Gadde & Gadde & Anor (No 2)

[2016] FamCA 598

FAMILY COURT OF AUSTRALIA

GADDE & GADDE AND ANOR (NO. 2) [2016] FamCA 598

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the father did not attend the hearing and his adjournment application was dismissed – Where the mother sought a variation of interim orders to reduce the time the father spends with the child – Where it was unclear how the proposed variation would mitigate the issues of risk raised – Application dismissed – Where the mother sought orders permitting her to travel overseas with the children without the consent of the father – Where the hostility between the parties has been raised by the single expert as the greatest difficulty for the children – Orders made.

Family Law Act 1975 (Cth)

APPLICANT: Ms Gadde

RESPONDENT: Mr Gadde

INTERVENOR: Meyer Partners Pty Limited

FILE NUMBER: SYC 417 of 2015

DATE DELIVERED: 12 July 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 12 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sweeney

SOLICITOR FOR THE APPLICANT: Barkus Doolan Family Lawyers

FOR THE RESPONDENT: No appearance by or on behalf of the respondent

COUNSEL FOR THE INTERVENOR: Mr Alexander

IT IS ORDERED THAT

1. Leave is granted to the parties and the legal representatives to inspect documents produced under subpoena issued to the following entities:

   a.Gleneagle Securities;

   b.Commonwealth Bank of Australia;

   c.New South Wales Police; and,

   d.DD Ltd.

2. The husband’s application for an adjournment of proceedings listed today is dismissed.

3. The parties are granted liberty to apply on 24 hours’ notice to my chambers and to the other parties.

1. Judgment is reserved in respect to interim property matters being:

   a.Restraint in relation to payment from Credit Swisse to the husband;

   b.Restraint in relation to Gleneagle Securities accounts; and,

   c.Partial property division with respect to the National Australia Bank account to the wife.

1. All matters are otherwise adjourned to the list of McClelland J at 9.30 am on 28 July 2016 for mention, save for the delivery of judgment in respect to the interim property related matters heard today. 

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The wife’s application to amend Order 4 of the Consent Orders made 23 November 2015 so that Order 2.1.2.(a) therein is amended to read “…Saturday 7.45 am to 5.00 pm” is dismissed.

2. Pursuant to section 65Y(2) of the Family Law Act 1975 (Cth), the children, G born … 2004 and L born … 2009, be permitted to travel outside of the Commonwealth of Australia to New Zealand from time to time, and I NOTE that the consent of father not required for this to occur.

3. Leave is granted to the mother, on 28 days’ notice to the Court and the other parties, to re-list the matter in respect to further overseas travel, that is, travel to a location outside of New Zealand.

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 Gadde & Gadde and Anor (No. 2) 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: SYC 417 of 2015

Ms Gadde

Applicant

And

Mr Gadde

Respondent

And

Meyer Partners Pty Limited

Intervenor

EX TEMPORE REASONS FOR JUDGMENT

1. There are two children the subject of this application, G aged 12 who is the daughter of the mother not of the father, but raised as though she was. There is also L who is aged six and a half who is a child of both of the parents.

2. Of the matters before me today I note that the father has not attended Court and the matter has continued for reasons I have expressed previously. Only two of the children’s orders matters were pressed before me. The first related to what was described as a “tweaking” of the orders to change the time at which L is to return to his mother each second Saturday evening and secondly on the subject of overseas travel. In particular, travel to New Zealand, but also travel oversea at large.

3. In relation to the first of the matters, there are presently orders in place by consent which were made on 23 November 2015. They provide that L is to see his father after school on Thursdays until 6.45 pm, on week one from Saturdays at 7.45 am until 7.00 pm and on week two Sundays from 8.30 am to 5.00 pm.

4. The particular variation sought is to change the Saturday weekend so that it finishes at 5.00 pm. Interim children’s matters are to be conducted in accordance with the principles set out in the case of Goode & Goode (2006) FLC 93-286.

5. Firstly turning to the competing proposals. The father is not in attendance however in his absence I infer from his Case Outline that he would oppose the change that is sought by the mother. The matters put forward by the mother to support the change relate to his capacity to parent, his consumption of illicit substances and potential mental health issues. In particular the mother points to Exhibit W3 where in May 2015 the father made admissions to a treating doctor that he was consuming cocaine five out of seven days. He has made further admissions in relation to the use of cocaine and so to some degree his consumption of cocaine is an uncontroversial matter although, the degree to which he consumes it may be controversial as are the implications of his consumption of it. His consumption of cocaine is something that was dealt with by the single expert, Dr P, who did not identify the use of cocaine itself as being problematic, although its use in proximity to the children was problematic.  Dr P also dealt with, to a limited degree, mental health issues in relation to the parties. He did not identify any psychiatric or psychological issues for the parties (see paragraph 171 of his report).

6. In terms of the issue of capacity, the mother points to particular occasions where the father has failed in relation to the care of the children, in particular cases where he has not collected them or has left his son in a car, that is locked in a car. She further points to his use of cocaine this year and the charge for driving with a prescribed content of alcohol (“the PCA offence”) also from earlier this year. Counsel noted in particular that the fact of being charged for the PCA offence was something which the father had previously denied but which was substantiated on the subpoenaed material. In general terms it was put that routine for the children is good and that the father is to some extent risky.

7. An examination of the report by the single expert indicates the greatest difficulty that he identified in relation to the children was their vulnerability to parental hostility rather than the other matters that had been raised. This does not indicate that those other matters will not loom large in a final hearing and may perhaps be determinative, although it is premature to say so.

8. The particular variations sought by the mother is a reasonably small variation, however it is unclear how a reduction of a period of two hours on one evening a fortnight deals with the issues that have been raised. The issues of risk, the issues of capacity and the issues of mental health seem unlikely to be mitigated to any significant extent by a reduction in that period of two hours. In the overall context of consent terms having been entered into and in the context of the particular issues raised by Dr P and noting that the consent terms are such that it is not open to make orders in respect of equal time between the parents or for time to any degree more significant than is provided for in the consent orders and noting that the particular change does not address the ills that have been raised in relation to the father I decline to make the variation to the Orders to make the handover time 5.00 pm on a Saturday.

9. The second matter related to overseas travel. The mother seeks orders as set out in her Case Outline, being Orders 11 and 19 to provide for overseas travel for both of the children. The material makes it clear that this has been a highly internationally mobile family before the breakup of the relationship. That is emphasised by the fact that the mother intends to travel with the children, if possible, to New Zealand tomorrow for a period of five days.

10. It is noteworthy that both of the parents are from New Zealand. The father’s position as indicated in his Case Outline document contemplated overseas travel to occur but to do so with the permission of the parties. The mother’s position contemplates overseas travel at times when the children are in her care, that is, a reasonably constrained arrangement as to time. The evidence pointed to by the mother in support of her application discloses that previous travel arrangements even when entered into by consent have met the giving of consent and withdrawal of consent on the part of the father. Normally it would be expected that such matters would be dealt with by reason of a process of negotiation, however in this case the primary matter that impacts negatively, at least as identified by Dr P (again this will be a matter to be determined at the final hearing), is the difficulty that parents have in dealing with each other. The previous examples set forward in the mother’s affidavit of April 2016 paragraphs 115 to 120 emphasised this.

11. The mother’s counsel further pointed to the father’s affidavit in these interim proceedings and to paragraph 267 of that affidavit as setting out the height of his objection to international travel. In short summary the height of his objection was that the mother frequently got to travel on school holidays with the children but he and his family did not have that privilege. That is, it appears that the father addresses no substantive criticism of the mother having international travel with the children, his problem is that he did not receive a similar benefit.

12. Further, in the material sent to the Court by the father being Exhibits H1 and H2, it is clear that he was prepared to conditionally consent to the mother travelling overseas. While it may be that this material constituted a part of settlement negotiations, counsel was correct to identify privilege as having been waived pursuant to section 131(1) or 131(2) of the Evidence Act 1995 (Cth).

13. Given that travel has been a usual part of the existence of these parties and the children, given the presence of family in New Zealand and given the regular travel to New Zealand, I accept that it is in the children’s interests to travel freely to New Zealand. This is not a case in which there is any issue by which it might be thought that a parent would abscond with the children. The biggest issue faced in relation to international travel is the question of conflict between the parents in trying to arrange it.

14. I propose to make orders that will allow travel to New Zealand without consent on the part of the father in order to minimise this conflict which appears so detrimental to the children. Other overseas travel will still require the consent of the parties.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 12 July 2016.

Associate: 

Date: