MAGAR & RASTOGI

[2014] FamCA 713

FAMILY COURT OF AUSTRALIA

MAGAR & RASTOGI [2014] FamCA 713

FAMILY LAW – PRACTICE AND PROCEDURE – mother seeks to set aside consent orders – where mother alleges she was unable to understand the nature of the orders by way of mental impairment and/or duress – father opposes mother’s application – orders made for the mother to request the production of her file from her previous solicitors.

FAMILY LAW – PRACTICE AND PROCEDURE – whether to bifurcate proceedings – mother appears in person by telephone and with the assistance of an interpreter – mother required to attend in person at final hearing – expense and organisational difficulties – impact of delay on infant child – no orders made for bifurcation.

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)

Rice & Asplund (1979) FLC 91-813

APPLICANT: Ms Magar

RESPONDENT: Mr Rastogi

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 3356 of 2013

DATE DELIVERED: 20 August 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 20 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person by telephone

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Cocks

SOLICITOR FOR THE RESPONDENT: Andersons Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Kent

Orders

1. That by reference to the final orders sought in the mother’s reply of 5 August 2014, I strike out the following:

   (a)In paragraph 1, the words “because of fraudulent violence, pressure and capacity”

   (b)       The entirety of paragraphs 4, 7, 8, and 9.

2. The interim orders sought in the said Reply document be dismissed NOTING that the father indicates a preparedness to send to the mother photographs of the child M and from time to time a summary of the child’s health and developmental progress.

3. That the proceedings be listed for trial directions before a Registrar of the Family Court of Australia on a date to be fixed NOTING that at this stage the proceedings do not require expedition and should be listed on the basis that both aspects of the mother’s case namely, whether the order of 20 September 2013 should be discharged AND THEN what parenting orders should be made in the one hearing.

4. The mother do within 30 days forward a request to Ms Olga Skordos, solicitor, that her file in so far as it relates to her attendance on the mother in September 2013 and the provision of independent legal advice in respect of the application for consent orders filed 12 September 2013 be delivered to the office of the Independent Children’s Lawyer, Ashley Kent, care of the Legal Services Commission AND upon delivery all parties and the Independent Children’s Lawyer shall have leave to inspect and copy the said file. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Magar & Rastogi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3356 of 2013

Ms Magar

Applicant

And

Mr Rastogi

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me in relation to an order that was made on 20 September 2013, ostensibly by consent of the parties, which provided that the applicant father would have sole parental responsibility for the child M, (“the child”), born in 2013; that the child would live with the father, and that the mother would spend time with the child as may be agreed between the parties.  There was a further order which put in place an injunction restraining the mother from removing the child from the Commonwealth of Australia.

2. On 4 February 2014, the mother filed an initiating application dated 7 January 2014 which sought orders that the parenting order in respect of the child be discharged.  She also sought an order that the child live with her, and that the applicant mother should regain parental responsibility for the child.  The issue therefore is that soon after the consent order was made, the mother challenges the orders, seeks to have them set aside, and to seek parenting orders that would dramatically change the living arrangements of the child. 

3. There has been significant affidavit material filed.  In terms of the current position, it is best encapsulated by the reply document filed on 5 August 2014, and the response of the father filed 3 April 2014.  The response was filed in relation to an earlier document, but in one respect the issue is relatively straightforward, namely that the father’s application is that the application of the mother seeking to set aside the orders made on 20 September 2013, and then to put in place parenting orders, should be dismissed.  That is a summary of the final orders sought by the father, but he also seeks those self same orders by way of interim orders. 

4. The matter is relatively complex in that the response or the position of the father needs to be unpicked in the sense that at first instance it appeared the father was seeking an order by way of summary dismissal, but there is a concession by counsel for the father that it was unlikely to be a successful application.  The second is that there is no material change in circumstances, and that therefore, the mother’s application should be dismissed, and there should be no further change, alteration or other parenting order put in place.  Whether such an application can be made out is entirely dependent upon the success or otherwise of the mother’s initial application.  If she is unsuccessful in setting aside the consent orders, then subject to her demonstrating a material change in circumstances since the making of those orders, it is unlikely that she would be successful in seeking an order that the Court should reconsider parenting matters.  If, however, she is successful in setting aside the orders of 20 September 2013, then there is no issue raised in respect of Rice & Asplund (1979) FLC 91-813, and the mother is entitled to bring her application and the father is entitled to bring his response seeking any orders he considers appropriate.

5. The matters upon which the mother would wish the Court to bring to account in determining both the interim proceedings, but also to give an indication of the position she seeks to adopt in terms of the further hearing of the matter is set out in a number of documents, but perhaps helpfully in a document entitled applicant’s outline of argument filed electronically on 16 August 2014.  When I consider the outline of argument, and also the affidavit material, whilst at what might be considered a preliminary stage in the proceedings, it does not appear that the mother discloses there has been any material change in the circumstances of the child since the making of the order.  That then, at least at this stage, but not necessarily for the balance of the proceedings, focuses the Court’s attention on whether or not there is substance to the mother’s claim that the orders, whilst ostensibly made by consent, were in fact not made by consent, but rather were either made under duress and/or in circumstances where the mother’s consent was not informed, or indeed she was suffering from significant mental impairment, that she was not able to understand the nature, effect and quality of the relevant Act, namely, the application for consent orders, the purported independent legal advice given by a solicitor, Ms Skordos, and then the making of the order.

6. If the matter was not complex at that point, it is certainly made complicated by the departure of the mother from Australia soon after the orders were made.  The mother’s position to date has been that she does not wish to return to Australia on any basis, and that she had an intention demonstrable from the method and manner by which her materials have been prepared that she expected and anticipated she could partake in the proceedings in Adelaide remotely from Germany, and that the Court would be prepared to do that.  In a parenting case, the manner in which a trial is conducted is a matter of absolute discretion of the trial judge.  Whilst the Court has significant resources in terms of the ability for parties to communicate with the Court, and in respect of proceedings electronically, it is my considered opinion that is a process and procedure suitable for interim matters, but it is demonstrably unsuitable for a final hearing to determine either whether the orders were made without the proper consent of the mother in the first instance, or if I decide in favor of the mother, and/or decide to hear both matters together – that is, not to bifurcate the proceedings, then the parenting case.

7. There is no circumstance where I would consider it appropriate that either of the principal issues for determination by the Court should or could be conducted with the mother remaining in Germany.  Not only is it important to consider the demeanor of witnesses in the witness box, the manner in which questions are answered, but also, there is the sheer mechanics of documents that need to be considered, but also the involvement – potentially – of single expert witnesses who might need to conduct an assessment of the relationship between each of the parties and the child, and also to assess the parties as to their parental ability going into the future.  In any event, I have made it clear to the mother that when these proceedings are ultimately listed for hearing, I will require the mother’s personal attendance for the trial, and obviously, she will need to be in attendance for any appointment made by way of an assessment to be conducted by a family consultant.

8. Returning to the reply document, counsel for the father raises a number of objections to the orders that are sought.  Her client’s position has moved away from the simple orders sought in his response, namely, that on an interim basis, the final orders sought by the mother should be dismissed, but now accepts that whilst on her client’s case, the mother’s case is demonstrably weak, she nonetheless accepts on behalf of the client that the mother is entitled to be heard.  I think with respect, her position is entirely correct.  That does not mean that the mother is entitled to seek any order that she decides to ask for.  The orders have to be relevant to the proceedings.  More importantly, they have to be orders that the Court has jurisdiction to make.

9. By way of clear example, order 1 of the mother’s final orders seeks that the parenting orders in respect of the child be discharged.  There is no difficulty with that, and Ms Cocks does not object to an order limited in that way.  What is objectionable are the following words “because of fraudulent violence, pressure and incapacity.”  Ms Cocks is right; those words should be struck out.  That does not mean that the mother is not able to put forward evidence that satisfies that she was in some way under an incapacity or a disability, or that she was in some way the subject of violence, or that she was in some way under duress in respect of the manner in which the final order or the consent orders were ultimately made.  But they are matters of evidence; they are not an appropriate order.  I intend therefore to strike out the words “because of fraudulent violence, pressure and incapacity”.

10. Order 4 is also not an order that I can make because the Court does not have jurisdiction in this case to hear and determine issues that relate to the financial maintenance of the child by the father.  That is a matter that has its jurisdiction founded in the Child Support (Assessment) Act 1989 (Cth) but not founded in the Family Law Act1975 (Cth). I am not able to make an order that relates to child support.

11. Order 7 seeks an order that the father and his entire family be “psychologically and psychiatrically assessed”.  Again, that is not an order that I am able to make.  The Court does not have jurisdiction to order that a party be the subject of psychological or psychiatric assessment save in the circumstances where the making of a parenting order is conditional upon such an assessment being obtained.  That is therefore an order that I cannot make. I could not make an order that extends to persons who are not parties to the proceedings.

12. Order 8 is not an order.  It is not an order that this Court could have any jurisdiction to make.  I am not able to punish anybody and certainly not for hostage taking, torture, abuse, intimidation, work-wide huge slander, libel, child deprivation and the rest of massive violence, threats and fraud.  That order will be struck out.

13. Order 9 is not an order.  It is a statement.  The mother is at liberty to bring an application seeking a divorce order.  It is not a matter that I can order a party to seek a divorce or to file an application.  It is within the parties’ own province to do so.  Neither party needs the permission of the other to bring an application seeking a divorce order and, accordingly, that order is to be struck out.

14. The second matter raised procedurally is whether there should be a bifurcation of the proceedings.  By that, I mean should I hear and determine as a preliminary hearing whether the mother is able to persuade the Court that the order of 20 September 2013 should be set aside and then hear the parenting order or whether I should hear both together.  Whilst there is some initial attraction to hearing one part of the proceedings before hearing the other, I am conscious of the fact that the mother will be travelling from Germany to partake in the proceedings, that there are issues relating to the necessary costs of that, that there are difficulties even at present in making the necessary arrangements for the various attendances as part of these proceedings and the interim hearings.

15. I take into account the age of the child and that time is passing in the sense of the ability of this small child to relate to the mother.  I do not consider it would be appropriate in all the circumstances for there to be any unnecessary delay in the resolution of all matters currently before the Court.  It is also a matter of impact upon my decision that the Independent Children’s Lawyer strongly supports the entirety of the matter being disposed of at one hearing and, again, there is good and proper sense in that submission.  Accordingly, I do not propose to bifurcate the proceedings.

16. The penultimate matter is whether I expedite these proceedings notwithstanding that I have not been asked to do so and there is no application to that effect.  I raise it only because obviously I must set the matter on some pathway and, in that regard, I have two choices.  The first is that I simply manage the matter myself and I give it a trial date or give it another date and then manage it from there, or I send it back to the registrar so that it will be dealt with in the ordinary course.

17. That is not to say that at some point there could not be an application which would seek to promote this matter above other matters of urgency in this Court, and it may be that the admixture of the age of the child, the mother’s personal circumstances, where she lives and other relevant matters ultimately speak of this matter being expedited.  But before I would be prepared to do that, I would want to be satisfied that the mother’s case and the father’s case has been properly and adequately prepared.  There is no point making an order for expedition if, in fact, the parties are not able to present their case comprehensively.

18. At this stage, I note my frankness with the mother that in order for her case to be properly founded and to have a modicum of success a lot more work needs to be done.  She would need an affidavit from the solicitor that completed the independent legal advice certificate attached to the application for consent orders, Ms Skordos.  She would need to obtain potentially psychiatric, psychological and/or medical evidence which would support her contention that she was not able to understand the nature and quality of the application for consent orders and the consequences of her actions.  She would also potentially need to garner the necessary evidence to show and demonstrate that irrespective of the other matters that adversely affected her ability to provide informed consent, she was also under duress in the legal sense of the word.

19. They are not matters that, in my opinion, are likely to be satisfied simply upon the mother’s own assertion.  They are matters that are likely to be satisfied only upon the provision of appropriate expert evidence.  That is not to be expert evidence obtained in Germany.  That will be expert evidence that the mother will have to obtain locally, again, for the same reasons that this matter cannot be dealt with remotely with the mother remaining in Germany, nor could I consider that any expert evidence that the mother needs to rely upon in order to support and substantiate her case could be experts other than people in Australia who are able to attend the proceedings, attend with their file and be able to give the evidence.

20. The mother may also, of course, have evidence from overseas that could be relevant.  There are assertions made by the father that the mother’s own current relationship with her parents is problematic.  That is not so much an issue for the first part of the matters that I have to determine, namely whether to set the orders aside, but it is problematic and relevant in respect of the second part, namely what future parenting orders need to be put in place.  The mother will have to give those matters careful consideration and it may be that those witnesses will have to attend personally in Adelaide.

21. I have also made it clear to the mother that whilst it is a matter absolutely for her, I am concerned as to her ability to bring all these threads together without there being a legal practitioner locally based and instructed.  It is obviously a matter for the mother.  It is not a matter for me to order that the mother seek independent and separate legal advice and representation, but it seems self-evident that if the mother is really intent on promoting her case as forcefully as she would wish and for the reasons as she sets out in her affidavit material and her outline of argument, it seems to me that it unlikely to happen without local representation and someone who is able to properly instruct and advise the mother as to how her case should be prepared.

22. Finally, the mother seeks in her response interim orders, namely that the father be obliged to provide two child-focused photographs and videos of the child for the mother and a weekly summary of the child’s activities, developmental and health process.  There is some history to the foundation for the interim orders sought which is found in the order of Judge Kelly of 9 July 2014 where the father was obliged to provide by way of order a selection of 12 photographs representing the child between October 2013 and July 2014, and a summary of the child’s health and development over the last six months.

23. The mother complains as to the nature and quality of that information provided and that, presumably, is the basis for the mother seeking the further order that she does.  Whilst the substance of the mother’s interim orders would appear to be benign, I have a concern that until it is established that the mother is entitled to have the orders set aside and/or to reopen issues in respect of parenting on the basis of new material fact or change in the circumstance, it is difficult to understand – unless it is by consent – how the Court can make a parenting order (which is what the order of her Honour was on 9 July 2014) when the very issue of the mother’s ability to have those matters considered by the Court is still the subject of challenge.

1. It seems that a better way is to have those matters dealt with by way of a notation to an order. There was no opposition to such a notation from the father.  That does not mean that the father is obliged to provide that information but obviously it would be a factor if ultimately the Court moved to consider parenting orders, the extent to which the father is prepared to support the relationship between the mother and the child. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 20 August 2014.

Associate: 

Date:  1 September 2014