Bangi and Belov (No 3)

[2014] FamCA 935

FAMILY COURT OF AUSTRALIA

BANGI & BELOV (NO. 3) [2014] FamCA 935

FAMILY LAW – CHILDREN –  INTERIM PARENTING – application to vary interim orders – to increase time father spends with child – mother has not responded to application – mother did not appear at court – evidence suggests child wants to increase time spent with father – best interests of child.

APPLICANT: Mr Bangi

RESPONDENT: Ms Belov

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: SYC 850 of 2012

DATE DELIVERED: 27 October 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 27 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney

SOLICITOR FOR THE APPLICANT: Adams & Partners Lawyers

RESPONDENT: Self-represented litigant (no appearance)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Berry

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

Orders

1. That pending further order, Orders made on 18 July 2014 are varied as follows:

   (a)Order 2 is suspended and in lieu an order is made that the child is to spend time with his father from after school each Friday until 4.45 pm each Saturday commencing Friday, 31 October 2014.

   (b)Order 3 of the Orders made on 18 July 2014 is amended to read:

   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 on non-school days is to occur at the McDonalds Family Restaurant, Suburb U.  For the purposes of order 2 with respect to spending time with his father the father is to collect the child from school at the completion of the school day.

2. The mother is restrained from attending the child’s school on a Friday other than for the purposes of delivering the child to school.

3. Leave is granted for a copy of these orders to be provided by the Independent Children’s Lawyer to the school.

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 PARRAMATTA

FILE NUMBER: SYC 850  of 2012

Mr Bangi

Applicant

And

Ms Belov

Respondent

REASONS FOR JUDGMENT

1. The second application today is in relation to a variation of the interim parenting orders in relation only to orders concerning the time the child C is to spend with his father.

2. The child, who is the subject of these proceedings, is 8 years old.

3. His parents separated on a final basis in August 2011 when the child was five.

4. In February 2012 at a time when the parents were separated but both still caring for the child, the mother removed the child from school and did not disclose her whereabouts to the father for some months.  The child did not see his father for a period of two years until orders were made for the child to receive therapy to re‑develop his relationship with his father.

5. At the time of the first part of the hearing in July 2014, the child had spent eight one hour sessions of time with his father, on each occasion with the assistance of a therapist.  At the hearing that therapist recommended that there be an immediate increase in the time the child spends with his father and that this should move to overnight time in the near future and that there was no requirement for the child’s time with his father to be supervised.

6. On 18 July 2014 following the hearing, I made interim orders for the child to live with his mother which had been the case up until then, and spend time for seven hours each Saturday with his father.

7. His father in the application to vary the interim orders relies upon two affidavits which set out the circumstances of the time that the child has spent with him between 19 July 2014 and today.

8. Apart from one occasion when time did not go ahead, the child has spent basically all day Saturday with his father and it appears, on the evidence that the father has provided at least, and that is the only evidence I have, that that time is going well and that he is comfortable with his father and wishes to spend more time with him.  This is consistent with Dr V’s evidence about both the comfort and desire to spend more time.

9. If the matter had concluded on 22 September 2014 it would be the father’s expectation at the very least, and that would be a legitimate expectation, that time would have increased soon thereafter to overnight time, bearing in mind at all times that the father’s application is for the child to live with him.

10. The proceedings have now been adjourned twice and on both occasions the mother has failed to appear and failed to offer any explanation as to why she is not engaging with the proceedings. Concerning information has also been provided by the Independent Children’s Lawyer’s counsel, that she has also withheld the child from the therapist or at least not continued having the child attend. It is a reasonable application that the father now brings for his time with the child to now move to include overnight time and for him to have some interaction with the child’s school life.  It is not only reasonable in all of the circumstances but more importantly, in my view, it is in the best interests of the child.

11. The order as it was ultimately sought and that is that the child spend time with his father from after school on each Friday until 5.00 pm Saturday is supported by the Independent Children’s Lawyer as an order that is in the best interests of the child.

12. So far as the s 60CC considerations are concerned, the child has expressed views according to the father both directly to him and according to Dr V that he wishes to spend more time with his father.

13. So far as the nature of the relationship is concerned, it appears to me to be quite a remarkably resilient relationship considering the significant period of time that the child spent away from his father. That the relationship was able to be rekindled after such a period of time is evidence of the depth and warmth of that relationship in my view.

14. The father is eager to take an opportunity to be more involved in the decisions relating to the child.

15. In terms of the likely effect of the change in circumstances, it is true that this order being contemplated will involve the child being separated from his mother overnight. However, in my view having regard to the child’s age and his views and, in particular, the evidence of Dr V will benefit from that change in circumstances and he will have his father be able to participate more fully in his everyday life.

16. There is no particular practical difficulty in the order that is sought as it proposes that the current arrangements, that is, utilising the Contact Centre for drop offs be continued and that the father pick up the child directly from school.

17. I have no particular concerns about the capacity of the father to provide for the needs of the child, in fact, the evidence shows that at all times when he was actively involved in the parenting of the child that he was more than capable of meeting his needs.

18. The child is from a mixed European and Indian background and is entitled to participate in cultural activities that reflect both sides of his heritage.  The father’s affidavit includes that the father has taken him to activities of cultural significance within the Indian culture including attending a festival and has also participated in activities which appear to involve other Indian friends.

19. There are no allegations of any concerns relating to family violence currently.  The mother had an opportunity to respond to this application and chose not to.

20. In all of the circumstances and particularly bearing in mind that I am, at this stage, only considering an interim application for variation and without any prejudice, of course, to the orders to be made in the final proceedings, in my view it is in the best interests of the child for the current time with his father to be increased.

21. I vary the current parenting orders by suspending Order 2 of the Orders made on 18 July 2014 and in lieu order that the child is to spend time with his father from after school each Friday until 4.45 pm each Saturday commencing this Friday 31 October 2014, pending further order.

22. I also amend Order 3 made on 18 July 2014 by inserting after word “changeover” the words “on non-school days” and for the purposes of the new order with respect to spending time with his father the father is to collect the child from school at the completion of the school day.

23. I further order that the mother is restrained from attending school on a Friday other than for the purposes of delivering the child to school.

24. Leave is granted for a copy of these orders to be provided by the Independent Children’s Lawyer to the school.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 27 October 2014.

Legal Associate: 

Date:  30 October 2014