Ajit & Thuvaragesh

Case [2022] FedCFamC1A 80

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Ajit & Thuvaragesh [2022] FedCFamC1A 80

Appeal from: Ajit & Thuvaragesh [2021] FCWAM 90
Appeal number(s): NAA 102 of 2022
File number(s): PTW 746 of 2018
Judgment of: AUSTIN J
Date of judgment: 1 June 2022
Catchwords: FAMILY LAW – APPEAL – Appeal from the Magistrate’s Court of Western Australia – Parenting – Where the magistrate made orders providing for the children to live with the father, for him to have sole responsibility for them and to regulate the children’s future interaction with the mother – Where the orders purported to otherwise dismiss the proceedings, but other orders and notations expressly envisage further forensic contest – Whether the orders were final or interlocutory – Where the confusion created by the reasons, orders and notations means one is unable to objectively discern whether or not the proceedings were concluded – Where the magistrate needed to make prescriptive and enforceable orders which determined the issue but failed to do so – Error established – Where the asserted error does not impugn the orders which make provision for residence and parental responsibility – Where there is no doubt those orders are final – Appeal allowed – Proceedings partially remitted for re-hearing – Costs certificates granted in respect of the appeal and the re-hearing.
Legislation:

Family Law Act 1975 (Cth) Pts VII, VIII

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36

Family Court Rules 2021 (WA) r 311
Cases cited:

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Bennett v Bennett (1991) FLC 92-191; [1990] FamCA 148

Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

DL v The Queen (2018) 265 CLR 215; [2018] HCA 32

Elgin v Elgin (2015) 54 Fam LR 31; [2015] FamCAFC 155

Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Gorman & Huffman [2016] FamCAFC 174

Harrington v Lowe (1996) 190 CLR 311; [1996] HCA 8

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Mandel v Blum [2014] FCWA 51

Milton & Milton [2020] FCWA 152

Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66

Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasinghan (2000) 168 ALR 407; [2000] HCA 1

Re W & W: Abuse allegations; expert evidence (2001) FLC 93-085; [2001] FamCA 216

Ruscoe v Walker (2002) FLC 93-093; [2001] FamCA 268

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Number of paragraphs: 73
Date of hearing: 26 May 2022
Place: Heard in Perth, delivered in Melbourne
Counsel for the Appellant: Ms Giles QC
Solicitor for the Appellant: Platinum Legal
Counsel for the Respondent: Mr Jones SC
Solicitor for the Respondent: Joss Legal

ORDERS

NAA 102 of 2022
PTW 746 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE…

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Ajit & Thuvaragesh [2022] FedCFamC1A 80
Case
[2022] FedCFamC1A 80
Decision Date

CaseChat Overview and Summary

In the appeal of NAA 102 of 2022, the appellant, Ms Ajit, sought to appeal orders made by the Magistrate's Court of Western Australia in relation to the parenting of her two children with the respondent, Mr Thuvaragesh. The parties had been married in 2009 and separated in 2017. Following a five-day trial in July 2021, the magistrate made orders providing for the children to live with the father and for him to have sole responsibility for them. The magistrate also made orders that the children were not to have contact with the mother, and required the children to undertake counselling to help them adjust to their new residential arrangements. The mother appealed these orders on the basis that they were not final, and that they contained errors which required the orders to be set aside. The mother further submitted that the magistrate had failed to make prescriptive and enforceable orders which determined the issue of the children’s residence and parental responsibility.

The court found that the orders were interlocutory, and not final, because of the confusion created by the reasons, orders and notations. The court found that the magistrate had not made prescriptive and enforceable orders which determined the issue of the children’s residence and parental responsibility. The court found that the magistrate had erred in making the orders, and that the appeal should be allowed in part. The court set aside the orders made by the magistrate, and remitted the proceedings for re-hearing by a different magistrate. The court found that the orders in relation to the allocation of parental responsibility for the children and the residence of the children should remain in place until the re-hearing of the proceedings. The court found that costs certificates should be granted in respect of the appeal and the re-hearing of the proceedings.

The appeal is allowed in part. The orders made by the Magistrates Court of Western Australia on 10 December 2021 are set aside, except for the orders in relation to the allocation of parental responsibility for the children and the residence of the children. The proceedings are remitted to the Magistrates Court of Western Australia for re-hearing by a different magistrate in respect of all applications made under Pt VII of the Family Law Act 1975 (Cth), save in relation to the allocation of parental responsibility for the children and the residence of the children. The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth). The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth). Each party is granted a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth).

Orders

Orders of the court

NAA 102 of 2022

PTW 746 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS AJIT

Appellant

AND:

MR THUVARAGESH

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

1 JUNE 2022

THE COURT ORDERS THAT:

1. The appeal is allowed in part.

2. Orders 2.3 to 2.78 inclusive (within the Minute of Orders) made by the Magistrates Court of Western Australia on 10 December 2021 are set aside.

3. The proceedings are remitted to the Magistrates Court of Western Australia for re-hearing by a different magistrate in respect of all applications made under Pt VII of the Family Law Act 1975 (Cth), save in relation to:

(a) the allocation of parental responsibility for the children (Order 2.2 made on 10 December 2021); and

(b) the residence of the children (Order 2.1 made on 10 December 2021).

4. The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.

5. The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.

6. Each party is granted a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to each party in respect of such part, as the Attorney-General considers appropriate, of any costs incurred by each party in relation to the new trial granted by these orders.

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).

Background

Background to the litigation

For the reasons which follow, the appeal must be allowed in part. Because the trial was concluded almost 12 months ago and updated evidence will be required before the discretion is re-exercised, the proceedings must be remitted for re-hearing, as the mother proposed.Background The parties began cohabitation in early 2008 and married in 2009. They lived in Perth. Their two children were born in February 2010 and March 2014. In August 2017, after the father received adverse press coverage in Perth about his business activities, the mother and children travelled to New Zealand to stay with members of the maternal family. The father joined them a month later, but the parties disputed whether the move to New Zealand was intended to be permanent or only temporary. The parties separated in October 2017 and the father returned to Perth. The mother and children stayed in New Zealand. In December 2017, proceedings were initiated in New Zealand under the 1980 Hague Convention and orders were later made compelling the mother to return the children to Australia. Her appeals from those orders were dismissed and, in April 2019, the mother and children returned to Australia. However, instead of returning to Perth, the mother elected to settle with the children in Melbourne. In January 2018, while the mother was still in New Zealand, she commenced proceedings in Australia for property settlement under Pt VIII of the Act. The father joined issue and, in April 2019, expanded the litigation to include parenting proceedings under Pt VII of the Act. Property settlement orders under Pt VIII of the Act were made with the parties’ consent in January 2021, so only the parenting dispute under Pt VII of the Act proceeded to trial before the magistrate over five days in July 2021. Judgment was pronounced on 10 December 2021. Essentially, the orders made provision for the children to live with the father and for him to have sole parental responsibility for them. The orders imposed a temporary moratorium on any form of contact between the children and the mother, required the children to undertake counselling to help them adjust to their new residential arrangements, and provided for the children’s graduated re-introduction to the mother. The mother applied to stay the orders pending determination of the appeal, but her application was refused on 7 January 2022. There was no appeal from the dismissal order.The appealed orders Aside from merely procedural orders concerning the return of exhibits and costs submissions, the magistrate made operative orders in these terms:1.Save for paragraphs 1 to 5 of the orders made on 6 May 2019 and paragraphs 16, and 25 to 27 of the orders made on 17 October 2019, all previous parenting orders be discharged.2.Orders are hereby pronounced in terms of the Minute of Orders dated 10 December 2012, a sealed copy of which is attached.3.The proceedings otherwise be dismissed. Under the auspices of Order 2, the magistrate made 78 other orders contained within an attached Minute of Orders, which comprise the substantive parenting orders and injunctions under appeal.

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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