Gade and Jabbar (No.15)

[2018] FCCA 2041

FEDERAL CIRCUIT COURT OF AUSTRALIA

GADE & JABBAR (No.15) [2018] FCCA 2041

Catchwords:
FAMILY LAW – Parenting – application in a case by the mother seeking interim parenting orders – where final orders were made on 11 May 2018 - application dismissed – application in a case by the mother seeking a stay of final parenting and property orders pending the outcome of an appeal – where the only stay the mother sought in respect of the parenting orders was that the order discharging a Watch List order be stayed – where the mother alleged that if the Watch List order was not re-instated the father and paternal grandmother would take the children from Australia and kill them – application dismissed – where the mother sought a stay of a property order which provided for the home she was living in to be transferred to the father upon him paying her a  sum of money – application dismissed.

Legislation:

Family Law Act 1975 (Cth)

Cases Cited:

Jabbar & Gade [2018] FamCAFC 105

Applicant: MS JABBAR

Respondent: MR GADE

File Number: NCC 2265 of 2015

Judgment of: Judge Terry

Hearing date: 2 July 2018

Date of Last Submission: 2 July 2018

Delivered at: Newcastle

Delivered on: 2 July 2018

REPRESENTATION

Counsel for the Applicant: Mr Levick

Solicitors for the Applicant: NLS Law

The Respondent: In person

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

ORDERS

1. The Application in a Case filed on 22 June 2018 is dismissed.

2. The Application in a Case filed on 28 May 2018 for a stay of the orders made on 11 May 2018 is dismissed.

3. The applicant shall pay the respondent’s costs of and incidental to the application in a case filed on 22 June 2018 fixed in the amount of $500.00 with such costs to be paid contemporaneously with payment by the respondent to the applicant of the amount referred to in Order 8(i) of the orders made on 11 May 2018.

IT IS NOTED that publication of this judgment under the pseudonym Gade & Jabbar (No.15) 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 2015

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.

The application in a case filed by the mother on 22 June 2018

1. The mother has filed an application in a case seeking parenting orders in respect of [X] and [Y]. She seeks that I suspend the final orders I made on 11 May 2018 which provide for her to spend no time with the children and make an order for her to spend supervised time with the children for four hours per week with the father to pay for the cost of the visits.

2. It some ways this could be seen as a belated attempt to apply for a stay of the parenting orders.

3. The mother filed an application on 28 May 2018 seeking a stay of the 11 May 2018 orders pending the hearing of her appeal. When the matter came before me for mention I specifically enquired of her whether she was seeking a stay of the parenting orders and the property orders or just of the property orders. She very clearly told me she was only seeking a stay of the property orders.

4. I will in a moment when I come to the stay application revisit the issue of exactly what it is that the mother is seeking a stay of, but at the moment I am going to treat the application in a case as an application seeking fresh parenting orders.

5. I have made final parenting orders about these children and I cannot reconsider my own decision. The only way I can make any orders about the children different to the orders already made is in the context of a stay application. Filing an application in a case seeking to have me make different parenting orders is an incompetent way to proceed.

6. The correct way for the mother to have proceeded if she wanted to obtain fresh parenting orders would have been to file a fresh initiating application. Just to cover that base though and not to have the matter disposed of simply on a formality, if the mother had filed a fresh initiating application it would have given her application no more strength than it already has.

7. I made final parenting orders on 11 May 2018. No new circumstances have arisen since then which suggest that I should revisit those orders. The fact that the father and/or the paternal grandmother have been out of the country for a limited period of time, if in fact that is the case, would not be sufficient change of circumstances to justify revisiting the existing parenting orders.

8. The mother can pursue her case in relation to those orders on appeal.

9. I am concerned about the excessive use of court resources in this matter and about the burden placed on the Legal Aid Commission in continually supplying an Independent Children’s Lawyer to appear in the proceedings. I am not going to allow this application in a case to remain on foot. It has no prospects of success. It is not a competent application and I am going to dismiss the application in a case filed on 22 June 2018.

The application for a stay filed on 28 May 2018

1. The stay application the mother filed is not especially well worded and when the matter was last before me I was careful to enquire of the mother exactly what orders she was wanting stayed.

2. I am confident that the mother assured me that she was only seeking a stay of the property orders. As a result I excused the Independent Children’s Lawyer from attendance today. However he is in attendance because the mother filed an application in a case in respect of parenting matters on 22 June 2018 and during her submissions about that application the mother indicated that she was in fact wanting a stay in relation to the parenting orders.

3. Although I was a little bit troubled about allowing her to proceed with that everybody is here and I therefore considered it appropriate to hear some submissions about it.

4. The mother has appealed my decision in relation to the parenting matter. However as the father’s counsel rightly points out her appeal is solely directed to a complaint about the findings I made about the authenticity of text messages and videos, or when I say the authenticity of them, a complaint about my findings that I accepted the father’s evidence about the content of the text messages and accepted the father’s evidence that the video he produced was a genuine video of what occurred on 9 March 2013.

5. The mother’s appeal against my decision is solely directed to those matters and as Aldridge J pointed out to her during the hearing of her application for expedition of the appeal,[1] if the appeal is successful the likely outcome would be that the matter would be remitted for re-hearing by another judge. That would not of itself mean that the position of the mother spending time with the children would automatically be restored. The mother’s time with the children was suspended in April 2017, four months before the trial commenced.

   [1] Jabbar & Gade [2018] FamCAFC 105

6. It would appear from the mother’s submissions however that the order she wants stayed is the order that I made discharging the Watch List order.

7. I have to decide whether I should stay the order discharging the Watch Order because as I see it that is all I am tasked to decide today. It is not my job to try and make the mother’s case, to pretty it up, to tidy it up, to anticipate things that she might be hoping to achieve and she addressed me only in relation to a stay of the discharge of the Watch List order.

8. I am deeply troubled by the submission the mother made in support of that. She said to me, “Mr Gade will take my children outside of this country and kill them.” She suggested that the father and/or the paternal grandmother would kill these children.

9. There is absolutely nothing in any of the evidence that I have heard, nothing in any of the findings I have made throughout these proceedings and nothing in Dr K’s report (which I found should be given considerable weight), which would even remotely give a foundation for such a suggestion. The submission causes me extreme disquiet about the mother, not about the father, and it brings to my mind Dr K’s evidence in the witness box that this was one of the rare cases where he would recommend that the father be given freedom to relocate. That was his evidence in the witness box, because he was concerned about potential risk of harm to the father and the children arising out of the decision I might make or perhaps the mother’s reaction to the decision.

10. I am fully conscious of the fact that the discharge of the Watch List order means that the father could, if he chose, leave Australia with the children. I referred to that in my decision. It is an extreme possible outcome but it will not result in the children being killed or injured. It will mean they will be outside the jurisdiction. It will make it more difficult, if the mother succeeds on appeal in demonstrating that I have made error, in retrieving her role in the children’s lives, but it will not put it beyond that position being retrieved.

11. I am deeply troubled by the mother’s submission that the father would be likely to take the children outside the country and kill them. I am not minded to do what the mother asks and stay the discharge of the Watch List order.

12. It might be that the father has no intention of leaving Australia with the children. He has been settled in Australia for many years. He has a good, high paying job in Australia. I have no reason to believe that he intends to leave Australia, but in all the circumstances of this case, including the fact, as the father’s counsel rightly points out, that there are some serious problems with the mother’s approach on appeal and doubt about whether it is going to achieve the outcome that she wants, I am not minded to stay the order that I made discharging the Watch List order.

13. Insofar as the mother has sought a stay of the parenting orders, her application is dismissed.

14. I also have to deal with an application by the mother for a stay of some property orders.

15. Turning to that, the application for a stay contained in the mother’s  application in a case filed on 28 May 2018 simply reads this:

    The effect and operation of court orders made by Terry J on 11 May 2018 in case number NCC2265/2015 is suspended until the final disposal of notice of appeal dated 21 May 2018 filed by the mother.

16. The mother has not been specific in any way about exactly what she wants to achieve in relation to the property matter.

17. The parties own two real properties, one in Property A and one in Property B. The mother is living in the Property B property and I glean from her grounds of appeal that her concern is that she will be rendered homeless if the order I made concerning that property being transferred to the father is carried into effect. She does not specify that in her application for a stay but I gleaned from her notice of appeal that that is her concern.

18. The mother does not set out what she wants to happen with the rest of the property orders and perhaps most importantly, she puts forward no proposal to deal with the problem that has plagued the property matter almost from the beginning, namely the mother living in the home and not keeping up with the mortgage payments and not keeping up with the payment of the rates.

19. That has been the subject of more than one set of orders during the course of the proceedings. It has also been the subject of more than one application in a case filed by the father following him being approached by the bank about non-payment of the mortgage and on one occasion I seem to recollect, although I might not have the sequence of events exactly right, because the council had garnisheed money from his pay after obtaining a judgment against him in relation to unpaid rates.

20. There have been problems for two years or more with non-payment of the mortgage and non-payment of the rates, even though very clear orders were made for the mother to take on that responsibility.

21. On every occasion that the father made an application to this court to have possession of Property A because of the mother’s default in respect of those orders I gave the mother a second chance. There were occasions when she seemed to catch up but then things would slip again and there would again be non-payment and another garnishee or another legal action against the father in relation to non-payment of the rates.

22. If the mother had wished this court to seriously consider making an order staying the transfer of Property A to the father or alternatively, and this is another order she could have sought, making an order that she be allowed to remain in occupation of Property A and that it not be onsold by Mr Gade pending the hearing of the appeal, she needed to put forward a concrete proposal to deal with the problem of the payment of the rates and outgoings.

23. Not only has she not done that, part of her submissions to me today was along the lines of querying whether orders had in fact been made in the past requiring her to make those payments and implying that she somehow had not been in default, at least on some occasions, in not making the payments.

24. I am concerned about the possibility of the mother being made homeless but over and over again in these proceedings I have given her the benefit of the doubt. I have erred on her side in making orders that would allow her to remain in occupation of the property provided that she caught up with the payments.

25. Over and over again there have been problems with that however and knowing that, the mother has come to this court with no proposal to deal with that matter in the future.  

26. I am not going to consider a proposal now by the mother that she make the payments because I have Exhibits A and B which indicate that there is an ongoing problem with payment of the rates and an ongoing problem with the payment of the mortgage and as the father’s counsel rightly points out, Order 9(b) of the orders I made on 11 May 2018 required the mother to make those payments pending the finalisation of the property matter.

    [The mother then articulated a proposal that she be allowed to remain in the property until she had finished her (studies omitted) later this year and that the father pay the mortgage and the rates until then and that the amount he paid be deducted from the cash payment he was required to make to her pursuant to Order 8(i) of the 11 May 2018 orders]

27. I am not satisfied that it would be appropriate to require the father to take on the role of paying the mortgage on Property A but not having it transferred to him as a solution to the problem of the payments being made. In my view that would be unjust and not in accordance with the orders that I have made and I am not going to make such an order.  

28. I cannot be satisfied that the mother either can or alternatively will make the payments and in the circumstances of the case I do not consider that it would be appropriate to grant the stay order and I am going to dismiss the stay application in respect of the property orders.

Costs

1. The father’s counsel has asked for costs in relation to the matters that are before me this evening.

2. I indicated to the father’s counsel that I was not going to consider making an order for costs pertaining to the stay application in respect of the property because if you have a look at the decision in relation to the expedition application, it could be inferred that the mother filed an application for a stay of the property orders following some observations Aldridge J made in the case.

3. I am not minded to award costs against her in relation to that even though she has been completely unsuccessful.

4. In relation to the application for a stay of the parenting orders, that is more problematic, but on the other hand it was dealt with today at the same time as the application for the stay of the property orders.

5. I say it is more problematic because I am sure that on the last occasion the mother told me that she did not intend to pursue a stay of the parenting orders. She changed her mind today but in any event we had a short argument about it and I am not going to entertain a costs application about that.

6. I also had before me today though an application in a case filed by the mother on 22 June 2018 seeking that she be able to spend time with the children for four hours per week with the father to pay the costs of the visits. I have dismissed that application after hearing submissions from the father’s counsel, the mother and the Independent Children’s Lawyer.

7. That application should not have been brought and something has to be done to discourage the mother from filing endless applications in relation to the parenting matter. She has an appeal on foot. It is that which she needs to pursue. In my view there are circumstances justifying an order for costs in relation to that particular application.

8. The mother is not in a strong financial position at the moment but she has an entitlement to a property settlement and impecuniosity alone is not a reason why costs should not be awarded.

9. The mother is not in receipt of legal aid. I am not going to discuss the conduct issues that are referred to in s.117(2A). The application is not the result of failure to comply with a court order but the mother has been wholly unsuccessful in relation to the application and not only that, in my view the application could be considered doomed to fail.

10. There are no relevant offers of settlement but I take into account as a relevant matter and I keep harping on it that something has to be done to discourage the mother from bringing repeated unnecessary applications.

11. It creates a financial burden for the Legal Aid Commission and therefore the community because the Independent Children’s Lawyer has to take part in the matters. It creates a financial burden for the father. He may be earning a high salary but there is a limit to which that can be used as an excuse for bringing applications which have no reasonable prospects of success.

12. Costs should be rewarded in relation to that application.

13. The court normally uses the scale in the Federal Circuit Court Rules as a yardstick against which to assess costs. It is hard to use it when I have had a number of applications before me today but the father is represented by counsel and his solicitor is present.

14. If I fix on a sum of $500.00 it is almost inevitably going to be considerably less that the actual cost to the father of dealing with this discrete application and in my view it is appropriate that I award costs in relation to the application in the sum of $500.00 and I am going to make an order that that amount be paid.

15. Subject to anything the mother might want to say about it, I intend to order that this amount be paid contemporaneously with the father paying to the mother the amount required by order 8(i) of the orders made on 11 May 2018.

I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:     3 August 2018