Gade and Jabbar (No.13)

[2017] FCCA 3423

FEDERAL CIRCUIT COURT OF AUSTRALIA

GADE & JABBAR (No.13) [2017] FCCA 3423

Catchwords:
FAMILY LAW – Parenting – Application by the mother for access to a device – application made after the close of evidence in a final hearing – application dismissed.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR GADE

Respondent: MS JABBAR

File Number: NCC 2265 of 2015

Judgment of: Judge Terry

Hearing date: 18 October 2017

Date of Last Submission: 18 October 2017

Delivered at: Newcastle

Delivered on: 18 October 2017

REPRESENTATION

Counsel for the Applicant: Mr Bithrey

Solicitors for the Applicant: NLS Law

The Respondent: In person

Counsel for the Independent Children’s Lawyer: Mr Boyd

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW

ORDERS

1. The application in a case filed on 12 October 2017 is dismissed.

2. NOTING THAT the mother indicated today that she is withdrawing all outstanding interim applications:

   (a)the application in a case filed on 4 August 2017 is dismissed;

   (b)the application for contempt filed on 3 August 2017 is dismissed;

   (c)the application in a case filed on 10 April 2017 is dismissed;

   (d)the application for contravention filed on 9 March 2017 is dismissed;

   (e)the application in a case filed on 15 February 2017 is dismissed;

   (f)the application in a case filed on 25 January 2017 is dismissed;

   (g)the application in a case filed on 28 November 2016 is dismissed;

   (h)the application in a case filed on 29 September 2016 is dismissed;

   (i)the application in a case filed on 7 July 2016 is dismissed; and

   (j)the application in a case filed on 5 July 2016 is dismissed.

3. The operation of the Watch List Order contained in Orders 8 – 10 of the Orders dated 31 August 2015 in relation to the children [X] born 2006 and [Y] born 2012 is extended until further order of the court.

4. The matter is adjourned to a date and time to be advised for delivery of a reserved decision.

IT IS NOTED that publication of this judgment under the pseudonym Gade & Jabbar (No.13) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2265 of 2017

MR GADE

Applicant

And

MS JABBAR

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. I have before me an application in a case filed by the mother on 12 October 2017 in which she seeks an order that she be given access to a mobile telephone associated with a text message dated 25 July 2015 and a video dated 9 March 2013 for the purpose of (and this is the mother’s wording) “to the mother to manage a forensic-analysis report”. 

3. The mother also seeks an order that until the court makes final orders the children will be with the mother from Friday afternoon after school to Monday morning every weekend. 

4. I have made it very clear that I am not going to remotely consider making order 3. The whole issue in this case is whether such an order should be made or indeed whether any order should be made for the mother to spend time with the children.  I am not going to deal with the issue of whether that time should occur save for dealing with it as part of making a final decision in the matter and I dismiss the mother’s application for order 3. 

5. In relation to order 2, the mother has from the very beginning of this case made an issue of the validity of the text messages the father alleges were sent on 25 July 2015 and the validity of the video dated 9 March 2013. Counsel for the Independent Children’s Lawyer mentioned that it was an issue which had been in dispute for 18 months. It has in fact been in dispute since the proceedings began a little over two years ago. 

6. The mother has previously raised before me the issue of having access to the phone to have it examined.  I have on more than one occasion I am certain made clear to her that if she made an application about that then it might well be possible for the phone to be delivered, not to her, but to some professional person who could examine the device on her behalf. 

7. The parenting matter was listed for final hearing many, many months ago. I cannot recall if the trial directions were made in March or April, but it was about then and the matter was listed for trial in August. The mother had four months between when the matter was listed for trial and when the trial began to make this application. 

8. The trial was adjourned part-heard on 11 August 2017 and there was a further short window of opportunity in which the mother could have made that application before evidence was taken from the mother’s last witness on 7 September 2017. 

9. The mother has waited until after the evidence has closed to bring this application. She now asks me to make this order in a situation where she could only tender that evidence if she successfully sought to re-open her case. 

10. I am not going to make the order sought by the mother. The issue of whether the text messages and the video were sent, their content and whether there is some sort of fraud or fakery involved in relation to them was extensively examined at trial. The mother has had ample opportunity in the past to seek an order about examining the device itself. The whole issue has been considered extensively at trial and I am not convinced that it is appropriate to accede to an application by the mother made after the evidence has closed for her to have access to the device and I am going to dismiss her application. 

11. In my view these children’s best interests will be served by me taking the final submissions and then getting on with delivering a judgment as quickly as possible and not by acceding to a request such as this and then having further delay in the matter being finalised. 

12. The mother’s application in a case filed on 12 October 2017 is dismissed in its entirety.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:     10 July 2018