Harshani & Darnith
[2022] FedCFamC1F 74
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Harshani & Darnith [2022] FedCFamC1F 74
File number(s): MLC 1556 of 2010 Judgment of: STRUM J Date of judgment: 27 January 2022 Catchwords: FAMILY LAW – CHILDREN – Enforcement of orders – Recovery order sought – Where the child has been withheld and has not spent time with the father in two years – Where the child has gone from childhood to early teenage years – Recovery order denied. Legislation: Evidence Act 1995 (Cth) s 144
Family Law Act 1975 (Cth) s 102NA
Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 27 January 2022 Place: Melbourne Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: The Respondent appeared in person ORDERS
MLC 1556 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HARSHANI
Applicant
AND: MS DARNITH
Respondent
ORDER MADE BY:
STRUM J
DATE OF ORDER:
27 JANUARY 2022
THE COURT ORDERS THAT:
1.The Father is granted leave to file his Application in a Proceeding filed 30 December 2021 pursuant to Paragraph 11 of the Orders made on 25 July 2016.
2.Within 14 days, the Father file an Amended Initiating Application of Application in a Proceeding, as he may be advised, and any affidavit material in support, noting that his affidavit is to depose specifically to the conditions of his accommodation and he is to include an affidavit from the lessee of the premises specifying the conditions granted to the Father to live at S Street, Suburb T in the State of Victoria.
3.14 days thereafter, the Mother file any response and affidavit in support.
4.The matter be adjourned to Senior Judicial Registrar Conlan at 10:00am on 8 April 2022 for interim defended hearing.
5.The requirement of s.102NA(2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in the proceedings.
Child Impact Report
6.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and G born in 2008 (the child) are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
Part 1 of the event will occur by video, using Microsoft Teams, on 30 March 2022, with:
(a)the Applicant to attend at 9.00am; and
(b)the Respondent to attend at 10.30am.
Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
Part 2 of the event will occur in person at the Melbourne registry at 306 William Street, Melbourne on the morning of 1 April 2022, unless otherwise advised. Specific details regarding the attendance of the parties and the child on this date will be provided to the parties in Part 1 of the event.
7.Each party will do all things necessary to ensure the child attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
8.The parties and the child shall continue to attend at such times, dates and places as the Court Child Expert may advise.
9.Not later than 4.00 pm on 3 February 2022 the parties must provide their contact telephone numbers and email addresses to …@fcfcoa.gov.au.
10.Pursuant to order 6 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)the child’s wishes to spend time with his father;
(b)any agreement reached between the parties;
(c)identification of key issues requiring resolution;
(d)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(e)the impact of the issues/dispute before the Court on the child;
(f)any other matters that the Court Child Expert considers important to the welfare or best interests of the child.
11.Upon completion, the Child Impact Report shall be provided to the Court for release to the parties, including by way of order made in Chambers.
12.The Court Child Expert will be at liberty to inspect any material filed by the parties.
AND THE COURT NOTES THAT:
A.UPON NOTING that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in the proceedings;
And further noting that the parties have been advised by the court:
(a)That pursuant to those requirements, neither party may cross-examine the other party personally;
(b)That pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;
(c)As to the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
(d)That a copy of these orders will be provided by the Court to Legal Aid, which administers the said scheme.
B.The Senior Judicial Registrar may determine whether there should be cross-examination on the adjourned date in relation to the Father’s resident arrangements.
C.The Honourable Justice Strum has provided reasons which will be settled in Chambers and provided to the parties.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Harshani & Darnith has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
STRUM J:
I have before me an Application in a Proceeding in respect of which the applicant father seeks the leave of the Court to file same, pursuant to Orders made by the Honourable Justice Macmillan on 25 July 2016 partly by consent and partly by the Court. Paragraph 11 of those Orders restrained each of the parties from instituting any further proceeding without having filed an Application in a Case seeking leave to institute proceedings, together with an affidavit setting out the occasions on which the applicant has previously sought leave and disclosing all relevant facts about the application, whether supporting or adverse to the application, which are known to the applicant. With some degree of reluctance, I grant the father leave to file an application, for the reasons which follow.
These proceedings concern the child of the parties’ relationship, G, born in 2008 and presently aged 13 years. I infer that the parties separated shortly after G’s birth, because the matter has a file number bearing the year 2012, and there were proceedings between the parties which culminated in the making of the final Orders in 2016, to which I have referred. In summary, those Orders provided for the mother to have sole parental responsibility for the child, save that before making any decision about major long term issues concerning the child, she was required to advise the father of the issue to be determined, invite him to express his views on the issue, and take any issues he expressed into account in making her decision.
The Orders further provided for G to live with the mother and spend time with the father. In summary, the orders provide for time with the father during school terms, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, during school term holidays and, most relevantly for the present purposes, during the long summer holidays, as agreed in writing between the parents. Paragraph 4(c) of the orders continued that in default of agreement in relation to the long summer holidays, in the 2016/2017 long summer holidays G was to spend time with the father on a week about basis to commence at 10:00 am on the first Saturday of the holidays, until 10:00 am on the following Saturday, and alternating thereafter.
The orders then provide for time commencing in the 2017/2018 long summer holidays, for the first half of the holidays, including a method of how that was to be calculated which is not germane for present purposes. Unusually, that order, other than specifying what was to occur in 2017/2018, did not provide for a continuing regime, unlike in the case of long summer holidays commencing in even numbered years. I do not know why that was the case; it may have been a drafting oversight. However, the orders are clearly predicated upon the premise that G was to spend time during the long summer holidays as agreed in writing between the parents. Both parties have agreed, in my exchanges with them, that the operation of the orders was not limited to 2017/2018.
The father, by his Application in a Proceeding, seeks, in addition to leave to file the application, that the application be listed before a judicial officer other than Senior Judicial Registrar Hoult or the Honourable Justice Williams. The matter has come before me today because I had some availability to deal with it. I do not wish either of the parties to think that either the Senior Judicial Registrar or Williams J have recused themselves from this case or that I have any view as to whether they should do so. Indeed, I note that these proceedings are returnable in late April before Williams J in relation to a number of contravention applications. Similarly, as I advised the parties, I will adjourn the Application in a Case to 8 April 2022 before Senior Judicial Registrar Conlan. Again, I do not wish the father or the mother to read anything into that; it is simply an availability of judicial resources.
The nub of the father’s application is found in paragraph 4, where he seeks that the mother, her servants and/or agents forthwith return the child, G, into the father’s care. I have a difficulty with the order sought because, on one view, the orders do not provide for specific times for G to spend summer holiday time with the father after the 2017/2018 holidays in long summer holidays commencing in odd numbered years. However, even if it were the intention of the parties, as appears from their concessions to me today, and in particular the concession of the mother, that paragraph 4(c)(ii) of the 2016 orders were to operate in alternating years thereafter, then the father would be spending time in these summer holidays, being the 2021/2022 summer holidays, in accordance with the regime specified for the 2017/2018 long summer holidays, which would have given him the first half of the holidays.
Therefore, insofar as the father seeks an order that the mother “return” the child into the father’s care, I am not satisfied that the father has any entitlement under the orders made in 2016, to G being in his care, as at today, or indeed this week or in the second half of the holidays. That being so, I then express further concern in relation to the next order the father seeks, which is that should the mother fail to “return G into the father’s care … a recovery order issue authorising and directing the Marshal, all officers of the Australian Federal Police, and all officers of the police forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required and, if necessary, by force … to find and recover the child, G, and … to deliver G to the father …”.
They are the relevant provisions of the orders that the father seeks, for present purposes. I expressed to the father real concern about the draconian nature of a recovery order seeking to force the child, by police, to be delivered to his care, in circumstances where the child is now 13 years of age and has not seen the father since early 2020, possibly through no fault of the father’s. Even if I am wrong in my interpretation as to whether the father has any entitlement to G being in his care at the present time, the child is now a teenager, and I would wish to have some evidence of his wishes, in circumstances where he has not spent time with the father for two years. I add that I am not in any way critical of the father for that. At present, he tells me that he was in Country B from March 2020 until April 2021 for reasons beyond his control, namely, due to the COVID-19 pandemic. The impact of COVID-19 on the ability of people to travel internationally, and in particular the ability of Australian citizens to return to Australia is a matter of common knowledge which I can take into account under section 144 of the Evidence Act1995 (Cth). The father tells me that, since his return, the mother has not made the child available to him, and I understand that there are contravention applications listed before Williams J at the end of April, when her Honour will deal with those issues.
To his credit, the father did indicate to me that he did not seriously press that the child be subject to a recovery order today and be removed, possibly by force, from his mother’s care, by police. The mother, assisted by an interpreter, explained to me why she says she is not required to make G available to the father. She referred me to paragraph 8(d) of the 2016 Orders, which requires the father, amongst other things, to ensure that the child has his own bedroom and separate bed. The mother disputes that the child has his own bedroom and separate bed, as required by the Orders, but she has no direct knowledge of the father’s residence. As I understand her position, she proceeds upon the basis of speculation and hearsay evidence.
The mother has not visited the premises and has no direct knowledge of the state thereof. I was referred to an affidavit of the father filed on 5 August 2021, where the father exhibits photos of what he says is G’s bedroom. I was concerned about the incomplete state of the evidence, and I sought that Mr Harshani, the applicant father, who is a legal practitioner and who tells me that he is admitted to practice in the Commonwealth of Australia and in the State of Queensland, give evidence on oath. He chose to take an affirmation, and his evidence was consistent with that which he had put to me in his submissions. Namely, the father gave evidence that he and his new wife live in a two bedroom unit at unit S Street, Suburb T in this State. Other than his new wife and him, the father says there are no other inhabitants of or occupants of the premises. Of the two bedrooms, one is occupied by his new wife and him and the other is designated for G, but G has not yet been able to spend time there because the mother has not made him available to do so. The father explained to me that the lease is not in his name because, when the lease was entered into he was still in Country B. Accordingly, his son-in-law signed the lease and is the lessee of the premises, but has given a licence of some sort, or permission, for the father and his wife to reside there.
The father said on oath that he pays all of the rent for those premises, in the sum of $1,560 per calendar month. Even if the mother were correct in regards to the father’s residence, that would not, in my opinion, justify her withholding G from spending time with the father. The orders are not conditional one upon the other. In particular, her obligation to enable G to spend time with the father is not expressed to be conditional upon the father complying with paragraph (8)(d). If she has any concerns, she can, with the leave of the Court, bring such application as she may be advised.
Regrettably, I cannot take the matter further today because, when I offered the mother the opportunity to cross-examine the father, she told me that there were intervention orders between the parties. That poses a problem by reason of the provisions of section 102NA of the Family Law Act 1975 (Cth), as amended.
Whilst I have serious concerns about the mother’s failure to make G available to spend time with the father, I cannot make any findings. However, I note that she has been found on a number of occasions to have breached the parenting orders since 2016 and that there are a number of counts pending against her to be determined at the end of April of this year. I cannot take the matter further today.
If there were an application for G to spend specified time with the father, which there is not at present, a further consideration is, as I endeavoured to explain to the father, that I would need some evidence as to G’s wishes before the matter could be properly determined. This is in circumstances where there is a 13 year old boy who has not seen his father for two years, at a stage in his life where he has progressed from childhood into his early teenage years.
The Orders of 2016 remain binding on both parties, and I expect Ms Darnith to comply with those Orders or to bring such application as she may be advised. I want her to be under no misapprehension that the fact I am not dealing with the matter today should not be seen by her to be any imprimatur by the Court not to make G available to spend time with his father when school term resumes on 1 February this year, as she has told me it will. Those orders are binding upon her and she must comply with them.
For the reasons outlined above, I am of the opinion that the recovery application the father seeks to file may be inutile, as I am not satisfied that Paragraphs (4) and (5), which refer to G “returning” into the father’s care, can properly be made when the father has not persuaded me that, at present, he has any entitlement to G being in his care at present. In circumstances where I require some short, up-to-date evidence regarding G, I proposed to both parties that I adjourn the matter and that a child impact report be prepared. I would have expected the father to welcome that with open arms, because that, in my view, will put him in a position to properly prosecute such application as he may wish to bring. I was astounded that he declined such a report, in circumstances where, after considerable effort by the Court, a child impact report has been able to be obtained as promptly as it has.
The mother has indicated that she would like a child impact report. Ultimately, I must be guided by what is in G’s best interests. I have two warring parents who are not even able to agree on the circumstances in which the father lives. It is insufficient for the mother to proceed upon speculation or presumption or hearsay and not upon any admissible evidence.
In the circumstances, I am not going to dismiss the father’s application. I am going to give him an opportunity to file an initiating application or an amended application in a proceeding, as he may be advised, together with a supporting affidavit by him in which he deposes, in particular, to the conditions of his accommodation; annexes a copy of the rental agreement in respect of the premises; annexes photos of the various rooms in the house, as well as an affidavit by his son-in-law, who he tells me is the lessee of the premises. The father will have 14 days to do that. The mother will then have another 14 days to file any response, whether it be to an Initiating Application or to an amended Application in a Proceeding, and any affidavit material in support by her. I propose to adjourn the matter to 8 April 2022 and require the parties and the children to attend child impact report interviews in the interim.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 21 February 2022
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