Gade and Jabbar (No.4)

[2016] FCCA 3418

FEDERAL CIRCUIT COURT OF AUSTRALIA

GADE & JABBAR (No.4) [2016] FCCA 3418

Catchwords:
FAMILY LAW – Interim Parenting – application by the wife for an order varying the spend time with orders to enable her to attend her son’s first day at kindergarten.

Applicant: MR GADE

Respondent: MS JABBAR

File Number: NCC 2265 of 2015

Judgment of: Judge Terry

Hearing date: 20 December 2016

Date of Last Submission: 20 December 2016

Delivered at: Newcastle

Delivered on: 20 December 2016

REPRESENTATION

The Applicant: In Person

The Respondent: In Person

Solicitor Advocate for the Independent Children’s Lawyer: Ms Presker

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

ORDERS

1. The mother’s oral application to attend the first day at school in 2017 for the child X born (omitted) 2012 is dismissed.

2. The parenting matter is adjourned to 31 January 2017 at 9.30am for further consideration.

3. Until further order the wife shall have sole occupancy of the property at Property A (“the Property A property”) provided that she:

   (a)pays the mortgage payments for the property as they fall due,

   (b)pays the council and water rates for the property; and

   (c)keeps the property insured.

4. For three (3) months from today’s date, the husband is restrained from requesting the (omitted) Bank to vary the current arrangements the bank has with the wife concerning the payment of the mortgage.

5. The husband shall have the sole right to make arrangements to let Property B (“the Property B property”).

6. The husband shall be responsible for paying the mortgage in respect of the Property B property, council and water rates, strata levy and keeping the property insured and if there is a shortfall between the rental received and the outgoings for the property, the husband shall until further order be responsible for paying the shortfall.

7. The husband shall promptly pay the arrears owing on the Property B property mortgage.

8. The wife shall promptly pay the arrears owing on the Property A property mortgage.

9. The husband may to the exclusion of the wife engage a real estate agent to manage the Property B property and arrange for the leasing of the property and may sign all documents required to lease the property.

10. The wife is to deliver all copies of the keys to the Property B property held by her to the counter at the Family Law Courts Registry, level 1, 61 Bolton Street, Newcastle by 12noon on Wednesday 21 December 2016.

IT IS NOTED that publication of this judgment under the pseudonym Gade & Jabbar (No.4) 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.

2. I asked the Independent Children’s Lawyer to come back this afternoon because the wife asked me to consider her application to attend X’s first day at school.

3. I am now considering that application and I have heard submissions about it from the wife, the husband and Ms Presker.

4. Ms Presker, as has been my experience of her in this case, made very balanced submissions about the issue. She recognises, and I recognise as well, how important it is to the wife to attend her only son’s first day at school. Ms Presker recognises how disappointing it will be to the wife if she is unable to do that.

5. I accept that X commencing kindergarten is a one off event that will never be repeated and that if the wife does not get the opportunity to go to that event it is not as if she can do it next year or the year after. The opportunity to do it will be lost forever.

6. However in my view there are just too many risks and uncertainties surrounding the wife attending that event to make it in X’s best interest for me to order that it occur.

7. The relationship between the husband and wife is a very fraught and difficult one.  The wife has told me on a number of previous occasions that she will not speak to the husband.

8. The parties have both been to the police and asked them to investigate complaints they have made against the other. As a result the husband has been convicted, after pleading guilty, of assaulting the wife and as a result of that an Apprehended Domestic Violence Order (ADVO) was put in place for the wife’s protection.

9. The wife has very recently been found guilty by a magistrate of assaulting Y and of an offense of stalk intimidate in relation to the husband. She is to be sentenced on 23 January 2017 and it is highly likely that an ADVO will be put in place on that occasion for the protection of the husband given the stalk intimidate charge and perhaps for Y who is the subject of the assault.

10. Very shortly after that X’s first day at school will roll around.

11. I am simply not prepared to take the risk of having the wife and the husband together in the same place on their son’s first day at school because if anything does go wrong it would be dreadful for X and it would be dreadful for all the other children attending. As Ms Presker says it might mean that X is hesitant about his ongoing attendance at kindergarten.

12. I am not satisfied that it would necessarily be confusing for the teachers if the wife turned up as well as the husband but I consider that it is highly likely that it would be confusing for X, who has only seen the wife in a supervised setting for a very long time and he is not at an age where it could be explained to him “This is a court order that this happen on only one occasion.”

13. It is likely to be very confusing for him and there is nothing to suggest that the wife being there is going to enhance his first day at school.

14. It will be intensely disappointing for the wife if she cannot be there, I understand that, but the husband can take some photographs and provide them, if not to the wife to the Independent Children’s Lawyer to be passed on to the wife because I know that the wife does not like to receive things direct from the husband. 

15. I simply cannot afford to take the risk and I am not prepared to take it.  I am therefore not going to make an order varying the orders about the time the wife spends with the children so that she can attend X’s first day at school.

16. I hope that we will have Dr K’s report very soon. We need to obtain a verified copy of the magistrate’s decision and information about the wife’s sentence so that we can pass that on to Dr K and he can complete his report but the report should not be very far away and as I have repeatedly said once I get that report I will be in a position to have a further look at what is to happen in relation to the wife’s time with the children.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:  12 January 2017