Sadek and Sadek

[2019] FamCA 405

FAMILY COURT OF AUSTRALIA

SADEK & SADEK [2019] FamCA 405

FAMILY LAW – PARENTING – Where the father makes an oral Application for make up time with the parties’ eldest child where he alleges the mother withheld the eldest child from spending time with him in accordance with interim orders made 16 February 2018 – where the mother conceded she unilaterally withheld the eldest child from spending time with the father in accordance with the existing orders, but contends her actions were justified by reason of release of an expert report concerning allegedly child exploitative material accessed or retained by the father – where the father’s time with the children is presently supervised by the paternal grandparents – where the mother seeks the father’s time with children continue to be supervised but that the form of supervision be professional supervision, as opposed to supervision by the paternal grandparents – where the mother did not proffer an undertaking to comply with the existing Orders – where the mother foreshadows filing an Application seeking variation of the existing orders but no such Application had yet been filed – where make up time with the Father ordered.

Family Law Act 1975 (Cth)

APPLICANT: Ms Sadek

RESPONDENT: Mr Sadek

INDEPENDENT CHILDREN’S LAWYER: Blumberg Family Lawyers

FILE NUMBER: SYC 8550 of 2016

DATE DELIVERED: 21 June 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Harper J

HEARING DATE: 21 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’Reilly

SOLICITOR FOR THE APPLICANT: The Norton Law Group

COUNSEL FOR THE RESPONDENT: Mr Richards

SOLICITOR FOR THE RESPONDENT: Walter & Elliott Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Blumberg

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Blumberg Family Lawyers

Orders

1. Subject to order 7 made 16 February 2018, the parties take all reasonable steps to ensure that the eldest child, X born in2010, spend time with the father on 21 June 2019 from the conclusion of school until 5:30pm.

2. The applicant mother file and serve any Application in a Case seeking variation of the orders made on 16 February 2018 by no later than close of Registry filing on 25 June 2019, together with any Affidavit in support.

3. The respondent father file and serve any Response and Affidavit in support by no later than close of Registry filing on 1 July 2019.

4. All extant applications be adjourned to this Court on 4 July 2019 at 10:00am for interim hearing (“the interim hearing”) of any Application in a Case filed by the mother on 25 June 2019 in accordance with these orders.

5. On or before 4:00pm on 1 July 2019, the solicitors for each party (or, if unrepresented, the parties themselves) and the Independent Children’s Lawyer forward to Chambers at … and each other party a brief case outline containing:

   (a)       The precise orders sought;

   (b)       A list of the documents to be relied upon;

   (c)       If relevant, a brief chronology listing significant events;

   (d)       The issues in dispute;

   (e)       The main contentions (in light of the legislation); and

   (f)       Any relevant case law.

THE COURT DIRECTS THAT:

1. All parties and legal representatives attend Court one (1) hour prior to the interim hearing for the purposes of discussions.

2. All parties and legal representatives are directed to read the subpoena material prior to the interim hearing, and if a party is proposing to tender any subpoena material, they should ‘tab’ the relevant page/s prior to the commencement of the interim hearing.

IT IS NOTED THAT:

A.A party’s material will not be read until the Case Outline document has been received by Chambers in accordance with these directions.

IT IS FURTHER ORDERED THAT:

1. The parties take all necessary steps to ensure that any necessary corrections or amendments to the report of Mr F be made in consultation with Mr F by no later than 4:00pm on 28 June 2019, and that any amended report issue forthwith thereafter.

2. Upon receipt of any such corrected report, the Independent Children’s lawyer has leave to provide a copy of the report to the New South Wales Police.

IT IS FURTHER NOTED THAT:

B.The applicant mother may make any Application in a Case returnable before me on 4 July 2019 at 10:00am.

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 Sadek & Sadek 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: SYC8550/2016

Ms Sadek

Applicant

And

Mr Sadek

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore and corrected for literal and grammatical errors.

1. These proceedings were listed for Callover before me on the 21 June 2019. When the matter was called for hearing, submissions were made by the Applicant mother concerning the likely time to be needed for Final Hearing, which could be up to 9 days.

2. The father agreed with the estimate of time but also raised an oral Application based upon the fact that the mother on the 20 June 2019, being a Thursday, unilaterally withheld the children from time with the father which had been ordered by his Honour Justice Austin on the 16 February 2018, specifically order 6 which is in the following terms, subject to order 7:

   The parties shall take all reasonable steps to ensure that the eldest child additionally spends time with the father each Thursday from the conclusion of school (or 4.00 pm if the child is not attending school) until 5.30 pm.

3. Order 7 is in the following terms:

   For the purposes of Orders 5 and 6 the time spent by the children with the father must be supervised by either the paternal grandfather or paternal grandmother.

4. The mother conceded that she had unilaterally withheld the eldest child on Thursday, 20 June 2019. She submitted that her actions were justified by reason of the recent release of an expert report by Mr F concerning allegedly child exploitative material accessed or retained by the Respondent father on a computer. A report by Mr F was released to the parties on the 19 June 2019, and it was in response to that report that the mother, so it was submitted, acted contrary to the Orders of Justice Austin.

5. In submissions, the mother submitted that she would not be comfortable with the children spending time with the father unless the form of supervision was translated from supervision by grandparents to professional supervision, pointing out that that had been something adverted to by Dr E in an earlier expert report in these proceedings as a possibility. In submissions, the Independent Children’s Lawyer pointed out that, in his view, there would be little difference between supervision by the grandparents and professional supervision in the circumstances of this case, and he expressed concern that the mother may continue to contravene the Orders based upon her unilateral view of an appropriate course of action.

6. I asked counsel for the mother to indicate whether she would undertake to comply with existing Court Orders into the future, but that undertaking was not proffered by the mother in the Hearing before me on the 21 June 2019. I am therefore left in the position where the possibility exists that the mother may engage unilaterally in further conduct which may be in breach of the existing Court Orders.

7. The mother indicated to the Court and, I am told, indicated in correspondence between solicitors on 19 or 20 June 2019 her intention to file an urgent Application seeking variation of the existing Orders however no such Application has been filed, and although the mother indicated that she proposed to file one urgently next week, at present, there is no variation to the Orders made by Justice Austin, and they must be complied with.

8. The father’s oral Application was for an order that make up time be provided by the mother today, being 21 June 2019, to make up for the time lost by reason of the contravention of Order 6 on 20 June 2019. I am disposed to make such an order. Accordingly, I order as follows.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 21 June 2019.

Associate:

Date: 3 July 2019