Kumar and Gupta (No. 2)

[2008] FamCA 886

FAMILY COURT OF AUSTRALIA

KUMAR & GUPTA (NO. 2) [2008] FamCA 886

FAMILY LAW – CHILDREN - Best interests

Family Law Act 1975 (Cth)

APPLICANT: Mr Gupta

RESPONDENT: Ms Kumar

FILE NUMBER: SYC 8612 of 2007

DATE DELIVERED: 29 September 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 26 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pigdon

SOLICITOR FOR THE APPLICANT: Meyer Pigdon Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Knox

SOLICITOR FOR THE RESPONDENT: Antwan Lawyers

Orders

1. The application filed by the father for a stay of the orders made by Justice Cohen on 26 September 2008 is refused and dismissed.

2. The matter be otherwise listed for mention before me Justice Le Poer Trench on 28 October 2008 at 9.00am at the Sydney Registry.

3. Pursuant to s 68L of the Family Law Act 1975 (Cth) the child … (a female) born … August 2005 shall be independently represented, and the Legal Aid Commission of NSW is requested to arrange such representation.

4. I request the appointment of an Independent Children's Lawyer be expedited.

5. I grant leave to the Independent Children's Lawyer to issue any subpoena s/he may be advised to issue as appropriate, particularly any subpoena to test the evidence of the husband contained in his affidavit sworn 17 September 2008 in India detailing alleged physical abuse of the child such as a subpoena addressed to the Department of Community Services, medical offices and/or hospitals referred to in the affidavit.

6. By the close of business 7 October 2008 the father is to  file and serve an affidavit addressing only the topics as outlined hereunder:

   (a)       The circumstances in which the father came to remove the child

   (b)       The father’s arrangements for the care of the child from the time of removal

   (c)       The father’s arrangements for the mother to communicate with or spend time with the child from the time of removal

   (d)       The father’s proposals for the care, housing and supervision of the child

   (e)       The father’s proposals for the time the child should spend with the mother

   (f)       Any further details in relation to the father’s allegations of physical abuse of the child by the mother

   Each topic is to form a heading under which the relevant information is deposed.

7. By the close of business 15 October 2008 the  mother is to file and serve an affidavit addressing only the topics as outlined hereunder:

   (a)       The mother’s proposals for the care, housing and supervision of the child

   (b)       The mother’s proposals for the time the child should spend with the father

   (c)       Any response to the allegations of the father of physical abuse of the child by the mother

   Each topic is to form a heading under which the relevant information is deposed.

8. Leave is granted to each of the parties to apply to me in Chambers for additional topic(s) to be included in the affidavit material. Such application is to be made by email to my Associate.

9. The court notes the father has made enquiries with G Occasional Care who are in a position to supervise time for the father to spend with the child on flexible hours on Mondays, Wednesdays and Fridays. The father requests the mother give consideration to that venue in relation to the time he may spend with the child.

10. Pending further order, the father spend time with the child at C Contact Centre each:

    (a)       Tuesday from 1.00pm to 2.00pm

    (b)       Thursday from 12.00 noon to 1.00pm; and

    (c)       Friday from 1.00pm to 2.00pm

11. Any costs of supervision are to be paid by the father unless the parties otherwise agree.Orders Style

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 8612 of 2007

MR GUPTA

Applicant

And

MS KUMAR

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application for a stay of orders made by Justice Cohen on the 26th September 2008. The application is made by the husband. The application cannot be made to Justice Cohen because he disqualified himself from further hearing in the case having made the orders.

2. The orders sought to be stayed were made on the 26th September 2008, the day of the application to me, and provided that the parties’ child born in August 2005 be forthwith delivered to the mother and that she live with the mother from that time. The order was an interim order.

3. The order went on to provide that the child spend such time with the father as may be agreed between them.  Such time is to be supervised.

4. Other orders were made.

5. On the 26th September 2008 the husband filed a Notice of Appeal against the decision of Justice Cohen.

6. On the 26th September 2008 Justice Cohen delivered reasons for orders made by him on the 23rd September 2008.  The orders were anti-suit injunctions and interim property orders.

7. In the reasons delivered by Justice Cohen he set out what he knew of the background facts. The following précis arises from that judgement.

8. The husband is a practicing professional who became an Australian citizen in January 1987. The parties were married in India in June 2004. The parties thereafter lived in Australia until November 2007.  Both parties had previously been married and each have a son who is resident in Australia.

9. Shortly before the 15th November 2007 the husband sold his professional practice in K, NSW and purchased air tickets for the whole family to travel to India via Singapore, the place where the husband had been born. This was done, according to the wife (who was the only party with any evidence before the court) without any consultation with her. The wife had anticipated that the trip was a holiday.

10. While the family was shopping in Singapore the husband disappeared with the child. The wife was told later by the husband’s relatives that he had taken the child to Malaysia.

11. The wife was given a one way ticket to India. She contacted the Australian Federal Police and the Singaporean Police. She was told by the Singaporean Police that the child had been removed because the wife had threatened to kill both the child and the father.  The wife returned to Australia. The wife was able to locate the child in India and has had some telephone conversations with her.

12. In the affidavit which supported the wife’s application to the court on the 26th September 2008 she said that she had received information that the husband and the child were now in Australia. It was in those circumstances that Justice Cohen made the orders on that day which are now the subject of the stay order.

13. The husband has not yet filed any affidavit evidence. He did tender an affidavit which had been sworn on the 17th September 2008 in India and relied on paragraphs 48 to 56. In those paragraphs the husband complains about the parenting skills of the wife and alleges that she has physically abused the child. This included fracturing her arm on the 16th January 2007.

14. The husband says that on the 11th June 2007 the wife pulled the child’s arm so violently she dislocated her right elbow.

15. The husband said that the wife had told him in 2007 “I cannot cope with her”, referring to the child.

16. The husband says he has reported matters relating to abuse of the child to the Department of Community Services on a number of occasions prior to leaving Australia.

17. This is an impossible situation for the court. The order made by Justice Cohen, on its face, appears perfectly reasonable and appropriate. The fact remains that the husband has not filed in the court an affidavit which explains the circumstances surrounding the removal of the child from Singapore. If what the husband says in his tendered document is correct then there are serious child protection issues to be dealt with and the mother’s care of the child should be strictly monitored.

18. I propose to decline the stay at this time. I will appoint an Independent Children's Lawyer for the child. I will require the husband to file affidavit evidence which addresses the following headings. I will order an urgent assessment of the relationships between the child and each parent. I will arrange for the matter to be back before the court quickly.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate:

Date:  24 October 2008