GUPTA & GUPTA (No.3)

[2019] FCCA 3600

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUPTA & GUPTA (No.3) [2019] FCCA 3600

Catchwords:
FAMILY LAW – Application for leave to commence proceedings where orders previously made restraining applicant from commencing any further family law proceedings without leave first obtained – No leave granted.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60I, 102QB, 102QE, 102QF

Applicant: MR GUPTA

Respondent: MS GUPTA

File Number: PAC 5828 of 2008

Judgment of: Judge Obradovic

Hearing date: 23 October 2019

Date of Last Submission: 23 October 2019

Delivered at: Parramatta

Delivered on: 13 December 2019

REPRESENTATION

Appearing for the Applicant: In person

Appearing for the Respondent: No appearance

ORDERS

1. The application for leave to commence proceedings is dismissed.

2. The Initiating Application filed 7 May 2019 is dismissed.

3. The Application Contravention filed 23 September 2019 is dismissed.

4. Remove all outstanding issues from list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Gupta & Gupta (No.3) 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

Introduction

1. The applicant father Mr Gupta (“father”) and the respondent mother Ms Gupta (“mother”) have two children together, J who will be 15 in two months and S who is 10 years old.

2. Final parenting orders were made on 11 August 2017. At the time of the making of those orders the Court delivered a very detailed judgment, setting out its findings and the reasons for the orders which were made.

3. On the same day, following the summary dismissal of an Application-Contravention which had been filed on 20 June 2017, the Court made the following order:

   The father is restrained from commencing any further Family Law proceedings involving the mother or the children without first obtaining leave of the Court.

4. That order made by Judge Hughes on 11 August 2017 was an order made pursuant to s102QB Family Law Act 1975 (Cth)[1].

   [1] See orders of Her Honour made on 10 April 2018

5. An application for leave to institute proceedings where an order has been made prohibiting a person from instituting proceedings must be supported by an affidavit that lists all the occasions on which the applicant has applied for leave under s102QE, lists all other proceedings the applicant has instituted in any Australian Court and discloses all relevant facts about the application, whether supporting or adverse to the application, which are known to the applicant.[2]

   [2] s102QE

6. The Court must dismiss the application if it considers the application vexatious and may dismiss the application if the affidavit filed with the application does not substantially comply with section 102QE(3).[3]  An order dismissing the application may be dealt with in Chambers and without an oral hearing.[4]

   [3] s102QF

   [4] s102QF(3)

7. On 23 October 2019, the Court heard an application for leave to be granted to the father to commence parenting proceedings. These are the reasons for judgment in respect of that application.

8. In support of the application for leave the father relied on the following documents:

   a)Three affidavits of father filed 7 May 2019;

   b)Affidavit of Dr A sworn/affirmed on 17 October 2019 and filed on 22 October 2019;

   c)Written submissions handed up on the day titled “Father’s Submissions Dt: 23^rd Oct 2019”;

   d)Chronology prepared by the father;

   e)Exhibit 1 – being three personal references for the father – all requesting “an opportunity for a second chance” to the father “while you make a fair decision”.

9. In order to properly understand the present application for leave to commence proceedings, it is appropriate to summarise the relevant procedural history of the family law proceedings:

Date	Event
05.12.2008	Father files Initiating Application in Family Court of Australia seeking parenting and parentage orders
16.02.2009	Orders made adjourning proceedings to 16 March 2009
16.03.2009	Orders made dismissing Initiating Application (no appearance)
10.05.2010	Mother files Initiating Application in Family Court of Australia seeking parenting and property orders
22.06.2010	Orders made for substituted service made
27.08.2010	Orders made listing matter for undefended hearing and other procedural orders
25.10.2010	Hearing (no appearance by father). Judgment reserved.
18.10.2010	Judgment delivered and orders made, including orders for mother to have sole parental responsibility for children, children to live with mother and spend time with father as agreed. Orders made permitting mother and children to travel outside Australia. Property orders made.
16.05.2015	Father files Initiating Application in Federal Circuit Court of Australia seeking parenting orders
24.07.2015	Father attempts to file an Application in a Case (annexed to Affidavit filed on same day) seeking child support orders
05.08.2015	Mother files Response to Initiating Application
07.08.2015	Orders made listing parenting proceedings for interim hearing on 22 December 2015 and for father to file amended application in a case
02.11.2015	Father files Amended Initiating Application
23.11.2015	Father files Application in a Case seeking child support orders, inter alia, so he can travel to India
11.12.2015	Father files Further Amended Initiating Application
16.12.2915	Mother files Amended Response
22.12.2015	Orders made that child support Registrar be stayed from collecting a debt owed by father otherwise summarily dismissing balance of application in a case; Interim parenting orders made for supervised time, child inclusive child dispute conference and independent children’s lawyer appointed; Matter listed for directions on 14 April 2016; Reasons given ex tempore
28.01.2016	Father files Application in a Case seeking further parenting orders
30.01.2016	Orders made in chambers vacating 14 April 2016, matter listed for directions 8 July 2016
04.02.2016	Father files Application in an Appeal seeking an extension of time to file Notice of Appeal against orders made on 22 December 2015
08.07.2016	Orders made directing father to serve mother with material filed; matter listed for directions on 26 July 2016
26.07.2016	Orders made adjourning proceedings to 26 October 2016. Father not served mother with documents as directed
10.08.2016	Father files Application in a Case requesting to have an interim hearing by end of August or early September 2016… [and] to freeze the property at A Street, Suburb B… against sale or transfer or mortgaged to any other property by the respondent. This property was transferred to the mother pursuant to final property orders made on 18 October 2010.
26.10.2016	Orders made for trial affidavits to be filed and served, matter to be listed for compliance check on 21 December 2016
17.11.2016	Orders made in chambers listing Notice of Objection to subpoena on 1 December 2016
29.11.2016	Orders made in chambers listing Notice of Objection to subpoena to 21 December 2016 (vacating 1 December 2016)
21.12.2016	Orders made listing matter for final hearing for two days on 20 and 21 February 2017. Notice of Objection filed by mother withdrawn
21-22.02.2017	Final Hearing commences, father’s application for adjournment dismissed; orders staying collection of child support arrears discharged; proceedings adjourned part-heard to 15 and 16 May 2017; Father’s oral application for supervised time denied
11.04.2017	Orders made dealing with Objection to Subpoena
04.05.2017	Father files Application in a Case regarding subpoena
15-17.05.2017	Final Hearing continues over 3 days; Application in a Case filed 4 May 2017 is dismissed; Judgment reserved
29.06.2017	Father files Application Contravention
11.08.2017	Final Orders made and Reasons for Judgment published. Application Contravention filed 29 June 2017 summarily dismissed Orders made restraining father from commencing any further family law proceedings without leave first obtained (s102QB)
06.09.2017	Father files Notice of Appeal in respect of Orders made on 11 August 2017, appeal dismissed in February 2018
30.11.2017	Father files Application Contravention (without leave first obtained) and Application in a Case seeking stay of final orders
10.04.2018	Orders made granting leave to withdraw application for stay Orders made granting leave to father to make oral application for leave to commence proceedings; Such leave not granted Orders made dismissing Application Contravention on basis no leave to file had been granted
30.07.2018	Mother files Application Contravention returnable on 24 September 2018
24.09.2019	Orders made dismissing Application Contravention (no appearance by mother)
17.01.2019	Father files Application in a Case seeking leave to commence proceedings and mediation
18.03.2019	Orders made dismissing application for leave to commence proceedings; Application in a Case dismissed; Short ex tempore reasons given
07.05.2019	Father files Initiating Application seeking parenting and child support orders; seeking leave to commence proceedings; Returnable 29 July 2019
29.07.2019	Orders made for father to file affidavits and listing matter for submissions on leave argument on 23 October 2019; Father handed up written submissions
23.09.2019	Father files Application  Contravention returnable 10 February 2020 (no leave granted nor sought)
23.10.2019	Hearing of application to grant leave to commence proceedings being Initiating Application filed 7 May 2019; Judgment reserved

1. There is nothing new in the parenting application now sought to be filed by the father. The issues have all previously been dealt with. The father’s submission in respect of the leave application attempts to address s60CC matters, it speaks of “a Universal fact that no step father will look after the children of someone else…” and the children are at risk from harm in the care of the mother. The father mostly raises historical matters pre-dating the 2017 final orders. He still seeks to vary child support which was determined in February 2016.

2. The father’s affidavit filed 7 May 2019 headed “Req for URGENT LISTING” reads (in its entirety):

   1. I seek leave to urgently list this matter, as I have not seen my children for a long time and do not wish to contravene any previous court orders.

   2. I fear that my children have been neglected and possibly deprived of care, responsibilities, education, well being & health.

   3. Both the grand parents also wish to see the grand children & also talk to them on regular basis. Which is not the case at the current moment of time.

   4. I wish to see my children, I wish to visit their schools. I wish to check their health with their regular health practitioners, which I cant (sic) do with current order.

   5. Thus I wish to vary the orders to have some basic access be it 4 hrs / 8 hrs / 1 day to ensure children are being treated well, they healthy (sic) & doing well culturally & religiously.

   6. Thus I plead on URGENT listing. (Note: I am going through depression of not being able to see my children & spend time with them.)

   7. I shall provide both medical evidence & reference letters as form of exhibits on the next Court date.

3. The affidavit headed “For Parenting” is of no assistance. It is 15 short paragraphs of assertions about what appear to be historical matters, with the annexures to the affidavit being orders, reasons for judgment and a s60I certificate.

4. The affidavit headed “For Child Support” is likewise of no assistance in respect of any of the relevant matters the Court needs to consider in the leave application.

5. The affidavit of Dr A states:

   I have noticed him to be distressed and been going through mental and emotional imbalances. He has described symptoms of anxiety, depression, insomnia, headaches and body aches. Much of which has been exacerbated by not having be able to get back to full time work due to the current conviction on records. This has been major concern for Mr Gupta.

   The balance of the affidavit speaks of the doctor being aware that the father has been convicted of indecent assault, that he goes to the temple, that he has not been permitted to travel since 2016, and little else.

6. None of the affidavits filed by the father comply with subsection 102QE(3).

7. The Court is satisfied in any event given the history of litigation and that the father is again attempting to agitate matters which have been determined, that the proceedings as sought to be commenced by way of Initiating Application filed 7 May 2019 are vexatious. 

8. Accordingly, the application for leave is dismissed pursuant to s102QF.

Application Contravention filed 23 September 2019

1. On 23 September2019 the father filed an Application-Contravention. Despite the orders made on 11 August 2017, the father did not seek leave to file the Application-Contravention. The Court will treat his application for leave heard on 23 October 2019 as if it also sought leave to file the Application-Contravention.  

2. For similar reasons as given in respect of leave to commence proceedings sought in the Initiating Application, the application for leave to commence contravention proceedings is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 13 December 2019