DALAL & DALAL (No.2)
[2019] FCCA 3332
•20 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DALAL & DALAL (No.2) | [2019] FCCA 3332 |
| Catchwords: FAMILY LAW – Practice and procedure – application to set aside notice of discontinuance. |
| Legislation: Australian Passports Act 2005 (Cth) s.11 |
| Cases cited: Cao & Trong [2019] FamCA 336 Laramie & Caul [2018] FCCA 1371 Maddison v Qualtime Association Inc [2010] FMCA 25 MZZIO v Minister for Immigration and Anor [2014] FCCA 618 Norton & Locke [2013] FamCAFC 202 Rice & Asplund (1976) FLC 90-725 |
| Other resources: School of Law, The University of Queensland, National Domestic and Family Violence Bench Book (2018) < |
| Applicant: | MR DALAL |
| Respondent: | MS DALAL |
| File Number: | MLC 2803 of 2017 |
| Judgment of: | Judge Harland |
| Hearing date: | 8 November 2019 |
| Date of Last Submission: | 8 November 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 20 November 2019 |
REPRESENTATION
| The Applicant appearing in person |
| Counsel for the Respondent: | Ms McNamee |
| Solicitors for the Respondent: | Trapski Family Law |
| Solicitors for the Independent Children's Lawyer: | Ms Corridon of Cathleen Corridon and Associates |
ORDERS
The application in a case filed on 22 October 2019, amended on 1 November 2019 be dismissed.
All previous orders be discharged.
The mother have sole parental responsibility for X born … 2006 and Y born … 2011 (“the children”).
The children live with the mother.
The father’s time with the children be reserved.
The mother is authorised to apply for (and extend) and receive an Australian passport for the children X born … 2006 and Y born … 2011 pursuant to s.11 of the Australian Passports Act 2005 (Cth) without first obtaining the written consent of the father.
The Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Dalal & Dalal (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2803 of 2017
| MR DALAL |
Applicant
And
| MS DALAL |
Respondent
REASONS FOR JUDGMENT
On 13 June 2019 the father filed two notices of discontinuance of his interim and final parenting applications after interim consent orders were made earlier that day. The father was legally represented by his solicitor and counsel when those consent orders were negotiated.
Sometime after the father filed a notice of discontinuance, the mother’s lawyers sought to have the mention date brought forward for the final parenting orders to be made on an undefended basis. The Court could not accommodate this request due to the volume of matters already listed in the Court’s heavy workload. I observe that the orders the mother seeks mirror the final orders made on 12 January 2018 apart from adding the words “and extend” to the order permitting the mother to apply for passports for the children. Given this, the mother could have simply sought that the proceedings be dismissed and sought the Independent Children’s Lawyer’s (“ICL”) consent to this course enabling the matter to be finalised in chambers without further court appearances. This would have left the final orders made on 12 January 2018 in place.
On 1 October 2019 Ms Rothschild, solicitor, filed a notice of address for service on the father’s behalf. On 7 October 2019 the father filed an affidavit wherein he makes various complaints and seeks parenting orders. It was not accompanied by an application in case.
Ms Rothschild appeared for the father on 8 October 2019. After discussions with Ms Rothschild, where I made clear that it would be necessary to make a proper application in a case and be prepared for legal argument as to the applicable principles with respect to setting aside a notice of discontinuance, the following orders were made:
1. The applicant file and serve an application in a case and affidavit in support seeking to set aside the notice of discontinuance filed 13 June 2019 on or before 22 October 2019.
2. The father pay the respondent’s costs in the sum of $587, and the Independent Children’s Lawyer’s costs in the sum of $950 on or before 22 October 2019.
3. If the father complies with orders 1 and 2 herein, the application in a case will be listed on 8 November 2019 at 9:30am for Hearing.
4. If the father fails to comply with orders 1 and 2 herein, the orders sought in the mother’s amended response filed 8 July 2019 will be made as final orders.
The father filed an application in a case on 22 October 2019. Whilst Ms Rothschild did not file a notice of ceasing to act as required by the rules, the father filed a notice of address for service representing himself and prepared the application in a case himself. In that application he seeks a series of parenting and other orders. In that application he does not seek an order setting aside the notice of discontinuance. He also filed a further affidavit in support of his application in a case. He filed an amended application in a case on 1 November 2019 which still does not seek an order setting aside the notice of discontinuance but sets out reasons why he filed the notice of discontinuance and why he now seeks to continue the proceedings.
Whilst the application does not specifically include an order setting aside the notice of discontinuance, that is clearly his intention. The fact that he seeks various other parenting orders somewhat confuses the issue as the matter was only listed for the purposes of determining whether or not the father’s notice of discontinuance should be set aside. It is only in the event of the application being set aside that the further progression of the proceedings need to be considered.
The mother and the ICL opposed the father’s application to set aside the notice of discontinuance. They both pointed to the fact that the father’s application in a case and amended application seeks to agitate further parenting orders and did not seek to set aside the notice of discontinuance. It was made very clear to the father and his lawyer on 8 October 2019 that it would be necessary to address legal argument with respect to setting aside the notice. I did not receive this assistance as the father appeared for himself.
Principles applying to setting aside a notice of discontinuance
The Federal Circuit CourtRules 2001 (Cth) are silent with respect to setting aside a notice of discontinuance. However, the court has inherent power to control its own processes to prevent an abuse of process and injustice.[1]
[1] See for example the discussion in Norton & Locke [2013] FamCAFC 202.
In Maddison v Qualtime Association Inc [2010] FMCA 25 Wilson FM, in determining whether or not to set aside a notice of discontinuance, held that the court has power to set aside a notice in the following circumstances:
a)the notice was procured by fraud or as an abuse of process;
b)it is necessary to avoid an injustice;
c)the notice was filed arising from an agreement that is void or voidable.
There is no suggestion in this case that the notice was filed by reason of fraud, abuse of process or pursuant to a void or voidable agreement. There was also no suggestion that he filed the notice of discontinuance by mistake. The notice was filed regularly in accordance with r.13.01 of the Federal Circuit Court Rules 2001.
His Honour Judge Jarrett discussed the principles applying to consideration of withdrawal of a notice of discontinuance in Laramie & Caul [2018] FCCA 1371. The Court has the power to set aside a notice of discontinuance that was obtained by fraud, as an abuse of process or if it is necessary to ensure that the court processes do not cause an injustice but that is not a discretion at large. His Honour referred to a decision by Her Honour Judge Whelan in MZZIO v Minister for Immigration and Anor [2014] FCCA 618 where she identified the following questions to assist in determining an application to set aside a notice of discontinuance being:
a)did the applicant knowingly and voluntarily file a notice of discontinuance;
b)was the notice of discontinuance procured by fraud or duress;
c)was it filed pursuant to a void or voidable agreement;
d)did filing of the notice otherwise involve an abusive process;
e)is it necessary to set aside the notice of discontinuance in order to ensure the court’s processes do not cause an injustice;
f)if the notice is set aside does the application have a reasonable prospect of success.
In the recent decision of Cao & Trong [2019] FamCA 336 Wilson J considered this issue in the context of property proceedings. After reviewing various authorities he referred to an exchange with counsel where counsel submitted that the follow propositions were relevant to the consideration of whether or not to set aside the notice of discontinuance being:
a)whether a valid explanation has been given as to why the notice of discontinuance was filed;
b)whether there is any prejudice to either party if the order is made setting aside the notice of discontinuance or if the granting of such an order is refused;
c)whether in all the circumstances it is just to set aside the notice;
d)whether there are discretionary grounds for setting aside the notice.
As can be seen, similar concepts are discussed in the decisions referred to above. Before examining the particular circumstances of this case it is necessary to set out some of the history of the proceedings in order to put the application in context.
History of the proceedings
2017 proceedings
There were a previous set of proceedings initiated by the applicant father on 23 March 2017. I delivered written reasons on 12 January 2018 dismissing the father’s application and making final parenting orders in the mother’s favour with a notation that if the father returned to Australia to live (noting he was living in India at the time) he could bring a further parenting application. Those reasons should be read with these and I will not refer to them in any detail.
In the first set of proceedings there were four court appearances with little progress being made. In the previous and the current proceedings the mother makes allegations of herself and the children being subjected to severe family violence. She describes the father hitting her and throwing things at her, the father exhibiting behaviours of coercive and controlling violence where she needed his permission to leave the house to see family and friends, financial control and emotional and psychological abuse including threatening suicide and making derogatory comments. She says X witnessed an incident where the father threw a coffee mug at the mother and kicked and banged the kitchen table yelling and swearing. She says the children are scared of the father. This narrative was reflected in the s.11F report which the father did not participate in. The family consultant notes that the children had been receiving extended therapeutic counselling which she thought had reinforced the children’s fear. She also thought the mother needed counselling assistance to help her protect the children from adult disputes and her uncontained fear.
The father has consistently denied the mother’s allegations of family violence.
Intervention order proceedings
The mother obtained an intervention order in the Magistrates’ Court of Victoria in Suburb D on 21 December 2017. The order was made for a 10 year period expiring at midnight on 8 February 2028.
The intervention order made on 9 February 2018 names the mother and children as affected family members. It includes various prohibitions including the father attending within 200 metres of where the mother and children live, work or attend school or childcare and from publishing anything on the internet, by email or other electronic means about the protected persons. On 21 June 2018 the father applied to the Magistrates’ Court to have the intervention order set aside. He was unsuccessful. He then unsuccessfully appealed that decision to the County Court of Victoria. The County Court confirmed the 10 year intervention order. 10 year intervention orders are not common in Victoria. Furthermore it is significant that the Magistrates’ Court made such a lengthy intervention order in the first place.
Current proceedings
The father commenced the current set of proceedings on 8 August 2018. He was represented by Knight Family Lawyers who prepared his application and affidavit. He sought interim and final orders discharging the previous orders. He also sought interim orders for the preparation of a s.11F report and sought interim spend time arrangements one afternoon a week after school and other times as agreed as with special days. The father states in his supporting affidavit dated 8 August 2018 that he returned to Australia to live on 2 June 2018. The interim orders sought in his application did not engage with the issues raised in the previous proceedings set out in my reasons dated on 12 January 2018.
On 7 December 2018 the parties agreed to various consent orders including enrolling in a parenting orders program at Catholic Care for the purpose of reunification/therapeutic counselling for the children with the mother and father being introduced into the therapy at the discretion of the therapist with the parties sharing costs equally. I also ordered that the parties undergo psychiatric assessments with Victoria Legal Aid being requested to fund those assessments.
The father then instructed another firm of solicitors, Pushpa Hettiarcharchi and Associates who filed an application in a case on 7 May 2019. The application for an urgent listing was refused. The application sought a range of orders including that the father be introduced to supervised contact with the children within 14 days and also sought the return of various personal belongings.
In the father’s affidavit dated 7 May 2019 the father complains about Catholic Care refusing the referral despite his understanding that the ICL and the respondent’s lawyers were familiar with the service. He also complains that no alternate provider was mentioned in the consent orders made on 7 December 2018. He complains about the other lawyers not complying with the orders showing a “callous disregard” for the orders and the best interests of children. He refers to the psychiatric assessments and claims that the mother is deliberately turning the children against him causing them psychological harm and that the ICL and the mother and her lawyer are suppressing his efforts including to provide gifts and birthday cards to the children. Despite the affidavit being prepared by a lawyer, three pages do not have paragraph numbers and include various bolded and italicised passages. The affidavit is in large part argument and commentary.
In the father’s affidavit filed 7 May 2019 the father talks about missing important events and being blocked by everybody. He refers to not understanding why his request to talk to the children via Skype was refused and could not understand what harm this could cause. He complains about the intervention order being based on misleading information and says that order does not prevent him from sending gifts to the children.
The father filed a further affidavit on 12 June 2019 prepared by the same solicitor.
In both affidavits and in the correspondence annexed to the affidavits the father makes various complaints about the mother and the lawyers in the proceedings. He again makes various complaints about the intervention order and complains that the mother has not substantiated her allegations of family violence.
He complains that the ICL seems to have been influenced by the 10 year intervention order. He repeats his complaint that the ICL and the mother’s lawyers have breached the orders. Much of the affidavit is repetitive of his previous complaints. In an extraordinary exchange in correspondence between his lawyer and the mother’s lawyer about the mother’s allegations of family violence and concern for her safety, the father’s lawyer responded with “what family violence?”.
When the matter came before me on 13 June 2019 all parties were legally represented and the father was represented by counsel as well as his solicitor being present.
I expressed real concerns about his solicitor’s manner of communication with the other parties’ lawyers making unfair statements and serious allegations suggesting misconduct. Fortunately, the father had experienced family law counsel appearing for him on that occasion and the parties entered into further consent orders which importantly provided for family therapy.
The father’s counsel also requested for the father to have a supervised visit on his oldest daughter’s fast approaching 13th birthday highlighting the cultural significance of that event. Whilst clearly very important to the father, it was an example of the focus on his own needs and not the children’s. Such a move could have been counter-productive and present a further obstacle to reunification by attempting to force his daughter to see him without the assistance of therapeutic counselling to assess whether or not such an attempt is in the children’s best interests.
The father filed two notices of discontinuance later that day: one discontinuing his application in a case filed on 7 May 2019 and the other discontinuing his initiating application filed on 8 August 2018.
His then lawyers filed a notice of intention of ceasing to act and a notice of ceasing to act a few days later on 18 June 2019.
I find it significant that the father has different firms of solicitors and different counsel representing him on each occasion where substantive orders have been made. What is apparent from this is that the father raises the same complaints and seeks similar orders despite these previously having been dealt with in the proceedings. Examples of this include seeking to progress to supervised time without any results of family therapy being considered first and seeking orders for the return of belongings. His narrative has been consistent throughout both proceedings, both when legally represented and when not.
In the first set of proceedings the father had two sets of lawyers acting for him and at various times represented himself including when he commenced the proceedings. The father has had three sets of lawyers representing him in these proceedings and has also at times acted for himself.
The mother has had the same lawyers acting for her in the previous and current proceedings. Ms Corridon was reappointed as the ICL in these proceedings.
Consideration of whether or not the notice should be set aside
The explanation for filing the notice of discontinuance
In his material seeking to set aside the notice of discontinuance the father refers to the history of the proceedings and complains that the mother “has a history of manipulating situations to her benefit through dishonesty.” He also complains about the “independence and biased attitude of the independent children’s lawyer” and complains that the ICL changed the identity of the proposed family therapist from Dr A to Ms B which he says he did not agree to. The orders handed up on 13 June 2019 had references to Dr A crossed out and replaced with references to Ms B. There is no basis for that complaint.
He then sets out complaints with respect to previous affidavits filed and puts his version of events.
He then says that he filed a notice of discontinuance on the same day as the last hearing as he was upset about the outcome and was fearful about the ICL being biased. He says he no longer wishes to discontinue the matter so he engaged Eliza Rothschild to represent him. Significantly, she did not file a notice of address for service until 1 October 2019 and he did not file an affidavit until the afternoon before the mention despite the notice of discontinuance being filed on 13 June 2019.
The father says that he no longer wants to discontinue his case and strongly wants to see his children. He refers to seeking privately supervised time for three months and then transitioning to visits in a community centre or as recommended by a family report. Again, this ignores the orders made on 13 June 2019 by consent.
He refers to the court ordered psychiatric report being favourable with respect to him seeing his children. The psychiatric reports state that neither party has a psychiatric condition. Certainly the father’s psychiatric report does not raise any concerns about the father spending time with the children from a psychiatric standpoint.
His affidavit in support refers to not seeing his children since December 2015 because of an intervention order made in December 2015 and then a final intervention order made in February 2018. He refers to the paternal grandmother strongly wanting to see his children.
He again states that he filed a notice of discontinuance because he was concerned about the ICL being biased and the mother’s false allegations against him and he was upset about the outcome of that day’s proceedings as well as complexity and length of the court process. Again, I note that the father consented to those orders and was represented by counsel. His solicitor was also in court instructing counsel that day. He could have instructed his counsel to run his case rather than consent to orders.
The father says he complied with the orders made on 8 October 2019. He says he attended his GP to obtain a mental health care plan pursuant to the orders made on 13 June 2019. At the hearing on 8 November 2019 the father submitted that he has seen Ms B and complained that the mother through her lawyers has refused to do so. Given that the father discontinued the proceedings, this complaint is unjustified.
The father says he attended two sessions of therapeutic counselling in accordance with the orders made on 13 June 2019 and says that he was told that they made every effort to contact the mother through her lawyers without success. He complains that the mother has been deliberately avoiding therapeutic counselling sessions since December 2018. That is an unfair characterisation as it is clear that Catholic Care determined that it could not cater for the family’s needs and have appropriate safe guards in place. He expresses concerns about the girls forgetting him and is concerned about the mother’s determination to eliminate him from the children’s lives. He says that the intervention order was obtained in his absence based on false information. It must be noted here that his appeal with respect to that intervention order was unsuccessful.
He says that after 13 June 2019 he represented himself and made every effort to look at getting orders for “children’s visitation instead of parenting orders”. The father suggested that this would shorten and simplify the proceedings. This does not necessarily flow. The father’s initiating application did not specify final orders sought including with respect to the children’s living arrangements.
He said he approached the Children’s Court of Victoria, the Magistrates’ Court, the Legal Aid helpline and private solicitors. He says they all advised him that the only option was to continue the case and ask to set aside the notice of discontinuance. He says that the Melbourne Registry also advised him that even if he filed a fresh application that was filed within a 12 month period it would return to the same judicial officer. He asks that the notice of discontinuance be set aside so that the matter proceeds without further delay so that he can progress his application to visit the children. Here the father is suggesting that it would be a more efficient use of resources to simply allow him to continue his case rather than for him to start again.
The ICL acknowledged that there may be further proceedings with the father filing a further initiating application. If the father files a further application he will need to show a change of circumstances. If he simply refiles, no doubt he will be met with opposition in line with Rice & Asplund (1976) FLC 90-725.
Issues of prejudice to either party
The mother’s counsel submits that this application should be dismissed as it is another example of the applicant engaging in coercive control of the mother.
It is significant that he did not file an affidavit seeking to re-engage until the afternoon before the matter was due to be finalised, almost four months after filing his notice of discontinuance.
Contrary to the impression the father gives of being overwhelmed by the court processes and not knowing what to do, the father has engaged several lawyers in both sets of proceedings and has represented himself in between. He also filed an application in the Magistrates’ Court seeking to set aside the 10 year intervention order that was made in his absence. When he was unsuccessful in that application he appealed to the County Court. The mother’s counsel says the father knows his way around the courts as evidenced by the applications he made to the Magistrates’ Court and the County Court.
It is also significant that the applicant has engaged several lawyers and was legally represented at the time he filed the notice of discontinuance. He does not provide a coherent reason for his delay. The delay is significant, being almost three months later. It appears somewhat opportunistic to file an affidavit the afternoon before a court appearance which was due to finalise the matter. The mother was entitled to believe that the proceedings would be at an end. He provides no satisfactory explanation as to why he did not make an application much earlier.
One of the real issues of concern for the court is the impact of these proceedings on the mother and the children in the context of the very serious allegations of violence which I cannot simply ignore or dismiss.
It is well recognised that family violence can continue in the form of using court proceedings to harass the victim. This can involve making multiple applications and/or complaints in different courts and to government agencies. Whilst there continues to be a widespread belief that mothers make false allegations of family violence to gain an advantage in family law proceedings, research shows that this is not nearly as common as the underreporting of family violence and a widespread minimisation and denial of family violence by perpetrators. Courts need to recognise this form of system abuse and weigh up procedural fairness and access to justice against protecting victims from further abuse.[2] The father has consistently made blanket denials of any family violence. Against this it is significant that the County Court confirmed a 10 year intervention order against the father.
[2] See part 3.1.11, School of Law, The University of Queensland, National Domestic and Family Violence Bench Book (2018) <
There is also the concern about the impact of ongoing proceedings on the children and the need to minimise trauma to the children.[3]
[3] See s.69ZN of the Family Law Act 1975 (Cth).
Prospects of success
The issue of whether or not the father has an arguable case is less clear. In some ways the psychiatric assessments of the parties raise more questions than answers. The assessment found that the father did not have any psychiatric condition. He did find that he had obsessional traits which is consistent with the repetitive nature of the complaints he makes. Somewhat extraordinarily Dr C said that the accounts of the parties were so different that one or both must be lying. These reports have not been tested in cross examination.
The family therapy will not automatically lead to supervised and then unsupervised time. This will very much depend on the result of family therapy and what is in the girls’ best interests.
The nature of the issues in this case is whether or not it is in the girls’ best interests to spend time and communicate with their father at all. The mother raises very serious allegations of risk and family violence. The focus of Part VII of the Family Law Act 1975 is on the best interests of the children and their rights and not the rights of adults. Children have the right to have a meaningful relationship with both parents if it is safe for them. The need to protect children from physical, emotional and psychological harm takes precedence.
Due to the length of time since the girls have seen and communicated with their father they do not currently have a meaningful relationship with the father. The impact of the father spending time with the children is on their primary carer, particularly if family violence is established.
If those allegations are made out then the mother’s attitude towards the father spending time with the children would need to be seen in that context.
I have referred to some of the principles applying to children’s matters to give the matter context. They do not apply to the present application as it is not a parenting order. The discretion of the court to set aside a notice of discontinuance is not unfettered. The father made a deliberate choice to discontinue his applications. There is no fraud or abuse of process. As the ICL pointed out in submissions, significant public resources have been spent in these proceedings with respect to the mother and the ICL being funded by Victoria Legal Aid quite apart from court resources.
Whether or not the notice of discontinuance should be set aside in the interests of justice or on other discretionary grounds
I have not found any cases addressing setting aside a notice of discontinuance in parenting proceedings. I have turned my mind to the issue of whether or not the fact that these are parenting proceedings and should involve any different or special consideration. In both the current and previous proceedings the mother has received a grant of legal aid for her lawyer to act for her. The ICL is also funded by legal aid. There has not been a final hearing
The fact is that the father made a conscious choice to discontinue his applications. Whilst he filed those himself he still had lawyers acting for him and has shown that he will seek legal advice from various sources. This could well be indicative of him receiving advice he does not like which is quite different to not being able to get legal advice.
Just as parties cannot simply have final consent orders set aside because they regret agreeing to them, parties should not be able to simply withdraw a notice of discontinuance because they changed their minds.
I will make the final orders set out in the mother’s amended response as foreshadowed on 8 October 2019. I will also discharge the ICL. This finalises the proceedings.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Harland.
Date: 20 November 2019
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