Lorenzen & Barnes

[2007] FamCA 1310

FAMILY COURT OF AUSTRALIA

LORENZEN & BARNES [2007] FamCA 1310

FAMILY LAW – CHILDREN – With whom a child lives with – With whom a child spends time – Orders

FAMILY LAW – LOCATION ORDER

Family Law Act 1975 (Cth)

APPLICANT: Mr Lorenzen

RESPONDENT: Ms Barnes-Chase-Lorenzen

FILE NUMBER: SYF 282 of 2003

DATE DELIVERED: 16 October 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: JR Loughnan

HEARING DATE: 16 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. In relation to the substantive matter the proceedings are adjourned to the Registrar’s List at 9:30 am on 19 November 2007 for directions in relation to the final proceedings.

IT IS NOTED

1. The mother has filed a Response and she sets out as her address for service … Road, B in the State of New South Wales.

2. That that is her address for service and unless the Court otherwise orders any further documents which are to be served on the mother are to be served by ordinary pre paid post to that address.

IT IS FURTHER ORDERED

1. The father is restrained from attending at or entering upon those premises or any other premises in which the mother resides until further order of the Court.

2. The parties are to attend for family dispute resolution by arrangement with the Manager Child Dispute Services AND leave is granted to each of the parties should they so wish to attend by telephone link AND the parties are to have separate interviews.

3. That the Registry Manager forward a copy of these orders to the mother by ordinary pre-paid post to her address for service as soon as practicable.

IT IS FURTHER NOTED

1. The Father is present today and the Court has advised him of the consequences of providing to any person details of the address of the mother provided to the Court pursuant to the Location Order made on 1 August 2007, including the penalty provisions under s67P.

IT IS NOTED that publication of this judgment under the pseudonym Lorenzen & Barnes is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 282 of 2003

MR LORENZEN  

Applicant

And

MR BARNES-CHASE-LORENZEN  

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for parenting orders.  The father filed an application for final parenting orders on 15 June 2007.  In circumstances where he did not know the mother's address he also sought and obtained a Commonwealth Information Order. Such an order was made on 5 September.  As is the usual practice in circumstances where the applicant is unrepresented, the order was to the effect that the Registry Manager facilitates service and in aid of s 67N and s 67P, any affidavit of service evidencing service was not to be endorsed with the details of the address provided but to refer to the address in general terms.

2. I have been advised by the Registry Manager that a letter was sent to the Sheriff's Office advising the Sheriff of those two orders and requesting that the Sheriff provide a copy of the affidavit, acknowledgement of service and the invoice for the fees to the Registry Manager under cover of a letter marked “private and confidential”. It transpires that at least the invoice sent directly to the father at his own address and he concedes today that he received that letter. The invoice included the details of the mother’s address.

3. That action by the Sheriff is arguably in breach of s 67P which makes it an offence for information provided under Commonwealth Information Order to be provided to any person other than a solicitor instructed for a party to a proceedings or a process server instructed by that solicitor or an officer of the Court.  I do not know what the consequences will be of that incident but it transpires, as I say, that the information has at least come into the father's possession.

4. He tells me today on oath that he only knows the suburb that was disclosed for the mother's address.  That is not what he said to me when I first asked him about it before he took his oath.  He gave me the impression that he had not seen any address for the mother so I am a bit anxious about it and there are two aspects to it.  Firstly he needs to be made aware of his obligations in the event that he does in fact know the address or recalls it at some later time. I have explained to him the consequences if he is found to deal with that address in any way by providing it to anyone.

5. Nextly there is the issue behind all of this which is that there are privacy issues involved. In her Response to the application the mother makes reference to stalking and intimidating behaviour by the father. There is no way of the father addressing this and it might not be true, but she refers to it. There is the potential harm to come to the wife as a result of the release of her address. That is one of the reasons behind the privacy principles that underpin the legislation that protects the privacy of records provided to Commonwealth agencies and others. That is the reason why the Commonwealth Information Order is needed to extract an address from such an agency and that is the reason for the safeguards built into the Family Law Act in relation to that information once provided by the agency. Those safeguards were frustrated in this case.

6. In those circumstances I have told the father that I intend to restrain him until further order from attending at or entering in the wife's residence. 

7. He has raised concerns about the potential for an accidental breach of an order restraining him for going within a specified distance from the wife’s address, because he says he knows people in the area. I accept that but there can be no complaint about him being restrained from entering into the particular premises.  Any innocent circumstance that lead he to attend upon such premises would arguably provide him with a complete excuse in relation to a breach of the order.  I propose to make that order.

8. Unusually, the father does not seek any interim orders, so the next step is mediation.  The matter pre-dates the Family Relationship Centre legislation but there needs to be mediation. In her Response the mother says she isn't interested because of the concerns she has raised but I will deal with that by providing for the parties, if they wish, to attend by telephone link and secondly providing that they have separate appointments. In that way, even if they both want to attend personally, there would be no risk of them coming together.

9. In relation to the substantive matter I adjourn the proceedings before a Registrar for directions in relation to the final proceedings to 19 October at 9.30 am.  I note that the mother has filed a response and she sets out as her address for service … Road, B in the State of New South Wales.  I note that that is her address for service.

ORDERS DELIVERED

1. I note that the father is present today and that I have advised him of the consequences of providing to any person details of the address of the mother provided to the Court pursuant to the location made on the 1st day of August 2007 including the penalty provisions in s 67P.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate

Date:  9 November 2007