RESLAN & ROOSTA

[2019] FamCA 851

FAMILY COURT OF AUSTRALIA

RESLAN & ROOSTA [2019] FamCA 851

FAMILY LAW – CONTRAVENTION – Where the father has filed four applications alleging the mother’s contravention of orders – Where on each occasion the mother admitted that the child had not spent time with the father pursuant to orders – Where the mother cited reasonable excuse – Where on each occasion the child had been unwell – Where the child had never lived with the father – Where the father had no place of residence in Sydney to spend time with the child if sick – Where the contraventions are found to be reasonable.

FAMILY LAW – PARENTING – Where the father seeks twice-weekly telephone communication to be video communication – Where this is opposed by the mother – Where the father seeks to know the mother’s address – Where the father has previously made the mother uncomfortable in pursuit of reconciliation – Where there is no need for the father to know the mother’s specific address – Orders made for video communication.  

APPLICANT: Mr Reslan

RESPONDENT: Ms Roosta

FILE NUMBER: SYC 7432 of 2017

DATE DELIVERED: 18 November 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 12 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’Reilly

SOLICITOR FOR THE APPLICANT: RRR Lawyers

COUNSEL FOR THE RESPONDENT: Mr Givney

SOLICITOR FOR THE RESPONDENT: Justice Family Lawyers

Orders

IT IS ORDERED

1. That the Application – Contravention filed by the father on 11 September 2019 be dismissed.

2. That in the event that the children X born … 2013 and Y born … 2016, or either of them, are too sick to attend contact, the mother is to notify the father by email and to provide brief details of the illness in the email.

3. That the father advise the mother by email, before he leaves Australia, of any absence from Australia and that he advise the mother within 24 hours by email of his return to Australia.

4. That the order for telephone contact between the father and the children, made 27 February 2019, be varied so that the contact occurs by video communication.

5. That the mother authorise any school or day care facility attended by the children to provide copies of any reports about the children to the father.

6. That the mother authorise any school or day care facility attended by the children to permit the father to purchase any school photos usually available to parents.

7. That the mother advise the father of the names of the children’s treating medical practitioners.

8. That the mother advise the father, and keep him advised, of the state of the children’s health and of any illness requiring the child to visit a medical practitioner or be hospitalised.

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 Reslan & Roosta 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 SYDNEY

FILE NUMBER: SYC 7432 of 2017

Mr Reslan

Applicant

And

Ms Roosta

Respondent

REASONS FOR JUDGMENT

1. Mr Reslan (“the father”) and Ms Roosta (“the mother”) are the divorced parents of two children, X aged six years and Y aged three years, who live with their mother.

2. The parents have not lived together since Y was born.

3. The current parenting orders, which were made on 27 February 2019, provide for the children to spend time with their father on alternate weekends from 10am to 6pm on each of Saturday and Sunday and for the father to have telephone contact with them on Wednesdays and on Saturdays when they are not in his care.

4. The father has filed an application alleging that the mother has contravened the parenting orders and an application in a case seeking to extend the time he spends with the children.

CONTRAVENTION

1. The contravention must be dealt with first.

2. The father relies on his application filed 11 September 2019 and an affidavit in support sworn on 27 August 2019.

3. The mother has filed a response seeking that the father’s application in relation to contravention be dismissed and affidavits sworn by her on 24 October 2019 and 11 November 2019.

4. The father asserts that the mother failed to allow him to spend time with Y on four weekends.

5. At the commencement of the hearing, the mother was charged with four counts of contravention and, in relation to each charge, asked to indicate whether she conceded that she had contravened the order, denied that she had contravened the order, or admitted the contravention but claimed that she had a reasonable excuse.

6. In relation to each charge, I am satisfied that the child did not spend time with the father on the specified day and that therefore a prima facie case has been established.

7. The four charges are set out below. In relation to each charge, the mother’s response is set out together with the evidence of the father in support of the allegation and the mother’s evidence in response.

8. Both the applicant and the respondent were cross-examined in relation to the allegations.

9. The charges are each set out.

That on 16 March 2019 and 17 March 2019 the mother without reasonable excuse refused to allow the father to spend time with Y.

1. The mother admitted that the child did not spend time with the father but said she had a reasonable excuse.

2. The father deposed that he received an email from the mother on 15 March 2019 advising him that Y was unwell. He complains that she did not tell him what the illness was or the extent of the illness. There is no requirement in the existing orders that she do so.

3. The mother deposed that the father, who lives in Melbourne, flies to Sydney to spend time with the children and stays in a hotel or serviced apartment on Saturday night. On Sunday he is required to check out of his accommodation and he spends the remainder of Sunday with the children in public places such as shopping centres or play centres and, on occasion, at the zoo or a museum. Accordingly, there is nowhere for the children to rest and they are not able to have home prepared food.

4. The mother deposed that it is her view that it is not appropriate for the child to spend the day in such public spaces if the child is unwell.

5. I consider her view to be reasonable.

6. The mother deposed that Y, then aged two years, suffers from asthma and is subject to viral infections. The mother advised the father that Y was unwell. He remained unwell and she took him to the doctor on 22 March 2019 and the doctor prescribed antibiotics. A medical certificate dated 22 March 2019 was tendered.

7. The mother’s evidence that Y was sick was not challenged in cross- examination.

8. X spent time with the father on that weekend.

9. The mother had a reasonable excuse on that occasion for not complying with the orders.

That on 28 April 2019 the mother without reasonable excuse refused to allow the father to spend time with Y.

1. The mother admitted that the child did not spend time with the father but said she had a reasonable excuse.

2. It is not in dispute that both children spent time with the father on 27 April 2019.

3. The mother deposed that when the children were returned on the evening of 27  April 2019, Y had a raised temperature and she was unable to reduce his temperature by the next morning. She decided that Y was not well enough to spend the day at the zoo as the father had planned.

4. The mother’s evidence that Y was sick was not challenged in cross- examination.

5. The mother had a reasonable excuse on that occasion for not complying with the orders.

That on 11 May 2019 the mother without reasonable excuse refused to allow the father to spend time with Y.

1. The mother admitted that the child did not spend time with the father but said she had a reasonable excuse.

2. The father deposed that he received an email from the mother on the morning of 11 May 2019 stating that Y was unwell. He deposed that she “did not give me any details of [his] illness or the extent of his illness”. The father deposed that the mother told him in her email that she was taking Y to the doctor.

3. The mother deposed that, on the morning of 11 May 2019, Y was vomiting. She advised the father by email that he was too unwell to spend the day with the father. X spent the day with her father.

4. The mother’s evidence that Y was sick was not challenged in cross- examination.

5. Both children spent the day with the father on 12 May 2019.

6. The mother took Y to the doctor on 13 May 2019 and he was prescribed antibiotics. A medical certificate dated 13 May 2019 was tendered.

7. The mother had a reasonable excuse on that occasion for not complying with the orders.

That on 10 August 2019 and 11 August 2019 the mother without reasonable excuse refused to allow the father to spend time with Y.

1. The mother admitted that the child did not spend time with the father but said she had a reasonable excuse.

2. The father deposed that he received an email from the mother on 10 August 2019 saying that Y was unwell. She emailed again on 11 August 2019 saying that Y continued to be unwell.

3. The mother deposed that on 8 August 2019 Y was complaining of a sore ear and that on 9 August 2019 she took him to the doctor. The doctor told the mother that Y’s continued asthma attacks had led to his ear being blocked and aching. A medical certificate dated 9 August 2019 was tendered.

4. In oral evidence, the mother said that Y was crying from pain and holding his ear. In addition, he had asthma. He was not well enough to leave her care.

5. The mother’s evidence that Y was sick was not challenged in cross- examination.

6. It is relevant that Y has not lived with his father. The parents did not live together after his birth. There is no evidence that Y regards the father as a person who can soothe him if he is distressed or ill. The mother is his significant carer and attachment.

7. The father sent an email to the mother at 9.36am on 10 August 2019 saying that he had rented a hotel room “so Y should not have any problem and will take care of him. send him.”

8. I do not accept that it was appropriate for a sick child to be cared for in a hotel room by an unfamiliar carer.

9. The mother had a reasonable excuse on that occasion for not complying with the orders.

10. The father’s application in relation to each alleged contravention is dismissed.

APPLICATION TO VARY PARENTING ORDERS

1. The father sought to vary the orders of 27 February 2019 in two material aspects. Firstly, he sought an order that the telephone contact specified to occur on Wednesdays and alternate Saturdays be varied to specify video calls. Secondly he seeks to extend the weekend time to commence at 10am Saturday and end at 6pm Sunday.

2. At hearing, the father withdrew his application to extend the time to include overnight time. The mother agreed to the father’s receiving school and pre-school reports for the children; to his being permitted to obtain school photographs and to providing him with information in relation to the children’s health and treating doctors.

3. Two issues remained for determination. The first was the father’s application to communicate with the children by video link rather than telephone and the second was the father’s application for an order that the mother keep him advised of the children’s address. The mother opposed both of those applications.

VIDEO CONTACT

1. The mother deposed that the father has never called the children on a Saturday and that he has not consistently called on Wednesday. The mother deposed that the father has missed 13 Wednesdays since the orders were made. The father admitted that he had missed making those calls because he was working late.

2. The father deposed that, having regard to Y’s age, it is easier for him to engage Y if they can see one another and that it is hard to keep the child’s attention in a phone call.

3. The mother’s opposition to video calls was based, firstly, on her belief that the father will not remain in Australia and that he will be calling the children from India, leaving her to explain to them why he is not seeing them at weekends.

4. Both parents come from India. The paternal grandparents and extended family are in India. The father has spent at least two periods of time in India in 2019, the longest being six weeks. In cross-examination, he admitted that he has only recently returned from his last visit and that he may return to India, when he is not sure, for “two weeks or two months”.

5. However, I do not accept that there is any logical connection between the father having video calls with the children and it being difficult for the mother to explain to them why they are not seeing him on weekends.

6. If, in fact, the father remains for an extended period in India, it is important that, to the extent that it is possible having regard to the ages of the children, they maintain some meaningful relationship with him. This is more likely to be facilitated in video calls.

7. The second basis on which the mother opposed video calls was that it is her belief that the father will use the calls to further his aim of reconciliation. The mother deposed to a number of instances in which she felt harassed by the father over his wish to reconcile the relationship (those instances are more fully detailed later in these reasons) and I accept that he has behaved in a way that she finds distressing. Her belief that he will use video calls to attempt to persuade her to reconcile is not unreasonable.

8. However, whilst I accept that the children should communicate with the father using video calls, it is not necessary for the mother to be involved in those calls. She is required to set up the appropriate device and to ensure that the children are available at the beginning of the call. It is preferable that the children should talk to their father in the absence of the mother and it will be the father’s task to keep Y interested and involved.

DISCLOSING THE CHILDREN’S ADDRESS

1. The father knows in which suburb the children live and contact changeover takes place in that suburb.

2. He will have access to the school and pre-school reports and will know what institutions the children attend.

3. There is nothing in his affidavit which deposes to any present need to know the address at which the children reside with their mother or any difficulties which have arisen because he does not have her address.

4. The mother deposed that she does not attend changeovers because she finds the father’s comments difficult. She deposed that since the consent orders were made he has sent her emails, texts, videos and messages through friends and relatives encouraging reconciliation.

5. In March 2019 he sent her a USB stick containing a video of him dancing and photographs of them during the marriage. In cross-examination he said that his intention in sending the USB stick was to bring about a reconciliation.

6. The mother has blocked the father’s telephone number on her phone. In May  2019 the mother received a telephone call from a friend of the father. The father then spoke to the mother with his friend, both urging her to reconcile.

7. In May and June 2019 the mother received between 30 and 40 text messages from another friend of the father urging her to reconcile with the father.

8. In May 2019 the father’s cousin telephoned the mother urging her to come to India and reconcile with the husband.

9. The mother’s uncle has received calls from the father, asking the uncle to encourage the mother to reconcile.

10. On 11 May 2019, the father sent an email to the mother stating:

    ...i don’t know exactly where you stay, but i believe its next house or opposite to your sister house. If i stand outside your house street the whole night, you will have interest to speak or will you put me in jail stating i am stalking...

    (as per the original)

11. The mother has made a complaint to the police.

12. On 8 November 2019 the father sent an email to the mother stating, inter alia, “i am planning to be in City B, India for sometime now as i am out of work, not feeling well here due to mental conditions”, and “ever since i got divorced i was completely broken. I didn’t feel like living and attempted some options too for this, but seeing my children kept me happy to go on, and I tried access out of love”, and “I was not in good shape and mental state ever since divorce..i was depressed and still depressed”.

13. In cross-examination the father said that he was depressed and had not sought help in relation to his depression.

14. I accept that the mother’s concerns that, if the father has her address, he will harass her, are reasonably held.

15. I do not propose to require the mother to give the father her residential address.

OTHER ORDERS

1. I propose, of my own motion, to make an order that, in the event that the children, or either of them, are too sick to attend contact, the mother is to notify the father by email and to provide brief details of the illness in the email.

2. I will also order that the father notify the mother when he leaves Australia for any reason and when he returns to Australia.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees J delivered on 18  November  2019.

Associate:

Date:  18/11/2019