FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Saade & Hutton (No 2) [2024] FedCFamC1F 127
File number(s): PAC 3547 of 2022 Judgment of: HOGAN J Date of judgment: 7 March 2024 Catchwords: FAMILY LAW – PARENTING – RELOCATION – Where the father seeks sole parental responsibility – Where the father seeks that the children live with him and spend time with the mother – Where the mother seeks sole parental responsibility – Where the mother seeks that the children continue to live with her and spend time with the father – Where there is a history of serious family violence perpetrated by the father – Where the mother seeks to relocate to the City H area – Where the father opposes the relocation – Where there are restraints in place prohibiting the subject children spending time with the mother’s new partner – Where it is in the children’s best interests to live with the mother – Where the mother is permitted to relocate the children to live with her in the City H area Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 65AA, 65D Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Morden & Coad [2019] FamCAFC 233
U v U (2002) 211 CLR 238; [2002] HCA 36
Division: First Instance Number of paragraphs: 137 Date of last submission/s: 8 December 2023 Date of hearing: 4, 5, 6, 7 & 8 December 2023 Place: Parramatta Counsel for the Applicant: Ms Vogel Solicitor for the Applicant: Censeo Legal Counsel for the Respondent: Ms Mattar Solicitor for the Respondent: SCB Legal Pty Ltd Counsel for the Independent Children's Lawyer: Mr Ladopoulos Solicitor for the Independent Children's Lawyer: Lamrocks Solicitors ORDERS
PAC 3547 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SAADE
Applicant
AND: MS HUTTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
7 MARCH 2024
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
1.All parenting plans and previous parenting orders are discharged.
2.The children, X, born 2011 and Y, born 2015, live with the mother.
3.The mother is at liberty to relocate the children to live with her permanently in the City H area.
4.The mother have sole parental responsibility in respect of all major long-term issues, as that expression is defined in the Family Law Act 1975 (Cth), relating to the children.
5.In the exercise of the mother’s sole parental responsibility, the following shall occur:
(a)save in the case of an emergency, when such notice is to be provided as soon as practical, the mother shall inform the father in writing (via email) about decisions to be made, including any views she has and relevant information she has considered, no less than fourteen (14) days prior to making the decision;…
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- Saade & Hutton (No 2) [2024] FedCFamC1F 127
- Case
- [2024] FedCFamC1F 127
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CaseChat Overview and Summary
The court concluded that it was in the children's best interests to live with their mother, Ms Hutton. The judge found that the mother's proposal provided the children with a stable environment and a continuous connection with their community and support networks. The history of serious family violence by the father, Mr Saade, was also a significant factor in the court's decision. The court also found that the mother should be permitted to relocate the children to the City H area, as this would not significantly impact the children's connection to their father or their ability to maintain a relationship with him. The court ordered detailed contact arrangements between the children and their father, including specific times for in-person visits and telephone communication. The court also imposed various restraints on both parents to protect the children and ensure a healthy co-parenting environment. These included restrictions on alcohol consumption, the use of electronic devices, and the recording of the children. Both parents were also required to share the costs of the Independent Children's Lawyer.
In summary, the court granted sole parental responsibility to the mother, permitted the relocation of the children, and established a comprehensive contact arrangement with the father. The detailed orders ensure the children's safety, well-being, and continued relationship with both parents. The court's decision reflects a careful consideration of the children's best interests, the history of family violence, and the need for clear and enforceable parenting arrangements.
Orders
Orders of the court
PAC 3547 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR SAADE
Applicant
AND:
MS HUTTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
7 MARCH 2024
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
1. All parenting plans and previous parenting orders are discharged.
2. The children, X, born 2011 and Y, born 2015, live with the mother.
3. The mother is at liberty to relocate the children to live with her permanently in the City H area.
4. The mother have sole parental responsibility in respect of all major long-term issues, as that expression is defined in the Family Law Act 1975 (Cth), relating to the children.
5. In the exercise of the mother’s sole parental responsibility, the following shall occur:
(a) save in the case of an emergency, when such notice is to be provided as soon as practical, the mother shall inform the father in writing (via email) about decisions to be made, including any views she has and relevant information she has considered, no less than fourteen (14) days prior to making the decision; and then
(b) the father shall have seven (7) days to respond to the mother’s email correspondence; and then
(c) the mother shall consider the father’s response; and then
(d) the mother shall, within seven (7) days of making her decision, inform the father in writing of that decision.
6. The children shall spend time and communicate with the father as agreed between the parents in writing and, failing agreement, as follows:
(a) whilst the children are living in the Sydney area:
(i) during school terms: each alternate weekend from after school Friday (or, if that day is a non-school day, from 9:00 am) until 5:00 pm Sunday with this time to commence on the second weekend after the date of these Orders; and
(ii) during school terms: each alternate Thursday from after school (or, if that day is a non-school day, from 9:00 am) until 7:00 pm, with such time to commence on the second Thursday immediately following the date of these Orders; and
(iii) by telephone each Wednesday (or such other day of the week as agreed to between the parties in writing) between 5:00 pm and 5:30 pm and, in order to facilitate this communication:
A. the mother shall advise the father in writing, within forty-eight (48) hours of the date of this Order, of the telephone number to be used; and
B. the father shall initiate the communication with the children by calling the number provided; and
C. the mother shall make the children available to receive the communication and shall allow them privacy during it.
(b) following the children’s relocation to live in the City H area:
(i) during school terms: each alternate weekend from after school Friday (or, if that day is a non-school day, from 9:00 am) until 5:00 pm Sunday, with this time to commence on the second weekend after the children have been relocated to live in the City H area; and
(ii) by telephone each Wednesday (or such other day of the week as agreed to between the parties in writing) between 5:00 pm and 5:30 pm and, in order to facilitate this communication:
A. the mother shall advise the father in writing, within forty-eight (48) hours of the date of this Order, of the telephone number to be used; and
B. the father shall initiate the communication with the children by calling the number provided; and
C. the mother shall make the children available to receive the communication and shall allow them privacy during it.
(c) following the making of these Orders:
(i) during the gazetted New South Wales school holiday periods at the conclusion of Terms 1, 2 and 3 each year: from 5:00 pm on the first Saturday of the school holiday period until 5:00 pm on the following Thursday; and
(ii) on each Father’s Day weekend if the children are not otherwise in the father’s care: from 5:00 pm on the Friday immediately before Father’s Day until 5:00 pm on Father’s Day; and
(iii) from 5:00 pm on Christmas Day until 2:00 pm on 27 December each year; and
(iv) from 5:00 pm on 3 January until 5:00 pm on 8 January each year; and
(v) from 5:00 pm on 21 January until 2:00 pm on 26 January each year.
7. The operation of the following orders shall be suspended during school holidays and shall recommence in the manner provided:
(a) Order 6(a)(i): on the first weekend after school recommences for the Term; and
(b) Order 6(a)(ii): on the second Thursday of each new school Term; and
(c) Order 6(b)(i): on the first weekend after school recommences for the Term.
8. The operation of Orders 6(a)(i) and 6(b)(i) shall be suspended for the weekend on which Mother’s Day falls such that, irrespective of any other term of these Orders, the children shall remain in the mother’s care for that weekend.
9. Unless otherwise agreed by the parents in writing, for the purpose of Orders 6(a)(i) and (ii) and whilst the children remain living in Sydney: the father shall collect the children from school at the commencement of their time with him and the changeover at the conclusion of the time shall occur at the McDonald’s Restaurant, K Street, Suburb L.
10. Unless otherwise agreed by the parents in writing, following the relocation of the children to live in the City H area, changeovers shall occur at the McDonald’s Restaurant at Town M.
11. Unless otherwise agreed between the parents in writing, the children’s time with the father shall occur in and around the environs of the paternal grandfather’s house at N Street, Suburb L, New South Wales.
IT IS FURTHER ORDERED BY CONSENT THAT:
12. Each party is at liberty to facilitate changeover using a third party known to the children, provided that such persons do not include Mr D.
13. Unless otherwise agreed between the parents in writing, both parents shall ensure that, during changeovers:
(a) neither parent will approach the other parent; and
(b) neither parent will record the other parent via video or audio recording or by any other means.
14. Without limitation to any other Order providing for communication between the parents and the children, the children may communicate with both parents by electronic means at any reasonable time when they are in the other parent’s care and each parent shall do all things necessary to facilitate the children communicating with the other parent by electronic means on a regular basis or at times the children express a wish to speak to the other parent and shall provide the children privacy during such calls.
15. Within seven (7) days of the date of these Orders, the mother will provide the children’s paediatrician, Dr O, with a copy of these Orders and shall provide the father with confirmation of her compliance with this Order.
16. The parents shall ensure the children attend all appointments with the paediatrician, or such other paediatrician as recommended by Dr O and both parents will do all things (including providing a copy of these Orders to the children’s school) to ensure that the children are released from school to attend such appointments.
17. Each party has leave to provide a copy of these Orders to the children's school, healthcare providers, and any other persons or organisations that the children are engaged with from time to time.
18. Both parents shall comply with all reasonable directions of the children’s paediatrician and counsellor, including attending all appointments as recommended and ensuring the children take any medications as recommended.
19. Both parents shall keep the other advised at all times of their residential address, email address and contact telephone number and shall advise the other parent within 48 hours of any change to either their email address or contact telephone number.
20. Each parent shall be permitted to communicate directly with the children’s school/s, have access to the school Compass application (or such other communication tool used by each of the children’s schools), sporting bodies, and medical practitioners to obtain any necessary information and/or documents about the children’s progress and this Order shall constitute sufficient authority for such communication.
21. Both parents are entitled to attend at all school events and extra-curricular activities that a parent would ordinarily be invited to attend and, during attendance at such events, neither parent shall approach the other unless agreed between the parents in writing.
22. Subject to Order 23, each parent shall do all reasonable things necessary to ensure that they facilitate the children participating in their scheduled extra-curricular activities during such periods that the children are spending time with them.
23. Unless the father consents, the mother shall not enrol the children into any additional extra-curricular activities that will impede on the children’s time with the father.
24. Both parents shall, as soon as reasonably practical, keep the other advised of the health of the children, including any serious illness, medication or hospitalisation of the children, or either of them.
25. The parents shall communicate in relation to all matters concerning the children by text message, save for in an emergency, where they shall communicate via telephone call.
26. Without admissions, when the children are in their respective care, each parent is restrained from:
(a) consuming alcohol in quantities that would lead to them having a blood alcohol level exceeding the then current lawful limit from time to time for drivers holding Class C drivers licenses in the State of New South Wales and for a period of 24 hours prior to the children coming into that parent’s care; and
(b) consuming any prescription medication other than as prescribed; and
(c) consuming any illicit substance; and
(d) physically disciplining the children or permitting any other person to do so; and
(e) denigrating the other parent, the other parent’s extended family, or a person with whom the other parent has a relationship, in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent, the other parent’s extended family, or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence; and
(f) discussing the proceedings or any allegations raised in these proceedings with the children or permitting any other person to do so with their knowledge or in their presence; and
(g) discussing parenting matters, with the children or permitting any other person to do so with their knowledge or in their presence; and
(h) permitting the children to have access to any of the documents filed in these proceedings; and
(i) recording the children via video or audio recording, including when the children are having electronic communication with the parents, other than for the purposes of recording positive memories of the children and allowing or causing any third party from doing so; and
(j) interrogating the children about the time they have spent with the other parent and each parent shall do all reasonable things necessary to prevent any other person from doing so in the presence or hearing of the children; and
(k) interfering with the children’s electronic devices or allowing others to do so; and
(l) communicating any information intended for the other parent through the children; and
(m) causing the children to be a medium in any way between the mother and the father or between the mother and the father and any other person.
AND IT IS FURTHER ORDERED THAT
27. The mother be restrained and an injunction issue restraining her from leaving the children in the sole care of Mr D for a period of 12 months from the date of these Orders.
28. Each party equally share the costs of the Independent Children’s Lawyer in the sum of $5,918.00 each unless such costs are waived by the Legal Aid Commission New South Wales.
29. The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
AND IT IS FURTHER ORDERED THAT
30. Each parent and the Independent Children’s Lawyer has leave to provide a copy of the Order made 7 March 2024, the Reasons for Judgment published in support of the same and the Family Report authored by Ms E, Court Child Expert to the school at which the children attend, to any therapist upon whom the parents and/or the children attend for the purpose of therapy and to the Department of Communities and Justice and/or the authority of any State or Territory responsible for child protection and, if necessary, to any member of the New South Wales Police Service, the police service of another State or Territory and the Australian Federal Police.
31. Save as is otherwise ordered herein, no party is permitted to use the documents provided to them in the course of this proceeding for any purpose other than any appeal in respect of these Orders.
32. All outstanding applications are otherwise dismissed.
33. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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