Gupta & Gupta
[2025] FedCFamC2F 673
•23 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gupta & Gupta [2025] FedCFamC2F 673
File number(s): PAC 1415 of 2025 Judgment of: JUDGE NEWBRUN Date of judgment: 23 May 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Institution of proceedings – Leave to institute proceedings refused. Legislation: Family Law Act 1975 (Cth) ss 102QB, 102WE, 102QF Division: Division 2 Family Law Number of paragraphs: 25 Date of hearing: 16 May 2025 Place: Parramatta Appearing for the Applicant: In person Appearing for the Respondent: Did not participate ORDERS
PAC 1415 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GUPTA
Applicant
AND: MS GUPTA
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
23 MAY 2025
THE COURT ORDERS THAT:
1.Leave to commence proceedings is refused.
2.All extant applications are dismissed.
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).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
This is an application by Mr Gupta, the applicant father, aged 52 years, for leave to commence proceedings.
Leave is required because on 11 August 2017, her Honour Judge Hughes made an order pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”) prohibiting the father from commencing any further family law proceedings involving the mother or the children without first obtaining leave of the court.
The children are aged now 20 years (Mr J) and 16 years (S).
Her Honour on that occasion also made final orders providing for the mother to have sole parental responsibility for the two children, for the children to live with the mother, for the children to spend no time with the father unless agreed between the parties in writing, and for the father to be able to send letters, cards and gifts to the children. The father was further restrained pursuant to s 68B of the Act from, inter alia, approaching or entering the home or workplace of the mother or her husband, or the school attended by either of the children.
The Initiating Application was filed 25 March 2025. At the hearing the applicant tendered and was permitted to rely on an unfiled Amended Initiating Application bearing a date of 14 April 2025.
No orders were made for service of the Initiating Application and accordingly only the applicant appeared. The applicant relied on his affidavits filed 25 March 2025 and 30 April 2025. A further bundle of documents was tendered, along with a seven-page document containing written submissions, and the applicant made oral submissions. The Court has considered all of this material.
For the reasons that follow, the Court has determined to dismiss the application pursuant to s 102QF of the Act.
At the outset, the Court should note that the word “children” is used in these reasons for convenience in the same manner in which it is used by the applicant throughout his material, that is, to refer to the two children who were the subject of final parenting orders made by Judge Hughes on 11 August 2017. That term is, of course, inapt as one of the “children” is now an adult.
Section 102QE(3) of the Act provides that an applicant who is subject to a vexatious proceedings order must file alongside an application for leave to institute proceedings an affidavit that:
(a)lists all the occasions on which the applicant has applied for leave under this section; and
(b)lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c)discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
None of the applicant’s material makes any reference to occasions on which leave has previously been sought, nor does it contain anything resembling a list of proceedings instituted in other Australian courts or tribunals. The affidavit filed 25 March 2025 does contain an oblique reference to “a pending application at NCAT under s 16” (of the Child Protection (Offenders Registration) Act 2000), and annexes a judgment of the New South Wales Court of Criminal Appeal which appears to pertain to an application by the applicant for variation of bail conditions.
A perusal of the court file[1] reveals that the applicant has sought to institute further proceedings on numerous occasions since the Orders of 11 August 2017 were made, at least including by way of applications filed 30 November 2017, 17 January 2019, 7 May 2019, and 23 September 2019.
[1] PAC 5828 of 2008
The Court is satisfied by reason of the above that the applicant has not substantially complied with s 102QE. Accordingly, the application for leave will be dismissed.
Even if the applicant had substantially complied with s 102QE, the Court would have dismissed the application on its merits, which the Court will now briefly canvass.
The Amended Initiating Application names the mother as first respondent. It further names the eldest child as second respondent, along with “Child Support” and the King as the third and fourth respondents respectively.
Three final orders are sought:
1.I plead to remove all or any restraints on my children and wish to surrender the responsibility to the mother – [Name].
2.I plead to seek leave to have my Australian Passport returned immediately so as to travel to India, to visit my ailing mother/parents/family (or)
3.I plead to seek leave to issue clearance to Indian High Commission to issue Indian Passport immediately.
(As per original)
The affidavit filed alongside the application does not greatly assist in interpreting these proposed orders, nor did the other documentary material or the oral submissions.
A number of interlocutory orders are sought, in addition to leave to bring the application. The applicant also seeks, inter alia:
·An expedited hearing;
·Location orders in relation to the mother and children;
·Regular mediations with the children, potentially to also include the mother and stepfather;
·“To set child support debt to zero and refund all sums collected thus far”;
·“To refund the security deposit offered to the authority with interest, in order to travel overseas in Oct/Nov 2016, that wasn’t returned at that time”.
·Access to records pertaining to the children;
·A copy of birth certificates for both children;
·To spend time and communicate with both children.
At the outset, plainly no orders can be made in relation to the eldest child, who is now over 18 years of age and thus totally outside of the jurisdiction of this court. Naming the eldest child as a respondent on the application does not cure this problem and indeed was entirely inappropriate.
With respect to the relief sought, proposed Order 1 is not a competent order capable of being made. The Court could speculate that the reference to “remov[ing] all restraints” is a reference to the s 68B injunction imposed by the Orders of 11 August 2017. What is meant by “surrender the responsibility to the mother”, in circumstances where the mother holds sole parental responsibility, is entirely unclear.
The material makes no reference to the location of the applicant’s Australian passport. It is not being held by this court. Without more information, there is no reason to think that proposed Order 2 is an order capable of being made by this Court.
Although the meaning of proposed Order 3 is not entirely clear, it is plainly not a matter within the jurisdiction of this Court.
In circumstances where no competent final relief is sought, it is not necessary to consider the merits of the interlocutory relief sought, much of which suffers from similar defects.
The Court does not propose to set out the numerous matters raised by the applicant, many of which are historical in nature and predate the final orders of 11 August 2017. His chief complaint appears to be the curtailed nature of his relationship with his children which is an unfortunate but certainly not surprising result of the final orders (noting that a no time order was made). A submission was made that the children are at risk of harm, or are currently experiencing harm, in the care of the mother, but no evidence was proffered in support of that submission.
Again, the Court would observe that there is now only one child of the former relationship and that child is aged 16 years.
It is apparent that the applicant is attempting to relitigate matters that have previously been determined over the extensive history of these proceedings. The Court is satisfied that the application is vexatious, and accordingly, would dismiss the application for leave to commence proceedings on that basis as well.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 23 May 2025
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