BELLINI & BELLINI (No.2)

[2018] FCCA 3582

FEDERAL CIRCUIT COURT OF AUSTRALIA

BELLINI & BELLINI (No.2) [2018] FCCA 3582

Catchwords:
FAMILY LAW – Parenting – time with – supervision not required.

Legislation:

Family Law Act 1975 (Cth), ss.62B, 65DA

Applicant: MR BELLINI

Respondent: MS BELLINI

File Number: SYC 5728 of 2018

Judgment of: Judge Bruce Smith

Hearing date: 19 October 2018

Date of Last Submission: 19 October 2018

Delivered at: Sydney

Delivered on: 14 November 2018

REPRESENTATION

Solicitors for the Applicant: Clinch Long Woodbridge Lawyers

Solicitors for the Respondent: Thomson Family Lawyers

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The father may spend time with the children in Perth as follows:

   i.On 23 and 24 December 2018 from 9:30am to 4:30pm on each day;

   ii.On 25 December 2018 from 9:30am to 1:00pm;

   iii.On 26, 27 and 28 December 2018 from 9:30am to 4:30pm on each day;

   iv.Daily between 9:30am and 4:30pm for a 5 day period in January or February 2019, such period to be nominated by the father in writing to the mother no later than 14 days before the commencement date;

   v.Daily between 9:30am and 4:30pm for a 5 day period in [dates] 2019, such period to be nominated by the father in writing to the mother no later than 14 days before the commencement date; and

   vi.Daily between 9:30am and 4:30pm for a 4 day period from [date] 2018.

2. The father shall be responsible for all the costs of his travel to and residing in Perth unless the parties otherwise agree.

3. The children shall have video communication with the father on a minimum of 3 occasions per week for a minimum of 15 minutes and a maximum of 30 minutes on days and at times as agreed between the parties in writing 1 week in advance of each contact, or in the event that no agreement can be reached, as follows:

   i.Each Tuesday from 10:00am (WST);

   ii.Each Thursday from 10:00am (WST);

   iii.Each Sunday from 10:00am (WST).

4. If the father is not in Perth on [date] 2019 the children should have video time with the father on that day from 10:00am (WST).

5. That pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

6. That pursuant to s.65DA(2) 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 are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

7. In the absence of an appeal being lodged within the time allowed by the Rules this matter will be transferred to the Family Court of Western Australia, Perth Registry, to be listed at a date and time to be advised by that Registry.

AND THE COURT NOTES THAT:

A.The father’s time with the children need not be supervised or in a public place and he may have his family members or such other people as he sees fit with him.

B.The period of [dates] will be allowed to cover [X]’s birthday.

IT IS NOTED that publication of this judgment under the pseudonym Bellini & Bellini (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5728 of 2018

MR BELLINI

Applicant

And

MS BELLINI

Respondent

REASONS FOR JUDGMENT

1. This is an oral decision in an interim parenting matter.

2. This matter was heard as an interim application, effectively, for child recovery.  The substantive question concerning the location in which the children should reside was determined by me previously, and I made orders in relation to that question on 16 October.  The effect of that judgment, which I will not repeat and which should be read together with this decision, was that, given the young ages of the children, it was impracticable for a recovery order to be made.  In those circumstances the application for recovery was dismissed. 

3. It was ordered that the parents were to have equal shared parental responsibility for the children and the children were to live with the mother in Perth.  There were also orders made in respect of video contact. 

4. The question of time with the father was stood over so the parties could make submissions, and that has subsequently occurred.  The parties have each provided me with a proposal. 

5. I have made orders for video contact but there seems to have been some issue.  The parties have each proposed something different.  The father’s proposal and the mother’s proposal seem to vary, in that the mother has a maximum of 15 minutes, whereas the father has a minimum of 15 minutes of contact.  The mother wants Monday, Wednesday, Friday.  The father wants Tuesday, Thursday, Sunday.  He wants a Sunday so that there is less stress.  It seems to me, that on the question of that I prefer the father’s orders. 

6. So the children shall have face time or Skype communication with the father.  I will not say “on a minimum of three occasions” but just “on three occasions” per week, for a minimum of 15 minutes to a maximum of 30 minutes.  I think 15 to 30 minutes will be the limit of the capacity of children of this young age to focus.  To be agreed between the parties in writing one week in advance of each contact or in the event that no agreement can be reached each Tuesday, Thursday and Sunday, at 10 am, western standard time. 

7. The father seeks time with in Sydney as well as in Perth.  The father also says that the mother can return from Perth to Sydney with the children for some of the time with proposal. 

8. The mother seeks that the father’s time be in Perth.  She also seeks orders that it be at a public location for periods of no more than three hours at a time.  She seeks an order that – in addition to being in a public place – there be supervision by the maternal grandfather remaining at a distance

9. The mother’s orders seek the father be at liberty to have members of the paternal family attend.  There was some debate about whether that was meant as a limitation but as I understood it that was not meant to be any kind of restriction, merely an indication that the mother has no issue with the father having his family attend with him. 

10. It seems to me that the question of the time with in Sydney has, basically, the same difficulties the recovery application had.  The court can require the children to be returned to Sydney, but there is a real doubt as to the court’s jurisdiction to require the mother to attend from Perth to Sydney with the children.  Now, if they were a little bit older and if [Y] was not breastfeeding, then I would be minded to have them returned to Sydney to spend short periods of time with the father.  But it seems to me that we face the same major practical difficulty, which is that I would not be willing to order the secession of or significant interruption with breastfeeding for the child to return to Sydney, and unfortunately I think that constrains the court’s ability to exercise its discretion in this case.  Having said that, I would propose allowing the father such time in Perth as he can afford. 

11. The father’s proposal was that he would pay for the children to return from Sydney.  He does not say anything else about payment.  Again, I contemplated the question of whether the mother should contribute to the father’s flight cost, but at the moment, prior to the sale of the house, I cannot order payments which I am not satisfied the mother can make.  The state of the evidence as it was last before me indicates that she has no independent income, two young children and is living with her family in Perth.  So subject to the sale of the home, which – I assume – has not occurred yet, I do not think I can order her at the moment to contribute to those costs. 

12. Now, it seems to me that the mother’s proposed orders about the public place and supervision disregard the reasons I gave.  Despite her case that the father is an unacceptable risk I specifically found that he was not.  It seems to me that the requirement for a public location is not appropriate, and I will not make an order that there be a public location involved.  The requirement for supervision is not appropriate and not required.  I note there was a suggestion that it might be necessary to re-introduce the children, but this is the father they have lived with for their whole lives.  So again, I do not accept that, and there will be no order for supervision.  The mother is talking about a period of three hours maximum.  I do not think that is appropriate, if their father is going to fly to Perth, nor do I see that the children should only have three hours. 

13. I will, to avoid difficulties, say that the time should be daytime only.  I know people spend a lot of time and effort contemplating sleepovers.  And there is some merit to the position regarding overnight time when the children are in the long term going to be shared between parents that the ability to sleep at the non-live-with parent’s house is important to building a routine for the children.  But on holidays when we are talking about sleeping in a temporary hotel room, presumably, and the need for a bigger hotel room and all the issues that go with that for short periods of time, it seems to me that the father will lose little by having the children sleep where they are currently accustomed to sleeping. 

14. The father and the mother both propose some time over Christmas for three or four days – the father from the 23^rd to the 28^th, the mother from the 24^th to the 28^th.  The father’s proposal was based on the time being in Sydney, so it is a bit complex to know what he wants.  What I would propose is to allow the father to have the children on the 23^rd and 24^th, from 9.30 am to 4.30 pm.  I understand this may interrupt the breastfeeding pattern to some extent, but it should not be so significant as to outweigh the benefit to the children having that time with their father.  On the 25^th, from 9.30 am until 1 pm – so the mother can have part of Christmas Day with the children as well – then on the 26^th, 27^th and 28^th, from 9.30 am until 4.30pm – as I have said, this does not need to be in a public place.  No supervision is required, and the father is, of course, entitled to have with him such members of his family or other suitable companions as he considers to be reasonable and safe for the children. 

15. The parents both agreed that it would also be appropriate for the father to have time in either January or February, and the orders in that respect are quite similar.  I note the differences are similar to those regarding Christmas.  I propose to make an order, generally, that the children spend time with the father in Perth for a five-day period in January or February 2019, such time to be nominated by the father in writing no later than 14 days before the intended commencement date and the time to be daytime, between 9.30 am and 4.30 pm, as with the Christmas time. 

16. Just in case this matter drifts, I will make the same order in respect of [dates] so that we do not have unnecessary dissension.  In terms of special occasions, I think that they should be dealt with by coming under the order relating to Skype, and if the father wants to travel to Perth in [date] for [Y]’s birthday, which is on [date] – he has proposed that he have time with him – then the children should have time with the father from the [dates].  I assume these dates have been picked to meet his work schedule.  I will make orders that he have time on the same basis as Christmas, on the 23^rd, 24^th, 25^th and [date] in Perth, if he’s able to do so.  Obviously if the father is not about to attend on any of these days, then those orders will lapse. 

17. In terms of other special occasions, I have made orders in respect of [dates], and I will note that period would be allowed to cover the period of [X]’s birthday. If the father is not in Perth on [date] then the children should have FaceTime with him at 10am, Western Standard Time, for the father’s birthday on [date], in accordance with the provisions made for weekly time. I will make the usual orders in respect of ss.62B and 65DA regarding particulars and obligations.

18. I think I have said – but I will stay it again – that the father is to be responsible for all of his costs associated with his travel to Perth, unless the parties can agree.   

19. There was an application to transfer the matter to the registry in Western Australia.  I indicated that would be appropriate.  The question of whether or not I should hold the matter for the Applicant to consider his appeal rights which he has raised arises.  I will hear the parties now.

20. Given my reasons and Orders, in the absence of an appeal being lodged within the time allowed by the Rules this matter will be transferred to the Family Court of Western Australia, Perth Registry, to be listed at a date and time to be advised by that Registry.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of His Honour Judge Bruce Smith

Date: 5 December 2018