FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dewan & Ganesh [2024] FedCFamC2F 592
File number(s): BRC 10206 of 2021 Judgment of: JUDGE STREET Date of judgment: 2 May 2024 Catchwords: FAMILY LAW - PARENTING – final hearing date vacated – mother not aware of concept of s 102NA order – interim parenting orders – refixing parenting and property for final hearing Legislation: Family Law Act 1975 (Cth) Cases cited: Metrellis & Chase [2023] FedCFamC2F 1241 Division: Division 2 Family Law Number of paragraphs: 41 Date of hearing: 2 May 2024 Place: Sydney Solicitor for the Applicant: Mr G Sara of Guy Sara & Associates Lawyers Respondent: Self-represented Counsel for the Independent Children’s Lawyer: Ms K Conte-Mills Solicitor for the Independent Children’s Lawyer: Phillip A Wilkins & Associates ORDERS
BRC 10206 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DEWAN
Applicant
AND: MS GANESH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
2 MAY 2024
THE COURT ORDERS THAT:
1.The final hearing dates 2 & 3 May 2024 for the parenting and property matter is vacated.
2.The parenting and property matter is fixed for final hearing commencing at 10:00am on 10 & 11 October 2024 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court Australia Act 2021 (Cth).
PENDING FUTHER, THE COURT ORDERS THAT:
3.All earlier parenting orders are vacated.
4.The mother shall have interim sole parental responsibility in relation the children, X, born in 2011 and Y, born in 2016 (“the children”).
5.The parties are to keep each other informed of any serious incident or serious health concern in relation the children and to provide the other with any medical report concerning the children within seven (7) days of receipt.
6.The children live with the mother.
7.Both children when in the care of the mother, may communicate with the father in accordance with their wishes.
8.The child, X, may spend time with his father in accordance with his wishes provided that he continues to attend school during school terms in New South Wales.
9.The child X, be returned to the mother by the father by 5:00pm on 4 May 2024 at the Suburb B McDonald’s situated at the C Street, Suburb B NSW.
10.The child, Y, unless the parties agree in writing, spend with the father:
(a)If the father is still living in Queensland, during school term, every second weekend from after school on Friday until commencement of school on Monday and half the school holidays.
(b)If the father moves to Sydney, every alternate week, during school term and half the school holidays.
11.Handover of the children is to occur, unless otherwise agreed by the parties in writing, at the Suburb B McDonald’s situated at C Street, Suburb B NSW.
12.Unless otherwise the parties agree in writing, the children are to spend special occasions from 9:00am – 5:00pm with the mother for even years and the father for odd years…
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CaseChat Overview and Summary
The court considered that Ms. Ganesh was not fully aware of the concept of an order under section 102NA, which prevents cross-examination of a party in certain circumstances. Given this, the court decided to vacate the final hearing dates for the parenting and property matters. The court also found it necessary to establish interim parenting orders to ensure the welfare of the children during the interim period. The court reasoned that these orders would provide a stable environment for the children while the final hearing was rescheduled. The new final hearing dates were set for 10 and 11 October 2024.
The court's orders included vacating the previously scheduled final hearing dates, setting new dates for the final hearing, and establishing interim parenting arrangements. These interim arrangements were designed to ensure the safety and well-being of the children, with the mother having sole parental responsibility. The court also outlined specific communication and contact provisions for the father, including visitation schedules and communication protocols. Additionally, the court directed the parties to cooperate with the Independent Children's Lawyer and to file various procedural documents by specified deadlines.
Orders
Orders of the court
BRC 10206 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR DEWAN
Applicant
AND:
MS GANESH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
2 MAY 2024
THE COURT ORDERS THAT:
1. The final hearing dates 2 & 3 May 2024 for the parenting and property matter is vacated.
2. The parenting and property matter is fixed for final hearing commencing at 10:00am on 10 & 11 October 2024 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court Australia Act 2021 (Cth).
PENDING FUTHER, THE COURT ORDERS THAT:
3. All earlier parenting orders are vacated.
4. The mother shall have interim sole parental responsibility in relation the children, X, born in 2011 and Y, born in 2016 (“the children”).
5. The parties are to keep each other informed of any serious incident or serious health concern in relation the children and to provide the other with any medical report concerning the children within seven (7) days of receipt.
6. The children live with the mother.
7. Both children when in the care of the mother, may communicate with the father in accordance with their wishes.
8. The child, X, may spend time with his father in accordance with his wishes provided that he continues to attend school during school terms in New South Wales.
9. The child X, be returned to the mother by the father by 5:00pm on 4 May 2024 at the Suburb B McDonald’s situated at the C Street, Suburb B NSW.
10. The child, Y, unless the parties agree in writing, spend with the father:
(a) If the father is still living in Queensland, during school term, every second weekend from after school on Friday until commencement of school on Monday and half the school holidays.
(b) If the father moves to Sydney, every alternate week, during school term and half the school holidays.
11. Handover of the children is to occur, unless otherwise agreed by the parties in writing, at the Suburb B McDonald’s situated at C Street, Suburb B NSW.
12. Unless otherwise the parties agree in writing, the children are to spend special occasions from 9:00am – 5:00pm with the mother for even years and the father for odd years being as follows:
(a) The Mother’s or Father’s birthday.
(b) The Childrens’ birthdays.
(c) Mother’s Day and Father's Day.
13. Both parties may attend school sporting events, school functions and occasions for the children.
14. Both parents have authority to receive a copy of any school report relating to the children.
15. Both parents are restrained from engaging in any corporal punishment or physical discipline of the children or permitting anyone else to do so.
16. Both parents are restrained from denigrating the other parent in front of the children or permitting anyone else to do so.
17. Both parents are restrained from discussing these proceedings or any documents filed in these proceedings with the children or permitting anyone else to do so, other than the ICL.
18. Neither parent is to consume alcohol while the children are in their care.
19. The parents are to communicate in relation to all matters relating to the children through the OurFamilyWizard parenting application or other agreed similar application.
20. Both parties must fully cooperate with the ICL, in relation to contact and communication with the children.
21. The ICL is to explain these interim parenting orders to the children.
Procedural orders
22. The application in a proceeding filed 9 April 2022 is dismissed.
23. The applicant is directed to file and serve an amended application on or before 30 August 2024.
24. The respondent is directed to filed and serve a response on or before 6 September 2024.
25. The applicant is directed to file and serve any further affidavit evidence that the applicant wishes to rely on, supplementally to the trial affidavit filed 12 April 2024, on or before 11 September 2024.
26. The respondent is directed to file and serve affidavit any affidavit evidence that the respondent wishes to rely on or before 18 September 2024.
27. The applicant is directed to file and serve a case outline including a chronology and a list of objections on or before 25 September 2024.
28. The respondent is directed to file and serve a case outline including a chronology and a list of objections on or before 2 October 2024.
29. The parties are directed to file and serve an agreed balance sheet on or before 4 October 2024.
30. The ICL may file a further a case outline seven (7) days prior to final hearing.
31. Leave is granted to the parties, including the ICL to provide any tender bundle material relied upon via email or USB seven (7) days prior the hearing.
32. Leave is granted to the parties, including the ICL, to provide consent orders to be made in chambers, if appropriate.
33. Liberty is granted to the parties, including the ICL, to apply on 24 hours’ notice.
THE COURT NOTES THAT:
A. The parties are entitled to Legal Aid representation, through Commonwealth funding, as a result of order 19 made on 15 November 2022, that prevents either party from cross-examining under s 102NA.
B. The respondent mother must take appropriate steps to seek that Legal Aid representation for the next hearing, and if there is a failure to do so, the matter may proceed, if appropriate, as an undefended hearing.
C. That there are criminal charges pending against the mother fixed for a final hearing on in late 2024, that were the subject of extensive discussion in the Family Report dated 10 October 2023 and that is not in the Court’s opinion in the best interests of the children for this prosecution to be pursued, and if the Court had the power to do so, would restrain this criminal prosecution permanently.
D. The Court expects a copy of these orders and copy of these notations are to be sent by the ICL to the State DPP or the Local Court prosecutor and expressly requests that these notations are drawn to the attention of the hearing Magistrate, if the matter proceeds in that Court.
E. These Orders prevail over the existing AVO in respect of the children and living by the children with the mother, albeit, the Court has been informed that there is no condition preventing the same and if there is, these orders override any condition inconsistent with these orders.
F. The Court is satisfied that these orders protect the elder child and are in the best interest of both children.
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.
Background
Background to the litigation
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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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