Kailas and Samrat

[2008] FamCA 616

FAMILY COURT OF AUSTRALIA

KAILAS & SAMRAT [2008] FamCA 616

FAMILY LAW – CHILDREN - Best Interests

Rice & Aspland (1979) FLC 90-725
EJK & TSL (No. 4) [2006] FamCA 1022

APPLICANT: Mr Kailas

RESPONDENT: Ms Samrat

FILE NUMBER: PAC 3680 of 2007

DATE DELIVERED: 12 June 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 12 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Ms Arthur

SOLICITOR FOR THE RESPONDENT: Webb Thom & Associates

Orders

1. That the husband’s application filed on 12 February 2008 be and is hereby dismissed.

2. That save and except the husband’s application in a case filed on 10 March 2008, seeking spousal maintenance, all outstanding applications in a case be and are hereby dismissed. 

3. That the husband’s application for spousal maintenance be set down for hearing for half a day before Justice Collier at a date to be fixed by the listing director of this Court. 

4. That the husband file and serve any further material, fresh or updated, upon which he seeks to rely within 14 days from today’s date.

5. That the wife file and serve any further material she seeks to rely upon which she seeks to rely upon within 14 days thereafter.

6. That the wife’s costs of this day be reserved to be determined with any other applications for costs at the conclusion of the hearing for spousal maintenance. 

IT IS NOTED that publication of this judgment under the pseudonym Kailas & Samrat is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3680 of 2007

MR KAILAS

Applicant

And

MS SAMRAT

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter has progressed this afternoon through two reviews, the results of which were that i) the matter remains in this Court and ii) procedural orders made by a Deputy Registrar were confirmed, but which related to the doing of things on dates now passed.  The matter thus remaining within the jurisdiction of this Court, counsel for the respondent has made an oral application that the husband’s application for final orders filed on 12 February 2008 be dismissed.  Her application is based on the line of authority commencing with the decision in Rice & Aspland[1].

   [1] (1979) FLC 90-725

Brief Background

1. The husband was born in August 1965.

2. The wife was born in December 1970.

3. The parties married in February 1997.

4. The subject child was born in May 2002. 

5. The parties separated on 10 February 2006.

6. On 27 September 2006 orders were made in the Federal Magistrates Court in Sydney providing that the subject child live with the mother and have time with the father as agreed between the parties.

7. A decree nisi for dissolution of the parties’ marriage was pronounced on 3 September 2007. 

The Application of the Husband

1. The husband’s application filed on 12 February 2008 seeks the following orders:

   (i)That the Respondent stop working as an agent for the third parties to influence the child against the Applicant.

   (ii)That the child be allowed to live with the Applicant father from Monday to Friday each and every week.

   (iii)That the Applicant father be given the responsibility of the day to day care and development of the child.

   (iv)That if the Applicant is temporarily unable to take care of the child because of his own ill health or needing to travel overseas then the Respondent take care of the child during such period.

   (v)That the Respondent be allowed to have the child living with her on Saturday and Sunday of each and every week.

The Affidavit Material

1. In the course of these proceedings the husband has filed a significant number of affidavits.  These might be identified as follows:

   a)Affidavit filed 13 February 2008

   b)Affidavit filed 20 February 2008

   c)Affidavit filed 21 February 2008

   d)Affidavit filed  7 March 2008

   e)Affidavit filed 10 March 2008

   f)Affidavit filed 17 March 2008

   g)Affidavit filed 7 April 2008

   h)Affidavit filed 10 April 2008

   i)Affidavit filed 14 May 2008

   j)Affidavit filed 10 June 2008.

2. In those affidavits the husband raises various suggestions and allegations that his health has been detrimentally affected by people he describes as agents.  That appears to be where the bulk of the material set out in those affidavits goes and the husband is clearly asserting that somebody is determined to do him ill and harm him.  The husband’s suggests a number of ways in which this is done including the use of an unidentified device.  A very small part of the husband's material actually deals with the issue of what is best for the parties' child.

Discussion

1. I am satisfied having regard to a number of reported decisions, the last of which is EJK & TSL (No. 4) [2006] FamCA 1022, then confirming earlier decisions, that it is a matter for a judge’s discretion whether or not a matter is to be dealt with at a threshold level or after a substantive hearing. In this case it is clear that the issue needs be determined sooner rather than later. The applicant has invested a very great deal in these present applications, that however of course is not the determining factor.

2. I have come to the view that in the circumstances of this case, and having regard to the material that has been filed by the father and the things that he has told me in the course of submissions today, that it is important, as I say, that the matter be dealt with sooner rather than later and accordingly I propose to deal with it as a threshold issue.

3. The Orders made in the Federal Magistrates Court in Sydney on 27 September 2006, were made as final orders.  It is the father’s assertion that his consent to those Orders was given subject to some unidentified form of duress.  Under the terms of those orders, the father was to see the child as agreed between the parties.  The only manner in which he apparently wanted to see the child, up until he filed his present application, was at a distance. 

4. What is clear in my view, is that it is necessary for a change in circumstance or fresh circumstances to be demonstrated. However it is not necessary that I look to each of the sections of the Act dealing with parenting so as to reach a determination. I am satisfied that it is not necessary for me to consider in detail and deal separately with the matters set out in s.60CC(2), (3) and (4) of the Family Law Act. I am satisfied that in this case I can, at a threshold level, make a determination on the material available and the assertions and submissions of the husband.

5. Having done this, that is; read the material and heard the father at great length, I have come to the conclusion that he has not demonstrated a change in circumstances or established fresh circumstances that require the matter to proceed to a further hearing.  I am not persuaded his assertion that he was not in a position to care for the child previously, and is now in a position to do so is sufficient by way of change in circumstances, or the creation of fresh circumstances as contemplated by the authorities to require a further hearing.

6. Indeed notwithstanding the husband's assertion in this regard, he tells me that he would need to make further arrangements before the child could live with him in a proper and adequate situation. 

7. The husband has put nothing to me that directly involves the wife to demonstrate that the child is in any risk, danger or less than desirable situation living with her mother.  Once again the husband's broadcast allegations concerning third parties or agents seems to subsume any direct evidence in this regard, in other words the husband seems to spend much of his time in his affidavits, and his submissions, railing against these unidentified and unknown people, and suggesting they (whoever they are) are putting his wife up to doing things that have the effect of detrimentally affecting him.  The father, despite his earnest endeavours has been unable to take me to any matter, let alone to any evidence, to demonstrate a change has occurred or any new factor or matter has emerged relating to the care of the child. 

8. Accordingly I am not satisfied that there has been established a change in circumstances, or the existence of fresh circumstances, which require this matter to be further litigated.  I propose accordingly to dismiss the husband’s application. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier

Associate: 

Date:  7 August 2008