Gupta and Gupta (No.2)

[2018] FCCA 869

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUPTA & GUPTA (No.2) [2018] FCCA 869

Catchwords:
FAMILY LAW – Application for leave to commence proceedings in light of vexatious proceedings order – leave refused.

Legislation:

Family Law Act 1975 (Cth), ss.102QB, 102QE

Applicant: MR GUPTA

Respondent: MS GUPTA

File Number: PAC 5828 of 2008

Judgment of: Judge Hughes

Hearing date: 10 April 2018

Date of Last Submission: 10 April 2018

Delivered at: Parramatta

Delivered on: 10 April 2018

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: No appearance

Independent Children’s Lawyer: No appearance

ORDERS

1. The application for a stay of the orders of 11 August 2017 pending appeal is withdrawn and dismissed.

2. The father has leave to make an oral application pursuant to section 102QE of the Family Law Act 1975 for leave to institute proceedings, there being in force a vexatious proceedings order made on 11 August 2017.

3. The father’s application for leave to institute proceedings is dismissed.

4. The contravention application filed by the father on 30 November 2017 is dismissed on the basis he did not obtain leave to commence those proceedings.

IT IS NOTED THAT the Court has indicated to the father today that it was the intention of the Court that any gifts to be sent to the children pursuant to Order 5(b) of the Orders of 11 August 2017 were to be sent via mail and not delivered by neighbours.

IT IS NOTED that publication of this judgment under the pseudonym Gupta & Gupta (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5828 of 2008

MR GUPTA

Applicant

And

MS GUPTA

Respondent

REASONS FOR JUDGMENT

Extempore

1. On 11 August 2017 final orders were made in parenting proceedings involving the two children of the parties.  The orders provided for the mother to have sole parental responsibility and for the children to live with her.  They provided for the children to spend no time with their father unless otherwise agreed between the parties in writing.  Separately that day, I made an order restraining the father from commencing any further family law proceedings involving the respondent mother or the children without first obtaining leave of the Court.

2. On 30 November 2017, the father filed a contravention application alleging that on 25 August 2017, two weeks after the orders were made, the mother refused to receive gifts sent by the father to the children.  Order 5 of the orders of 11 August 2017 provided for the father and the children to communicate as agreed between the parties or, failing agreement, by an exchange of letters, cards and gifts and by electronic communication.  For the purpose of that order, paragraph 5(b) provides:

   The father may send gifts to the children but no more frequently than once every three months and on the children’s birthdays/naming days and on (omitted).

3. The orders require the mother to ensure the children receive any letters, cards, gifts and electronic communication from the father, provided they are appropriate, and for the mother to support and facilitate the children initiating any contact they wish to have with their father.

4. The contravention application filed by the father on 30 November 2017, supported by an affidavit, alleged that on 25 August 2017 the father gave to the mother’s neighbour, Ms C, gifts to be passed on to the children.  The father presumably was not present, because he is not permitted to go close to the mother’s home.  Nevertheless he alleged that the neighbour, Ms C, knocked on the door, which was answered by the mother’s husband.  Ms C asked the mother’s husband to call the mother, but he insisted that she speak to him.  The father said in his affidavit that Ms C noticed that the children came to the door, and she called out to them that she had some gifts from their father.  The mother’s husband is alleged to have said “We don’t need anything” and slammed the door on Ms C.  Ms C left the bag of gifts at the front door and went home.  Ms C was not put on affidavit.

5. I have explained to the father today that my intention in making the orders on 11 August 2017 was that the father would post to the mother any gifts for the children and that the mother was entitled to satisfy herself they were appropriate. 

6. Ms C and her husband gave evidence for the father against the mother in the trial which resulted in the August 2017 orders.  I did not find them not to be credible witnesses.  I was satisfied the father had used them at times to harass the mother.  I certainly did not anticipate that the father would use them to deliver gifts to the children.  I did not specify in the orders that the gifts were to be sent by post, but that was my intention.

7. In any event, at the end of the proceedings I made orders pursuant to section 102QB of the Family Law Act 1975 prohibiting the father from instituting any more family law proceedings involving the mother or the children without first obtaining leave of the Court. The process for obtaining leave to institute proceedings is set out in section 102QE of the Act. The father did not make an application under section 102QE for leave to bring proceedings.

8. Because the father is unrepresented and it is difficult for him to navigate the Act, I gave him leave today to bring an oral application for leave pursuant to section 102QE to institute the contravention proceedings. Section 102QE(2) provides that the applicant is required to file an affidavit setting out all the occasions on which he has applied for leave under the section, any other proceedings he has instituted in any other Australian court or tribunal, and to disclose all relevant facts. I am satisfied, on what the father has said to the Court today, that he has not previously applied for leave under that section, that he has commenced no other proceedings in any Australian court or a tribunal other than an appeal from my decision of 11 August 2017, which he is entitled to do, and that he has disclosed all relevant facts.

9. The father said in his affidavit he wanted to pass on some food, sweets and so on, that he prepared for the children.  He said that he did not understand the orders to mean that he should post things to the children.  He also said he believes the children would never receive anything sent to them through the post.  I have a different view.  I found the mother to be likely to comply with orders, and there is no reason for me to now think otherwise.

10. I am not persuaded in the circumstances that leave should be granted to the father to bring contravention proceedings against the mother.  As leave is not granted, the contravention application is also dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Hughes

Date:  11 April 2018