FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Yusupov & Roth [2024] FedCFamC1F 768
File number(s): ADC 4166 of 2024 Judgment of: BERMAN J Date of judgment: 15 November 2024 Catchwords: FAMILY LAW – CHILDREN – Interim proceedings – Where the child lived with the mother and spent no time with the father – Where the Department removed the child from the mother’s care – Where the child currently lives with the father and spends limited supervised time with the mother – Where the mother seeks primary care – Consideration of risk – Where the Department highlight significant concerns with respect to both parents – Where the father lives with his mother – Where the Department considers the paternal grandmother to be a protective person – Where evidence cannot be tested on an interim basis – Orders made for the child to remain in the father’s primary care – Consideration of time spending – Consideration of best interests – Where the father concedes the requirement for supervision – Orders made for unsupervised time. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 67ZBD
Children and Young People (Safety) Act 2017 (SA) s 41
Cases cited: Deiter & Deiter [2011] FamCAFC 82
Marvel & Marvel (2010) 240 FLR 367
Division: Division 1 First Instance Number of paragraphs: 60 Date of hearing: 11 November 2024 Place: Adelaide Counsel for the Applicant: Mr Janson Solicitor for the Applicant: Janson Lawyers Counsel for the Respondent: Mr Fryer Solicitor for the Respondent: Port Adelaide Lawyers Counsel for the Independent Children's Lawyer: Ms Rieniets Solicitor for the Independent Children's Lawyer: Denise M Rieniets & Associates ORDERS
ADC 4166 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS YUSUPOV
Applicant
AND: MR ROTH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
15 NOVEMBER 2024
UNTIL FURTHER ORDER THE COURT ORDERS THAT:
1.X born 2023 (“the child”) live with Mr Roth (“the father”).
2.The child spend time with Ms Yusupov (“the mother”) each Monday, Wednesday and Saturday between the hours of 9.00 am and 5.00 pm.
3.The parties share the decision-making authority with respect to the child’s long-term care, welfare and development.
4.The parties communicate with each other via AppClose or such other method of communication as the parties may agree.
5.Handover take place at such venue as may be agreed between the parties but in default of agreement at the Suburb B Police Station.
6.The parties are restrained and an injunction granted restraining each of them from consuming any illicit drug or substance whilst the child is in their separate care or for a period of twenty four (24) hours prior to the child coming into their separate care.
7.The father forthwith give notice to the mother of any intention to leave the home of Ms C or in circumstances where the father is required to leave the said premises within twelve (12) hours of doing so.
8.Pursuant to s 62G(2) of the Family Law Act 1975
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- Yusupov & Roth [2024] FedCFamC1F 768
- Case
- [2024] FedCFamC1F 768
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CaseChat Overview and Summary
The court examined the evidence and submissions from both parties, along with the DCP's concerns, to assess the suitability of each parent as the primary caregiver. It highlighted the importance of the child maintaining a meaningful relationship with both parents, provided it was safe and advantageous. The father agreed to unsupervised time for the mother, proposing she spend time with the child from 9.00 am to 5.00 pm on two occasions each week. The court concluded that the father should have primary care of the child, while the mother would have unsupervised time. The court ordered the parties to share decision-making authority and attend a court-appointed child expert for an expedited family assessment report.
The court made several orders to ensure the child's safety and well-being, including the child living primarily with the father, spending time with the mother, and sharing decision-making authority. The court also ordered the parties to communicate via a specified method and attend a court-appointed child expert. The parties were restrained from consuming illicit drugs while caring for the child. Additionally, the father had to notify the mother of any intention to leave Ms C's home or inform her if required to leave within twelve hours. The proceedings were expedited for a First Day Hearing. These orders aimed to balance the child's safety and the importance of maintaining a relationship with both parents.
Orders
Orders of the court
ADC 4166 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS YUSUPOV
Applicant
AND:
MR ROTH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
15 NOVEMBER 2024
UNTIL FURTHER ORDER THE COURT ORDERS THAT:
1. X born 2023 (“the child”) live with Mr Roth (“the father”).
2. The child spend time with Ms Yusupov (“the mother”) each Monday, Wednesday and Saturday between the hours of 9.00 am and 5.00 pm.
3. The parties share the decision-making authority with respect to the child’s long-term care, welfare and development.
4. The parties communicate with each other via AppClose or such other method of communication as the parties may agree.
5. Handover take place at such venue as may be agreed between the parties but in default of agreement at the Suburb B Police Station.
6. The parties are restrained and an injunction granted restraining each of them from consuming any illicit drug or substance whilst the child is in their separate care or for a period of twenty four (24) hours prior to the child coming into their separate care.
7. The father forthwith give notice to the mother of any intention to leave the home of Ms C or in circumstances where the father is required to leave the said premises within twelve (12) hours of doing so.
8. Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and the child attend upon a Court Child Expert nominated and appointed by the Director of Court Children’s Services of the Adelaide Registry for the purposes of the preparation of an expedited Family Assessment Report, at the direction of a Court Child Expert .
9. The proceedings be placed in the list of cases awaiting a First Day Hearing with consideration to be given to the proceedings being expedited.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
I consider that whilst the Act does not make specific mention of the importance of a child having a meaningful relationship with each of the parties, it is likely that the best interests of a child will be served if a relationship with a party, parent or another person who may be significant to the child is maintained providing it is in all the circumstances safe to do so and will be of advantage to the child.PARENTING CONSIDERATIONS When challenged, each of the parties and the ICL conceded that whilst the focus had been on the child’s safety and therefore a consideration as to the primary care arrangements, what was ignored was the extent to which the orders sought by each of the parties would potentially be to the disadvantage of the child given that she is a toddler. At this stage, it is difficult to determine the extent to which the DCP concerns are justified in respect of each of the parties given the father’s denials and the mother’s partial acceptance albeit tempered by what she says is a change in her circumstances. Given that neither of the parties nor the ICL had considered the potential impact on the child of, at best, spending time with the non-primary care parent for a mere few hours each fortnight, the parties reconsidered their position. The father no longer presses for the mother’s time with the child to be supervised and proposes that she spend time with the child from 9.00 am to 5.00 pm on two occasions each week. The ICL appears to support the father’s altered position. As far as the mother is concerned, there was also a concession that frequency, rather than duration, may well be better indicated for a young child. It is not for the Court to bring to account a view or decision independent of the evidence. Neither party nor the ICL placed evidence before the Court that would assist in better understanding how the child’s interests could be better served by providing a protective environment but also, preserving and maintaining a relationship with the non-primary care parent. The starting position of the ICL was that neither of the parties should retain the primary care of the child and that the best course of action would have been the continued intervention of DCP. It is the position of the Department, as confirmed by Ms D, that there is no present intention to intervene. It is a glaring omission in the presentation of the father’s case that he did not secure evidence from Ms C as to her preparedness to accommodate him and the child. There is no circumstance where Ms C is obliged to supervise or even allow the father and the child to remain in her home. She is not and cannot be the subject of a court order. I am however satisfied that whilst Ms C does not seek to intervene in the proceedings, for as long as the father and the child reside in her home there is a reasonable basis to find that she will provide a protective environment for the child. It is also of importance that there is a regular check on the father and the child.