Mohammed Salah and Gastana

[2018] FamCA 275

FAMILY COURT OF AUSTRALIA

MOHAMMED SALAH & GASTANA [2018] FamCA 275

FAMILY LAW – CHILDREN – PARENTING – Contravention – Where the father alleges five counts of contravention against the mother – Where the mother is found to have contravened without reasonable excuse on four counts – Where circumstances mitigate the seriousness of the contraventions.

Family Law Act 1975 (Cth)

APPLICANT: Mr Mohammed Salah

RESPONDENT: Ms Gastana

FILE NUMBER: BRC 6504 of 2009

DATE DELIVERED: 30 April 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 27 March 2018

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

Orders

1. That paragraph 3 of the orders made by his Honour Justice Forrest on 15 June 2011 be varied such that it reads as follows:

   That the mother, Ms Gastana, has sole parental responsibility for the children, M, born …, 2008, and the said H in respect of the major long-term issues about all aspects of their lives save for their religious upbringing and save for changes to their living arrangements that make it significantly more difficult for the children to spend time with their father.

2. That the mother and the father shall have equal shared parental responsibility in respect of the children for decisions that bring about changes to their living arrangements that make it significantly more difficult for the children to spend time with their father in accordance with existing orders.

3. That to be clear, should the mother move residence again with the children, she shall only move to a residence that is no further than one hour’s drive from the current residence of the father at Suburb T and should the father move from his current residence at Suburb T to live closer to the mother’s current residence at Suburb U, the mother shall not move from her current residence without the prior written agreement of the father.

4. That unless and until the mother and the father are living within one hour’s drive of each other’s residence, the school holiday time that the children spend with the father pursuant to paragraph (7)(b) of the orders of 15 June 2011 shall be increased by one whole week in the Christmas school holidays and by one whole day in each of the end of term school holidays throughout the year.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym < Mohammed Salah & Gastana has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6504 of 2009

Mr Mohammed Salah

Applicant

And

Ms Gastana

Respondent

REASONS FOR JUDGMENT

1. On 15 June 2011, I made final parenting orders in proceedings between these parents in respect of their children, M born in 2008  H, born in 2009. On 27 March 2018, I heard and determined a Contravention Application brought by the father against the mother in respect of five alleged contraventions of different parts of those substantive orders. After a contested hearing, at which each of the parents appeared without legal representation, I was satisfied that the mother had contravened the primary orders without reasonable excuse in four of the five circumstances of contravention.

2. On that day, 27 March 2018, I heard submissions from both parties as to what the consequences of those contraventions should be.

3. The father asked the Court for no consequence to be visited upon the mother save for one thing. He wanted the Court to make an order pursuant to s 70NBA(1) of the Family Law Act varying the primary order by ordering the mother to relocate the residence of herself and the two children to a place within one hour’s drive of the father’s residence.

The Context

1. In the primary orders made by me, I made an order conferring sole parental responsibility for the children on the mother about all aspects of their lives save for their religious upbringing. Sole parental responsibility for their religious upbringing was conferred on the father. I also ordered that the children live with the mother and spend regular time with the father.

2. Save for decisions about the religious upbringing of the children, the mother had parental responsibility for making all other decisions about major long-term issues in the lives of these children.

3. The definition of the term “major long-term issues in relation to a child” contained in s 4 of the Family Law Act includes “changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent”.

4. Having given the mother sole responsibility for decisions like that, it follows that she was able to unilaterally decide to move the children to live in a home with her that was further away from the father’s home, thus making it “significantly more difficult for the children to spend time with” him than it was before the move.

5. That is exactly what the mother did.

6. When I made the primary orders, the mother and the children were living in a suburb in of Brisbane, Suburb V. The father was living at the W Town. It was about an hour’s drive between their homes.

7. At some time subsequent to the making of the primary orders, the mother moved from Suburb V to Suburb X, a place on the far outskirts of Brisbane, significantly further away from the W Town than Suburb V. The father said that was in or around 2013. The mother did that unilaterally, as she was clearly entitled to. She says it was necessitated by her financial circumstances and the need to move into public housing that required her to accept the home that was allocated to her. Nevertheless, the move created significant difficulties for the parenting arrangements as set out in the orders to continue to be maintained by the father. Travel between the father’s home and the children’s school become much longer and more tedious, as it involved driving from the W Town to Suburb X and back. Consequently, and understandably so, the father did not avail himself of as much time with the children as the orders provided for.

8. Then, after a troublesome incident, the details of which are not necessary to set out here, the mother and the children had to move again. This time they moved to Suburb U, even further away from the father’s home on the W Town than Suburb X was.  Again, it became even harder for the father to maintain the ability to spend the time with his children that the primary orders provided for. That occurred at or around the end of 2016.

9. Critically, although my primary orders had incidentally given the mother the ability to move further away from the father, they still obliged her to notify the father in writing of such a decision. The obligation to notify him in writing of the move to Suburb U is one part of the primary order that I found the mother contravened without reasonable excuse when I heard the Contravention Application on 27 March 2018. The other three were:

   (i)Failing to deliver their son to his father for him to spend time with him on his birthday in 2017;

   (ii)Failing to inform the father that she was taking the children interstate for a holiday; and

   (iii)Refusing to provide the name and contact details of a medical practitioner that she had taken their son to on an occasion in 2017.

10. The father did learn of the move to Suburb U after the event, as he learned from the mother that she was putting the children into a different school than the one they had been attending when they lived in Suburb X.

The Father’s position

1. As I have observed already, the father expressly told the Court that he did not want any consequence or penalty imposed upon the mother other than ordering her to move with the children to a home within one hour’s drive from his home at Suburb T on the far northern end of the W Town. He said that would put things back as they were when I made the primary orders.

2. The mother, to her credit, did not express outright opposition to the idea. She did say that the two children are settled where they live and enjoy going to the school that they have been attending since the beginning of 2017. The father disputed that but there was no actual evidence either way that would permit me to make any finding about that. The mother simply went on to tell the Court that as she must, through financial necessity, live in public housing, she simply cannot move as and where the father would want her to, but rather, she must take what the public housing authority provides her with. It is worth noting at this point, I consider, that the mother asserts, and the father has never denied, that he has always paid only a very minimal amount of child support for the children, not having been in employment for many years. Thus, she survives and supports the two children on social security benefits alone.

3. There was some discussion at the end of the hearing during submissions on this issue as to her right to apply to the public housing authority for another move. I got the impression that she was able to put in an application to be considered for a move but that such move might take a long time to happen, if it did at all. I also got the impression that the mother did not really want to do that.

My Determination of the Issue

1. Of course, I am only permitted to vary a primary order at the conclusion of contravention proceedings pursuant to s 70NBA having regard to the best interests of the child as the paramount consideration. As I told the parties at the hearing, I am satisfied that the best interests of the children demand that I vary the primary order so as to take from the mother the right to unilaterally move again to a place even further away from the father’s home. I will do that, at the very least.

2. Of course I appreciate this may not be much solace for the father, but had the father brought an application in the wake of the mother’s first move to Suburb X four or five years ago, in which he sought orders that she return with the children to live closer to his residence than Suburb X, he could very well have been successful. I am just not persuaded now that so long after the mother moved from Suburb V that she ought to be ordered to move back, closer to the W Town. I do not consider that ordering her to take the children out of their current school (the second school since their move from Suburb V) right now is in their best interests.

3. Furthermore, I am simply unable to be satisfied that the mother’s financial circumstances are such that she could afford to take private accommodation for herself and the children and the evidence certainly does not persuade me that she could readily obtain suitable public housing within an hour’s drive of the father’s home in a short space of time.

4. Accordingly, I will not order, as the father seeks, the mother to move from Suburb U to live at another residence that is within one hour’s drive from the W Town. There is, of course, nothing stopping the father and his current wife and children moving to live closer to where the mother and the children live in Suburb U should he so desire. He is not employed and there was no evidence that his wife is. There was no evidence that he lives in public housing at the moment such that he faces similar difficulties to the mother in respect of changing residences. Indeed, I would be very surprised if suitable accommodation for the father and his family in or around Suburb U was not cheaper than the accommodation he lives in at Suburb T. Indeed, if the father considers it is quite alright for M and H to change schools, as he clearly does, he must be able to give consideration to moving his other children to another school. I acknowledge that he did say that he has a child or children who attend university, but they are clearly old enough to be able to live independently of him and his wife if they need to. Not to move himself, is clearly a matter of choice or preference for the father. The Court is certainly not stopping him moving.

5. I will ensure that the variation I make to the primary order prevents the mother from moving anywhere that is further away than one hour’s drive from the father’s current residence and, further, that if he moves closer to where the mother is currently living that she not move from her current home without the father’s written agreement.

The Contraventions generally

1. Although the father did not press for any other consequence to be imposed upon the mother as a result of the contraventions I found she committed, I will further consider the matter.

2. I will not repeat in these reasons all that I said in the reasons I delivered extemporaneously on 27 March when determining the contraventions. Although I found the mother to have contravened the orders without reasonable excuse in respect of four out of five of the contraventions alleged by the father, I considered that there were mitigating factors in respect of each of them, including the final count that the mother admitted she wilfully contravened. In respect of that one, she said she did not give the father the contact details of the medical practitioner who had seen the boy in respect of a burn he had suffered on his neck as she was sure the father was just trying to get some proof to support his allegation that the mother’s adult daughter was somehow responsible for the injury to the boy. Having heard the evidence in the matter, I was satisfied that there was some merit in the mother’s position, though she should not have wilfully contravened an obligation clearly imposed on her by the primary order.

3. It is the first time that the mother has been found to have contravened primary orders even though they were made in 2011. I am not satisfied that they should be considered under any other subdivision of Division 13A of Part VII of the Act than Subdivision E that is headed ‘Contravention without reasonable excuse (less serious contravention)’. Although the father did not ask for any other consequence to be visited upon the mother for her contraventions, I consider that the father did not spend time with the children that he would have but for the contravention. In particular, I am referring to the contravention of the order that obliges the mother to let the children spend time with the father on their birthdays.

4. Furthermore, I am satisfied that the mother’s unilateral move from Suburb V to Suburb X and then again to Suburb U has resulted in the father not spending time with the children that he would have spent with them but for the mother’s move. The Court heard that the father had ceased spending time with the children from after school Thursdays until before school on Mondays in alternative weeks and was, instead, seeing the children on the alternate weekends from after school Friday instead.

5. Accordingly, I will also make an order that unless and until the mother is living with the children in a home that is less than one hour’s drive away from the father’s current home at Suburb T, that the children shall spend an extra week with the father during the Christmas school holidays each year and an extra day with the father during each of the other school holidays throughout the year. Although this will not make up on a day for a day basis all the time the father has lost with the children, it will give him some compensatory time moving forward.

6. The mother should also be aware that now she has been found to have contravened the primary order she is at risk of more serious consequences being imposed if she is found to contravene them without reasonable excuse again in the future.

7. I make the orders set out at the commencement of these written reasons.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 30 April 2018.

Associate: 

Date:  30 April 2018