Harshani and Darnith (No 2)

[2019] FamCA 546

FAMILY COURT OF AUSTRALIA

HARSHANI & DARNITH (NO. 2) [2019] FamCA 546

FAMILY LAW – PRACTICE AND PROCEDURE – Case Management

APPLICANT: Mr Harshani

RESPONDENT: Ms Darnith

FILE NUMBER: MLC 1556 of 2010

DATE DELIVERED: 13 August 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 13 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT

1. The husband’s Application in a Case filed 14 June 2019 wherein he seeks leave to file a Contravention application and the mother’s response thereto be adjourned to the Judicial Duty List on 10 September 2019 at 10.00 am (“the adjourned date”).

2. IT IS DIRECTED that the case coordinator forthwith book an accredited interpreter for the mother for the adjourned date.

3. My reasons for decision this day be transcribed and when settled placed on the court file and a copy provided to the parties.

4. The father’s proposed contravention application dated 11 June 2019 be marked Exhibit “F1” and remain on the Court file.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harshani & Darnith has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 1556 of 2010

Mr Harshani

Applicant

And

Ms Darnith

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the judicial duty list.  It is the return date of the father’s application in a case filed on 14 June 2019 in which he seeks “leave to file this contravention application along with the already filed contravention application dated 19 February 2018”.  Leave is required because the final orders made by Macmillan J on 25 July 2016 provide as follows:

   11.     Each of the father and mother be and are hereby restrained from instituting any further proceedings without first having filed an application in a case (such application not be served upon the other party) seeking leave to institute proceedings together with an affidavit setting out:

   a)       the occasions on which the applicant has previously sought leave; and

   b)      disclosing all relevant facts about the application whether supporting or adverse to the application which are known to the applicant.

2. It appears that the father’s application in a case was served on the mother notwithstanding that the above order specifies that such an application not be served. 

3. On 9 August 2019, the mother filed a response to an application in a case.  That is folio 263 on the Court file.  In support of the mother’s response to the father’s application in a case, she filed an affidavit affirmed by her on 9 August 2019 (folio 264 on the Court file).  The mother opposes the father’s application for leave and seeks two further orders which I will come to momentarily.

4. The mother requires the services of an interpreter.  That is apparent from notes on the Court file.  However, for some reason, an interpreter has not been arranged for her for today.  It is most unfortunate. The mother says that she attended the Registry last week and asked verbally over the counter for an interpreter to be booked for today. She understands that she may not have been considered eligible for an interpreter because she was proposing to attend court in response to an application which was not supposed to be served on her.  

5. My associate has endeavoured to have an interpreter booked to attend Court today for the mother, but there is no practitioner available to come to Court in person.  We called the “On-call” service and only an unaccredited interpreter was available.

6. Understandably, the mother’s ability to communicate with me is somewhat hindered by her lack of fluency with the English language, although she has said various things which I think I comprehend.  The mother says that her English is not good enough to be able to tell me today all that she thinks I should know before making a decision about the father’s contravention application. However, it is unclear whether the mother seeks to make submissions about leave being granted or the substantive allegations of contravention.

7. I decided to proceed to look at the father’s application having regard to the fact that the operative order provides that it should not be served on the mother at first instance.

8. The father has informed the Court that he is continuing to have weekend and holiday time with G and he is having electronic communication with him by telephone. Notably, the father has indicated to the Court that if there was clarification around certain aspects of the final parenting orders then he would not proceed with the contravention application.   

9. The parties interpret paragraph 4 of the final order as requiring the changeover point for time spent on a school day to be at the school premises.  That is an interpretation which is open to them.  Paragraph 6 of the Order provides, “For the purpose of any changeovers that do not occur at the child’s school, such changeover shall take place at a venue to be agreed between the parents in writing or in default as nominated by the mother.” The parties have interpreted that provision as requiring the mother to make a nomination on each occasion that an access changeover falls on a non-school day. It appears that paragraph 6 of the final order could be amended to make clear where the alternative changeover is to take place on all occasions when it is not to take place at school. Then there would not be any need for the mother to make a nomination.

10. I might have misunderstood the mother but my impression from both parties is that they would currently be content to nominate Suburb P Police Station as the alternative changeover point when changeovers are not to be effected at school.

11. In the event that the father were to be granted leave to proceed with his contravention application, Section 70NBA(1) of the Family Law Act provides that, where there has been a contravention application, regardless of whether the person is found to have committed the contravention or not, the Court has power to vary the primary order.  In this case, the primary order would be the order of 25 July 2016. This is a means by which the parents could be relieved of the potentiality of being required to file another application for leave to file an application for consent orders – rigmarole that does not bear thinking about.

12. My preliminary view is that I would accede to the father’s application for leave to proceed with his contravention application. However, his contravention application is not appropriately particularised.  All things being equal, the father’s contravention application would be listed before a registrar, who could make such orders as would be necessary for the father to put his contravention application in appropriate form so he can proceed with it.  I have not considered under what delegated power the registrar would make those directions but that is, apparently, the current case management. However, I am not ordering that today. First, because the father does not press me to do so. Second, because it appears that the parents might reach an agreed resolution when the mother has an interpreter and is able to participate in the proceedings. This is a huge court file representing many years of litigation in this court. I do not want to stand in the way of the parents arriving at a consensual resolution.

13. It is appropriate for the proceedings (such as they are) to come back before a judge because the relief sought is for leave to file proceedings which should be decided by a judge.

14. Before leaving the father’s application for leave to file a contravention application, I note that the father seeks that the contravention application be heard with a contravention application filed by him on 19 February 2018.  I cannot find that earlier contravention application on the Court file.  I note that in court volume 11 of 13, folio 251 refers to an application filed on 19 February 2018 but it has been crossed out.  That would indicate that the earlier application to which the father refers was filed but then removed from the court file. My associate showed each parent the endorsements on the file cover.

15. Another aspect of this matter is that the current injunction about instituting further proceedings relates only to the institution of proceedings. It does not catch the wife’s ‘response’. The mother’s response seeks the following orders:

    2.        Request from the court to vary the orders 7 of final orders made on 25 July 2016 whilst the Applicant in overseas intending to avoid child to expose abuse by his black money generating overseas agents.

    3.        Request the court to investigate for allegedly deceitful and court contempt action done by the applicant father on 09 May 2016 by submitting a preplanned medical certificate to the family court while applicant father appearing at Administrative Appeal Tribunal (AAT). The pre-planned medical certificate was submitted to the court by applicant father’s daughter “Ms Y and current wife Ms R, DOB- …1979 and Country B Passport no …) as mother concerned and not giving her consent to Applicant to expose the child if Applicant along with his current partner and daughter done so.

16. The court makes decisions based on evidence, it does not conduct investigations. I have indicated to the mother that my preliminary view is that the orders she seeks are incomprehensible.

17. It is essential that on the next return date the mother has an interpreter, so I will direct that that occur.

ORDERS DELIVERED

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 13 August 2019.

Associate: 

Date:  15 August 2019