Ahuja & Pandher (No 3)
[2023] FedCFamC1F 778
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ahuja & Pandher (No 3) [2023] FedCFamC1F 778
File number(s): CAC 1246 of 2022 Judgment of: GILL J Date of judgment: 11 September 2023 Catchwords: FAMILY LAW – PARENTING – application from father to travel internationally with child – where both parents consent to each other travelling internationally with child – where ICL opposes application.
FAMILY LAW – PRACTICE AND PROCEDURE – where no material has been filed – where providing oral evidence may result in a lack of procedural fairness – trial vacated – further directions for material to be filed
Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 11 September 2023 Place: Canberra Solicitor for the Applicant: Litigant in Person – assisted by Ms Dreyer – Duty Lawyer Solicitor for the Respondent: Litigant in Person Counsel for the Independent Children's Lawyer: Dr Leslie Solicitor for the Independent Children's Lawyer: Infinity Legal ORDERS
CAC 1246 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS AHUJA
Applicant
AND: MR PANDHER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
11 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.Today’s proceedings are vacated.
2.Each party is to file and serve a single consolidated affidavit from that party and each witness that party intends to rely upon addressing X’s circumstances, the nature and frequency of the time that X is spending with each parent, the nature of X’s relationships with each parent and other persons of significance, the factors which bear upon whether X should travel internationally, the factors that give assurance that X may be returned to Australia following any such travel, and all such other matters as are necessary to determine X’s best interests in respect of international travel, by 4 pm on 8 December 2023.
3.Within 14 days of today’s date each party is to file and serve a minute of the orders that they seek the court make about X’s international travel.
4.The Independent Children’s Lawyer is at liberty to issue such subpoenas as she considers necessary for the preparation of the matter.
5.The matter is relisted for further directions at 3pm on 18 December 2023 before either myself or a judicial registrar of the court.
6.Each party is to file and serve a financial statement by 4 pm on 8 December 2023.
7.The Independent Children's Lawyer’s costs of today are reserved.
IT IS NOTED THAT
8.The parties have been placed on notice that failure to comply with these directions may result in them not receiving the orders that they want or may result in their case being dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
GILL J
These proceedings concern a single issue which remained outstanding after the parties entered into final consent terms otherwise dealing with the best interests of their child X. The remaining issue for X was one of whether or not she would be able to travel internationally with her parents, both of whom originate from Country B. Until today, the parties were in contest about whether or not X should be able to travel to Country B with her father. As at today the mother has indicated her consent to such travel and the father has likewise indicated his consent to the mother travelling internationally with X also.
Neither party had filed in court material sufficient for the court to determine the matter and the Independent Children’s Lawyer (“the ICL”) has in those circumstances indicated her opposition to orders permitting X to travel. That opposition occurs in circumstances where each party has made serious allegations of family violence against the other, where there is a contested history in relation to X’s retention in Country B previously, and there is an entire lack of evidence that addresses X’s current circumstances, including the nature of her relationships with each of her parents.
Although the possibility of each party giving oral evidence today was canvassed, the ICL identified that there would be a lack of procedural fairness in particular to the ICL constituted by the following factors.
(1)A non-compliance by each the parties with previous procedural directions;
(2)An absence of evidence that would be able to be tested by the ICL to determine what are serious issues for X, including as to her current welfare; and
(3)Risk issues that flow from overseas travel that have the potential to impact upon X’s long-term welfare and relationships with each of her parents.
Given the background and the issues that are currently in play, the ICL submitted that procedural fairness required the orderly filing of material such that the testing of that material may be facilitated if necessary. In that way the ICL presented a compelling case for the adjournment of the proceedings.
Following hearing the ICL and both parties accepted that an adjournment and directions for the filing of material were required.
Accordingly, today’s trial date will be vacated, directions will be given for the filing of material and for the further listing for directions following the filing of material.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 11 September 2023
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