday,
(c)each of the parent's birthdays,
(d)25 December,
(e)1 January
(f)each Easter Sunday
and such other times as agreed.
PROVIDED THAT:
(i)The parent that X is not then with shall initiate the contact;
(ii)Each parent will ensure that the device on which Skype or FaceTime or WhatsApp is loaded is charged and switched on at the times of the calls to be made by the parent to X;
(iii)X will have the right to retain the device in their possession during such periods;
(iv)The parent X is with at the time of the call will ensure that X is able to speak with the other parent during such times uninterrupted;
(v)The parent X is with at the time of the call will ensure privacy for X during such periods;
(vi)If X is unable to speak to the other parent during any of these periods (including due to Skype or FaceTime or WhatsApp not being available) then the parent may telephone X during that time;
(vii)That for purposes of these orders the Father and Mother shall use WhatsApp as the preferred option on all such occasions.
(viii)That for purposes of these orders the Father and Mother shall use WhatsApp as the preferred option on all such occasions.
International Travel
35.That each party is permitted to travel with the Child internationally with either parent subject to the following orders:
(a)That the other party must provide notice of any international travel and 2 months’ notice of any intended international travel;
(b)That in respect of international travel the flight itinerary, proof of paid return tickets and accommodation addresses must be provided no less than 1 month before the departure date;
(c)That in respect of international travel the parties must not travel to a location advised against on the Australian Government Smart Traveller website as Level 3 "Reconsider your need to travel" or Level 4 "Do not Travel;
(d)That in respect of international travel the parties may travel with X for a period not exceeding 3 weeks until she attains the age of 12 years and thereafter for a period not exceeding 4 weeks unless the other party consents otherwise;
(e)That international travel shall occur in school holiday periods unless agreed in writing
36.That the child be removed from the Australian airport traveller watch list from the date of these orders
37.That the father retain the child's Australian passport and the mother retain the child's ' European passport
38.The Father and Mother shall do all things and sign all documents necessary, to authorise and enable the Department of Immigration and Border Protection and European equivalent department, to provide an Australia and European Community Passport for the child respectively. Absent agreement either party may apply for a passport for the child and travel internationally with the child or allow the child to travel internationally notwithstanding the consent of the other parent has not been obtained
39.These orders may be provided to the relevant authorities for the purposes of the passport renewal and travel orders.
Notation
A.It is the intention of both parents that X will be enrolled in H School from the commencement of term 1 2023
THE COURT FURTHER ORDERS ON A FINAL BASIS THAT:
40.X live with the Father as agreed between the parties and, in default of agreement, subject to Orders below:
During each school terms
(a)Until the end of term 2 2022 in each two weeks as follows:
Week one
(i)each alternate weekend from the cessation of school or 3pm on Friday until the commencement of school or 9am on Monday.
Week two
(ii)each alternate Wednesday from the cessation of school or 3pm on Wednesday until the commencement of school or 9am on Thursday.
such other times as agreed between the parties in writing.
(b)Commencing term 3 2022 from the cessation of school or 3pm on Thursday until the commencement of school or 9am on Monday each alternate week.
(c)Commencing term 4 2022 from the cessation of school or 3pm on Wednesday until the commencement of school or 9am on Monday each alternate week.
(d)The Fathers time in 2023 will commence the second week after the child commences school.
41.Changeover shall occur at locations as agreed between the parties and, in default of agreement in writing, as follows:
(a)During School terms if the child is at school or special events on school days, the child shall be collected from and delivered to school.
(b)During School Holidays, child absent from school and/or special events on non-school days:
(i)The Father’s nominee, being a member of the child’s family, will collect and deliver the child to and from the Mother’s residence or such other location as agreed.
(ii)If there is no nominee available to the Father and he is to personally affect changeover, this is to occur in a public place and the Father is to notify the Mother of this event no less than 24 hours prior to changeover.
AND THE COURT FURTHER NOTES THAT:
B.All prior parenting orders were discharged by consent between the parties which relieves any undertaking any solicitor may have to hold a passport.
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
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 pseudonym Veselov & Galdin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HENDERSON J
The matter of Veselov & Galdin, is an application by a father for parenting orders in respect of the parties' daughter, X, born in 2016, some six and a half years of age. Mr Steward of counsel acted for the father. Mr Jauncey of counsel for the mother. Mr Sperling was counsel for the independent children's lawyer.
The parties, to their credit, resolved many important aspects of their dispute indicating a capacity to focus on their daughter's best interest and not the dispute arising from their acrimonious relationship breakdown. This is an impressive level of insight and maturity shown by each parent as their history, poor interpersonal relationship and significant mistrust of each other was palpable and of significant concern when the proceedings commenced in 2019 and to the report writer in 2020 when she prepared her Family Report.
There were three issues left for me to determine. The first was when was X to spend five nights a fortnight in her father's care, that being an agreed position ultimately between the parents. Secondly, the breakup of that time. The father and the independent children's lawyer preferred a three/two arrangement over the two weeks, and the mother, ultimately, a block of five nights. Thirdly, changeover when not at school, and although ultimately agreed, I will make an order so that it is clear for the parties what it is.
Only the mother was cross‑examined. I read the following for the hearing.
(a)The respondent mother's case outline; and
(b)Paragraphs 139 to the end of her affidavit, including the orders she sought;
For the father:
(a)his case outline, including the orders sought;
(b)Paragraphs 92 to 111 of his affidavit;
(c)Paragraph 202 of the mother's affidavit; and
(d)Paragraph 58 of Ms K’s report.
The independent children's lawyer:
(a)Exhibit 1, being the minute of orders sought by the independent children's lawyer and effectively agreed by the parties, but not in all aspects by the mother; and
(b)Ms K’s report.
The independent children's lawyer and father say the child's time with her father should immediately increase from the current three nights, Friday to Monday each alternate weekend, and one overnight each alternate Wednesday to a Thursday morning, to the five nights, being alternate weekends Friday to Monday and the alternate Wednesday to Friday during the school week.
The mother seeks to maintain the current regime of time until the end of term 2 in 2022, then commencing term 3 in 2022 and each alternate week commencing Thursday after school for four nights per fortnight, and then at the commencement of term 1 in 2023 commencing from Wednesday to the following Monday each alternate week.
Now, the mother's reasons for preferring block time was sound. She says X is unsettled upon her return from her father and takes a day or so to get back into a routine. That the father and independent children's lawyer's proposal would have her, that is X, being unsettled twice a week each week. Her proposal sees the child being potentially unsettled once each week. That X does better, and they were the mother's words, I think, with longer periods in the mother's care, and the mother accepted and conceded this is likely to be the same in her father's care.
The mother acknowledged that being without her father or not seeing her father in the flesh maybe eight to nine, initially nine nights and ultimately eight nights, a fortnight is a change as she currently spends perhaps three nights, perhaps four nights maximum away from her father, and that this may have a negative impact upon her. However she has weighed up that negative with what she regards as the positives of a greater stability in a regime of time for her daughter being a continuum with her dad and a continuum with her mother, minimising the child moving to and fro between her parents' home and losing school items and the like as she grows, and minimising the number of times in a fortnight X may be unsettled when she moves between her parents' home.
The mother said X is just getting used to the current arrangement, it having started in February, and change for her should be not rushed. Further, the mother said that the block time in school time, she believed, was important as it was for block time in school holidays. That she saw block time during the school term and in holidays as a natural progression for the child.
The father and independent children's lawyer say eight to nine nights without seeing her father is not what the child has ever experienced, and this may have an adverse impact upon her. That in 2023 she will be moving to a new school, and her living arrangements, particularly with her father, should be well settled before that significant change for X. That the break of five nights over two weeks affords X the opportunity of continuing to have her father in her life on a regular and frequent basis, and that this is preferable to a block period as the mother seeks.
In any parenting application I must have regard to the Family Law Act 1975 (Cth) (“the Act”), and in particular, section 60CC(2) and (3) of that Act. The parents have agreed on an equal shared parental responsibility and ultimately that X should spend five nights in her father's care and the remaining time in her mother's care each fortnight.
There is no doubt this child benefits from a meaningful relationship with each of her parents. She has a strong and attached relationship with her mother and her father. That was evident even in 2020.
She has been exposed to poor behaviour on the mother's case by the behaviour of the father, however, currently the parents have done their very best to minimise any exposure for their daughter to their poor relationship and mistrust of each other and have done so, in my view, quite expertly and very much focused on their child's needs and the importance for her of not ever seeing her parents in dispute.
The child's wishes are not known and would be of little value or weight to me in this matter given her age.
As to the nature of a relationship with her parents. Her closest emotional attachment is her mother, and she has a strong and developing attachment with her father. I accept the mother's evidence that her child is unsettled when returning to her mother, and I accept the father's evidence that he does not see evidence of this when she is with him. This is indicative, in my opinion that her primary attachment is to her mother. That she is unsettled in her mother's care, not her father's care, does not indicate any poor parenting by either of her parents, just the different relationship she has with each of her parents given her still youngish age.
Her mother knows her intimately. She has always lived with her mother, and the mother's evidence of minimising the child being unsettled in a week, doing well in a longer periods of time with both parents, has the ring of truth, and it is accepted by me. That is evidence I accept. The mother is a careful and thoughtful parent. The father cares deeply for his daughter and is eager and has a capacity to be as significant emotionally to his daughter and for her attachment to him to be as significant in the near future as it currently is to her mother presently, and this will occur if X’s emotions or her emotional development is not in any way impeded or overwhelmed.
Both parents take their responsibility of parenthood seriously. They are competent, committed and caring parents, and with her father, X has the benefit of devoted paternal grandparents to whom she is also closely attached, and that is a significant benefit to any child, as the mother acknowledged.
I have formed the view that the mother has at this time the greater insight into the child's emotional capacity, and I will order a block period of time ultimately.
Further, I note in the consent orders the parties entered to there is provision for electronic communication three times a week with the absent parent, and given her age and children's marvellous ability to use electronic devices, FaceTime and the like, X will obtain benefit and advantage from that communication with both her parents when she is not in their care.
However, I also accept the father and independent children's lawyer's position that time with her father, in particular, should be bedded down well before she starts a new school in 2023. It is a different school. She is going to a language school and learning a European language. Both her parents agree this is important for her. I am going to balance the orders to take into account of the above and what I regard as the important competing needs for the child.
The orders I have found that are in X’s best interests, balancing all those factual matters I have referred to, and my obligation under the Act to take into account the important issues I must is that
(1)Her current time will continue with her father to the end of term 2, 2022.
(2)Commencing term 3, 2022, her time will extend from Thursday to Monday each alternate week until the cessation of term 3.
(3)At the commencement of term 4 in 2022 her time will extend from Wednesday after school to Monday morning each alternate week, and that time will commence the second week after school resumes in 2023, given sometimes children do not start the first week of school till about Thursday and X needs to be at her home that week and then with her dad the following week.
I have formed the view that those orders will take account of her competing needs and the competing positions each of her competent, caring parents have put to me.
As to changeover, consistent with the mother's position and the father's agreement, if changeover does not occur at school the nominees of the father may collect and deliver the child to and from the mother's home, and those nominees are basically her family members, in the main her grandparents, but it may be her uncle and other family members on occasions. X is fortunate to have her family members assist her.
If there is no nominee available and the father is to collect and deliver the child to and from time with her mother, this must occur at a public place. This is for two reasons. First it is for the father's protection from any further allegations of poor behaviour that may be alleged against him, and second it is also to assuage the mother's concerns of being in the father's presence. That is the position she made clear to me in cross‑examination, and that I see is a balance which will protect both the mother and the father and ultimately benefit the child.
I note I was told that the parties agreed to add to consent order 31, Tuesday, Thursday and Saturday to be the times X is to have FaceTime, WhatsApp or whatever with the other parent and I have added that addition to the consent orders.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 7 June 2022
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