Korrapati & Mishra (No 2)
[2024] FedCFamC1F 257
•18 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Korrapati & Mishra (No 2) [2024] FedCFamC1F 257
File number: BRC 1445 of 2020 Judgment of: CAREW J Date of judgment: 18 April 2024 Catchwords: FAMILY LAW – INTERIM PARENTING – Where the applicant mother filed an urgent interim application substantially seeking the same relief sought in her previous interim application which was largely unsuccessful – Where the applicant mother and children previously returned to Country C by interim order by consent upon an undertaking she would return for court appearances and she would return with the children for family report interviews – Where the respondent father sought a final order that the children live with him in Australia and a recovery order issue if the applicant mother failed to return the children to Australia – Where there has not been a sufficient change to the applicant mother’s circumstances since the previous application to be relieved of her undertaking – Where the applicant mother is bound by her undertaking to participate in the trial and family report interviews with the children in person in Australia.
FAMILY LAW – INTERIM PROPERTY – Where the applicant also sought relief in her interim application in relation to the property proceedings – Where the respondent sought summary dismissal of the property proceedings and the injunction preventing him from disposing of or encumbering assets be discharged – Where both parties criticise the other for not complying with their ongoing disclosure obligations – Where there was limited or no evidence on many issues – Where aside from enforcing a previous order for the payment of valuation fees, the interim application and response are dismissed.
Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth)
Cases cited: Korrapati & Mishra [2023] FedCFamC1F 735 Number of paragraphs: 35 Date of hearing: 18 April 2024 Place: Brisbane For the Applicant: Litigant in person For the Respondent: Litigant in person Solicitor for the Independent Children’s Lawyer: Ms Perkins, Wallace Perkins Family Law ORDER
BRC 1445 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KORRAPATI
Applicant
AND: MR MISHRA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
18 APRIL 2024
THE COURT ORDERS THAT:
1.The applicant is granted leave to appear at the hearing of her Application in a Proceeding filed 12 March 2024 by video link.
2.The respondent is to pay the balance of his share of the valuation fees to D Valuers within 48 hours of this Order.
3.Unless the parties forthwith agree that the valuation to be prepared by L Pty Ltd is no longer required, the applicant is to pay her one-half share of the valuation as required by paragraph 20 of the Order made on 25 August 2023 within 48 hours of this Order.
4.The Application in a Proceeding filed by the applicant on 12 March 2024 is otherwise dismissed.
5.The additional relief sought by the respondent in his Response filed 11 April 2024 is otherwise dismissed.
NOTATION
A.This matter is listed for final hearing before the Honourable Justice Carew for five days commencing 13 May 2024.
B.The applicant continues to be bound by her undertaking given on 12 March 2020 and is required to be participate in the trial and in the family report interviews in person in Australia.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAREW J:
Ms Korrapati is the applicant in substantive proceedings concerning parenting and property commenced by her in Australia in February 2020 despite her having lived in Country C since 2014. The respondent is her former husband, Mr Mishra, who has lived in Australia since 2016. The parties are dual citizens of Australia and Country C.
The substantive proceedings are listed for a final trial before me for five days commencing on 13 May 2024. The applicant and respondent continue to be self-represented.
The applicant filed an Application in a Proceeding on 12 March 2024 seeking substantially the same relief she sought in an Application in a Proceeding filed on 7 June 2023 (although the document was lodged on 16 May 2023 it was not sealed and therefore not filed until 7 June 2023) which was determined by me on 25 August 2023 and was largely unsuccessful. Trial directions were also made on that date.
The respondent filed a Response on 11 April 2024 not only seeking dismissal of the Application in a Proceeding but also seeking additional relief.
Apart from enforcing a previous order for the payment of valuation fees, I dismissed the Application in a Proceeding and the Response with reasons to follow. My reasons are set out below.
Relief sought in the Application in a Proceeding filed 12 March 2024
The matters for my determination concern the relief sought by the applicant including the following:
(a)Enforcement of the order made 25 August 2023 for the respondent to pay his one-half share of the fees for valuation of properties in Country C by D Valuers;
(b)Interim property settlement of $50,000;
(c)A mandatory injunction requiring the respondent to return to Australia a sum of $437,485 allegedly transferred by him overseas;
(d)An injunction restraining the respondent from transferring further funds from Australia;
(e)Revaluation of a property at Suburb W at the cost of the respondent;
(f)The appointment of a forensic accountant at the cost of the respondent “because of all this web of complexities in financial matters was deliberately created by the respondent”;
(g)The valuation of M1 Pty Ltd to be undertaken on audited financial statements;
(h)Further disclosure from the respondent;
(i)Adjournment of the trial;
(j)For the applicant to be permitted to participate in the trial, if it proceeds on the allocated dates, by video link; and
(k)For the applicant and children to be permitted to participate in the family report interviews scheduled for 22 April 2024 by video link.
Relief sought in the Response filed 11 April 2024
The respondent opposes the relief sought by the applicant and in turn seeks additional relief including the following:
(a)Summary dismissal of the applicant’s application for property settlement;
(b)If the property proceedings application is not summarily dismissed:
(i)Enforcement of the order made 25 August 2023 for the applicant to pay her one‑half share of the fees for valuation of his business to L Pty Ltd;
(ii)Interim property settlement of $50,000;
(c)A final parenting order that the children live with the respondent in Australia or Country C;
(d)A recovery order if the applicant fails to bring the children to Australia as required; and
(e)Discharge injunctions against the respondent made on 30 April 2021 that restrained him from disposing, encumbering, or otherwise dealing with any assets held by him, either solely or jointly, save and except in the ordinary course of business.
To the extent that each party seeks to “sanction” the other for alleged failure to comply with previous orders, the relief sought does not comply with the requirements contained in the Family Law Act 1975 (Cth) (“the Act”) and the Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth) in relation to either the form of the application or the identity of the alleged contraventions.
The independent children’s lawyer (“ICL”) opposes the relief sought in relation to the parenting dispute and contends that the applicant should be bound by her undertaking to attend in person for the family report interviews and the trial.
BACKGROUND
In reasons delivered on 25 August 2023,[1] I set out a brief chronology relevant to the matter at [3] – [11] which I set out below for convenience:
[1] Korrapati & Mishra [2023] FedCFamC1F 735.
The applicant is 41 years of age and a [finance professional] in [Country C]. The respondent is 43 years of age and [a finance professional in Region U] in Australia. The parties married in 2008 and separated in 2017. Both are Australian citizens although originally from [Country C].
The parties have two children. [X] was born [in] 2012 and [Y] was born [in] 2014. The children were born in Australia. The family returned to live in [Country C] in 2014.
The [respondent] returned to live in Australia in 2016. The [respondent] spent time with the children in [Country C] on a number of occasions between 2016 and 2019. In [late] 2019 the [respondent] brought the children to Australia. The [respondent] contends he did so with the [applicant’s] knowledge and consent but the [applicant] contends the children were abducted.
The [applicant] commenced proceedings in Australia on 9 February 2020 by filing an Initiating Application in the Federal Circuit Court of Australia (as that court was then called). The proceedings were transferred to this Court on 12 March 2020 upon the making of the interim order.
The interim order provided for the children to live with the [applicant] and, by consent, for her to be “permitted” to return to [Country C] with the children.
The order was made upon the [applicant’s] undertaking in the following terms:
A. [The applicant] will participate in the parenting and property proceedings BRC1445/2020 … in every respect and until final determination, or order by agreement of the Federal Circuit Court of Australia, or the Family Court of Australia, by, including but not limited to:
(i) Attending in person for all Court hearings (save for directions / procedural hearings where she is permitted to attend by telephone or video or any other hearing with leave of the Court).
(ii)Personally attending, with the children, for any Family Report interviews in Australia.
(iii) That should her current solicitors file a Notice of Ceasing to Act, that contemporaneously with them doing so, she will cause for a Notice of Address for Service to be filed in the Court, with the address and service details being an entity, person or organization within the Commonwealth of Australia.
(iv) That she irrevocably authorizes and accepts service (without prejudice to 1(sic) (iii) to also be by email to the address […].
The interim order also included the following provisions, made by consent:
5.That the [applicant] be restrained by injunction from taking any step (other than withdrawing the proceedings), in any other jurisdiction for proceedings relating to the care, welfare or parenting orders for the Children, including but not limited to the proceedings filed by her in the [City B Court].
6.That when the [applicant] travels with the Children to Australia, the [applicant] shall permit them to spend time with the [respondent] from minimum 5 nights before they are to return (if they are) to [Country C].
7.While the Children are living with the [applicant] in [Country C], the [applicant] shall cause for the Children to have telephone time / skype / FaceTime on not less than 4 occasions per week from 5pm to 5.30pm ([Country C] Standard Time) on Saturday, Sunday, Wednesday & Thursday unless agreed otherwise by the parties.
The finalisation of the proceedings were initially hampered by the Covid-19 pandemic and closure of borders. Then, in 2022, the parties requested time to try and resolve their dispute themselves. A further interim application was [lodged] by the applicant on 16 May 2023 and responded to by the respondent on 17 August 2023.
Both parties currently represent themselves. …
As already noted, the interim relief sought by the parties in the Application in a Proceeding filed by the applicant on 7 June 2023 and the Response filed on 17 August 2023 were determined and trial directions made on 25 August 2023.
Both parties continue to represent themselves.
DISCUSSION
The allegations and counter allegations that continue to plague this matter need a final resolution. The applicant and respondent continue to agitate matters on an interlocutory basis that cannot be determined until the final hearing when disputed facts can be tested and a decision made about the truth or otherwise of any relevant allegations.
The respondent submits that the current interim application represents yet another attempt by the applicant to delay finalisation of the parenting and property dispute. He refutes allegations that he has depleted the assets or hidden assets from the respondent, or that he has failed to comply with his ongoing duty to make full disclosure of information and documents relevant to an issue in the proceedings. The applicant likewise refutes allegations that she had failed to comply with her ongoing duty to make full and frank disclosure.
The parties are reminded of their ongoing obligations to make full and frank disclosure of all information and documentation relevant to an issue in the proceedings.
The respondent will be required to pay the balance of his share of the valuation fees to D Valuers so that the valuations for the properties in Country C can be released. There is already an order that he do so.
The applicant will be required to pay her one-half share of the valuation fees to L Pty Ltd unless the parties agree that the valuation of the business should be nil.
The evidence does not support an order for either party to be paid $50,000 by way of interim property settlement. It is generally preferable to make only one order pursuant to s 79 of the Act.
The applicant continues to work full time as a finance professional in Country C having commenced in a new position in late 2023 on a 12-month contract. In her financial statement filed 15 April 2024, the applicant discloses a surplus of income over her expenses of approximately $246 per week. The applicant receives a salary of $641 per week and child support from the respondent of $85 per week. Cost of living appears to be rather modest in Country C in that the applicant has accommodation costs by way of home loan of $75 per week and general living expenses for herself and the children of $362 per week. In addition to an alleged 12.5 percent interest in a property in Country C valued at $185,000, the applicant discloses cash in bank accounts, shares, and investments totalling $48,365.
There is no evidence to support the applicant’s assertion that she will lose her employment if she comes to Australia for the trial and family report interviews as required.
The 25 August 2023 order requires the respondent to pay for air fares for the applicant and children for the trial and to pay their accommodation costs, at first instance. That will need to happen forthwith.
I have limited evidence about the respondent’s financial circumstances. The respondent is due to file his financial statement for the trial on 22 April 2024. He continues to practice as a finance professional.
The allegations by the applicant that the respondent has depleted the assets by transferring vast sums overseas is refuted by the respondent. The applicant seeks an order for the return of $437,485 to Australia by the respondent being the total she contends has been transferred by him overseas during the period 24 August 2018 to 1 June 2023. The respondent refutes the accuracy of sums transferred by him to assist his family in Country C. The respondent contends that throughout the marriage he provided financial support to his extended family with the full knowledge of the applicant and that he has continued to assist when able.
In any event, the applicant has failed to establish that any funds have been transferred by the respondent since the determination of a similar application on 25 August 2023.
The respondent remains bound by the injunction issued on 30 April 2021, restraining him from disposing, encumbering, or otherwise dealing with any assets held by him, either solely or jointly, save and except in the ordinary course of business. I do not propose to release the respondent from that injunction on an interim basis when there is a trial next month.
At the time of trial directions, neither party sought to revalue the Suburb W property. The applicant, in particular, contended that there was no need to revalue the Suburb W property and she was content with the valuation conducted in 2021. The applicant opposed what she considered to be an unnecessary expense of a further valuation yet in her most recent application she agitates for an updated valuation, yet further contends that she has no funds from which to contribute to the valuation. If there is no agreement at trial on the value of the Suburb W property, then an option will be to order a sale of the respondent’s interest in it. If the parties wish to obtain a valuation for that property prior to trial, then they should do so forthwith.
The applicant contends that a forensic accountant needs to be appointed “as an expert in financial matters” … “because of the web of complexities in financial matters deliberately created by the respondent”. Apart from general assertions by the applicant, it remains unclear what a forensic accountant would be appointed to do in this matter. The applicant is of course a finance professional herself.
The applicant contends that the respondent should be ordered to “disclose the current ownership” of the Suburb W property. As I understand the evidence, the respondent contends that he holds a 50 percent interest in the property with his former business partner. If there is an issue about the registered title holders of this property either party can undertake a real property search and produce it at trial. As the respondent is in Australia and the applicant appears to take issue with the registered ownership of that property, he would be well advised to undertake the search himself.
I am not satisfied that there has been a change in the applicant’s circumstances since I last considered her application to be relieved of her undertaking to return to Australia for the family report interviews and the trial, sufficient to cause me to change the view I held on 25 August 2023, that she should not be so relieved.
I accept the ICL’s submissions that in order for the family report writer to offer real assistance to the Court, it is necessary for her to observe the children and the father in person during interviews, particularly when he has spent little time with them since 2020.
In relation to disclosure, each party criticises the other’s compliance with their ongoing obligations in that regard. Each party contends that they have complied with their obligations. Neither party persuaded me that any specific order relating to disclosure should be made. The evidence in relation to this issue was largely confined to general assertion and denial.
The respondent made few submissions in support of the relief sought in his Response. I am not satisfied that final property and/or parenting order should be considered on a summary basis, particularly when a trial is scheduled in a month.
This Court has no jurisdiction to order the Australian High Commission in City B and the City B Police to take any action in relation to the recovery of the children.
The parties have had ample time since this matter was listed for trial in August last year, to ready themselves for trial. Five days have been set aside for their dispute. Other litigants with applications pending in this Court would be greatly inconvenienced if the trial of this matter were adjourned without a proper basis.
DISPOSITION
The trial will proceed on the dates allocated. If either party fails to comply with the orders already made or if the applicant fails to comply with the undertaking that continues to bind her, then final orders may nevertheless be made, and costs orders against a party in default may also be made.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 18 April 2024