BARASH & SACHER

[2013] FCCA 717

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARASH & SACHER [2013] FCCA 717

Catchwords:
FAMILY LAW – Children – location order – commonwealth information order – best interests of the children considered – where interim family violence order in force – information not to be disclosed to applicant personally.

FAMILY LAW – Children – airport watch list.

PRACTICE AND PROCEDURE – Change of lawyer – notice of address for service.

Legislation:
Family Law Act 1975 (Cth), ss.60CC, 67K, 67L, 67M, 67N, 67P

Federal Circuit Court Rules 2001 rr.9.02, 9.03

Applicant: MR BARASH

Respondent: MS SACHER

File Number: SYC 2266 of 2013

Judgment of: Judge Scarlett

Hearing date: 1 July 2013

Date of Last Submission: 1 July 2013

Delivered at: Sydney

Delivered on: 1 July 2013

REPRESENTATION

Counsel for the Applicant: Mr Cohen

Solicitors for the Applicant: David H. Cohen & Co

The Respondent: No Appearance

ORDERS

1. Leave granted to proceed ex parte.

2. As provided by subsection 67N(2) of the Family Law Act 1975 the General Manager, Department of Human Services is to furnish to the Registry Manager of the Federal Circuit Court of Australia at Sydney information about the children [X] born [in] 2001 and [Y] born [in] 2004 and their mother MS SACHER born [in] 1967 that is contained or comes into the records of the Department Human Services.

3. As provided by subsection 67N(2) of the Family Law Act 1975 the Chief Executive Officer of Centrelink is to furnish to the Registry Manager of the Federal Circuit Court of Australia at Sydney information about the children [X] born [in] 2001 and [Y] born [in] 2004 and their mother MS SACHER born [in] 1967 that is contained in or comes into the records of Centrelink.

4. As provided by subsection 67P(1) of the Family Law Act 1975, leave is granted to disclose the information provided to the Registry Manager of the Federal Circuit Court of Australia at Sydney and the Registry Manager is granted leave to disclose that information to the Applicant’s legal adviser Mr David Harold Cohen of David H. Cohen & Co. Solicitors of 301 Castlereagh Street, Sydney for the purpose of arranging service of court process.

5. The information provided to the Registry Manager is not to be disclosed to the Applicant personally.

6. The names of the children [X] born [in] 2001 and [Y] born [in] 2004 are to be placed on Airport Watch List otherwise known as the PACE Alert System maintained by the Australian Federal Police at all points of departure from Australia until further Order of the Court or 1 July 2015 whichever shall first occur.

7. The Applicant and Respondent are restrained from removing or attempting to remove the children [X] born [in] 2001 and [Y] born [in] 2004 or either of them from the Commonwealth of Australia until further Order of the Court.

8. The Applicant’s former lawyer Mr Michael Tiyce is to file and serve a Notice of Withdrawal within seven (7) days.

9. The Applicant’s current lawyer Mr David Harold Cohen is to file and serve a Notice of Address for Service within seven (7) days.

10. The Application is stood out of the list with liberty to restore on seven (7) days’ notice. 

IT IS NOTED that publication of this judgment under the pseudonym Barash & Sacher is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 2266 of 2013

MR BARASH

Applicant

And

MS SACHER

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Father of two children to proceed ex parte for a Location Order and other orders. The two children are:

   a)[X], who was born [in] 2001; and

   b)[Y], who was born [in] 2004.

2. The Father deposes that he does not know where the children are because he has not seen or spoken to them since 14^th March 2013. The Father and Mother separated under the one roof in 2009 but have since separated physically.   

Background

1. The Father was born [in] 1967 in Israel. He arrived in Australia in August 1988. He deposes that he underwent a Jewish marriage ceremony with the mother in 2003. The Mother was born [in] 1967.

2. The Father deposed that he was served with an application for an Apprehended Domestic Violence Order returnable at [omitted] Local Court on 11^th April 2013. On that day the Court made an Interim Order, being the standard orders:

   a)not assault, molest, harass, threaten or otherwise interfere with the protected person;

   b)not engage in any other conduct that intimidates the protected person; and

   c)not stalk the protected person

3. The Court also extended the operation of the orders to include the children.

4. The terms of the Order were expressed to be subject to an Ancillary Property Order.

5. The proceedings were adjourned to 16^th May 2013 but no information has been provided about the outcome.

Orders Sought

1. The Father seeks the following Interim Orders:

   a)That the children should live with him;

   b)That the parents should have equal shared parental responsibility;

   c)That the children spend time with the Mother on alternate weekends and half the school holidays;

   d)That the children’s names are placed on the Airport Watch List;

   e)That the parties be restrained by injunction from applying for passports for the children;

   f)That a location Order within the meaning of s.67J should issue requiring various State and Federal Government instrumentalities to provide information, as well as [omitted];

   g)That a Commonwealth Information Order issue; and

   h)That the information should be released to the Applicant’s solicitor for the purpose of effecting service of court process.

The law to be applied

1. Section 67K of the Family Law Act 1975 (Cth) sets out a list of the persons who may apply for a location order. Apart from a person in whose favour a parenting order is made and a grandparent of the child, the list includes at s.67K(1)(d):

   (d)any other person concerned with the care, welfare and development of the child.

2. Section 67L of the Act provides that, in deciding whether to make a location order in relation to a child, a court must regard the best interests of the child as the paramount consideration. A Court decides what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC.

3. Section 67M allows the Court to make allocation order if it is satisfied that the person to whom the order applies is likely to have information about the child’s location.

4. Section 67N allows the Court to make a Commonwealth Information Order if it is satisfied that the child’s location is likely to be contained in, or come into, the records of a Department or Commonwealth instrumentality.

5. Section 67P allows the Registry Manager of the Court to disclose the information obtained under a location order to:

   a)the Registry Manager of another Court; or

   b)an officer of the Court; or

   c)a process-server engaged by the Court; or

   d)the Applicant’s legal adviser, with the leave of the Court.

6. However, s.67P(2) provides:

   (2)Nothing in paragraphs (1)(a) to (e) authorises the disclosure of information to the applicant for the location order.

Conclusions

1. I am satisfied that the Father has standing to apply for the order, as a person concerned with the children’s care, welfare and development.

2. I am also satisfied that it is in the children’s best interests for the order to be made, although this has involved a balancing exercise between the primary considerations in s.60CC(2):

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. The Court is required by s.60CC(2A) to give greater weight to the considerations set out in paragraph (2)(b) when applying those considerations. Clearly, it is a matter of concern that the Interim Apprehended Domestic Violence Order has been extended to include the children, and it does not follow that the Court will make a parenting order in favour of the Father without weighing up the need to protect the children from harm. Consequently, the parenting orders sought by the Father in his Application will not be made at this stage.

4. Similarly, the information about the children’s whereabouts will not be disclosed to the Father (see s.67P(2)).

5. The children’s names and dates of birth will, as a precaution, be placed on the Airport Watch List, otherwise known as the PACE Alert System, in order that they cannot be removed from Australia. I am not prepared to issue an injunction restraining the parties from applying for a passport for either of the children at this stage. I am not satisfied as to the efficacy of such an order.

6. The Father has changed solicitors. His current solicitor, needs to get onto the record as soon as possible and should file a Notice of Address for Service within seven days. His former solicitor, should file a Notice of Withdrawal. Rule 9.02 provides that:

   (1)A party may, at any stage in a proceeding, appoint another lawyer in place of the lawyer then acting for the party.

   (2)The newly appointed lawyer must, as soon as practicable, file and serve on each other party and the party’s former lawyer notice of the appointment.

   (3)The party’s former lawyer remains the lawyer on the record until the newly appointed lawyer has comp0lied with subrule (2).

   (4)     Notice for this rule must contain details of an address for service in accordance with the approved form.

7. Rule 9.03 provides that a lawyer for a party may withdraw from the record in a proceeding by filing a notice of withdrawal, in accordance with the approved form, and serving the notice on each other party.

8. The orders will issue and the Application will stand out of the list with liberty to restore on seven days’ notice. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  3 July 2013