Zabawa & Ragheb
[2022] FedCFamC1F 1038
Federal Circuit and Family Court of Australia
(DIVISION 1)
Zabawa & Ragheb [2022] FedCFamC1F 1038
File number(s): SYC 7172 of 2014 Judgment of: MCCLELLAND DCJ Date of judgment: 10 November 2022 Catchwords: FAMILY LAW – CHILDREN – Where the matter is currently part heard for final hearing – Where the parties have agreed to interim orders for the children to spend time with the mother on the basis of an undertaking given by the maternal grandmother under oath – Where there is a dispute as to an appropriate changeover location for the time with the mother – Where the father proposes a truck stop closer to his home – Where the Independent Children’s Lawyer proposes a midpoint changeover location – Where it would not be appropriate for changeover to occur at a truck stop – Orders made in accordance with the Independent Children’s Lawyers proposed minute of order. Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 10 November 2022 Place: Sydney Counsel for the Applicant: Mr Hill Solicitor for the Applicant: Khalil Family Lawyers Pty Ltd Solicitor for the Respondent: Ms Al Hashimi of Hillcrest Family Lawyers Pty Ltd Counsel for the Independent Children's Lawyer: Dr McConaghy Solicitor for the Independent Children's Lawyer: Ark Law Lawyers ORDERS
SYC 7172 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ZABAWA
Applicant
AND: MR RAGHEB
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
10 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The matter be adjourned to 10.00 am, 19 December 2022 for the purpose of receiving outstanding tenders and submissions.
2.Within 48 hours prior to that further hearing date, the parties are to file and serve an outline of oral submissions of no more than 5 pages setting out:
(a)The precise terms of the orders that they are seeking;
(b)The issues which they contend the court needs to determine for the purpose of making appropriate orders;
(c)The findings of fact which they contend are necessary for the Court to determine those issues; and,
(d)A reference to the evidentiary material upon which they rely to support those proposed factual findings.
the court orders until further order:
3.The children shall spend time with the mother as agreed in writing between the parents, and failing agreement, as follows:
(a)For a period of eight weeks, for four hours each week on Saturdays from 9.00 am to 1.00 pm, supervised by the maternal grandmother.
4.Unless otherwise agreed between the parents in writing, changeovers shall occur between the parents or their nominated agents at Suburb P McDonald’s.
5.The Father shall ensure that the Mother’s details are included on the children’s school enrolment forms.
6.Within 28 days, the parents shall take all reasonable steps to enrol in and then will complete two parenting education courses from the following and shall provide a certificate of completion to the other parent within seven days of completion:
(a)One, Two, Three Magic Emotion Coaching;
(b)Triple P Parenting;
(c)Circle of Security.
7.Within 28 days, the Father shall attend upon his general practitioner to discuss obtaining a mental health care plan for the children to engage in family counselling and ensure that the children attend such family counselling as is recommended by the referred treating practitioner.
8.For the purposes of family counselling and the mental health care plan, the father is at liberty to provide a copy of the Family Report to the medical practitioners.
9.For the purposes of family counselling, the father shall pay for his sessions and the children’s sessions, and the mother shall pay for her sessions.
THE COURT NOTES AN UNDERTAKING PROVIDED BY THE MATERNAL GRANDMOTHER UNDER OATH THAT:
A.For the purposes of these orders, the maternal grandmother shall take all reasonable measures to;
a. ensure the children’s safety, and
b. ensure that the wife’s partner, Mr Q, does not attend when she is supervising the children.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zabawa & Ragheb has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
The parties are to be commended that, for the period between now and the next hearing date, they have agreed to relevant interim orders on the basis of the two undertakings provided by the maternal grandmother under oath.
The final issue that remains outstanding is the issue of changeover. Various arrangements were proposed, including one proposed by the Court that changeover occur at the maternal grandmother’s residence when the children are moving into the mother’s care and, where the children are moving into the father’s care, changeover be facilitated by the maternal grandmother or her agent at the father’s house. The father indicated that he has had concerns in the past regarding tensions at changeover. That is the case where it has occurred between the parties. However, there does not appear to be evidence of tension involving changeover facilitated by the maternal grandmother.
Other propositions were also canvassed, including changeover occurring at the truck stop in Suburb R. This location has very little to commend itself to the Court, with the children being taken to an environment which consists predominantly of asphalt roads, albeit with some security cameras if anything went awry. It would have the disadvantage of being a truck stop with heavy articulated vehicles coming in and out, with poor visibility and the presence of trucks and motorbikes. It would also be a relatively uncomfortable changeover location, as we move into the warmer summer months, for the children sitting in a car if, for some reason, there was a delay with one or other of the parties arriving for changeovers.
Having considered those propositions and the father’s assertion that the changeover should be more proximate to his place of residence than a midway point, I consider having regard to the general practice of this Court that, if there is a dispute regarding the location of changeover, there tends to be a practice of selecting a midpoint between the parties homes as it achieves an outcome that is equitable to both parties.
I am satisfied that an appropriate midpoint between the parties is Suburb P and I am further satisfied, based on the submission of the Independent Children’s Lawyer (“the ICL”), that a more appropriate location for changeover for the children is a McDonald’s restaurant with play equipment, water and the like that is a more conformable setting for the children to wait for changeover to occur, rather than sitting restricted within the boundaries of a car or waiting on potentially hot asphalt.
On that basis, I propose to make orders in accordance with Order 10 of the minute of order proposed by the ICL, which is marked as Exhibit “G” and is as follows:
10.Unless otherwise agreed between the parents in writing, changeovers shall occur between the parents or their nominated agents at school or at [Suburb P] McDonald’s.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 11 January 2023
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