FAMILY COURT OF AUSTRALIA
| BANGI & BEZRUKOVA | [2019] FamCA 42 |
| FAMILY LAW – CHILDREN – Where there is one child aged almost 13 years – Where the matter was remitted by the Full Court for consideration of a discrete issue – Where the dispute relates to the proportion of time the child will spend with each parent during school terms – Where the police have attended the mother’s residence on multiple occasions due to reported violence and conflict between the mother and her partner – Where more time in the father’s household and less time in the mother’s household will reduce the child’s risk of exposure to violence, conflict and alcohol use – Where orders are made that the child lives with the father and spends substantial and significant time with the mother. FAMILY LAW – PARENTAL RESPONSIBILITY – Where an order has been made for the parents to have equal shared parental responsibility – Where the parents are unable to agree about which school their child will attend – Consideration of the proposed schools and the circumstances of the child – Where an order is made specifying which school the child will attend. FAMILY LAW – PRACTICE AND PROCEDURE – Where the matter has been remitted by the Full Court – Where the father seeks to rely on findings made by an earlier Court in the same proceedings – Consideration of case law and s 69ZX of the Family Law Act 1975 (Cth) – Where the Court is able, but not required, to adopt unchallenged findings made by the trial judge in earlier proceedings. |
| Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 65DAA, 69ZX, 79A Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 |
| Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 Ferro & Kopel(No 2) [2016] FamCA 1124 Hartnett & Sampson (Scope of Rehearing) (2009) FLC 93-391; [2009] FamCAFC 1 Holgar & Stott and Anor [2017] FamCA 772 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 |
| APPLICANT: | Mr Bangi |
| RESPONDENT: | Ms Belov |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 850 | of | 2012 |
| ORDERS MADE: | 23 January 2019 |
| JUDGMENT DELIVERED: | 6 February 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 8, 9, 10 and 11 January 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Givney |
| SOLICITOR FOR THE APPLICANT: | Corish & Co Specialist Family Lawyers |
RESPONDENT MOTHER: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Berry |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
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).
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…
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- AGLC
- BANGI & BEZRUKOVA [2019] FamCA 42
- Case
- [2019] FamCA 42
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the child in relation to his living arrangements and schooling. Specifically, the court had to consider the impact of proposed changes to the child's time with each parent, taking into account evidence of police attendance at the mother's residence due to reported violence and conflict between the mother and her partner. The court also had to consider the child's transition to high school and the differing school proposals from each parent.
In reaching its decision, the court considered the expert evidence of Dr QQ, a psychologist. Dr QQ's evidence indicated that while the child had adapted to his current living arrangements and did not express a desire for radical change, recent incidents involving police at the mother's residence warranted a softening of previous recommendations. The court accepted that a living arrangement where the child spent more time with the father and less time with the mother would reduce the child's risk of exposure to violence, conflict, and alcohol use. The court also considered the child's transition to high school and the potential disruption of changing living arrangements at this time. The court was able to rely on unchallenged findings from earlier proceedings, pursuant to section 69ZX of the *Family Law Act 1975* (Cth).
The court ordered that the child live with the father and spend substantial and significant time with the mother. The court also made an order specifying which school the child would attend.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Dr QQ reported:75.The likely effect of any change in circumstances including the likely effect on the child of any separation from either parent, household.the child appears to have adapted to his current living arrangements.During interview, he did not express desire to radically alter the present situation, and one predicts he could find it difficult to re‑establish routines. Further, [the child] indicated that he would miss the ‘absent’ parent, should the time between visits to that person be extended. He was opposed to week about shared living arrangements for that reason. Dr QQ was asked about that issue in cross-examination by counsel for the ICL. The cross-examination was to the following effect:[Mr Berry]:Having thought about it, having read, particularly, the material from 3 June [2017], have you changed, is there any change in your views in that view?[Dr QQ]:Well what I’d say is that based on what he told me, and this is no more than 12 months back and he’s a year older obviously, but based on that I still believe that was his expressed view so I haven’t changed my opinion of that however I would be perhaps less determined in putting forward that proposal given the incident that happened prior to me seeing the parties involving the police. So I’d need to perhaps put not a caveat on it but certainly take that into consideration. Soften it somewhat. Because, you know, I mean, it’s not up to me to make those decisions obviously it’s for his Honour, but I think that I would need to soften that approach a little bit now.[Mr Berry]:In softening that view can we look at say perhaps the child going to live with his dad but having time with his mum. Would you form the view that that would need to be a very significant and substantial time with his mum if that change was to be made?[Dr QQ]:Yes look I believe that because he’s been living with his mother consistently throughout the proceedings which started a number of years ago and he’s in my view adjusted to the situation, to his living arrangements, I saw nothing to suggest that he hadn’t, because of that he’s become accustomed to it and he’s been used to it. I would have the view that any radical change one way or the other could create some emotional disturbance for the boy so I would suggest that if there is going to be a major change in living circumstances that be kept in mind.[Mr Berry]:So, if the Court were minded to do something along those lines, is it your view that the child should receive some sort of assistance in adjusting to that therapeutically?[Dr QQ]: I think that would be most helpful.[Mr Berry]:And, I think, in fairness, we discussed with you outside whether you’d be involved in doing that but I think you’ve got an alternative view, have you on that?[Dr QQ]:Well I do and I put the view forward, I mean, I would be prepared to do that obviously, but he doesn’t really know me. He hasn’t developed any trust in me. I didn’t see him as a therapist, I just saw him as an assessor and saw him briefly. My understanding is that he has a long term therapeutic relationship with [Dr V] and that she may be the appropriate one if the Court felt that way inclined she might be the appropriate one. More appropriate than sending him along to see me.[Mr Berry]:Can I bring you back now to perhaps assistance with what short term effect there might be on the child if there was such a change?[Dr QQ]:Given his statements to me I think he would feel, when you say such a change, are you putting to me….[Mr Berry]:Change of arrangements, living with dad and spending time with his mum.[Dr QQ]:Look I think he would probably feel some confusion about that. Look, that hasn’t been the situation for him ever so that would be a major change for the boy so that would be one issue. The other issue could quite possibly be missing his mother and missing his present environment and the home where he returns to most days. That could, I’m not sure, but I would imagine he’s sort of got more friends around the area where his mum lives so it could also mean a disturbance to his, you know, peer associations after school, if you like. I understand he’d probably still go to the same school so there’d be no disruption that way?[Judge]:Well, no. He’s about to go to high school and the parties can’t agree about that so he’ll be at a different school win, lose or draw. I have to decide whether it’s the school that the mother proposes that happens to be nearer her or the school that the father proposes that happens to be a bit nearer to him. Although neither of them says that the proximity is relevant.[Dr QQ]:Well look, I would think that’s another issue. That if the boy is starting high school we all know that the transition from primary to high school brings with it its issues. So, I would think that’s another good reason why any change of living arrangements should be handled sensitively.[Judge]:Would it be a reason for not making a significant change of living arrangements?[Dr QQ]:It could well be…but I’m not going to….[Judge]:Well we’ve got you to softening your recommendations, is that right?[Dr QQ]:Yeah.[Judge]:So are you still so far in your evidence at the point where you would recommend not changing the residential arrangements?[Dr QQ]:I would stick by the initial recommendations in the report unless the Court held the view that the situation between the mother and the fiancé was such that it would have a negative impact on the child if he continued to spend most of the time with them.[Mr Berry]:In your interviews and observations of the child did you see any evidence of a bad influence in relation to where the boy was living? And I appreciate it’s some time since you’ve seen him.[Dr QQ]:No, look, again, he spoke calmly and positively of the two households. He didn’t really mention any negatives, I mean, he raised a number of positives if you like. I suppose he was quite careful to balance his account between them.[Mr Berry]:I think you expressed the view in paragraph 79 that the boy does not appear afraid of or apprehensive of either parent?[Dr QQ]:No, that’s certainly the impression I got during the assessment. Yeah.[Mr Berry]:And I gather then you still maintain your final conclusion where you said the child seems to be coping with his current living arrangement and does not express a desire for substantial change?[Dr QQ]:At that stage no he wasn’t.[Mr Berry]:And that hasn’t changed your view on that has it?[Dr QQ]:No it hasn’t.