Nambisan & Nambisan (No 5)
[2023] FedCFamC1F 965
•30 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nambisan & Nambisan (No 5) [2023] FedCFamC1F 965
File number(s): BRC 7618 of 2021 Judgment of: JOHNS J Date of judgment: 30 October 2023 Catchwords: FAMILY LAW – CHILDREN – application in a proceeding – where the father seeks sole parental responsibility and a recovery order – where the children currently live with the mother – where the final hearing was concluded in June 2023 and is pending judgement –where the father was unable to identify a new fact or matter to support the making of interim orders – application dismissed
FAMILY LAW – CHILDREN – application in a proceeding – airport watchlist order – where the father seeks an extension of the airport watchlist order – where the order expired in October 2023 – where final judgment in the matter is pending – order made for extension of airport watchlist order
Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 30 October 2023 Place: Melbourne The Applicant: Litigant in Person Solicitor for the Respondent: Mr Raniga of RRR Lawyers Independent Children’s Lawyer Ms Kennedy of Legal Aid NSW ORDERS
BRC 7618 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR NAMBISAN
Applicant
AND: MS NAMBISAN
Respondent
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
30 OCTOBER 2023
THE COURT ORDERS THAT:
1.The operation of order 2 of the Orders dated 27 October 2021 in relation to the children X born 2009, Y born 2011 and Z born 2012 be extended to 31 December 2023.
2.That the Application in a Proceedings filed 27 October 2023 be otherwise dismissed.
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 the pseudonym Nambisan & Nambisan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
This matter comes before the Court today upon the Application in a Proceeding filed on behalf of the father on 27 October 2023. Mr Nambisan, the father, represents himself today. Mr Raniga appears for the wife, albeit that he does not have instructions, given the late service of the application. Ms Kennedy appears as the Independent Children’s Lawyer.
This matter has had a long history before the Court. It culminated in a final hearing that concluded before me in June of this year. A judgment is reserved and is likely to be delivered in the coming weeks. The application brought by the father largely seeks relief in identical terms to that which he seeks in his application for final orders.
The issues before the Court relate to the future parenting arrangements for the parties’ three children: X, who is aged 16 years, Y, who is aged 12 years, and Z, who is aged 11 years. Currently, the children live with the mother and spend no time with the father.
The orders sought by the father in his application listed today included orders for sole parental responsibility, orders that the children live with him, and further, a recovery order that the children be removed from the mother’s care and placed into his care. In addition, the father seeks orders for a watchlist order in relation to the children, and injunctions restraining the mother from removing the children from the Commonwealth.
He also seeks orders that the mother attend for psychiatric assessment and psychotherapy for treatment of her alleged mental health disorders, and that there be an embargo upon the children spending time with their mother for a period of six months. The relief sought by the father in relation to the care arrangements for the children is almost identical to that which he seeks as part of his application for final orders. In support of that application, the father relies upon his affidavit also filed 27 October 2023. It is a voluminous document, which is 137 pages including annexures.
At the commencement of the hearing, I invited the father to identify any new fact or matter that he relies upon in support of his interim application that has emerged since the conclusion of the final hearing and is set out in his affidavit.
Other than the fact that there has been no agreement to the extension of an airport watchlist order, the father could not identify any new fact or matter that would support interim orders at this time.
As to the issue of the airport watchlist order, an order was made originally on 27 October 2021, which restrained the parties from removing the children from the Commonwealth. That order was to expire in two years’ time. As a result, the operation of that order expired last week.
The Independent Children’s Lawyer submitted that, given the issue of the parties’ ability to remove the children from the Commonwealth is a live issue before the Court, that order ought be extended pending the delivery of my reserved judgment.
Mr Raniga, who represents the mother in the proceedings, did not oppose the extension of the operation of that order.
I am satisfied, given the history of the proceedings, which have included allegations that the children have been removed or abducted from the care of the other parent, that such order is appropriate pending the final determination of the parties’ applications.
As to the other matters raised by the father in his application, as I have already noted, they are largely identical to the issues raised by him in his Application for Final Orders. I have heard evidence in relation to those matters. The experts who have given evidence in the proceedings have been cross-examined in relation to those matters. I have reserved my judgment in relation to those issues.
As I indicated to Mr Nambisan at the commencement of this hearing, the delivery of judgment in relation to those matters is imminent. He identifies no new fact or matter that would support a change of residence at this time. Similarly, he identifies no new fact or matter that would support the making of a recovery order, removing the children from their mother’s care and placing them in the care of the father. Given that circumstance, I will dismiss the father’s Application in a Proceeding.
Frankly, I consider the father’s interim application to be bordering on an abuse of process, given that he identifies no new fact or matter that would support the making of interim orders pending the delivery of judgment.
Were further applications of this nature to be made pending judgment, it would be open to me to consider such application as vexatious, and I would give serious consideration to making a vexatious proceedings order against the father, the effect of which would be to restrain him from making further applications. Accordingly, the father is now on notice as to the risks to him if he brings any further application pending my delivery of Reasons for Judgment and pronouncement of final orders in this matter.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Ex-tempore Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 30 October 2023
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