ESSA & SALTER

[2018] FamCA 23

FAMILY COURT OF AUSTRALIA

ESSA & SALTER [2018] FamCA 23

FAMILY LAW – CHILDREN – Where the mother relocated with the child to F Region – Where the father seeks for the mother to restore the child to the Sydney metropolitan area – Where the father’s application is not supported by the Independent Children’s Lawyer – Where the father was aware of the relocation at a previous Court event and did not seek an adjournment to allow him to make an application – Consideration of Rice & Asplund – Where there is a risk of additional unnecessary significant change of living arrangements for the child – Where on balance it is not appropriate to require the mother to relocate in these circumstances.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the father seeks that the mother sign an authority under freedom of information legislation to provide information in relation to the mother’s correspondence with the Department of Human Services – Where prima facie the question of the mother’s income could have relevance—Where the father is requesting documents from 2008 which is seven years before the parties started living together – Consideration of the Elias principle – Where the Court is not absolved from making a finding about a fact no matter what representations have previously been made – Where the order is made with a period of inquiry that commences in 2015 not 2008 – Where the mother seeks an injunction restraining the parents from recording or videotaping the handover of the child - Where recording these events is not something the Court should encourage – Where the parties are restrained from recording the handover of the child between them.

Family Law Act 1975 (Cth) ss 60CC, 62B, 65DA

Rice & Asplund (1978) 6 Fam LR 570

APPLICANT: Mr Essa

RESPONDENT: Ms Salter

INDEPENDENT CHILDREN’S LAWYER: Mr Williamson

FILE NUMBER: SYC 1025 of 2017

DATE DELIVERED: 10 January 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF:	Loughnan J
HEARING DATE:	10 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Longworth

SOLICITOR FOR THE APPLICANT: Somerville Legal

COUNSEL FOR THE RESPONDENT: Mr Livingstone

SOLICITOR FOR THE RESPONDENT: David H Cohen & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Acorn House

Orders

1. The father’s relocation application contained in the Application in a Case filed by him on 8 November 2017 is dismissed.

2. Orders are made in the terms of paragraphs 1 to 16 inclusive, as amended, of the document marked Exhibit A dated 10 January 2018, as set out hereunder:

   1.      That paragraphs 2 and 3 of the orders made on 30 March 2017 be discharged.

   2.      That until the child B, born … 2015 (“the child”) turns 3 years old, that the child spend time with the father on the following basis:

   a.On each Thursday from 9am to 5pm; and

   b.On each Sunday from 9am to 5pm provided that in the event that the mother’s birthday or Mother’s Day falls on a Sunday when the child is to spend time with the father pursuant to these Orders, that such time shall occur on the immediately preceding Saturday.

   3.      That subject to Orders 4 and 5, from when the child turns 3 until he turns 4 years old, the child spend time with the father on the following basis:

   a.On each Thursday from 9am to 5pm; and

   b.On each weekend from 3pm Saturday to 3pm Sunday, commencing 22 December 2018.

   4.      That the time event which would otherwise occur on Sunday 22 December 2018 and Sunday 23 December 2018 be replaced with the following:

   a.the child spend time with the father from 9am Monday 24 December 2018 until midday Tuesday, 25 December 2018.

   5.      That the time event which would occur on Thursday 29 March 2018 be replaced with the following:

   a.the child spend time with the father from 9am to 5pm on Friday, 30 March 2018 (which the Court Notes is Good Friday).

   6.      That the child spend time with the father on … February 2018 from 1pm to 6pm (which the Court notes is on C’s birthday).

   7.      The Court notes that the father will be away from Sydney from 19 to 29 January 2018 inclusive.  During that period Orders as follows:

   a.The ‘face to face’ time events which would otherwise have occurred between the child and the father pursuant to these Orders are suspended;

   b.That the child communicate with the father by “FaceTime” on 21, 23, 25 and 27 January 2018 at 6:00PM AEST and for such purpose, the mother shall initiate the call between the child and the father.

   8.      That the mother shall forthwith provide (and in the event of a change continue to provide) the father, of her mobile phone number and for such purposes, the father shall contact the mother only for matters in relation to the child.

   9.      The mother shall keep the father informed of the child’s address when in the care of the mother and for such purposes is to provide the father with not less than one month’s prior written notice of any change to her address.

   10.    That the parties forthwith use a communication book to communicate basic information with respect to the child’s care ensuring that the book is provided to the other parent at changeover.

   11.    That the mother provide the father with at least 2 months’ written notice, where practicable, of her intention to enrol the child to attend child care together with the full details of the proposed child care centre and for such purposes, the child shall not be enrolled to attend child care on days that he is spending time with the father in accordance with these orders.

   12.    That within 7 days of the date of these orders, the mother is to provide the father with:

   a.full details of any medical or health practitioner who has attended to, seen or treated the child;

   b.full details of all vaccinations given to the child since January 2017 including the dates that the vaccinations were administered and by which medical practitioner/service provider that vaccination was administered.

   13.    The mother shall forthwith notify and authorise the child’s preschool/day care and his medical/health practitioner to:

   a.communicate with the father; and

   b.provide to the father any information and/or documents requested by him in relation to the child.

   14.    Pending further order, the parties are hereby restrained from discussing these proceedings and/or denigrating the other parent to the child or within the presence or hearing of the child.

   15.    Pending further order, that the mother is hereby restrained from discussing these proceedings with D born … 2003 or showing her copies of reports or material filed in these proceedings.

   16.    Pending further order, each parent shall immediately notify the other in the event of a medical emergency regarding the child whilst he is in their care.

3. Pursuant to s 62B and 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

4. Until further order the parties are restrained from recording in any way the occasion of handover of the child between them.

5. Ms Salter sign the Authority to the Department of Human Services enclosed in the letter from Somerville Legal to David Cohen & Co dated 9 August 2017 but provided that the period of enquiry commences on 1 September 2015 and not 2018.

6. The documents provided to the solicitor for the mother pursuant to FOI request be produced to the Court.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Essa & Salter 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 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC1025 of 2017

Mr Essa 

Applicant

And

Ms Salter

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to the child B who was born in 2015.  He is just over two years of age. 

2. The child’s parents started living together in September 2015 at the father’s home at Suburb E.  They separated either in July of 2016, according to the mother, or January 2017, according to the father.  the child is their only child.  The father has an older son, C, who is nearly 14 years of age, and is the child of a previous relationship.  He lives with his father for five nights a fortnight. 

3. The mother has a child of a similar age, about 14 years, called D.  She is the child of a previous relationship of the mother.  She does not have any time with her father.

4. The matter came before Senior Registrar Campbell on 30 March 2017 and orders were made for day-only time between the father and the child.  It is the father’s case that it was only on the day of that hearing that he discovered that the mother had relocated from Sydney to the F Region.  On 29 May 2017, the Senior Registrar commissioned a report from clinical psychologist, Dr G.  Interviews were conducted in July and a report issued on 11 August 2017.  The father has brought the matter back to Court, seeking as his primary position, that the mother restore the child to a residence in the Sydney metropolitan area.  In any event he seeks an increase in his time with the child.

5. To their credit, the parents have been able to reach an agreement today, with the assistance of the Independent Children’s Lawyer (“ICL”) that would accommodate an increase in the father’s time and a number of other changes to communication in relation to the child, about notifications and so on.  There remains one disputed issue.  The father seeks and the mother opposes an order that the mother sign an authority, formally, under the freedom of information legislation, to the Department of Human Services, to provide information in relation to the mother’s correspondence with that Department.

6. The first issue is the relocation.  The application is not supported by the ICL and is certainly opposed by the mother.  The fact is that, since before 30 March 2017, the mother, the child and the mother’s daughter have been in the F Region area.  The parties were before the Court on that day and there was no application for the mother to relocate the residence of the child.  For the child and his sister, the relocation occurred and they are based afresh in the F Region.  The problem that arises is that the father knew of the relocation on the day of the earlier hearing and he did not press for the mother to return the child to Sydney or for an adjournment to allow him to make that application.

7. There is a principle from a decision called Rice & Asplund (1978) 6 Fam LR 570 whereby the Court does not review parenting arrangements which were or could have been the subject of an earlier hearing. That works against the mischief of repeated litigation about the same factual circumstances. There is a partial explanation here in that the father was caught by surprise by the mother’s relocation to the F Region and therefore he did not know that there was an issue until the day of the hearing. That cannot be a complete answer. If he was not in a position to make the argument on that date, he would have been justified in saying, “I want the matter adjourned to another date, so that I can recast my application and agitate that issue”.

8. As to the best interests of the child, quite rightly, counsel for the father acknowledged that an interim relocation has the potential to cause one additional change of living arrangements for the child. That is picked up in the menu of things in s 60CC of the Family Law Act 1975 (Cth). That risk may be of greater import for the child’s sister than for him. There is no risk of a change of school for the child etc. Nevertheless, as the mother’s relocation of the child was left in place long after the father had notice of it, there is now the risk of an additional significant unnecessary change of living arrangements for the child. The implications of such a change would be worse for the child’s older sister but she is not the subject of these proceedings. For the child there would be no changes of school, for example. Nevertheless, on balance, it does not seem to me appropriate to require the mother to relocate, in those circumstances.

9. The relocation proposed by the father would be on the basis of his proposal to subsidise the mother’s living arrangements.  The mother says that she cannot be guaranteed about that.  The potential mischief would arise if the mother relocated to Sydney in reliance on a promise that she would receive $500 a week and, after she enters into a lease, the father reneges on the promise.  That would be appalling.

10. The mother notes that the father has asserted that he is impecunious.  By way of reply, the father says that he has a $2 million house that is unencumbered, so he could borrow the money at least.  In those circumstances the father’s promise could presumably be secured and there would be a level of protection in that regard.

11. Nevertheless, as I have referred to above, the child’s arrangements were left in place after they were known.  The father then waited until he had the benefit of Dr G’s report, and he has seen something in that report that raises the issue of the relocation.

12. For those reasons I do not propose to order the relocation of the child to Sydney.  That brings into play the parties’ settlement, which is a document that I will mark exhibit A.

13. It has been amended by me, and will be amended by whoever does the typescript, at 2(b), to exclude Mother’s Day or the mother’s birthday, if that falls on a Sunday, in each of which cases the time would be on the Saturday immediately preceding the Sunday in question, and taking “always” out of paragraph 9, and inserting the words “where practicable,” after “intention” on the second line of paragraph 11, and rendering order 14, which is a restraint on discussing the proceedings or denigrating the father to the child or within his presence or hearing and rendering that to be a mutual restraint.  In those circumstances, as I understand it, those orders, as to paragraphs 1 to 16 inclusive, as amended, are substantially made by consent.  However, the father’s consent, obviously, was conditional on his primary application being unsuccessful.  I will not express the orders to be by consent.

14. That leaves two issues.  The mother would like an injunction restraining the parents from recording or videotaping or however described, the handover, between them, of the child, and the father opposes that order.  That matter has been raised in the course of submissions.  If ever this issue is raised in parenting proceedings, an injunction is invariably granted.  Mr Longworth, for the father, says that the court permits such surveillance in a backdoor way by requiring handovers to be at a public place where, often, there will be a static camera that will record the event.  That is true of some commercial restaurants and may be even true of some school facilities and can be true of some shopping centres.  However, as I said during the course of submissions, as a general proposition, we do not want children to feel as though they are being videotaped for any reason other than a loving one.

15. As I said, it is not so bad here because the child is very young.  He is probably not going to be able to distinguish between the charms of a dash-cam or a Go Pro or any other sort of camera for benign or forensic purposes.  However, in my view, as a matter of principle, recording these events is not something that the Court should encourage.  Even though the mother herself chose to record handovers, it seems to me that the injunction should be granted.  Until further order, I restrain each of the parties from causing or permitting any individual known to them, from recording, in any way, the occasion of handover of the child between them.

16. The remaining issue is the father’s application for access to the records of Centrelink.  The father is interested in the mother’s communications with Centrelink that might be relevant to her income, over time.  There is a financial aspect to the case.  There is a property claim, I understand, and there may be child support issues.  I am not sure.  Prima facie, the question of the mother’s income could have relevance.  The argument made on behalf of the father is that there might be something in those communications that would go to the question of separation.  Separation is not such a critical issue of its own.  The focus in property proceedings is on contributions, and contributions are made before, during and after the period of cohabitation, particularly in a case where there are children.

17. The fact of separation being on one date or another might not prove to be important.  The property is not identified on the day of separation.  It is identified on the day of the hearing, so it could have a marginal relevance.  As I said, in a case where the mother alleges that the father is controlling and manipulative, this application has the hallmarks of controlling and manipulative behaviour, particularly as the net was cast from 2008, which was seven years before the parties started living together.  That is of concern.

18. There is a reference to the Elias principle in the authorities – a decision of the late Justice Goldstein, whereby it was said that a party could not make a case for a fact where he or she had made a representation inconsistent with that fact to an authority.  That is not the law.  A Court is not absolved from making a finding about a fact, no matter what representations have been made, no matter what the reason for the representations, or whether there was a monetary benefit in making it.  That means that the mother’s representations to Centrelink would not be determinative of a disputed issue.  However, one could see adjectival relevance to such representations and that is the test for relevance at this pre-trial stage of the proceedings.

19. There will be a more robust test in relation to whether something is relevant for the final trial, but the question at this stage is could there be a connection between this matter and the matters at issue and there could be.  For that reason I will make an order in terms of paragraph 17 of exhibit A, but provided that the period of inquiry commences on the first day of September 2015, and not 2008.  The resultant documents are to be produced to the Court and not to the solicitor for the mother.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 10 January 2018.

Associate: 

Date:  23 January 2018