Korrapati & Mishra (No 3)
[2024] FedCFamC1F 304
•8 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Korrapati & Mishra (No 3) [2024] FedCFamC1F 304
File number: BRC 1445 of 2020 Judgment of: CAREW J Date of judgment: 8 May 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application – Dismissal – Where the father filed an application to dismiss the mother’s Initiating Application and, if so ordered, proposed to discontinue his Response – Where the mother in fact seeks a similar result, being the dismissal of the father’s Response and, if so ordered, discontinuing her Initiating Application – Where the mother 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 trial cannot possibly go ahead because the mother has failed to return to Australia despite her undertaking to do so – Where both parties are in default of the trial directions – Where it is appropriate to dismiss all proceedings currently before the Court, including all previous orders and undertakings and vacate the trial dates. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.26, 10.27
Number of paragraphs: 15 Date of hearing: 8 May 2024 Place: Brisbane Counsel for the Applicant: Ms Oakley Solicitor for the Applicant: Australian Family Lawyers 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:
8 MAY 2024
THE COURT ORDERS THAT:
1.All outstanding applications and/or responses be dismissed.
2.All previous Orders be discharged.
3.The Undertaking of the applicant dated 12 March 2020 be discharged.
4.There be no order as to costs.
5.The trial listed on 13 May 2024 for 5 days be vacated.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAREW J:
Mr Mishra (“the father”), is the respondent in substantive proceedings concerning a parenting and property dispute commenced by his former wife and applicant in the substantive proceedings, Ms Korrapati (“the mother”), in Australia in February 2020. The parties are dual citizens of Australia and Country C. The mother has lived in Country C with the children since 2014 and the father has lived in Australia since 2016, although he has visited Country C from time to time. The children were briefly in Australia with the father in late 2019, which is when the mother commenced the substantive proceedings.
The substantive proceedings are set down for a final hearing over five days commencing on 13 May 2024. The trial cannot possibly go ahead because despite the undertaking by the mother given on 12 March 2020, as a condition to the father consenting to her and the children returning to Country C, to return to Australia for family report interviews (which had been arranged for 22 April 2024) and for the final hearing, the mother failed to return to Australia which she was required to do by 15 April 2024. The mother’s applications to be relieved of her undertaking have been dismissed on more than one occasion. The mother maintains that she was unable to travel to Australia as required and persisted with that position today.
This Honourable Court is now faced with an application by the father to dismiss the mother’s Initiating Application and, if so ordered, he proposes to discontinue his Response to the Initiating Application. The father also seeks an order that all previous orders, including the mother’s undertaking given to the Federal Circuit Court of Australia (as that court then was) on 12 March 2020 to return to Australia, be discharged. Despite his application indicating to the contrary, the father no longer presses costs. Whilst on its face the order sought by the father is opposed by the mother in her Response to his Application in a Proceeding, she in fact seeks a similar result, namely the dismissal of the father’s Response and, if so ordered, she will discontinue her Initiating Application, so the outcome would be the same; the proceedings in Australia would no longer be continuing.
It seems eminently sensible for the proceedings in Australia to be dismissed and/or discontinued. The father, I note, proposes to commence proceedings in Country C.
Since the matter was last before me, the father has retained legal representatives. The mother continues to be self-represented.
BACKGROUND
In reasons delivered on 25 August 2023,[1] I set out a brief chronology relevant to the matter at [3] – [11]. The chronology was incorporated into my ex tempore reasons delivered on 18 April 2024.[2] I again set them out below for convenience:
[1] Korrapati & Mishra [2023] FedCFamC1F 735.
[2] Korrapati & Mishra (No 2) [2024] FedCFamC1F 257 at [10].
The [mother] is 41 years of age and a [finance professional] in [Country C]. The [father] 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 father returned to live in Australia in 2016. The father spent time with the children in [Country C] on a number of occasions between 2016 and 2019. In December 2019 the father brought the children to Australia. The father contends he did so with the mother’s knowledge and consent but the mother contends the children were abducted.
The mother 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 mother and, by consent, for her to be “permitted” to return to [Country C] with the children.
The order was made upon the mother’s undertaking in the following terms:
A. The mother 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 mother]@[…].
The interim order also included the following provisions, made by consent:
5.That the mother 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] High Court […].
6.That when the mother travels with the Children to Australia, the mother shall permit them to spend time with the father from minimum 5 nights before they are to return (if they are) to [Country C].
7.While the Children are living with the mother in [Country C], the mother 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 [mother] on 16 May 2023 and responded to by the [father] on 17 August 2023.
Both parties currently represent themselves. …
Trial directions were made by me on 25 August 2023.
The mother has not paid the setting down and hearing fee nor sought a waiver of those fees as she was required to do by 15 April 2024. The mother has not filed an affidavit of evidence in chief of herself and of any witness she intended to rely upon, or an updated financial statement, as required, by 15 April 2024. The mother has failed to file a joint trial balance sheet, as required, by 3 May 2024.
The father contends that as a consequence of the mother’s failure to file her trial material he has not filed an affidavit of evidence in chief of himself or of any witness upon which he intends to rely, although he has rather belatedly filed an updated financial statement. The mother continues to agitate that the father has failed in his obligations to provide full and frank disclosure in the matter, which makes it impossible, from her perspective, for her to complete some of the material as required.
Further, as a consequence of the mother not complying with her undertaking and a subsequent order that she attend in person for the family report interviews, there is no family report.
Each party complains about the other’s alleged failure to comply with their obligations to make full and frank disclosure of all documents relevant to an issue in the proceedings, yet each party contends they have so complied. Such a dispute is no longer a matter about which I need to be troubled given the joint position of the parties that the proceedings should not continue in Australia.
DISCUSSION
In circumstances where an applicant or respondent has failed to comply with an order of the Court in the proceeding, that party is deemed to be in default. In those circumstances, the Court may order, among other things, that the proceeding be dismissed in whole or in part (see rr 10.26 and 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021).
There can be no doubt that the mother is in default of my order made on 25 August 2023 which required the mother to do the following:
(a)By paragraph 3 of the Order, the mother was required to “travel to Australia with the children arriving no later than 15 April 2024”, and I am satisfied that the mother has not done so (and in the context of what was required by the mother, I am satisfied that the father had paid the airfares and accommodation as required by paragraph 4 of the Order, although the mother makes some criticism in her latest material of the timing of payment for that);
(b)By paragraph 20 of the Order, the mother was required to pay her one half of L Pty Ltd’s costs for the purposes of the valuation of the father’s business known as M1 Pty Ltd, and I am satisfied that the mother has not done so, although the mother contends that to do so would have been a waste of money in circumstances where she contends the father has continually failed to meet his disclosure obligations;
(c)By paragraph 26 of the Order, the mother was required to pay the setting down and hearing fee or obtain an exemption by 15 April 2024 and I am satisfied that the mother has not done so;
(d)By paragraph 27 of the Order, the mother was required to file one affidavit of evidence in chief or herself and of any witness upon which she intended to rely and an updated financial statement by 15 April 2024, and I am satisfied that the mother has not done so; and
(e)By paragraph 38 of the Order, the mother was required to file a joint trial balance sheet by 3 May 2024, and I am satisfied that the mother has not done so.
There also can be no doubt that the father is in default of the Order of 25 August 2023 in that he has failed to file an affidavit of evidence of chief of himself and of any witness upon which he intended to rely and despite him submitting in his material that he did not do so because the mother had failed to file material, there was no condition precedent to his meeting his obligations to file material. The fact that each party has not filed material is understandable in the circumstances of the position they now take that the proceedings should be discontinued in Australia, which appears to be eminently sensible given the mother and children continue to reside in Country C and the parties have property in Country C as well as some in Australia.
It is appropriate in the circumstances to dismiss all proceedings currently before this Court. I also discharge all previous orders and undertakings, including the undertaking of the mother dated 12 March 2020. As no party now seeks costs there will be no order as to costs.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 8 May 2024
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