Bangi and Belov (No 2)

[2014] FamCA 559

FAMILY COURT OF AUSTRALIA

BANGI & BELOV (NO 2) [2014] FamCA 559

FAMILY LAW – CHILDREN – Where the matter has been heard on a final basis – Where interim orders are proposed for a period of time – Where the child has not been spending time with the father other than in counselling sessions – Where there is agreement for the child to commence spending time with the father outside of counselling sessions – What day contact is to take place – Where changeovers should take place

APPLICANT: Mr Bangi

RESPONDENT: Ms Belov

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central

FILE NUMBER: SYC 850 of 2012

DATE DELIVERED: 18 July 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Hannam J

HEARING DATE: 14, 15, 16, 17 and 18 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney

SOLICITOR FOR THE APPLICANT: Adams & Partners Lawyers

RESPONDENT: Self‑represented Litigant

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Berry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central

Orders

1. The child is to live with the mother.

2. The child is to spend time with his father each Saturday between the hours of 9.15 am to 4.45 pm commencing tomorrow 19 July 2014.

3. Changeover, for the purposes of Order 2, is to occur at the Contact Service at Suburb T as soon as the Contact Service becomes available.  Prior to that Contact Service becoming available changeover is to occur at the McDonalds Family Restaurant, Suburb U.

4. Each of the parents is to do all things required to complete the intake process for the Contact Service at Suburb T as facilitated by the Independent Children’s Lawyer.

5. In the event that the Contact Service is only able to provide changeover fortnightly, then each other changeover when the Service is not available will occur at McDonalds Family Restaurant to ensure that the child spends time with the father each Saturday.

6. The matter will be adjourned for submissions to 22 September 2014 at 9.30am in the Family Court of Australia at Parramatta.

7. The mother is restrained from changing the child’s school during the period of the adjournment.

8. The mother is to facilitate the child in continuing to engage in therapeutic counselling with Dr V during the adjourned period at a frequency of not less than monthly intervals on a date and time convenient to the mother to be facilitated by the Independent Children’s Lawyer.

9. The fees of Dr V are to be equally shared by the mother and the father.

10. The Independent Children’s Lawyer has leave to provide a copy of these orders to Dr V.

11. The Independent Children’s Lawyer has liberty to re-apply to have the matter listed on 24 hours’ notice in the event that the orders are not complied with.

12. The mother and the father are each restrained:

    12.1 From making any critical, disparaging or derogatory remarks about the other parent or any member of the other parents’ family or household to the child or in the child’s presence or hearing, such order to include verbal, written or electronic means including email, text message, Facebook and other forms of social media.

12.2Causing or permitting any other person or persons from making any critical, disparaging or derogatory remarks about the other parent or any member of the other parent’s family or household to the child or in the child’s presence or hearing, such order to include verbal, written or electronic means including email, text message, Facebook and other forms of social media.

12.3From harassing, molesting, intimidating or stalking the other parent or any member of the other parent’s family or causing any other person so to do.

1. The mother and the father are each restrained from using any physical discipline on the child, or from hitting, striking, pushing or pulling the child in any way.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 850 of 2012

Mr Bangi

Applicant

And

Ms Belov

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is an application for an interim order, which has followed a five day hearing in respect of the child, C.

2. The parties have reached agreement that it is in the child’s best interest for him to spend time with his father once a week and it has roughly been agreed that it is to be between 9.00 am and 4.30 pm or 9.15 am and 4.45 pm, which is exactly the same amount of time.

3. The only matters which are not agreed to is where changeover is to occur and which day of the weekend the child is to spend time with his father.

4. It is the proposal of the father, supported by the Independent Children’s Lawyer, that the child’s time with his father occur on a Saturday and the main reason that that day is proposed is because the Contact Service at Suburb T will be able to be utilised for changeover and that Service is not available on the Sunday, which is the day proposed by the mother.

5. The mother opposes the Saturday and proposes that it be Sunday because the difficulties are that most of the child’s social events, such as birthday parties and those sorts of things, are on the Saturdays and she submits that he will lose his friends and also that he is currently in the routine of going to Country D school on a Saturday.

6. This is an interim order and it is not necessarily the case that from here on in that all time in the future with the father will be on a Saturday, indeed, what is being sought on a final basis, but we are not coming to that today, but it has been flagged by the Independent Children’s Lawyer, is a graduated scheme under which the child has more time with his father beginning on a Saturday, moving to an extra day during the week then there being overnight time.

7. The proposal had been based on it being a Saturday because of the availability of the changeover centre. It has been conceded that the changeover centre will not become immediately available but given that that could be a matter of some weeks and given the strength of Dr V’s evidence of the importance of the relationship moving to a full day each week as soon as possible and given the consent, it seems that an alternative that is proposed by the father could be utilised for a couple of weeks.

8. On balance, the issues seem to be whether the Court would, in effect, make orders for time with the father being on a Sunday for two weeks followed by then moving to a Saturday. I think that for the child to understand that for the next quite a few weeks there will be a regular routine is an important factor. While I am not suggesting that Country D school is not important for him, there are alternatives as have been indicated by the mother and the relationship with the father outweighs the importance of him going to Country D school. More importantly, in light of the very long history of conflict between the parties and the very long history of allegations being made that it is important to utilise the Contact Service. The mother herself has indicated under cross-examination her own concerns for her safety that indicate that the centre be utilised and it can only be utilised on a Saturday. It may be that the alternate, and that is McDonalds, will only have to be utilised for a couple of weeks.

9. Accordingly, I make orders commencing tomorrow, Saturday 19 July 2014, that:

   (1)C is to spend time with his father from 9.15 am to 4.45 pm each Saturday.

   (2)Changeover is to occur at the Contact Service at Suburb T as soon as the Contact Service becomes available. Prior to that Contact Service becoming available and, in particular, commencing tomorrow and on each Saturday prior to the Contact Service becoming available, changeover is to occur at the McDonalds Family Restaurant, Suburb U.

   (3)Each of the parents to do all things required to complete the intake process for the Contact Service at Suburb T as facilitated by the Independent Children’s Lawyer.

   (4)In the event that the Contact Service is only able to provide changeover fortnightly then each other changeover to ensure that the child spends time with the father each Saturday will occur at McDonalds Restaurant.

   (5)That the mother is restrained from changing the child’s school during the period of the adjournment.

   (6)The mother is also to facilitate the child in continuing to engage in therapeutic counselling with Dr V during the adjourned period at a frequency of not less than monthly intervals on a date and time convenient to the mother to be facilitated by the Independent Children’s Lawyer.

   (7)The Independent Children’s Lawyer has leave to provide a copy of the orders to Dr V.

   (8)The Independent Children’s Lawyer has liberty to re-apply to have the matter listed on 24 hours’ notice in the event that the orders are not complied with.

   (9)The matter will be adjourned for submission to 22 September 2014 at 9.30am in the Family Court of Australia at Parramatta.

   (10)The fees of Dr V be an amount equally shared by the mother and the father.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 18 July 2014.

Legal Associate:       

Date:    24 July 2014