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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- Zhelan & Yazhu [2022] FedCFamC1F 693
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- [2022] FedCFamC1F 693
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CaseChat Overview and Summary
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
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.