Dewan & Ganesh
[2024] FedCFamC2F 592
•2 May 2024
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 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.
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 STREET
These are parenting and property proceedings that were commenced on 3 August 2021 by the applicant father (“the father”) in relation to two children, X, born in 2011 and Y, born in 2016 (“the children”). The proceedings were the subject of orders fixing the parenting and property matter for a final hearing as a result of orders made on 15 November 2023. The orders made on 15 November 2023 included a section 102NA of the Family Law Act 1975 (Cth) (“the Act”) order which would have entitled each party to Legal Aid representation through Commonwealth funding. Those orders made included notations that were inconsistent with the making of the section 102NA order and in no way explained the entitlement of the respondent mother (“the mother”) to Legal Aid representation through Commonwealth funding.
At the commencement of the hearing today, the Court inquired of the mother whether she appreciated she was entitled to free Legal Aid representation through Commonwealth funding as a result of the section 102NA order and conveyed that she did not. The procedural steps that were to be taken in relation to the final hearing, so far as the mother was concerned, had not been properly taken and there are serious parenting issues in relation to the two children in respect of which proper representation by the mother would have been significant. The Court raised with the ICL and the father’s representative, Mr Sara, at the outset a concern in relation to the 102NA order not having been properly explained to the mother who was not present at the time that the orders were made on 15 November 2023.
The Court has been informed that the ICL sent communication to the mother concerning the same but it has not been put into evidence and, in any event, the mother’s clear identification that she did not understand she was entitled to Legal Aid representation in this hearing creates a significant difficulty for the hearing to proceed in respect of the parenting and property matters and, in particular, in terms of the administration of justice and fairness.
The Court did identify that it may be that consensus could be achieved in respect of the parenting matter in a way that was consistent with, in substance, views expressed in the family report and also identified for the parties the possibility of trying to resolve the property dispute in respect of which the net pool appears to be NZD$143,000 and some super splitting orders in respect of the super of the father. Although given the opportunity to do so, the parties have not been able to achieve a consensual position, albeit the ICL and the father provided to the Court some proposed parenting orders.
The ICL and father’s proposed parenting orders were ones to the effect to change the current position so that the elder child would live with the father and spend time with the mother in accordance with his wishes. The father is currently living in Queensland. The effect of this order would be to split the two children from each other and from the mother’s family in Sydney who had been providing support to the mother and clearly have a relationship with the children.
The proposed parenting orders apparently intended that the regime for the younger child would continue and had some constraints, sought a fresh hearing date and noting that there were criminal charges against the mother which is listed for a hearing in late 2024.
The background to the proceedings in parts summarised in the chronology of the ICL is set out below.
CHRONOLOGY
Date Event Late 2008 Parties marry in Country D. 2009 The mother commences living with the father in New Zealand. 2011 X is born. 2016 Y is born. 2017 The family moves to City E QLD. 2018 The family moves to Town F QLD. Late 2020 The mother tells the father she is leaving for Brisbane for two weeks, taking all of the family jewellery. Early 2021 The mother emails the father to say she is not returning to Town F and has moved to NSW with the children. May 2021 The parties attend Family Dispute Resolution. 3 August 2021 The father files an Initiating Application. Early 2022 The parties divorce. 27 April 2022 Interim parenting orders are made by consent: the children to spend time with the father during the school holidays. 15 November 2022 An order is made for the preparation of the Family Report. Mid-2023 The father collects the children from City G to spend time with them for 1 week. X shows the father a picture of a cut on his face allegedly inflicted by the mother. 4 August 2023 An order is made restraining each parent to physically discipline the children. 10 October 2023 The Family Report is prepared by Ms H. 2 May 2024 The final parenting and property hearing is listed for 2 days.
The mother indicated in open Court, contrary to views expressed in an affidavit she filed without the benefit of legal representation, that she wished the two boys to live with her in New South Wales although she expressed concern as to the behaviour of the older child. The Court was informed that since early 2024 the elder child has been living with the father in Queensland and has not been attending school.
The Court is conscious that there has recently been a school holiday and that school resumed this week in New South Wales. The father’s solicitor took the Court to the family report and identified concerns being raised in relation to the mother’s parenting and particular discipline in which she had engaged and her own self-expression of concern about her ability to look after the elder son. The Court was also taken to the affidavit filed by the mother, without representation, suggesting no opposition to her older son going to live with his father in Queensland.
The solicitor for the father acknowledged that splitting the children would be a most unusual thing to do but suggested that this was one of those rare occasions where it was necessary. The ICL also identified that there had been an ADVO obtained against the mother concerning the elder child but the Court was informed that none of the conditions prevented the elder child living with the mother or spending time with her. The Court was informed that the criminal charges to be heard in late 2024 concerned the subject matter of the discipline discussed at length in the family report.
The family report included views given by the children in relation to their relationship with both parents. It is apparent that both children do have a meaningful relationship with both parents and that there were views expressed to the family report writer by the elder child on wanting to spend more time with the father and similar views by the younger child. The Court has been informed that the ICL has recently spoken to the elder child, and he has again emphasised his desire to live with his father.
In the family report, it was identified that the father is living in Queensland and the mother is living in New South Wales. There were discussions with the father in relation to his relocation back to New South Wales and the father showing a significant level of insight in relation to prioritising the best interests of the children and identified a willingness to return to New South Wales if in fact he was able to spend more time with the children.
It is most unfortunate that these are proceedings where the mother does not have the Legal Aid representation to which she was entitled. The Court makes no criticism of the parties or the ICL in that regard, it is one where the Court should have ensured there were proper notations in respect of the entitlement in respect of a party who had not attended the hearing at which the section 102NA order was made.
It is not apparent to the Court from the material before it what steps were taken to attempt to contact the mother at the time of that hearing when that order on 15 November 2023 was made to ensure that she understood the orders being made and her entitlement to seek Legal Aid representation at this final hearing. The Court is satisfied that it would be contrary to the administration of justice to force the hearing on in circumstances where the mother has not obtained that Legal Aid representation to which she is entitled and where she has indicated to the Court a willingness to take steps to do so.
The vacation of the hearing date was not opposed by the ICL or by the father. The father, however, submitted that there should be interim parenting orders made of a kind identified in the proposed orders signed by the ICL and the father which was marked exhibit B. The Court raised with the solicitor for the father that it would also hear at the same time the application in a proceedings, that in substance, sought an order of a similar kind as sought and raised in the by the proposed orders by the ICL and the father.
In relation to the making of parenting orders, the Court must take into account the primary considerations in section 60CC of the Act and give greatest weight to the paramount consideration to preventing physical or psychological harm to the children or the children being exposed to abuse, neglect or family violence. The material identified in the family report identifies serious allegations by the mother of family violence of a physical kind including alleged assaults. There are admissions in the family report by the father in respect of physical interaction with the mother of a kind that would identify family violence has occurred. It is not necessary or appropriate for a Court to make actual findings in that regard.
The history, however, identified in the family report identify serious allegations that mean the making of parenting orders that give rise to a change of where the children are living or a splitting of the children between New South Wales and Queensland would be a very significant step to take when the mother has not been represented and when she was entitled to be represented. The conduct involved in the withholding of the children that occurred in 2023 by the father that gave rise to an order being made for their return was itself a form of family violence that would rebut any presumption in respect of equal shared parental responsibility, albeit that the Court still has a discretion on an interim basis. The conduct identified in the withholding of the children in 2023 from the mother, as well as the content in the family report, is sufficient to identify that the Court is of the view that on an interim basis the mother should have sole parental responsibility of the two children.
In relation to the other primary consideration that of maintaining a meaningful relationship with both parents, the Court is of the view that if orders of the kind proposed in the consent orders signed by the father and the ICL were made, it would inevitably result in the absence of a meaningful relationship of the elder child with the mother and the potential destruction of the relationship between the two siblings living in different states. It is a significant step to take when the mother has not been in the position to put on proper material and to be properly represented in respect of the various statutory considerations in Chapter VII of the Act.
The Court is alive to the concern expressed by the ICL that the elder child may not be happy with spending time with his mother. However, he still is at an age where the Court is not satisfied that it should disregard the contents of the primary considerations in section 60CC of the Act in ensuring that there is a continued meaningful relationship between the elder child and his mother. Making orders proposed by the ICL and the father would not, in the Court’s opinion, do so.
PARETNING PRINCIPLES
The Court has also taken into account the additional considerations in section 60CC(3) of the Act. In relation to section 60CC(3)(a), it is the case as the Court has identified that there is a view expressed by the elder child that he wanted to stay with his father. The fact that he is not at school in Queensland is a significant feature diminishing the weight to be given to that view as well as the consequences it would have in severing him from his mother, the mother’s family and also most importantly, his younger sibling. Both children however expressed views for increased time with the father which the Court has taken into account in the proposed orders that facilitate a significant increase in time if the father does in fact decide to relocate to Sydney, pending the final hearing.
In relation to section 60CC(3)(b) of the Act, the Court has taken into account that each child has a relationship with the other parent. The family report suggests a loving relationship. There are concerns expressed as to whether the elder child may take some other approach in interacting with the mother and it would be most detrimental if that occurred. It would also cause alarm in relation to what conduct and communications had taken place with the elder child to materially change his position from that was identified in the family report. The Court has also taken into account that there are family of the father who are in Queensland as well as the Court has identified that there are family of the mother in Sydney with whom the children would appear to have a good relationship.
In relation to section 60CC(3)(c) of the Act, the Court is of the view that there has been an engagement by both parents in trying to participate in the bringing up of the children and the Court understands the children communicate with the father daily when in the mother’s care.
In relation to section 60CC(3)(ca) of the Act, the Court places significant weight on the fact that the father has failed to fulfil his parental obligations in relation to the children and maintaining them when he withheld them in 2023 which was relevantly recently. That failure was not consistent with him having a full grasp of his parental responsibilities. It should not have occurred. The Court has been informed that the elder child has been with the father since approximately early 2024. The Court does not regard that as a withholding of the child but has made orders for the father to return the elder child to the mother by 5:00pm on 4 May 2024. Failure to comply with these orders may give rise to ex parte relief being granted for appropriate orders to ensure compliance with this Court’s orders. The consequence of non-compliance with this Court’s orders can include proceedings for contravention that can give rise, on conviction, to custodial sentences, sequestration and other penalties if the conviction is found to be made out.
In relation to section 60CC(3)(d) of the Act, the orders proposed by the Court would only increase the time for the children to spend time with the father, if the father spends time in New South Wales which he has indicated he was willing to do.
In relation to section 60CC(3)(e) of the Act, the Court accepts that there is a practical difficulty for the father complying to spend time with the children, if he remains in Queensland but he has been communicating with the children on a daily basis when they were not in his care.
In relation to section 60CC(3)(f) of the Act, the capacity of the father is one in relation to which the withholding of the children last year does not reflect a full understanding of being able to meet the emotional and intellectual needs of the children. On the evidence before the Court, there was an indication that the children did suffer a negative reaction to being withheld and one was more difficult upon return to the mother, suggesting some emotional impact from that withholding.
In relation to section 60CC(3)(g), the Court has taken into account the age of the parents and they have a background as identified in the ICL’s chronology and it is important that the children are able to meaningfully participate in their parents’ culture and religion to the extent that the children wish to do so.
In relation to section 60CC(3)(h), this has no application.
In relation to section 60CC(3)(i), the Court regards the attitude expressed by the withholding of the children last year is one of concern in relation to the father and is taken into account.
In relation to section 60CC(3)(j), the Court regards the withholding of the children as involving family violence and is taken into account.
In relation to section 60CC(3)(k), the Court has been informed there is a family violence order. The nature of that order is one that the Court has been informed does not prevent the mother having contact with the elder child and the circumstances in which it was made arise out of the incidents identified in the family report and the mother potentially using excessive means in her corporal punishment of the children, albeit a contention in which the mother has given a different explanation of endeavouring to prevent dispute between the two children. No doubt the conditions in the AVO prevent the use of physical punishment of the children.
The Court is not aware of the whole of the evidence that is before the DPP, and those matters being fixed for a final hearing in late 2024. On the material before the Court in relation to detailed discussion before the family report writer and the views expressed by the children, the Court is firmly of the view that pursuit of the criminal prosecution against the mother is not in the best interests of the children. It is much to be regretted that there has not yet been passed legislation that permits this Court to prevent prosecutions being pursued in state Courts where there is a clear overlap with Family Court proceedings.
To permit the pursuit of a prosecution against the mother in circumstances where the children clearly identified to the family report writer as to having a meaningful and loving relationship with the mother, and where there are circumstances where the Court has not yet been able to determine in respect of very serious allegations of family violence and where there has been clearly a withholding of the children by the father, it was not appropriate or in the best interests of the children for the mother to be the subject of these criminal proceedings in respect of the conduct identified in the family report. If the Court had jurisdiction to do so, in this case, it would restrain that prosecution. The Court proposes to take the next best course that it can which is to identify a notation that it would have taken that course and ensure that this is drawn to the attention of the prosecutor and the presiding Magistrate if the matter is pursued.
In relation to section 60CC(3)(l) of the Act, this is not a stage at which the proceedings can be finalised as, unfortunately, the mother has not taken the steps to obtain Legal Aid representation to which she was entitled. The Court has also taken into account in terms of other relevant considerations that the parties had endeavoured to have communications to try and resolve the matter and is alive to the fact that inconsistent views had been expressed by the mother.
The absence of representation by the mother seriously diminishes the weight to be given to the content of the mother’s affidavit given the views expressed in open Court that were not consistent with the orders proposed in the consent orders by the father and the ICL. Having taken those matters into account and the general principles in relation to Part VII of the Act and in Metrellis & Chase [2023] FedCFamC2F 1241 at [68] - [87], the Court finds that it is in the best interests of the children that they continue to live with the mother and finds that it is in the best interest of the elder child to facilitate spending such time that he wishes with his father provided he is attending school in New South Wales.
The Court regards it as in the best interests of the children to progress meaningful time with the father in New South Wales to week about time and half the school holidays if the father is living in New South Wales and in relation to the younger child, apart from the wishes of the elder child, alternate weekends during school weeks, if the father seeks to obtain the benefit of that order. The Court is also satisfied that it is appropriate to make orders in relation to special occasions if they occur before the next hearing date in October 2024, attending school events and functions and obtaining school reports as well as each informing the other in respect of the health of the children.
The Court is firmly of the view that this is a case where there should be an express restraint from either party being permitted to engage in corporal punishment or any physical discipline of the children or permitting anyone else to do so. The Court notes that the family report identifying these issues was made on 10 October 2023 and was released to the parties on 12 October 2023. No step was taken by the father to bring before the Court the issue of that corporal discipline until the filing of an application in a proceedings which occurred on 9 April 2024.
The absence of taking any such step is understandable given the children’s reaction conveyed to the report writer in respect of the incident and their apparent capacity to move forward in respect of that incident. The application in a proceedings that was filed on 9 April 2024 is one in which the father sought orders for the elder child to live with him in Region J, the mother to be restrained from physically and mentally abusing the eldest son, and for what was described as visitation rights for the mother, and the mother being required to undertake some aggression management course.
For the reasons the Court has given the proposed orders in the application in a proceeding are not appropriate as they would give rise to the separating of the elder child from the younger child, as well as from his mother and her family. It is not a step to be taken lightly and the material falls well short of satisfying this Court that it is in the best interests of the children for making that order sought in the application in a proceeding at this stage.
In respect of the restraint of physical violence, the Court is of the view that both parties should be the subject of such restraint as well as in relation to denigrating each other, discussing the subject matter of the proceedings and/or consuming alcohol while the children are in their care. The Court is also of the view that it is appropriate to make orders to ensure that communications in relation to matters relating to the children are conducted through an appropriate application such as the OurFamilyWizard parenting application or another parenting application that the parties agree in writing. The Court is satisfied that the above orders are in the best interests of the children and is of the view that the orders of an injunctive nature that is granted adequately address the risk the subject of the corporal punishment by the mother and is satisfied that the mother will not fail to comply with these orders.
It is for these reasons the Court makes the above orders.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of Judge Street. Associate:
Dated: 21 May 2024