BAGINSKI & MEDVITZ

[2020] FamCA 258

FAMILY COURT OF AUSTRALIA

BAGINSKI & MEDVITZ [2020] FamCA 258

FAMILY LAW – INTERIM – Parenting – Where the mother seeks variation to supervised time due to COVID-19 pandemic – Where there is a dispute as to frequency of supervised time – Where regular time with the mother is in the child’s best interests – Orders made.

Family Law Act 1975 (Cth)
Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW)

APPLICANT: Ms Baginski

RESPONDENT: Mr Medvitz

INDEPENDENT CHILDREN’S LAWYER: John Spence & Associates

FILE NUMBER: SYC 4381 of 2019

DATE DELIVERED: 20 April 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 17 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton SC

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT: Mr Johnston

SOLICITOR FOR THE RESPONDENT: Vizzone Ruggero Twigg Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: John Spence & Associates

Orders

Amended pursuant to Rule 17.02 24042020 paragraphs 2.3, 2.4 & 20

IT IS ORDERED PENDING FURTHER ORDER

1. That the child X born … 2013 live with the father.

2. That the child spend time with the mother as follows:

   2.1Each Sunday between 10.00am and 6.00pm.

   2.2Each Tuesday during the school term from 3.30pm to 6.30pm with the changeover to occur at the D Centre, provided that such contact is not contrary to the terms of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW).

   2.3One weekend in each calendar month, in the presence of a supervisor, from 10am on Saturday until 6pm on Sunday.

   2.4In the absence of agreement, that weekend should be the first full weekend in each calendar month.

3. That the mother shall not be present at any changeover.

4. That the time that X spends with the mother shall be supervised by one of the maternal grandparents; Mr B Baginski or a supervisor from F Centre.

5. That for the purpose of the Sunday contact, the father shall deliver the child to, and collect her from, the supervisor at the residence of the maternal grandparents at Suburb C and on weekends when X stays overnight with the mother, she shall sleep at the Suburb C residence.

6. That on any occasion when X is staying overnight with the mother, she shall cause X to telephone the father at bedtime.

7. That the father shall supervise X at all times that Ms G is in the same place as X and immediately notify the mother in writing if he observes any behaviours or conduct that appears to be inappropriate or distressing to X.

8. That the child shall also spend time with the mother as follows:

   8.1From 10am to 5pm on Mother’s Day, if the child it not already in the mother’s care;

   8.2On the Mother’s Birthday, if the child is not already in the mother’s care, as follows:

   8.2.1Where the Mother’s Birthday falls on a school day, from 3.30pm to 6.30pm; and

   8.2.2Where the Mother’s Birthday falls on a non-school day, from 10am to 4pm;

   8.3On the child’s birthday, if the child is not already in the mother’s care, as follows:

   8.3.1Where the child’s birthday falls on a school day, from 3.30pm until 5.30pm; and

   8.3.2Where the child’s birthday falls on a non-school day, from 2pm to 6.30pm.

9. That notwithstanding any other Order to the contrary, pending further order the child live with the father from 9am to 5pm on Father’s Day, if the child is not already in the father’s care.

10. That the matter be listed for further interim hearing in respect of parenting matters on a date not before the mother completing 6 months of therapeutic treatment by a psychiatrist.

11. That the mother is permitted to FaceTime the child on each Monday between 6pm and 6.30pm, or at such other time as agreed between the parties in writing, and that such FaceTime calls be conducted in private without interference from the father or other members of his household and in the event the child is in the care of the nanny employed by the father, the father shall ensure the child’s nanny facilitates the FaceTime calls.

12. That the parties shall not prevent or interfere with, and shall do all things necessary to facilitate, the child making telephone calls and receiving telephone calls from each of the mother or the father whilst in the care of the other parent, including Skype and other video communication.

13. That each party shall notify the other:

    13.1As soon as reasonably practicable, upon becoming aware of the child being involved in a medical emergency;

    13.2At the earliest opportunity of all medical and health issues affecting the child including any and all medical treatment that has been obtained, sought or is required for the child.

14. That forthwith upon the making of these orders and continuously thereafter, the parties shall each provide all authorities and shall give all necessary consent to ensure that the child’s treating medical practitioners are authorised and directed to communicate with, and provide information and copies of documents directly to, each party upon either party’s respective request and at the requesting party’s own cost.

15. That forthwith upon the making of these orders and continuously thereafter, the parties shall provide all authorities and shall give all necessary consent to ensure that the Principal of the child’s school and/or the child’s school teachers, are authorised and directed to communicate with and provide any information and copies of documents directly to each party upon either party’s respective request and at the requesting party’s own cost.

16. That both parties shall be at liberty to attend all parent / teacher meetings for the child as they may arrange.

17. That each party be and is hereby restrained from denigrating or criticising the other parent within the hearing range or presence of the child.

18. That each party is hereby restrained from discussing these proceedings with the child.

19. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

20. That the application in relation to financial matters be referred to the registrar for directions.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baginski & Medvitz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4381 of 2019

Ms Baginski

Applicant

And

Mr Medvitz

Respondent

REASONS FOR JUDGMENT

1. Ms Baginski (“the mother”) and Mr Medvitz (“the father”) are the separated parents of X who is seven years old. X lives with the father and has done so since her parents separated in 2016.

2. On 5 December 2019, Senior Registrar Campbell made orders for X to spend time with the mother on alternate Saturdays from 10am until 4pm and each Tuesday from 3.30pm until 6.30pm. That time is to be supervised by either or both of the maternal grandparents or a professional supervisor.

3. Those arrangements have been disrupted by the current pandemic and the provisions of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) (“the restrictions”).

4. The mother has filed an Application in a Case seeking to vary the orders of 5  December 2019 so as to accommodate the restrictions. The father opposes some, but not all of the mother’s proposed variations.

5. The father consents to the mother’s brother, Mr B Baginski being added as a possible supervisor and Mr B Baginski has given a written undertaking to the Court in relation to his observance of his responsibilities as a supervisor.

6. An Independent Children’s Lawyer (“ICL”) has been appointed for X.

7. The Court was also assisted by a report from a single expert psychiatrist, Dr H, in relation to the mother’s mental health and, in particular, about the likelihood and consequences of her relapsing into illness.

8. The mother seeks orders that X spend time with her in the following terms:

   1.If the restrictions permit (at some future time) each Tuesday in the northern suburbs area where X lives.

   2.Each Sunday from 9am until 6pm to occur at the residence of the maternal grandparents in the Eastern suburbs of Sydney in the presence of a supervisor.

   3.For one weekend each month from 4pm Friday until 6pm on Sunday in the presence of a supervisor.

   4.That the father deliver and collect the child for the purpose of the weekend time.

   5.That the father supervise the time that X spends in the presence of another, named, child.

9. The father’s position is that the Sunday time should continue on alternate Sundays in accordance with the existing orders, commencing at 10am, although he agrees to its being extended until 6pm.

10. He agrees to the weekend time once each month provided that the weekend is one of the weekends when X would spend time with the mother pursuant to the alternate Sunday orders and that it starts at 10am on Saturday.

11. The father sought an order for telephone contact at bedtime on the weekend of the overnight visit and the mother agreed.

12. Thus the matters in dispute are:

    ·    Whether the time should be increased to occur each Sunday.

    ·    When the Sunday time should start.

    ·    When the weekend time should start.

SHOULD X SPEND TIME WITH THE MOTHER EACH SUNDAY OR

ALTERNATE SUNDAYS?

1. The scheme of the orders made 5 December 2019 provides for X to spend time with her mother every Tuesday and on alternate Sundays. Thus on some weeks, X saw her mother twice but in any event, she saw her at least once each week.

2. Because of the restrictions, the Tuesday afternoon time has not happened and will not be reinstated for the foreseeable future.

3. Thus X only sees her mother once every two weeks.

4. There have been 17 visits supervised by the professional supervisor. Not all of the reports were tendered but all were available to the parties and the ICL. It was agreed that the tenor of the reports was consistent; that X enjoyed a positive and loving interaction with her mother; that the mother and child were happy to be together, interacted easily and that the child was excited to see her mother and sad when it was time for the visit to end.

5. Nothing in the report of the supervisor gave rise to any concern about X’s relationship with her mother or about the mother’s parenting.

6. The purpose of supervision is not to limit the time that X spends with her mother but to address the concerns raised by Dr H in relation to the mother’s mental health.

7. It is a sad fact that X did not see her mother after the parents separated for some years when the mother lived overseas, returning to Australia in September  2019. The father asserts that from the date the parents separated in April 2016, the mother did not see X who was only three years old when her parents separated.

8. The primary considerations set out in the Family Law Act 1975 (Cth) (“the Act”) require a balance between the benefit to this child of having a meaningful relationship with her mother and the need to protect her from being exposed to psychological harm which may arise if the mother’s past psychiatric difficulties reappear.

9. X has already been deprived of a relationship with her mother for some three years. If the mother were again to become ill, she may again be deprived of physical contact.

10. It is important to consolidate the relationship between the child and her mother, while the mother seems to be in good health, so that she will have a solid foundation to build on if the mother’s illness reoccurs.

11. The presence of the supervisors will protect X, in the event of a relapse in the mother’s health problems.

12. Accordingly, it is appropriate that X should spend time with the mother every Sunday.

13. Because the father will be doing all of the travelling to facilitate the visits, and X will need to travel from the Northern suburbs to the Eastern suburbs, the visits should start at 10.00am.

14. X should be delivered to and collected from the apartment of the maternal  grandparents and, for the purpose of overnight visits, should sleep there.

15. X will spend one weekend in each calendar month with the mother, in the presence of a supervisor. Again, because of the distance and travelling time, the weekend should commence at 10am on Saturday and end at 6.00pm on Sunday. In the absence of agreement, that weekend should be the first full weekend in each calendar month.

16. The father complains of inappropriate behaviour by the mother towards him. Because the father’s affidavit was not served until the afternoon before the hearing, the mother has not responded to those allegations. However, it seems appropriate, for X’s protection, that the parents should have no contact and the changeovers should occur between the father and a supervisor.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 20 April 2020.

Associate:

Date: 20.04.2020