Arora & Dash (No 7)
[2025] FedCFamC2F 550
•31 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Arora & Dash (No 7) [2025] FedCFamC2F 550
File number(s): MLC 12416 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 31 March 2025 Catchwords: FAMILY LAW – Final hearing – parenting and property orders sought – where the applicant became unrepresented a short time prior to the final hearing – where the applicant was represented pursuant to the section 102NA Cross-Examination Scheme – where an adjournment application was sort by the parents – adjournment application granted – allegation of noncompliance with previous disclosure orders – where the applicant sought an interim hearing for the spend time arrangements with the child pending the adjourned final hearing – interim hearing denied Legislation: Family Law Act 1975 (Cth) ss 102NA & ss 106A Cases cited: Arora & Dash (No 5) [2024] FedCFamC2F 881 Division: Division 2 Family Law Number of paragraphs: 32 Date of hearing: 31 March 2025 Place: Melbourne The Applicant: In Person Counsel for the Respondent: Ms Jardine Solicitor for the Respondent: Cinque Oakley Bryant Counsel for the Independent Children's Lawyer: Mr Foo Solicitor for the Independent Children's Lawyer: Peter Lynch Lawyer ORDERS
MLC 12416 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ARORA
Applicant
AND: MS DASH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
31 MARCH 2025
THE COURT ORDERS THAT:
1.All extant applications be and are adjourned for final hearing to 10.00 am on Monday 20 October 2025 in the Melbourne registry (for an estimated 4 days).
2.The matter be and is listed for mention at 9.00 am on Thursday 24 July 2025 in the Melbourne registry.
3.The section 102NA of the Family Law Act 1975 (Cth) order extant in these proceedings remains in full force and effect.
4.IT IS REQUESTED THAT any lawyers appointed for the applicant husband, MR ARORA (‘the Husband’), under section 102NA meet personally with the Husband, and take instructions face to face.
5.The Husband and the respondent wife, MS DASH (‘the Wife’), do all acts and things to keep the Court, the Independent Children’s Lawyer (‘ICL’), and each other fully informed about how the section 102NA Family Violence and Cross-Examination of Parties Scheme (‘the Scheme’) applies to him or her and the circumstances of their legal representation or self-representation.
6.The oral application made this day by the Husband for an interim hearing be and is dismissed.
Directions for filing and disclosure of material
7.Without leave of the Court, no further affidavits are to be filed save that each party is permitted to file one further updating, or consolidating, affidavit on or before 4.00 pm on Thursday 3 July 2025.
8.Any application for the witness, Ms M, to be cross-examined via electronic communication be filed and served on or before 4.00 pm on Friday 30 May 2025.
9.In the event that Ms M, or any other agent of the Wife in Country L, is able to obtain any further information regarding the Husband’s alleged finances in Country L:
(a)that further information be promptly provided by way of disclosure to the Husband; and
(b)the Husband then has leave to file and serve an affidavit regarding the information contained therein within 14 days of receipt of the further information.
Subpoenas
10.Leave be and is granted for the Wife to issue a subpoena to the Westpac Banking Corporation.
11.The Wife be and is at liberty to make an application for leave to issue subpoenas to the child’s therapist after further enquiries and/or requests have been made to obtain information from the therapist.
12.Leave be and is granted for the Husband to issue a subpoena to the National Disability Insurance Scheme (‘NDIS’) in regard to the child’s treatment and funding under the NDIS.
Valuation
13.The parties do all acts and things to obtain an appropriate single expert in accordance with Division 7.1.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 to complete a valuation of the jewellery and, at first instance, the parties bear the cost of that valuation equally.
Transcript
14.The following extracts of the transcript of the hearing this day be transcribed and made available to the parties at the Court’s expense:
(a)Approximately 3.30 pm: the Husband’s submissions about his oral application for an interim hearing this day; and
(b)Approximately 4.20 pm: the Husband’s submissions about subpoenas to the NDIS; and
(c)Approximately 4.32 pm: the Husband’s submissions regarding Ms M and the execution of the Power of Attorney document ‘AA’.
Further orders
15.The Husband and the Wife be and are released form the obligation (commonly known as the Harman obligation and/or implied obligation) as described in Hearne & Street (2008) 235 CLR 125 and Rule 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and, subject to the determination of any Magistrate of the Magistrates’ Court of Victoria and/or any Judge of the County Court of Victoria (‘the other courts’), the parties be and are at liberty to use or rely on affidavits filed in these proceedings for the purpose of any hearing or question in the other courts regarding the parties.
16.For the avoidance of doubt, the parties are at liberty to provide the orders and reasons of this Court to the other courts, subject to the direction of the other courts, and/or to the courts, and/or the taxation and financial authorities of Country L.
17.For the avoidance of doubt, the courts and taxation and financial authorities of Country L be and are REQUESTED to assist this Court and the parties with the provision of information and documents to the extent permitted by the laws of Country L.
18.The original signed copy of the document known in these proceedings as ‘AA’ will be kept on the court file subject to any further order or application.
19.The costs of the ICL this day be and are reserved.
AND THE COURT NOTES THAT:
A.The Husband has told the Court this day (and the Court accepts) that the section 102NA Scheme has told him that the Scheme will make another lawyer available to represent him in these proceedings.
B.Annexed to these orders and marked ‘AA’ is the Power of Attorney document signed by the Husband, and witnessed by counsel for the ICL, in this Court this day.
C.The Husband proposes that pieces of jewellery be sold to fund the expert report, and the Wife sees that as a continuation of the alleged family violence.
D.The Wife made application ex parte following the conclusion of the hearing this day, complaining that the Husband has changed his signature since the making of the 12 June 2024 orders compelling him to execute a power of attorney in the form of the document ‘AA’ in an attempt to thwart the Wife obtaining documents and information about the Husband’s alleged finances in Country L, but no further orders have been made this day in that regard.
E.The obligation of the parties to make full and frank disclosure to the other parties of all relevant information and documents concerning their child and/or their financial circumstances (past and present) is an ongoing obligation until the end of the proceedings.
F.For different reasons, each of the Husband and the Wife sought that the final hearing listed this day be adjourned.
G.The Court is satisfied that the person known as, and described as, MR ARORA, with Country L identification number … as described in the Country L Transportation Agency, a copy of which is annexed hereto and marked ‘B’ (exhibits ‘W1’ and ‘W3’ in these proceedings) and as described in the Australian driver licence no. …, a copy of which is annexed hereto and marked ‘C’ (exhibits ‘W2.1’ and ‘W2.2’ in these proceedings) is the same person as the ‘Applicant’ and the ‘Husband’ in these proceedings.
[Annexures removed for anonymisation purposes]
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge O’Shannessy
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
The matter of Arora & Dash and the Independent Children's Lawyer (‘ICL’), concern the child, X (‘X’), who will be eight shortly, whose parents commenced cohabitation when they married in 2015, and they separated in 2022. A month after they separated, the proceedings were issued by the Father, Mr Arora (‘Mr Arora’). Each of the parties seek orders relating to property relief and in regard to the living arrangements for X. By way of background, I refer to and repeat the allegations and observations made in the previous hearing where I delivered reasons in regard to the June 2024 adjournment in the matter of Arora & Dash (No 5) [2024] FedCFamC2F 881.
I note that this matter has had the additional resources of the Court of a judicial settlement conference. That is not a criticism of the parties. They are not compelled by law to settle their differences, but it is an indication of the resources that the Court has made available.
Background
The final hearing in June 2024 was vacated, and the matter adjourned to November 2024. Following communications in November and complaints that orders had not been complied with, and without accepting those allegations, the trial date was vacated and the matter was adjourned until today. Today, Mr Arora pursued, as he had flagged he would in email correspondence, an application for an adjournment of the final hearing.
Adjournment application
His primary ground of seeking an adjournment was that he had, back in February, attempted to contact his lawyer appointed pursuant to section 102NA of the Family Law Act 1975 (Cth) (‘the Act’). On 3 March 2025, Mr Arora complained to the Victorian Legal Aid body that administers the section 102NA scheme that he was not being satisfactorily dealt with by his appointed lawyer.
Mr Arora’s legal representation
On 7 March 2025, the cross-examination scheme, accepting or appearing to accept Mr Arora's complaints or, perhaps, for some other reason, determined that they would cease financial assistance to the first 102NA lawyer and would appoint another from what is known as “the panel”. The further lawyer initially accepted the appointment but then, very recently, advised Mr Arora that they did not have the resources to attend to his matter. Hence, Mr Arora came before the Court with the unhappy circumstance that where the parties had a mutually applying prohibition from personal cross-examination pursuant to section 102NA, he was unrepresented and the Mother, Ms Dash (‘Ms Dash’), his adversary in the proceedings, was represented.
Mr Arora added that he regarded the cessation of the 102NA grant of aid being contemplated by the Court and the adjournment of the matter as fundamentally going to the integrity of the trial and that he would not have obtained a fair hearing. He also pointed out that it must be unfair, in the sense of not in the interests of justice, for one party who has allegations of family violence against them (that is, Ms Dash) to be represented under the scheme but for the other one not to be represented. Further, Mr Arora indicated that he did not wish to personally cross-examine the mother and would find it very difficult to do so in the context of the allegations of family violence and in the context of a seven year relationship and a relationship of being a parent of the parties' child.
Mr Arora compliance with June 2024 orders
The solicitors for Ms Dash had communicated in frank and blunt terms strong opposition to the application for an adjournment in writing last week. However, today, Ms Dash's counsel moved to initially acquiesce in the application for an adjournment, that is, not opposing or consenting to it, but by the afternoon, Ms Dash herself pressed for an adjournment of the matter. The adjournment was pressed on the basis that Mr Arora had not complied with the order made in June 2024 that he execute a power of attorney in favour of a certain person who purports to reside in Country L. Mr Arora had not executed that order, and it is common ground that he has not executed it, and he says he has good reason for refusing to comply with the court order.
Those reasons relate to his concern, as he expresses it, that Ms M is not a lawyer and has misled the Court by purporting to be one in Country L and that Ms M has no duty of care or duty at all to him or to the Australian court because there is no connection or control of her. Those reasons were articulated at the time or before the order was made and notwithstanding those complaints, I made the order. Mr Arora continued to make those complaints and refused to make the order. He did not appeal the order. Ms Dash's lawyers then sought, pursuant to section 106A of the Act to have a registrar of the Court execute the authority in the name of Mr Arora.
Section 106A Execution of instruments by order of court
(1) If:
(a)an order under this Act has directed a person to execute a deed or instrument; and
(b)that person has refused or neglected to comply with the direction or, for any other reason, the court considers it necessary to exercise the powers of the court under this subsection;
the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.
My experience with banks, government departments and the like in Australia is that a document executed in the name of a person by court order has at least as much authority as a document executed by the person and probably more. However, I am told from the bar table and accept that in this case, after the registrar executed the authority in the name of Mr Arora, the Country L authorities refused to comply with it and indicated they would only comply with it if it was executed, in fact, by Mr Arora. After some further exchanges between Mr Arora and I this afternoon, where I expressed my unhappiness that orders were not complied with, whether they were orders for the provision of X to be made available for time (Mr Arora alleges that there are at least four occasions when X has not been made available in contravention of the orders) or for the execution of a document, I expect them to be complied with.
I also ordered Mr Arora to execute an affidavit explaining the Country L documents that are alleged.[1]
[1] Orders of XXXX
4. Unless already provided, on or before 4.00pm on 20 December 2024:
(a)the Husband do all acts and things to provide to the Wife’s solicitor any and all documents as are in his power or possession in relation to the [Country L] identity number of […] (‘[Country L] identification number’) including records, bank accounts and basic records relating to that identification number; and
(b)taxation returns relating to the documents described in the affidavit of the Wife of 19 January 2024 at pages 12 – 14 inclusive (‘the alleged [Country L] Tax documents’) alleged by the Wife to relate to the Husband; and
(c)in the event that any such document/s have already been provided, then on or before 4.00pm on 20 December 2024, the Husband indicate in writing where and when the document/s have been provided in the affidavit referred to in order 5 herein.
5.On or before 4.00pm on 20 December 2024, the Husband file and serve an affidavit describing in narrative form:
…
(c)how and to where, including what bank account/s, said alleged funds described in the alleged [Country L] Tax documents were applied including as returned, if any were, and the explanation (as best the Husband can give) relating to the circumstances of the allegation of his [Country L] identification number allegedly appearing on the alleged [Country L] Tax documents.
Mr Arora did file an affidavit as requested. However, his explanation in regard to the alleged Country L funds did not advance the matter either for or against that contention.
Mr Arora sought that he have the opportunity to take further legal advice when I asked him to execute the document there and then at the bar table. I refused any further opportunity. Mr Arora indicated he would not sign the document and I indicated I would adjourn the matter to the following morning to see whether he should be dealt with for contempt in the face of the Court.
Mr Arora then indicated that he would sign the document but under protest in the sense that he maintained all of the reasons that he had previously expressed as to why he should not execute the document. Mr Arora then executed the document and, for the assistance of the Court, his signature was witnessed by Mr Foo of counsel, retained by the Independent Children’s Lawyer, who also executed the document as a witness to his execution. I am satisfied that the document which is annexed to these orders and marked AA has been executed by Mr Arora, the same person who it is alleged that the Country L taxation records relate to.
I am also satisfied that these reasons should, or could, be made available to the Country L authorities in the event that any further verification of the Power of Attorney document was required.
Ms Dash’s reasons for adjournment
I can indicate now that a number of matters were put by Ms Dash as to why the matter should be adjourned that not only included the issue of the Country L tax records order not being complied with but, also, that if the trial was to continue with the vacation or dismissal of the existing 102NA order as it applied to Mr Arora, she very much opposed being cross-examined in person. She was concerned at the delay in the proceedings and the impact upon X and the impact upon her of the continuation of the proceedings. She was concerned at the continuation of the precarious financial position that she was in whereby the bank had provided a moratorium in regard to mortgage payments but not an indefinite one and was expecting a decision of this Court. At the moment, precariously, Ms Dash is one of two joint owners of the property in which she lives and one of two joint debtors. Ms Dash's counsel also asserted that Ms Dash would be traumatised by personally being cross-examined by Mr Arora.
This was also the third time the matter had been listed for final hearing. It was also alleged that the father continued with the financial abuse that she alleged had occurred. I had a number of times and, at times, in emphatic terms, indicated to the parties that I decided contentious facts at the end of the case and not beforehand based on the number of assertions of them.
Independent Children’s Lawyer position
The Independent Children’s Lawyer complained of the length of the proceedings and wished the Court to know that the Independent Children’s Lawyer was firmly of the view that the proceedings impacted on X in the sense that he continued to have his life ordered by his two parents whilst they continued to be in the most bitter and prolonged litigation in this Court.
Decision to adjourn the matter
I gave serious consideration to vacating Mr Arora's section 102NA order and refusing his application for an adjournment because of the length of time that the matter has simply been drifting in the Court and because of the impact on X of that circumstance. Nonetheless, in the end, I am persuaded by the joint positions of the parents, though their positions are for different reasons, that it is not in the interests of justice or in the interests of X that this trial proceed.
Interim hearing?
In the context of the trial not proceeding and in the course of discussion, Mr Arora had indicated that if an adjournment of the final hearing was granted, then he sought a further interim hearing to look at the issue of whether his time with X should be extended.
I refused that application for a further interim hearing for reasons including the matters that I have addressed in regard to the 102NA issue and the adjournment issue. But, also, for the reason that I previously determined, that is, getting to the bottom of the parties' respective allegations. Allegations including:
(1)serious non-disclosure, perhaps even fraudulent non-disclosure by Mr Arora; and
(2)significant physical and emotional family violence by Mr Arora on Ms Dash and the allegations against Ms Dash, which are of actively attempting to limit and restrict Mr Arora's relationship with X on no proper basis; and
(3)Ms Dash has wreaked serious family violence on Mr Arora.
I determined that I would not be assisted and not be able to determine matters further.
Ms Dash’s case
Ms Dash's case is that Mr Arora continues to manipulate and financially, emotionally, and in other ways abuse her by the manner in which he conducts these proceedings and conducts other proceedings. She also alleges that the manner in which he has dealt with what she says are the significant funds that should have been made available for division between them, which include:
(1)the $101,000 order; and
(2)the $77,000 redundancy payment; and
(3)the non-disclosure of the Country L funds whilst not working; and
(4)paying modest child support.
That is a significant part of her case, as I understand it.
Mr Arora’s case
Mr Arora's case is that there is no proper basis for the mother to make the allegations about the Country L money at all and that the $77,000 was merely a redundancy payment that he needed to live on instead of receiving an income and that not only was the money advanced to his mother, but it was appropriately returned. In regard to Ms Dash's complaints of financial abuse, Mr Arora simply says there is “nothing to see here”. Ms Dash says “there is a lot to see here”.
Mr Arora's allegation is that Ms Dash is, with impropriety and falsely and without a proper basis, making false accusation against him for the purpose of interfering with his relationship that allegation is clearly apparent in his case. I am satisfied that I will not be further assisted on an interim hearing in an attempt to grapple with those competing allegations.
Reason?
I am not satisfied that it is a further useful use of court time to attempt to grapple with all those demons where each parent addresses me on the basis of what they say is true because they say it is, when I have previously determined that I need to have a trial if I am going to deal with those allegations in determining X's welfare and/or proper section 79 property adjustment orders between the parties.
They are my reasons why I am refusing that further interim hearing.
Section 102NA: should the court interfere with a previous order?
I also note that as at today, the second branch of the third limb of section 102NA does not exist. That is, there is not a final or not interim family violence restraining order between the parties. Mr Arora's application against Ms Dash had been last listed in the Magistrates' Court of Victoria and the matter was struck out in late 2024. Mr Arora lodged an appeal on or about late 2024.
There has been a directions hearing in the appeal court - that is, the County Court of Victoria – in early 2025, and it is expected that that matter is listed for hearing in mid-2025. The fact that there remains the possibility that there might be another intervention order made in the matter against Ms Dash, which would then trigger the second branch of the third limb, is a reason why I also decline to interfere with the existing section 102NA order as, if I did and that then came to pass, the whole thing would have to be considered again.
I am troubled and remain troubled at the idea that these parties or these parents will be better prepared for any further final hearing. It may be that I am being unfair to one or both of them in that regard but to those listening to this who notice a note of despair in my voice, they should note that I am despairing, and I implore both parties to take responsibility for the conduct of the proceedings and do all acts and things to ensure that they can conduct the proceedings. I note that had the matter proceeded, Ms M would not have been available for cross-examination, but it is asserted that she will be on the next hearing.
Those are my reasons.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 15 May 2025
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