SANTER & SANTER

[2020] FamCA 445

FAMILY COURT OF AUSTRALIA

SANTER & SANTER [2020] FamCA 445

FAMILY LAW – CHILDREN – where the mother refused to allow the children to spend time with the father during the school holidays due initially to the confusion over when school holidays started and thereafter the father being a medical practitioner the risk of the children being exposed to the coronavirus in the father’s care – where the mother applied for an intervention order against the father for the protection of herself and the children – where there is no evidence before the court to demonstrate that the children are at risk in the father’s care – where orders are made for the children to be returned to the care of the father in order to for them to spend holiday time before a return to the usual arrangements – where this order is inconsistent with an intervention order made in the Magistrates Court in respect of the children – where this order takes precedence.

Family Law Act 1975 (Cth) Division 12A, s 68Q
Family Law Rules 2004 (Cth)

APPLICANT: Mr Santer

RESPONDENT: Ms Santer

FILE NUMBER: MLC 6062 of 2018

DATE DELIVERED: 27 March 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 27 March 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Resolve Conflict Lawyers

COUNSEL FOR THE RESPONDENT: Mr A. Naidu

SOLICITOR FOR THE RESPONDENT: Victory Law

Orders

IT IS ORDERED

1. The children X born … 2009 and Y born … 2012 (“the children”) spend holiday time with the Father pursuant to paragraph 2(f) of the orders of the Family Court of Australia made on 18 September 2018 commencing at 8.00 pm this day and concluding at 5pm on 7 April 2020.

2. Handover to take place in accordance with paragraph 5 of the orders made on 18 September 2018.

3. UNTIL FURTHER ORDER as and from Tuesday 14 April 2020 the children spend time with the Father pursuant to paragraph 2(a) and 2(b) of the orders made on 18 September 2018.

4. These orders are inconsistent with the Intervention Order in Case Number … made in the Magistrates’ Court on 27 March 2020 and as a result a copy of these orders be sent by the Melbourne Registry of the Family Court of Australia to the following:

   a.    The Registrar of the Magistrates’ Court of Victoria in relation to Case Number … with a request they be placed upon their file and brought to the attention of the presiding Magistrate;

   b.    Victoria Police Centre, Records Services Division.

5. The costs of both parties be reserved.

6. The Application in a Case filed 27 March 2020 be otherwise dismissed and removed from the list of cases awaiting hearing.

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 Santer & Santer 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 MELBOURNE

FILE NUMBER: MLC 6062 of 2018

Mr Santer

Applicant

And

Ms Santer

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter has a lengthy history, however bearing in mind it is a telephone hearing listed on an urgent basis in fairly difficult circumstances it is not possible or necessary to go into that history for the purposes of this hearing or these reasons.  However, it is significant that the matter was listed for mention before me on 20 March 2020 in the context of the coronavirus pandemic and the Court’s ability to hear cases. On that occasion the mother was represented and her solicitor who represented her that day made it very clear to the Court that the mother was content for the parenting arrangements currently in place to continue.

2. The children in this case are X, born … 2009 and Y, born … 2012.  There are interim orders which were made in this Court on 18 September 2018 regarding the parenting arrangements for the children.  They include an order that the children are to spend time with the parties for half of each school term holidays, as agreed between the parties but failing agreement, from the conclusion of school until 5 pm on the middle Saturday of the school holidays. 

3. In somewhat unusual circumstances, schools closed early in Victoria and the school holidays commenced on 24 March 2020.  When the father attempted to make arrangements to have the children in his care for what he said was his half of the school holidays, a letter was sent to the mother’s solicitors setting out his proposals for the period.  The mother did not agree and it was her position that this time should be treated as normal school term time.  There was then correspondence passing between the two solicitors with respect to the interpretation of the parenting orders as they related to the school holidays, and a proposal was made for the children to be delivered to the father’s care, this was on 5 March 2020.  Later that same day, the mother’s solicitor’s responded to the father’s solicitors, advising that she was withholding the children due to the father’s profession and referring as follows:

   We are instructed that your client maintains a practice in [various] locations.  He has, and continues to travel, consult, perform surgery and do ward rounds in several of these places.  Your client has, as late as yesterday, confirmed that he has been consulting as a doctor, which gives us cause for serious concern as quite apart from the exposure he has to COVID-19 in his practice as a [specialist medical practitioner], his consulting, presumably, as a general practitioner, exposes him to a significant risk of infection.

   As our client is not certain of whether your client has complied with the COVID-19 guidelines for health service providers, including because under the guidelines, your client meets clinical and epidemiological criteria to be tested for COVID-19 and he is not presently able to confirm that he has not come into contact with patients with COVID-19 or, in fact, taken steps to reduce the risk of the spread of the disease.  Further, it is our understanding that your client leaves the children in the care of his girlfriend, whose movements vis-a-vis health their directions as they apply to both your client and his girlfriend are unverifiable. 

   Our client will seek to apply to have the current parenting orders suspended on the basis inter alia that your client meets the criteria to be tested for COVID-19.  We also submit that his girlfriend ought to be tested.  Until such time, our client wishes to isolate the children from the risk of infection arising out of your client’s substantial medical practice.

4. It does seem to not be in dispute that the husband is a specialist medical practioner not a general practitioner and he performs elective surgery, which is now being stopped in order to prepare for the demands that are likely to be placed on the hospital system by COVID-19.  There was then a response from the father’s solicitors which read as follows:

   Your client’s grounds in withholding the children in breach of the orders dated 18 September 2018 is rejected.  Prior to the letter, your client contacted our client, informing him that she thought to withhold the children as she considered that the school holidays had been cancelled.  This is not the case.  Upon our office notifying your client’s incorrect interpretation of the parenting orders, your client now claims that she is withholding the children on the basis of our client’s profession.

5. He then goes on to make the point that:

   If it was the case that your client took issue with the children spending time with our client due to his profession, this should have been raised during the telephone mention hearing on 20 March 2020. 

6. There is some force in that, given that the husband is a specialist medical practitioner and the mother would have known at the time she agreed to those orders continuing in force, in circumstances where the mention related directly to the consequences of COVID-19, that he might have some exposure to those with the virus.  The letter then goes on to point out:

   Your letter also contains several tractional inaccuracies, such as asserting that our client works as a general practitioner.  This is incorrect.  Notwithstanding, in any event, our client has ceased working in light of COVID-19 on an indefinite basis.

7. There was some debate during the hearing in relation to what the requirements or the testing guidelines for medical practitioners say, however in my view it is clear from those guidelines that the only basis upon which the husband would be required to undergo testing would be if he met one of the clinical criteria, being fever, or acute respiratory infection.  For example, shortness of breath, cough, or sore throat.  Although he is a healthcare worker, he also is required to meet one of the clinical criterion to fit within the guidelines as to having to be tested for COVID-19.

8. The husband was not available today, because he is at the hospital operating.  When the children were not in his care for the holidays the father decided to complete some operations for the sake of his patients before that surgery was cancelled.  He did, however, at my request, obtain a medical certificate.  I take into account the fact that the allegations in relation to his health that would suggest he might meet the requirements of the clinical criteria for testing were based upon what the wife asserts the children have told her about the father having a sore throat.  In my view this is significant, because it is the mother who has withheld the children, but it is the father who has brought the application. 

9. The mother appears without material before the Court, however these are difficult circumstances and the case is proceeding by way of telephone. Division 12A of the Family Law Act 1975 (Cth) (“the Act”) makes it clear that parenting proceedings do not have to involve the level of formality that other proceedings might require. I do not accept in these circumstances, as Mr Naidu submits that the mother has not been afforded procedural fairness. If there was evidence that the husband was unwell the mother could have produced it. She has been on notice at least since yesterday that there would be an urgent application and, significantly, since she has no doubt been in touch with Mr Naidu today, one would assume he could obtain any relevant instructions. Although Mr Naidu says he is in isolation, that did not prevent him appearing nor would it prevent him getting instructions which is particularly important in circumstances where this morning the mother obtained an intervention order, which includes both herself and the children.

10. Mr Naidu further submits that this Court should not override that intervention order to allow the children to spend time with the father in accordance with the previous orders. The allegations upon which that intervention order appears to be based are set out in the letter from the mother’s solicitors to the father’s solicitors, dated 26 March 2020.  It reads as follows:

    Events of 25 March 2020.  We have been in correspondence with your office for most of the latter half of yesterday.  Following our correspondence to you, your client has sent disparaging emails to our client and despite your client seeking the children be returned at 2 pm today, has arrived at our client’s home at 7.40 pm, yelling and behaving abusively, demanding the children come with him.  We are instructed he has resorted to threatening our client, including by an SMS at 6.29 (after our correspondence was concluded) saying inter alia, “You have to live on current assets the rest of your life.”  The idea that your client is under the impression that he, and not the Court, will decide on what assets our client will live on is deplorable and frightening, like his behaviour at our client’s home this evening. 

    His conduct has been reported to [C Town] Police Station and our client will be seeking a family violence order against your client tomorrow.  We do not understand why your client felt the need to arrive at our client’s home given your correspondence with us, unless to intimidate and harass her, even though she has chosen to act protectively of the children.  As we understand it, your client has taken no steps to ensure the children are as protected as possible from the risk of infection.

11. I gave Mr Naidu the opportunity make submissions with respect to there being any further allegations and he referred me to a further allegation with respect to the father again attending at the mother’s home. A consequence of which and I note that they live in adjoining properties, the father has requested copies of all the security tapes which he would say would demonstrate that he did not do so.   

12. The case in a sense has shifted.  First of all, it was about when the school holiday time should start, then it was about the risks of COVID-19, and finally it was about the mother saying she is fearful of the father and the intervention order.  I note that the father, at this stage, does not have an intervention order but has filed an application seeking an intervention order after previous order lapsed.   My recollection of this case from previous mentions is that there have been criminal charges found proven against the mother for her behaviour against the father.

13. Mr Naidu, insofar as he submits that the mother has not been afforded procedural fairness in relation to the matters before the Court this day and in particular the intervention order proceedings, ignores the fact that he has instructions and I have permitted him to put those instructions to the Court without the mother being required to be on Affidavit.  The matter took most of the afternoon and Mr Naidu has had every opportunity to obtain the necessary information from his client.  He could have, in my view, also obtained copies of the intervention order application, the intervention order itself, copies of the threatening emails the father has purportedly sent to the mother, and the security taps.

14. This evidence could have been before the Court and if not all of it, at least some of it. None of it was.  And significantly, in my view, the quote taken from SMS upon which the mother relies is taken completely out of context.  Although it may have been unwise for the father to attend at the mother’s home, there was no intervention order at that time preventing him from doing so. He says although it remains to be tested that he has on other occasions gone to the mother’s home, tooted the horn and if the children are concerned they come out and if not, he drives away.  That is what he says he did on this occasion. The father being frustrated, the children on his case having been withheld, he could have been more cautious and not sent the text messages the mother complains of.  

15. But significantly what is missing is evidence to suggest that the children are at risk in the father’s care as a result of the event of 25 March 2020.  And with the greatest respect to Mr Naidu, both he and his client had the opportunity to put these matters to the Court.  It is not even clear whether the children were aware of any of the events of 25 March 2020. The wife had the opportunity to put those matters to the court and did not do so. 

16. Although the father has undertaken some further elective surgery, that will not be an option he has going forward, because he will not be permitted to conduct that elective surgery.  He says he is going to stay at home for the time being.  There is no evidence to otherwise suggest that he will not take all the precautions that other Victorians are being asked to take to protect themselves and their families.  In my view, to allow the children to spend time with the father as the orders require does not impact negatively upon their welfare and in fact in my view, the orders should stand and they should be spending time with their father.

17. For completeness although there is an intervention order in relation to the children, there is no evidence before me to support the need for that order or the basis upon which it was made. In my view, I should make orders for the father to spend holiday time with the children, and should return to the normal regime.  It is difficult to say when the children will be going back to school and the parties may also need to make alternative arrangements.

18. The mother also seeks orders that the father self-isolate for 14 days.  The difficulty, as I see it, is that there is no evidence to suggest he should be tested and no evidence as to why in those circumstances he should self-isolate.  The father is a medical practitioner and one would assume he would take reasonable precautions and that he is familiar with the problems associated with this virus.  I also note that it may be only a matter of hours, days, before we are all required to isolate.  Taking the mother’s evidence at its highest, accepting what the mother’s solicitor says in the correspondence, the mother’s assertion about the children telling her the father has a sore throat and the allegations she has made in support of her application for an intervention order, I am not satisfied that there is any reason why the father should be tested for COVID-19, isolate himself or why the children should not be returned to his care.

19. As previously referred to the children have spent holiday time with the father since 18 September 2018, and if they cannot agree, the children spend the first half of the school holidays with him.  Normally one would have expected them to spend time with him whenever the school holidays commenced.  The school closures are likely to have been disruptive for the children and not spending time with the father will likely only add to that disruption.

20. In all of the circumstances I am satisfied that the children should spend holiday time with the father as has been their practice. Pursuant to s 68Q of the Act, I have the power to make orders which, in effect, override the interim intervention order the mother has obtained. That will be limited, as previously referred to, to the order with respect to the children. The order with respect to the mother remains in effect. The parties already have arrangements in place for handover and collection. There does not seem to be a dispute that there are to be three days of makeup time and that on the basis of the time starting tonight, would mean that the children’s holiday time with the father would end at 5pm on Tuesday, 7 April 2020. There would then be a return to the usual arrangements pursuant to paragraph 5 of the orders dated 18 September 2018. And that an ongoing order will also override the intervention order with respect to the children.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 27 March 2020.

Associate:   

Date:  27 March 2020