Yustakov and Yustakova
[2008] FMCAfam 103
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YUSTAKOV & YUSTAKOVA | [2008] FMCAfam 103 |
| FAMILY LAW – Parenting – disclosure of parent’s addresses – benefits for the child – introduction of block school holiday periods. |
| Family Law Act 1975 (Cth) s.60CC |
| Applicant: | MR YUSTAKOV |
| Respondent: | MS YUSTAKOVA |
| File number: | PAC 2208 of 2007 |
| Judgment of: | Housego FM |
| Hearing date: | 4 February 2008 |
| Date of last submission: | 4 February 2008 |
| Delivered at: | Parramatta |
| Delivered on: | 4 February 2008 |
REPRESENTATION
| Solicitors for the Applicant: | The Applicant appeared in person |
| Counsel for the Respondent: | Ms Sloane |
| Solicitors for the Respondent: | Marsdens Law Group |
ORDERS
The child, namely [X] (“the child”) born [in] 2004 shall live with the mother.
The parties have equal share parental responsibility for the said child.
The father shall spend time with the child as follows:
(a)In week 1, and alternating each week thereafter from 5.00pm Wednesday to 5.00pm Friday commencing 6 February 2008.
(b)In week 2, and alternating each week thereafter from 5.00pm Friday to 5.00pm Sunday.
(c)Each Father’s Day from 5.00pm the day before Father’s Day to 5.00pm Father’s Day.
(d)That if Mother’s Day falls on a day the father is spending with the child the father’s time is suspended from 5.00pm the day before Mother’s Day to 5.00pm Mother’s Day.
(e)On the father’s birthday from 5.00pm Friday to 5.00pm Saturday with that time to commence on the first Friday after the father’s birthday.
(f)At Christmas from 5.00pm Christmas Eve to 5.00pm Boxing Day in years ending in an even number.
(g)At Russian Orthodox Christmas from 5.00pm on 5 January to 5.00pm on 7 January in years ending in an even number.
(h)If the mother’s birthday (as per 3(d) above) falls on a day the father is spending with the child, the father’s time is suspended.
(i)At New Year from 5.00pm New Year’s Eve to 5.00pm New Years Day each alternate year, with the father’s year to commence in 2008.
(j)For half of all other public holidays (i.e. public holidays other then Christmas Day, Boxing Day and New Years Day) on an alternating basis from 5.00pm on the eve of the holiday to 5.00pm on the holiday, commencing with the father spending Good Friday with the child. For the purposes of this Order the public holidays are Anzac Day, Queens Birthday holiday and Labour Day holiday.
(k)On the child’s birthday from 5.00pm on 5 December to 12.00pm on 6 December in years ending in an even number and from 12.00pm on 6 December to 12.00pm on 7 December in years ending in an odd number.
(l)At other times as agreed.
For the purpose of telephone contact the mother is to make available a telephone number and make available the child for telephone contact:
(a)In week 1 on Sunday and Tuesday between 7.00pm and 8.00pm.
(b)In week 2 on Tuesday and Thursday between 7.00pm and 8.00pm.
For the purpose of communicating about the welfare and development of the child the parties are to confirm communication via email.
The parties keep each other informed if the child requires any medical treatment or any emergency situations as well as general developments in the child’s health. The parties to provide each other with details of treating doctors.
The parties by themselves, their servants or their agents are restrained from removing or attempting to remove the child [X] (AKA [omitted]) born [in] 2004 (female) from the Commonwealth of Australia.
The Marshall of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and the Police forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these Orders and to take all the necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
The child remains on the PACE alert system.
In the event that either of the parties have special and significant events that they wish for the child to attend including weddings, births and funerals:
(a)If the event falls on a day when the child is not in the respective parent’s care, the parent is to provide (14) days notice of the upcoming event or if that is not possible then reasonable notice, and the parent who the child is to be with at the time of the event is not to unreasonably withhold consent for the child to attend that special event.
THE COURT ORDERS THAT
The father is at liberty to designate the paternal grandparents or either of them to attend at changeovers to pick up or deliver the child, instead of him.
Both parties are to keep each other informed of their permanent place of residence and their landline telephone number.
In the event that a party's place of residence is changed, the change is to be notified in writing to the other parent within 14 days.
In addition to the time that the father spends with the child pursuant to Order 3, he shall spend time with her for block school holiday periods as follows:
In 2008:
(a)For five days from 5.00pm on the Sunday which falls at the mid point of each gazetted school holiday period until 5.00pm the following Friday at the end of terms 1, 2 and 3.
(b)In the end of year school holiday period for five days from 5.00pm on the first Sunday until 5.00pm the following Friday and thereafter each alternate week until the conclusion of the school holiday period subject to Order 3(f), 3(g), 3(h), 3(i) and 3(j).
In 2009:
(a)For the second half of the school holidays at the end of terms 1, 2 and 3 commencing at 5.00pm Saturday and concluding at 5.00pm on the following Saturday.
(b)During the end of year school holidays for seven days from 5.00pm on the second Saturday and each alternate week thereafter subject to Order 3(f), 3(g), 3(h), 3(i) and 3(j).
From 2010 for the second half of each school holiday period commencing at 5.00pm on the Saturday which falls nearest to the mid point of the New South Wales gazetted period subject to Order 6, 3(g), 3(h), 3(i) and 3(j).
During school holiday periods the father's time with the child pursuant Order 3(a) and 3(b) will be suspended for the entire New South Wales gazetted school holiday period including the weekend immediately after the cessation of the school term and the weekend immediately before the commencement of the next school term.
For the purpose of changeover the pick up and delivery of the child will occur at Hungry Jacks restaurant at [omitted] commencing 6 February 2008.
That pursuant to section 65DA(2) 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 Attachment A and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Yustakov & Yustakova is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES |
PAC 2208 of 2007
| MR YUSTAKOV |
Applicant
And
| MS YUSTAKOVA |
Respondent
REASONS FOR JUDGMENT
The parties have sought Orders from the Court in relation to the parenting arrangements for [X] born [in] 2004. It is to their credit that they have been able to resolve in large part the matters which will govern her care until she achieves her maturity or thereabouts. Notwithstanding that substantial agreement was reached by the parents prior to the commencement of the hearing some small matters remained for determination and I have made Orders in relation to those matters still in issue. They can be summarised as follows:
a)Whether the mother in particular is to keep the father appraised of her address and telephone number;
b)In the event that she is to do so whether that change be notified within 14 days;
c)Whether the changeover presently in place, that is the [omitted] police station be varied, and if so to where; and
d)What arrangements ought be put in place in relation to block school holiday period time, if any.
In relation to the first matter, that is the residential address, I have considered the material which has been filed by each of the parents and the Report of the family consultant released on 4 December 2007. The Orders which now govern [X]’s care provide with the agreement of the parents to continue shared joint parental responsibility for her. I find that it is in [X]’s best interests if shared parental responsibility is to be achieved. This is more likely to be achieved if both the parents are informed as to the whereabouts of the other.
I am also satisfied that it will be in [X]'s best interests as she moves between the households of her parents if she is free to discuss with each of her parents, in a manner suitable to her age, her experiences in the other household. This is not to suggest that she become in effect an informant but rather that she feel confident and comfortable in each household that she does not have to keep matters relating to her own living arrangements secret from either of her parents whom there is no doubt she loves very much.
While I understand that the mother has concerns, she now has the protection of an Apprehended Violence Order. Indeed there has been a successful prosecution in relation to a breach of the Apprehended Violence Order. I note the wife’s Counsel concedes this breach is “at the lower end of the spectrum”.
In the circumstances, I am satisfied that the father now very clearly understands that his obligation is to abide by the terms of the Apprehended Violence Order and that he is, even when it expires, to ensure that the mother lives free of any harassment, abuse or undue pressure from him. Behaviour involving harassment, abuse or undue pressure between the parties can only be bad for [X] and contrary to her best interests. Further, the parties are continuing with the program which they have enrolled with Unifam.
Overall I am satisfied that there is sufficient safety mechanisms in place for the mother's safety to continue even with the making of an Order for disclosure of address and phone number. However, I make it clear that the father's attending at the mother's premises or utilising the phone number provided to him for the purpose other than making appropriate and confined contact in relation to [X], would be to cause difficulties not just for the parents but also for [X] and should not happen.
I have also been asked to make Orders in relation to the block periods that the child will spend with her father. The father has sought that a regime equivalent to half school holiday periods commence fairly promptly. For her part the mother seeks that such arrangement not be put in place until [X] commences school which will not be until the beginning of 2010.
I have had regard to the Family Report and in particular to paragraph 21 and the recommendations where Mr L clearly envisaged that [X] would both spend time with her father for block periods during school holidays. He makes no adverse comment in relation to the proposals of the father. I note specifically that in paragraph 5 of the father's proposals, being the amended proposals include a reference there to school holidays as including a 14 day block period. It is clear from reading the remainder of the report that this was the proposal in relation to school holidays that was considered by the family consultant.
However, I take into account the mother's concerns that [X] is still too little to have extended periods with her father as she has now spent no longer than four days in a block with him since the separation. In the circumstances, it seems to me appropriate for a stepped up school holiday period regime to be put in place which would have the effect of ensuring that by the time [X] commences school in 2010 that the half school holiday period can commence.
Accordingly, what I have set out in my Orders is an arrangement which will ensure that during 2008, at least until the conclusion of the third term, [X] will spend no more than five days consecutively away from her mother. This will continue during the school holiday period for the years 2008 and 2009. In 2009 I have extended the period of time that [X] will spend with her father making that period of time seven days during the school holiday periods and again during the end of school holiday period, the periods of time that [X] will spend with her father and away from her mother are again limited in time to a period of seven days. Hence, extended periods such as those contained within the father's proposals will not actually commence until 2010 and accordingly, having regard to the content of the report, that will give [X] ample time to develop her relationship with her father.
I note particularly that at paragraph 16 there is evidence in the Report of attachment by [X] both to her mother and also to her father. Similarly, there is reference in the observations to [X] seeking her father remain and continue attending to her as set out in paragraph 16. This observation is consistent with demonstrable attachment and also what is known as “a safe base” which the social scientists would suggest indicates that [X] is able to spend periods of time overnight with the father and absent from her mother.
It is for these reasons having regard to the requirement that I make orders in accordance with [X]’s best interests having regard to those matters in section 60CC so far as they are relevant. In the limited determinations before me I have made the Orders made today.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Housego FM
Associate:
Date: 14 February 2008
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