Gade & Jabbar (No 5)

[2017] FCCA 662

FEDERAL CIRCUIT COURT OF AUSTRALIA

GADE & JABBAR (No.5) [2017] FCCA 662

Catchwords:
FAMILY LAW – Parenting – Application by the Independent Children’s Lawyer for the interim order concerning the children’s time with the mother to be discharged following the release of the Experts Report – order made suspending the order for a month – mother urged to obtain legal advice with a view to clearing roadblocks so that the matter can be given an expedited final hearing.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR GADE

Respondent: MS JABBAR

File Number: NCC 2265 of 2015

Judgment of: Judge Terry

Hearing date: 23 March 2017

Date of Last Submission: 23 March 2017

Delivered at: Newcastle

Delivered on: 23 March 2017

REPRESENTATION

Solicitor Advocate for the Applicant: Ms Shepherd

Solicitors for the Applicant: NLS Law

The Respondent: In person

Independent Children’s Lawyer: Ms Presker

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

THE COURT ORDERS ON AN INTERIM BASIS THAT:

1. Order 3 of the Interim Orders of 31 August 2015 is suspended until the next adjourned date.

2. In accordance with section 68B of the Family Law Act 1975 the mother is restrained by injunction from approaching X born (omitted) 2006 and Y born (omitted) 2012 (‘the children’).

3. In accordance with section 68B of the Family Law Act 1975 the mother is restrained by injunction from contacting the children by any means including but not limited to through voice call, typed word, the internet or other media.

4. In accordance with section 68B of the Family Law Act 1975 the mother is restrained by injunction from approaching or contacting the children’s school, (omitted) School.

5. The Independent Children’s Lawyer is granted leave to provide a copy of these Orders to (omitted) School. 

6. Pursuant to Section 65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “B” attached hereto and these particulars are included in these Orders.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The father shall file an amended application in a case seeking specific orders in relation to the non-payment of the mortgage and an affidavit in support by close of registry filing on 27 March 2017.

2. The mother shall file and serve a response to the amended application in a case filed in accordance with Order 1 by close of registry filing on 10 April 2017.

3. The matter is adjourned to 10.00am on 19 April 2017 for hearing of the amended application in a case filed in accordance with Order 1.

4. All outstanding applications are otherwise adjourned to 19 April 2017 for mention only.

IT IS NOTED that publication of this judgment under the pseudonym Gade & Jabbar (No.5) 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

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. The matter of Gade & Jabbar has been before me since 31 August 2015.  I made orders on that day that the children live with the father on an interim basis and spend supervised time with the mother. I ordered the appointment of an Independent Children’s Lawyer and not long after that an arrangement was made for a report to be prepared by an expert, Dr K. 

3. Unfortunately the report took a lot longer to appear than anyone had envisaged. Part of the problem was that during 2016 both parents faced some criminal proceedings and there was some delay in terms of getting information to Dr K about that.

4. The report has only been received from Dr K today and it has been released today and read by the parties today. The parties are going to have to do a lot of thinking about what is in the report and consider how they are going to respond to it.

5. Dr K’s recommendation is that the children spend no time with and have no communication with their mother until they are 18. It is an extreme type of recommendation. 

6. The report is well-written and it is well-reasoned but of course it is only an opinion. The opinion of an expert does not determine what happens to children. Experts’ evidence is only a piece of evidence at a hearing. Ultimately it will be for me to determine, based on that evidence, challenges to that evidence and any other evidence that might be brought before me at a trial what happens for these children. 

7. My preference would have been now that I have received this report and seen its content, to immediately list the matter for final hearing and if the parties had asked me to do that today I would have prioritised the hearing. I would have found a way to hear it within the next three months because I consider that it needs and deserves that kind of attention.

8. Unfortunately I cannot do that at the moment for a couple of reasons, and I do not blame the mother for this because she has only read the report today and she needs time to think about it. I cannot do that at the moment for these reasons.

9. First, there are some outstanding contempt applications before me in relation to the parenting matter and they are listed for hearing in July.  The mother was within her rights to seek a hearing date for those applications but I cannot hear the parenting matter until the contempt applications are disposed of. 

10. The mother is hoping to seek some legal advice. If she does that she may want to discuss with her legal representative whether a better course might not be to withdraw the contempt applications and ask the Court to consider as an issue at the final hearing the veracity of the text message and the videos. 

11. The other thing which is causing a roadblock is that the mother has numerous applications before me for interim parenting orders and I need to dispose of those applications before I conduct a final hearing.

12. I have always said to the mother that I would have another look at the interim parenting matter once I got this report but given the content of the report it would be very difficult for me at present to make an order varying the supervised time order and the mother needs to consider the utility of leaving those applications in a case on foot if they are going to be a roadblock to a final hearing date being set.

13. It goes a little beyond that though because the Independent Children’s Lawyer has made an oral application for me to discharge the existing supervised time order. 

14. I would not be prepared to discharge the order but I am prepared to consider an application to suspend it, at least until the matter comes back in April when the mother  hopes to have some legal representation.

15. The Independent Children’s Lawyer asks me to do that based on what is in the expert’s report. 

16. The expert’s report is only a piece of evidence and as I have just indicated experts do not make decisions. They give evidence and sometimes their recommendations are successfully challenged. The underpinning rationale for their decisions may be exposed to be erroneous. Other options may become open to the Court. The mere fact that I have an expert’s report does not mean that the Court is going to do what the expert suggests.

17. The expert report is a valuable piece of evidence though and at the moment it is the only independent evidence I have of what might be going on in this case. It is a very carefully written report. It is a carefully reasoned report. Dr K was aware that the mother had been acquitted by the District Court of the charge of assaulting X and acquitted of the charge arising out of the sending of the text message. Nevertheless he has very carefully considered all of the evidence about those matters. He has considered the various things that appear in documents in terms of what the mother has said about it. He has viewed the material and he has come to certain tentative views about where the truth might lie about family violence having been perpetrated in the marriage and about the treatment of X. He has also referred to a number of other pieces of evidence about what might be happening between the mother and the children and he has then come to the recommendation that the mother should be spending no time with the children.

18. The mother has only read the report today. She will have to internalise it. She will have to deal with it. I must say I am a little concerned about leaving the spend time order in place in circumstances where the mother has just read the report. It may be very disappointing and upsetting to her. There are considerable concerns expressed by Dr K about the impact on the children of spending time with the mother. I cannot be certain that Dr K’s evidence is going to prevail but it is a carefully reasoned report. 

19. I have to make a decision on an interim basis and sometimes on an interim basis the Court has to err on the side of caution to protect children and in my view based on what is in the report it would be appropriate to suspend the orders until the matter comes back on the next adjourned date.

20. I am reluctant to do it because of the fact that the children have upcoming birthdays. The mother was disappointed about not being able to attend Y’s first day at school.  It seems in some ways harsh to the mother that I will make an order which will mean that she won’t be able to see the children around the time of their birthdays. 

21. Unfortunately this Court has to prioritise the interests of children not parents and although I regret having to make the decision I cannot leave the orders in place just at the moment. I am going to suspend them until the matter comes back before me on 19 April 2017.

22. That will give the mother time to seek some legal advice which she really needs to do as rapidly as she possibly can but I would strongly urge the mother to consider assisting by clearing the road blocks out of the way so that I can list this matter for final hearing which I will prioritise.

23. There is the property aspect of the matter which will need also to be listed. We have not had a conciliation conference but in December I spent quite a bit of time – and I do not think the Independent Children’s Lawyer was there - going through with the father and mother what was in the property pool.

24. There is not a lot in the property pool. There is not a lot in it that is visible. There is an argument about money having been taken out of an account. There is an argument about property in India. That can be explored at a hearing but the property pool is not large and I cannot see any reason why that could not be dealt with at the same time, although if people want to hive it off and have it heard separately that is another option.

25. I am going to suspend the order concerning the children spending time with the mother until the next adjourned date and I am going to make orders in terms of the orders contained in annexure A. I urge the mother to seek some legal advice because if we can clear those road blocks out of the way we can focus on the big issue of getting this matter finally determined.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:  5 April 2017