Chada & Davi
[2021] FedCFamC2F 26
•20 August 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Chada & Davi [2021] FedCFamC2F 26
File number(s): MLC 11884 of 2020 Judgment of: JUDGE MCNAB Date of judgment: 20 August 2021 Catchwords: FAMILY LAW – parenting and property – anti-suit injunction – application proceeding on an undefended basis. Legislation: Family Law Act 1975 (Cth) ss 60CA, 79
Judiciary Act 1903 (Cth) s 55B
Cases cited: CSR Ltd v Cigna (1997) 189 CLR 345
Randle & Randle [2011] FamCA 830
Rimac & Rimac [2020] FamCA 919
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55
Division: Division 2 Family Law Number of paragraphs: 27 Date of last submission/s: 20 August 2021 Date of hearing: 20 August 2021 Place: Melbourne Counsel for the Applicant: Ms K Southey Solicitor for the Applicant: David Joseph & Co Lawyers The Respondent: Appearing in Person Intervenor: Mr D, appearing as a McKenzie friend ORDERS
MLC 11884 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CHADA
Applicant
AND: MS DAVI
Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
20 AUGUST 2021
THE COURT ORDERS THAT:
Parenting
1.The Applicant have leave to proceed on a final, undefended basis.
2.The Applicant have sole parental responsibility for X born in 2016 (“X”), subject to keeping the Respondent informed of any long term decisions made regarding X’s health and education.
3.X live with the Applicant.
4.X spend time with the Respondent as agreed between the parties in writing (including via text message).
5.X communicate with the Respondent by telephone or video call each Tuesday and Thursday at 6:30pm (Melbourne time) for up to 30 minutes.
6.The parties each keep the other informed at all times of their current residential address, email address and contact telephone number, and notify the other within 48 hours of any change to same.
7.Pursuant to s65Y of the Family Law Act 1975, the Applicant is permitted to travel with X outside of Australia at his discretion and make application for any visa necessary for such travel notwithstanding he does not have the consent in writing of the Respondent.
8.Pursuant to ss7 and 11 of the Australian Passports Act 2005 (Cth) the Applicant be permitted to apply for a passport and any subsequent renewal(s) for X notwithstanding he does not have the consent in writing of the Respondent, such passport to be at the expense of the Applicant.
9.The Applicant have leave to provide a copy of these Orders to:
(a)X’s school;
(b)X’s treating medical practitioners;
(c)The Australian passport office;
(d)Any consulate or embassy at which the Applicant makes an application for a visa pursuant to Order 7 herein; and
(e)Any member of the border force of any country that the Applicant seeks to travel to or from with X at any point of entry or departure.
10.The Applicant shall provide the Respondent with all school reports and school photographs of the child as they are produced to the Applicant.
Property
11.Each party be solely entitled to the exclusion of the other to all property (including choses-in-action and superannuation) in the possession of such party as at the date of any Orders.
12.Insurance policies remain the sole property of the owner named therein.
13.Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to any Orders.
14.The Applicant be solely responsible for the personal loan in his name associated with the operation of the Respondent’s business, currently standing at approximately $31,160.
Anti-Suit Injunction
15.Service of the Application in a Case and affidavit in support filed by the Applicant on 19 July 2021 shall be taken to have been effected on the Respondent via her Indian attorney email address …
16.The Respondent be and is hereby restrained whether by herself, her servants or agents or howsoever otherwise from commencing or otherwise continuing to prosecute any proceedings in India:
(a)For relief in respect of the payment of maintenance; and
(b)For relief in respect of any property of the parties to this proceeding;
(c)For relief in respect of the child X born in 2016.
17.Order 16 shall not operate so as to prevent the Respondent from prosecuting any proceeding in India seeking the recognition or enforcement of any order that is made in this proceeding.
18.The Respondent forthwith and within 7 days do all acts and things and sign all documents necessary so as to apply for a stay of any proceedings in India that she may have commenced as referred to in paragraph 14 of this Order including but not limited to proceedings number 162 of 2021 in the High Court of City B at Region C.
19.The Respondent forthwith and within 7 days do all acts and thing and sign all documents necessary to file a copy of this Order in any proceedings in India that she may have commenced as referred to in Order 16 of this Order including but not limited to proceedings number 162 of 2021 in the High Court of City B at Region C.
20.The Applicant’s solicitor serve the Respondent with a copy of these Orders forthwith upon receipt of same via the email address of her Indian attorney … and via her personal email address … within 7 days.
AND THE COURT NOTES THAT:
A.Where the Applicant is required by the orders set out herein to provide information to the Respondent he is permitted to do so by email.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 under the pseudonym Chada & Davi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Delivered Ex Tempore – Revised From Transcript)INTRODUCTION
This matter involves an application for final parenting and property orders that was filed by the Applicant Father/Husband on 2 November 2020. That application was amended on
12 December 2020 and was amended again on 30 March 2021. The matter also involves an anti-suit injunction application filed by the Applicant on 19 July 2021, to restrain the Respondent Mother/Wife from prosecuting proceedings she had instituted in India. I must now make a decision in respect of the application for final orders and the anti-suit application.
I note that, by way of orders made on 26 July 2021, Judge Mercuri included the following notation C:
In the event that the Respondent fails to comply with Order 4 or any of the provisions of Order 7 of the Interim Orders made by the Court on 23 March 2021, the Applicant may make an application to proceed on a final, undefended basis on the adjourned date, subject to the discretion of the presiding Judge.
The Respondent failed to comply with those orders, and the Applicant made an application for the matter to proceed undefended, despite the Respondent appearing from India at the final hearing. The matter proceeded undefended as the Respondent failed to comply with the orders of Judge Mercuri, and has failed to file any material in this matter. The Respondent was on notice that the application, including the anti-suit application, would proceed on undefended basis if evidence was not filed. The orders set out herein reflect the undefended nature of the proceeding.
Mr D, the Respondent’s legal representative in India, appeared at the final hearing, purporting to appear on behalf of the Respondent. Counsel for the Applicant objected to Mr D appearing on behalf of the Respondent, and he was ultimately not granted leave to appear as a lawyer as he has no right of audience in Australia: see s55B of the Judiciary Act 1903 (Cth). I raised the question as to whether he could act as a McKenzie friend. Counsel for the Applicant helpfully referred me to relevant authority, in particular, Rimac & Rimac [2020] FamCA 919. Whilst there may be limitations on whether a lay advocate may make submissions as a McKenzie friend, in this case, I allowed Mr D to make submissions, given that he is a lawyer admitted in India, the Respondent is self-represented and has limited English, and Mr D was in a position to provide background detail as to the proceedings in India.
BACKGROUND
Procedural Background
The Applicant issued proceedings on 2 November 2020 seeking orders to spend time with the parties’ child, X, who was born in 2016. I note that the parties were married in and separated on 15 August 2019.
By his application, the Applicant was initially seeking orders to spend time with the child and for the child to live with the Mother. The Respondent was served with the application, but did not file any material in response. An amended application was filed on 12 December 2020 and duly served and, again, there was no response by the Respondent. The same can be said in relation to the Applicant’s further amended application filed on 30 March 2021.
By way of his affidavit filed with the amended application filed on 12 December 2020, the Applicant deposed to the fact that he had received a call from a mental health service who determined that the Respondent was unable to look after the child. The Applicant received a copy of the Respondent’s mental health plan, which indicated that she was suffering from depression, anxiety and panic attacks. The child was placed into the Applicant’s care through the mental health service. From 1 November 2020, the child has lived with the Applicant and has not spent face-to-face time with the Respondent, and I note that she has been spending time with him by Skype and telephone.
The parties are originally from India. I do not have the details of when they arrived in Australia, but the Respondent returned to India in or around March 2021. The Applicant is an Australian citizen and the Respondent is a permanent resident of Australia by reason of a spousal visa. The Applicant’s solicitor became aware that the Respondent had engaged solicitors in India to file an application in India, which sought, amongst other things, the issue of a writ of habeas corpus to produce the child to the Indian Court.
By way of the further amended application filed on 30 March 2021, the Applicant sought orders in relation to spend-time arrangements and property orders. In respect of parenting orders, the Father sought orders for him to have sole parental responsibility for the child, for the child to live him and for the child to spend time with the Mother as agreed between the parties. The Applicant also filed an application in a case on 19 July 2021 seeking orders including, in effect, an anti-suit injunction in respect of the proceedings which were issued in India on behalf of the Respondent.
A minute of the final orders that the Applicant seeks have been circulated to the Respondent. As set out above, orders have been made by the Court in the course of the proceeding for the Respondent to file responses and evidence in respect of the Applicant’s application, and the Respondent has not complied with those orders. The Respondent was on notice that an application, including an application in a case, would proceed on an undefended basis if the evidence was not filed. In that regard, I refer to the orders of Judge Mercuri made on 23 March 2021, where the order noted in the event that the Respondent fails to comply with any provision of order seven of those orders, which was for the Respondent to file a response in an affidavit and notice of risk by 4.00pm on 23 April 2021, the Applicant may make an application to proceed on a final, undefended basis on the adjourned date, subject to the discretion of the presiding judge.
Further orders were made on 26 July 2021 by Judge Mercuri in respect of the application in a case, which provided that by 5.00pm on 13 August 2021 the Respondent file and serve a response to the Applicant’s application in a case filed on 19 July 2021 and an affidavit in support. The Court noted in those orders that there was no appearance today for the Respondent and notation c, as set out above, was included.
On 10 August 2021, Deputy Registrar Brooks made an order that the Respondent file and serve material in accordance with the orders made on 26 July 2021 by no later than 4.00pm on 13 August 2021 and the orders made on 26 July 2021 remain in full force and effect. The Respondent and Mr D both appeared at that Court event.
Notation B and C to the orders of Registrar Brooks set out that the Respondent opposes final orders being made on an undefended basis at the hearing listed on 20 August 2021, but that she has not filed any material in these proceedings, and that Mr D is on notice that the Applicant will object to their appearance on the next occasion if they fail to file any material.
In my view, the Respondent and her legal representative from India have been on notice of the effect and risk associated with non-compliance of the orders.
The 20 August 2021 Hearing
The matter returned for final hearing today, and the Respondent appeared in person.
Mr D urged the Court to adjourn the application for a further period of at least two weeks to allow the Respondent to file affidavit evidence and a response. He said the Respondent was affected by COVID-19, as were members of her family, and he said that they were in quarantine. He said that there was also difficulty in having the documents which she wished to provide properly sworn or affirmed. The Applicant strongly opposed this approach, and continued to seek orders that the hearing continue on an undefended basis.
CONSIDERATION
Parenting and Property Orders
The Respondent has been aware of these proceedings since, at least, 13 January 2021, and there have been repeated orders for her to file evidence and she has failed to do so, notwithstanding the fact that there has been a volume of material filed by her in the Indian Courts. The Applicant has been put to considerable expense in prosecuting this application and by having to serve the Applicant with documents and orders. In my view, it would be unfair to the Applicant to adjourn the application, as such an adjournment comes at a cost, which is not likely to be recovered from the Respondent. Further, there has been no cogent submission put which would suggest that the final parenting orders sought by the Applicant are not in the best interests of the child or that the final property orders sought are not just and equitable.
In respect of parenting orders, the Applicant, in effect, seeks sole parental responsibility for the child and that the child live with the Applicant. He also seeks that child spend time with the Respondent by way of written agreement between the parties, by text message or by telephone or by video call each Tuesday and Thursday at 6.00pm (AEST) for up to 30 minutes.
In my view, in relation to parenting orders, the orders sought by the Applicant are in the best interests of the child: see s60CA of the Family Law Act 1975 (Cth). The Respondent is currently residing in India whilst the child is residing with the Applicant in Australia. The orders for sole parental responsibility are necessary for the Applicant to be able to make proper arrangements for the child’s health and education in the absence of the Respondent and to provide consent on a sole basis in respect of other matters which require parental consent. The spend-time arrangements as proposed by the Applicant are in the child’s best interests, particularly given that the Respondent is living in India.
In relation to property orders, I have regarded to the affidavit material filed by the Applicant that the property pool in this case is modest, comprising of assets of about $130,000, if a property in India is taken into account or a value of about $110,000 if that property is excluded.
The orders provide for the Applicant to be solely responsible for debts which were acquired in the Respondent’s name through the operation of a business in Australia by the Respondent and those debts currently stand at the sum of about $31,160, which comprises about one-third to one-quarter of the assets of the parties. The Applicant is responsible for the maintenance of the property and the payment of the mortgage and he has been maintaining the mortgage and making payments for the Respondent and the child since separation. The Applicant is now solely responsible for the care and housing of the child, without support from the Respondent. In my view, the orders proposed by the Applicant are just and equitable: see s79 of the Family Law Act 1975 (Cth) (“the Family Law Act”).
It was raised in submissions by Mr D that various golden ornaments which form part of a dowry have not been taken into account, but there has been no evidence filed by the Respondent in respect of the value of that property and where it might be.
Anti-Suit Injunction
In relation to the anti-suit injunction, this is a case where the Applicant resides with the child in Australia. He is an Australian citizen and the child is an Australian citizen. The Respondent is a resident of Australia, but she is currently living in India. I was referred to authority by Counsel for the Applicant, in particular, the decision of Randle & Randle [2011] FamCA 830 (per Kent J) (“Randle”) at [43] – [44]. The question of whether it is appropriate for the matter to proceed in Australia, or what is the most convenient location, is really governed by notions of the best interests of the child (see s60CA of the Family Law Act), rather than the formulations of the ‘clearly inappropriate forum test’, which has been developed in body of case, but in particular, the decision of Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55: see Randle at [43] – [45].
In relation to the bringing of an anti-suit injunction, in referring to the decision of CSR Ltd v Cigna (1997) 189 CLR 345 (per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ), Kent J states in Randle at [125] – [126] that:
125. The first step to be undertaken by a Court considering an application for an anti-suit injunction, following the reasoning of the High Court in that case, is to consider whether or not the Australian proceedings should be stayed. This question has been addressed earlier in these reasons, with the conclusion being that a stay is inappropriate on two grounds; firstly, because the Mother submitted to the Australian jurisdiction by commencing parenting proceedings in Australia and thus could not then argue that Australia was forum non conveniens, and secondly, because a stay alone would be insufficient to deal with this matter as that would leave S in Australia without any enforceable parenting order governing his residence and care.
126. The second step is to consider whether the case at hand falls within the two broad categories of cases in which an anti-suit injunction is justified. It is important to note, as the High Court did in Cigna (supra), that, “The inherent power to grant anti-suit injunctions is not… to be restricted to defined and closed categories.” However, that case does seem to set out two distinct, albeit very broad, situations in which an anti-suit injunction may be appropriate:
d) where it is necessary for the protection of the Court’s own proceedings or processes; and
e) as an exercise of the Court’s equitable jurisdiction in order to restrain unconscionable conduct or the unconscientious exercise of legal rights.
(References removed)
In this case, the Applicant has issued these proceedings bona fide and first in time in Australia. The Applicant also had good reason for issuing the proceedings in Australia. He resides in Australia with the child and, despite the fact that she is currently living in India, at the time the Applicant filed his application the Respondent was living in Australia and spending time with the child.
The proceedings issued by the Respondent in India, in effect, seeks to undermine the Applicant’s application in Australia and, in my view, this is a case where the Court’s protection of its own proceedings and processes is at play. In those circumstances, it is appropriate, in my view, for the Court to order an anti-suit injunction to follow in the terms sought by the Applicant.
CONCLUSION
For these reasons, I will make orders in the terms sought by the Applicant.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 9 September 2021
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