Zhelan & Yazhu

Case [2022] FedCFamC1F 693

Federal Circuit and Family Court of Australia

(DIVISION 1)

Zhelan & Yazhu [2022] FedCFamC1F 693

File number(s): MLC 5610 of 2020
Judgment of: WILLIAMS J
Date of judgment: 14 September 2022
Catchwords: FAMILY LAW – PARENTING – Where there are two children of the marriage aged six and two – Where the disputes narrowed during the course of the trial – Where there is disagreement regarding the configuration of the future shared care arrangements for the children – Where the parents are unable to agree on the children’s schooling – Spousal maintenance – Where the father submits the mother has not demonstrated she is unable to adequately support herself and he is not in a financial position to pay spousal maintenance and the mother seeks spousal maintenance until the youngest child commences school.  
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 72, 75

Cases cited:

Banks & Banks [2015] FamCAFC 36

Bilz & Breugelman [2013] FamCA 578

Brown & Brown (2007) FLC 93-316

In the marriage of Bevan (1995) FLC 92-600

Stewart & Stewart [2017] FamCAFC 67

Division: Division 1 First Instance
Number of paragraphs: 91
Date of hearing: 8–10 & 18 August 2022
Place: Melbourne
Counsel for the Applicant: Mr Foo
Solicitor for the Applicant: Pentana Stanton Lawyers
Counsel for the Respondent: Mr Allen
Solicitor for the Respondent: Van Beveren Lawyers
Counsel for the Independent Children's Lawyer: Mr Radich
Solicitor for the Independent Children's Lawyer: Perisic Lawyers

ORDERS

MLC 5610 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR ZHELAN

Applicant
AND:

MS YAZHU

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

WILLIAMS J

DATE OF ORDER:

14 september 2022

THE COURT ORDERS THAT:

1.All previous parenting orders be discharged.

2.The parents have equal shared parental responsibility for the children, X born in 2016 (“X”) and Y born in 2020 (“Y”) (“the children”).

3.The children live with the mother.

4.The children spend time with and communicate with the father as follows:

(a)commencing 22 August 2022:

(i)in week one, from 9.00 am Thursday until 5.00 pm Friday; and

(ii)in week two, from 9.00 am Friday until 5.00 pm Sunday.

(b)commencing 19 September 2022:

(i)in week one, from 8.30 am Wednesday until 5.00 pm Thursday; and

(ii)in week two, from 8.30 am Wednesday until 5.00 pm Sunday.

(c)commencing 24 April 2023 (Start Term 2):

(i)in week one, from 8.30 am Wednesday until 9.00 am Friday; and

(ii)in week two, from 8.30 am Wednesday until 5.00 pm Sunday.

(d)commencing 10 July 2023 (Start Term 3):

(i)in week one, from 8.30 am Wednesday until 9.00 am Friday; and

(ii)in week two, from 8.30 am Wednesday until 9.00 am Monday.

(e)during Victorian gazetted school holidays as follows:

(i)commencing 2023, for one half of each term holiday by agreement and failing agreement, the first half; and

(ii)commencing 2023 for one half of the Victorian gazetted long summer school holiday period by agreement and failing agreement the first half in even numbered years…

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Details
AGLC
Zhelan & Yazhu [2022] FedCFamC1F 693
Case
[2022] FedCFamC1F 693
Decision Date

CaseChat Overview and Summary

Zhelan and Yazhu were the subject of a parenting dispute before the court, with both parties seeking various orders concerning the configuration of the children's shared care arrangement, their education, and spousal maintenance. The father proposed a week-about arrangement for the children's shared care, starting from Term 1 2025, while the mother preferred a fortnightly cycle for the children's time with the father. Additionally, the father sought to have the children attend a particular school in Suburb E, and the court was asked to determine spousal maintenance. The court had to decide whether the proposed week-about arrangement by the father and the independent children's lawyer was in the best interest of the children, or if the fortnightly cycle arrangement proposed by the mother was more suitable. The court also needed to determine the appropriate school for the children and the amount of spousal maintenance to be paid by the father to the mother.

The court found that the proposed fortnightly cycle arrangement for the children's shared care was more appropriate, taking into account the statutory considerations outlined in s 60CC(3) of the Family Law Act 1975 (Cth). The court determined that the mother's future employment prospects and the children's developmental needs were paramount factors. The court also ruled that the children should attend D School in Suburb E and that the father should pay spousal maintenance of $200 per week for a period of 12 months. The reasoning behind these decisions was based on the evidence presented by the independent children's lawyer, Dr J, and the submissions made by both parties.

In summary, the court ruled in favour of the mother's proposed fortnightly cycle arrangement for the children's shared care, with the children attending D School in Suburb E and the father paying spousal maintenance of $200 per week for a period of 12 months. The court found that this arrangement was in the best interests of the children, considering factors such as the mother's future employment prospects and the children's developmental needs.

Orders

Orders of the court

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Background

Background to the litigation

I have determined:(a)configuration of the shared care arrangement for the children should remain in accordance with the arrangements applicable from 10 July 2023;(b)unless otherwise agreed by the parents in writing:(i)X shall attend D School in Suburb E for the commencement of Prep in January 2023 until the conclusion of Year 6;(ii)Y shall attend D School in Suburb E for the commencement of Prep in January 2025 until the conclusion of Year 6;(c)the father pay spousal maintenance to the mother of $200 per week for a period of 12 months from the date of these orders.Background and relevant procedural history The applicant father is aged 34 years and the respondent mother is aged 30 years. The parties’ commenced their relationship in 2014, whilst they were both living in Sydney. The father was employed at L Company as a professional and the mother was studying. The parties’ commenced cohabitation in 2015, married in 2016 and separated on a final basis in April 2020. They were divorced on 2 August 2021. The parties’ eldest child, X was born in 2016 and their second child, Y was born in 2020. After the birth of X the mother was diagnosed with Post-Natal Depression and Premenstrual Dysphoric Disorder. X has some developmental delays and is eligible for NDIS assistance. The parties’ purchased the former matrimonial home in Suburb C in late 2017, prior to relocating to Melbourne and moving into the property in 2018. The parties’ separated on 28 April 2020 when the father was removed from the home by police who issued a Family Violence Safety Notice and subsequently applied for an intervention order. On 30 April 2020, the father consented to an interim Intervention Order without admission. For a period in mid-2020, the mother was admitted as an inpatient of a hospital unit and was diagnosed with Post-Natal Depression and an Adjustment Disorder. On 2 June 2020, the father filed an Initiating Application in the then Federal Circuit Court of Australia seeking parenting orders, which he subsequently amended to seek property orders. On 9 June 2020, the mother filed a Response seeking orders to relocate the children to Sydney. On 10 August 2020, a judge of the court made interim orders by consent providing for the children to live with the mother and spend time with the father supervised by a contact service. The father met his current partner, Ms M (“Ms M”) in late 2020. They commenced a relationship in early 2021, prior to Ms M moving in with the father and falling pregnant in mid-2021. The father disclosed to the mother through his lawyers that he had re-partnered with Ms M in late 2021. Their son, N was born in 2022. On 19 November 2020, final property orders were made by consent providing for the father to pay the mother $40,500 and for the father to retain the former matrimonial home encumbered, together with superannuation splitting orders. On 30 November 2020, orders were made for the appointment of an independent children’s lawyer (“ICL”), the parents to have equal shared parental responsibility for the children, the children to spend graduated time with the father progressing from supervised to unsupervised and for the mother to be restrained from residing more than 50km from Suburb C.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I now turn to the specific issues in dispute. The configuration of time the children should spend with each parent The parenting orders agreed upon by the parents culminate in the children spending equal time with each parent as from 10 July 2023. The time is configured so that the children will spend two nights with the father in the first week of each fortnight and five nights in the second week of each fortnight. Both the father and the ICL propose the configuration of the children’s time should change to a week-about arrangement, with changeover each Friday, as from Term 1 2025, when Y commences Prep. The mother proposed the children spend time with the father, as from 10 July 2023 in a fortnightly cycle, in week one from 8.30 am Wednesday until 9.00 am Friday and in week two, from 8.30 am Wednesday until 9.00 am Monday. Dr J, in his report of February 2022, recommended the children’s time with the father needs to be increased on a progressive basis over the next 18 months and proposed a potential model for a graduated increase of time. In reaching agreement about the progression of the children’s time with their father, the parties had regard to and were guided by the suggestions of Dr J. The evidence of Dr J regarding whether spend time arrangements should progress to a week-about basis, as proposed by the father and ICL was that whilst week-about would be generally advantageous for children, it is not a panacea for this family’s problems. Benefits include a longer period for each child to settle in with the respective parent, greater certainty particularly for X’s special needs and the added simplicity of fewer changeovers. Both counsel for the father and ICL adopted Dr J’s comments in their submissions. The mother opposed a week-about arrangement because it would potentially impact her capacity to work and attend appointments for herself and X. Although the mother is not currently employed, she proposes to re-enter the workplace as soon as she is able to do so. The mother contended her prospects of securing and maintaining employment would improve if she had the flexibility to work each week, when the children would be cared for by the father, rather than having the fulltime care of the children for one week each fortnight. The submissions of counsel did not specifically address the s 60CC(3) statutory considerations, but generally took into account ss 60CC(3)(b), (d), (e), (f), (g) and (i). Having considered Dr J’s evidence and the proposals of all parties, I consider the arrangements proposed by the mother to be the appropriate configuration for shared care of the children. I do so for the following reasons:(a)a reduction in changeovers is not a paramount factor as there are orders that the children reside within 15km from Suburb C and the majority of changeovers will be at the children’s school/kinder, which are in close proximity;(b)the mother will have greater ease attending appointments with the children, and in particular X, if she is able to schedule appointments in both weeks;(c)the mother’s future employment may benefit from having availability and flexibility to work from Wednesday to Friday each week, as opposed to having limited ability to work every second week;(d)the children would otherwise be required to adjust to a new routine, in circumstances where it may cause X’s anxiety to increase;(e)the proposed routine is simple for the children to understand they spend each Wednesday and Thursday night overnight with their father, and weekends alternate between the parents; and(f)a week away from each parent may be too long for a 5 year old child, as Y will be when equal time commences and may be too long for X, when his developmental needs are taken into account.