Pahari & Upadhya
[2022] FedCFamC2F 431
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pahari & Upadhya [2022] FedCFamC2F 431
File number(s): AYC 372 of 2020 Judgment of: JUDGE STREET Date of judgment: 17 May 2022 Catchwords: FAMILY LAW – PARENTING – final hearing – where the Respondent Father has failed to appear – where the Court is satisfied that it is appropriate that the matter proceed as an undefended hearing – allegations of neglect – where the Children expressed reluctance to spend much time with the Applicant Mother – whether the Applicant Mother should have significant and meaningful time with the Children – where the Court has the benefit of an ICL – orders made Legislation: Family Law Act1975 (Cth) pt 7; ss 60B, 60CA, 60CC, 61C(1), 65DAA
Federal Circuit and Family Court of Australia Act2021 (Cth) ss 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.26, 10.27
Cases cited: An & Zhu [2006] FamCA 179
Goode & Goode [2006] FamCA 1346
Lancey & Lancey [1994] FamCA 94
Division: Division 2 Family Law Number of paragraphs: 20 Date of hearing: 22 March 2022 Place: City D Solicitor for the Applicant: Ms Maher Solicitor for the Respondent: No appearance Solicitor for the Independent Children’s Lawyer: Ms Rutkowska ORDERS
AYC372 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PAHARI
Applicant
AND: MR UPADHYA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
22 MARCH 2022
THE COURT ORDERS THAT:
1.The hearing proceed as a final undefended hearing.
2.The Court makes orders in accordance with Orders 1 to 10 of the Further Amended Initiating Application filed on 6 October 2021, as attached to these orders at ‘Annexure A’.
ANNEXURE A:
1.The children live with the Father.
2.The children spend time and communicate with the Mother as follows:
2.1.For one week in each of the short school holidays to commence on the first Monday of the school holiday period at 3pm to the second Monday of the school holiday period at 3pm;
2.2.During the end of year December / January school holidays for a period of 2 weeks, to commence on the first Monday in January of each year at 3pm, or otherwise as agreed in writing between the parties;
2.3.In the event the Mother travels to Sydney, for no less than 3 hours each day, upon her providing 72 hours’ notice to the Father of her visit;
2.4.On special occasions as agreed between the parties in writing;
2.5.By telephone or face time each Monday, Wednesday and Saturday between 5pm and 6pm when the children are not in the Mother’s care.
2.6.At all other times as agreed in writing between the parties.
3.For the purpose of paragraph 2 (save for 2.3) the Mother shall collect the children from the City C Police Station at the commencement of her time, and the Father shall collect the children from the City B Police Station at the conclusion of the Mother’s time with the children.
4.For the purposes of paragraph 2.5, the Mother shall initiate the phone call / face time with the children, and the Father shall ensure that:
4.1.the Mother is provided with a phone number for the children at all times, and;
4.2.the children are available and afforded privacy to communicate with the Mother.
5.The parents will not denigrate, abuse or talk badly about the other parent or members of the other parent’s family to, or in the presence or hearing of, the children.
6.The parties communicate with each other via text message or email. In the event of an emergency, communication may be by phone call.
7.The parents will advise the other parent within 24 hours of any change to their telephone number or email address.
8.The parents will notify the other parent of any significant medical illness or injury of the children as soon as practicable, and no later than 24 hours after the illness or injury. Notification is to be of the illness or injury suffered, the medication prescribed and of the treating doctor/hospital if applicable.
9.These orders are a sufficient authority for the children’s educational and health service providers to provide to the parents any information, document or thing in relation to the children (including, but not limited to, reports, letters, photographs and the like) and to discuss all matters pertaining to the children’s education, health and wellbeing and to ensure that all day care and school records include both parents as persons to be notified in case of emergency. The costs, if any, of such information shall be paid by the parent requesting the information.
10.For the purpose of paragraph 9, the parents have leave to provide a copy of these Orders to the children’s schools and health service providers.
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 Pahari & Upadhya has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
INTRODUCTION
This is a parenting matter that was commenced on 7 August 2020 and was fixed before a final hearing today. The Applicant Mother appeared, represented by her solicitor. The Independent Children’s Lawyer (“ICL”) appeared, represented by Ms Rutkowska. There was no appearance by or on behalf of the Respondent Father.
The Applicant Mother sought an order that the matter proceed as an undefended hearing. It is apparent that the Respondent Father has failed to comply with the Order 2, made on 7 October 2021 by Dunkley J:
2. The respondent father [Mr Upadhya] is to file and serve a Response to initiating Application and Affidavit by 4pm on 30 November 2021.
Further, it is apparent from Order 1, made on 7 October 2021 by Dunkley J, that the Respondent Father was on notice that the matter may proceed as an undefended hearing.
The Court has taken into the account the principles identified in Lancey & Lancey [1994] FamCA 94 and An & Zhu [2006] FamCA 179, as well as taking into account s 67 of the Federal Circuit and Family Court of Australia Act2021 (Cth) (“the FCFCOA Act”), and the overarching purpose of the efficient use of judicial administrative resources. The Court is satisfied that there has been default within r 10.26 and r 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and is satisfied that this is an appropriate matter in which to make an order that the matter proceed as an undefended hearing.
The Applicant Mother has read her three affidavits that have been filed, and the Child-Inclusive Memorandum to the Court has been marked Exhibit A. The Court has the benefit of a case outline from both the Applicant Mother and the ICL. It is apparent that the Respondent Father was on notice of the orders sought in the Applicant Mother’s Further Amended Initiating Application, filed on 6 October 2021.
CHRONOLOGY
The Court will have set out the chronology of events as identified in the Applicant Mother’s case outline:
DATE EVENT 1977 Date of birth Father (44) 1993 Date of birth Mother (29) 2007 Date of cultural religious marriage, Country E
Mother is aged 14 years at the time.2008 Date of birth X (13) 2012 Date of birth Y (9) 2013 Parties move to Australia with children, and live in City C. 2014
Incident of Family Violence perpetrated by Father against Mother. Father assaults Mother, and threatens to kill her.
Police attend and Department of Community Service involved. (NSW Police Subpoena)2014 Apprehended Violence Order against Father (NSW Police Subpoena) 2018
Incident of Family Violence perpetrated by Father against Mother. Father assaults Mother, and makes threats to kill her.
Police attend and Father removed from house. Father placed in remand. Father charged – sentenced for 7 months imprisonment, including non-parole period of 3 months, s. 9 bond for 18 months (NSW Police Subpoena)
Provisional Order – Apprehended Domestic Violence Order made City C Local Court.2018 Date of final separation. Children remain with Mother. 2018 Final Order – Apprehended Domestic Violence Order made City C Local Court – 2 years. 2018 City D District Court re: Father’s offences dated 2018 – sentence orders varied 9 months and 10 months commencing mid-2018 and suspended upon Father entering s. 12 bond. Mid-2018 Mother allows the Father to spend time with the children on informal basis, including some overnight occasions, on a weekly or fortnightly basis. Early 2019 Mother reports to Police that she has received message from Father to “stay away from the boys or you will see, I’m going to make your life a living hell”. (NSW Police Subpoena) Mid-2019 Father fails to return the children to the Mother after time spent. Mother makes unsuccessful attempts to recover children through legal avenues in Sydney. Mid-2019 Mother moves to City B for financial and safety reasons. Early 2020 Mother engages with a community legal service and applies for legal aid through NSW Legal Aid. Mother applies for FDR. Early 2020 Mother’s lawyer writes to Father requesting for Mother to spend time with children. Early 2020 Father responds to Mother’s lawyer by email with words to effect of “Hi I’m unable to drop my kids to her place because they are not willing to go and stay with mum thank u”. Early 2020 Mother’s lawyer again writes to Father re: time. No response. Mid-2020 ADVO against Father expires. Mid-2020 Section 60I certificate – father fails to attend. August 2020 Mother files Initiating Application seeking return of children. August 2020 Father served with Mother’s Application. September 2020 Matter listed for first return in City B FCC.
Father fails to appear.
Interim Orders made adjourning matter to 17.9.2020.17.09.2020 Matter listed in City B FCC.
Interim Orders made by consent providing for Mother’s time with children during September 2020 school holidays, and by phone on 3 occasions a week.
Orders made for 11F conference, for Independent Children’s Lawyer and for Father to file documents within 28 days. Matter adjourned to FCC City B in duty list for directions in the week of 23.11.2020.September 2020 Mother has difficulty speaking with children by phone as son’s phone has apparently broken. September 2020 Mother’s lawyer writes to Father in relation to phone time and Mother travelling to Sydney to collect children in accordance with Orders. No response. September 2020 Mother collects children from City C Police Station. Father initially refuses to allow children to return to City B with the Mother, police intervene, before children leave with Mother. October 2020 Father collects children from the Mother in City B. Children’s time with Mother goes well. October 2020 Mother’s lawyer again writes to Father in relation to phone contact. No response. 27.10.2020 Child Inclusive Conference, Mother initially engages but does not physically attend due to being unwell. Father does not engage and does not attend.
Mother requests new date but no dates available prior to City B FCC circuit week.02.11.2020 Independent Children’s Lawyer files Notice of Address for Service. 26.11.2020 Matter listed for Directions, FCC City B. Father fails to appear. Adjourned for mention on 10 December 2020. 02.12.2020 Mother files Amended IA seeking recovery Order. December 2020 Recovery order made with Father to deliver children to Mother at police station in late December 2020. Order made for children to live with Mother from late December 2020. Father fails to appear. December 2020 Father eventually makes children available at police station, after Police intervention children go with Mother. Children upset at changeover and encouraged by Police. Children leave with Mother and spend in City B, but returned to Father due to children being distressed. January 2021 Interim Orders made for children to live with Father and to spend time with mother in Easter and June school holidays for period of 1 week, plus telephone x 3 per week. Father did not appear. Matter adjourned to 22 April 2021. Early 2021 Mother does not spend time with children as she is unwell and unable to afford travel. Early 2021 Interim Orders made adjourning matter to 13 July 2021. Mid-2021 Mother spends time with the children during Covid-19 lockdown in City B 13.07.2021 Interim Orders adjourning to 19 August 2021. Father did appear. 21.07.2021 Interim Orders for 11F, mention on 5.10.2021, Orders re: Mother to spend time with children in September and Christmas holidays, and by phone, notation that mother may not be able to afford to travel to Sydney on next occasion. Father did not appear. 07.09.2021 11F child inclusive conference interviews. Mother engages by phone but interpreter disengages and Mother unable to subsequently speak with consultant. Father participates. Father does not provide details for consultant to contact children. 09.09.2021 Child Inclusive Conference Memorandum to Court. September 2021 Mother does not spend time with children due to poor health and for financial reasons. 05.10.2021 Matter listed before City D, adjourned for Mother to amend her application. Father did not appear. 06.10.2021 Mother files further Amended Initiating Application changing her position from live with to spend time with the children. 07.10.2021 Interim Orders made for service, Father to respond, and listing for undefended hearing or directions. Father did not appear. 08.10.2021 Mother files Divorce application in FCFCOA. 16.12.2021 Divorce application – Divorce refused as not recognised as lawful marriage – Mother is 14 years of age. Late December 2021 Mother spends approximately 3 days with the children by agreement, pending her overseas travel during the Christmas period. Late December 2021 to February 2022 Mother travels to Country E. 02.02.2022 Interim Orders made setting matter down for hearing, Father does not appear.
CONSIDERATION
The Further Amended Application, filed by the Applicant Mother on 6 October 2021, does not identify an order in respect of parental responsibility in respect of the two children, one born in 2008 and one born in 2012 (“the Children”). Under the terms of the Family Law Act1975 (Cth) (“the Act”), both parents continue to have parental responsibility obligations in respect of both Children.
The nature of the orders sought by the Applicant Mother are for the Children to live with the Respondent Father and to spend significant meaningful time with the Applicant Mother, as identified in her proposed final orders. Given the orders proposed by the Applicant Mother, which the ICL supports, it is not necessary to summarise the evidence in the Child-Inclusive Memorandum to the Court in respect of the allegations of family violence, beyond the observation alleged by the Applicant Mother: that the Respondent Father has been unsupportive of the Children’s relationship with her and had influenced the Children’s views in relation to with whom they wished to live.
The Respondent Father alleged a level of neglect by the Applicant Mother in 2015/2016, as a result of a new relationship, and alleged that he encouraged the Children to share any alleged adverse experiences with the school principal. The Respondent Father referred to alleged advice that the Children should be kept in his care, and made reference to the Applicant Mother seeking to spend time with or contact the Children.
The Applicant Mother identified having access to the support of a counsellor. The report identified that there is no functional relationship between the parents and that they had had a difficult relationship.
The Respondent Father identified that the parties separated on a final basis in 2018, and that the Children had lived with him, and that there has been no reason to communicate with the Applicant Mother. The Respondent Father also said that it would be difficult for the parents to make decisions given the location of the Applicant Mother, in City B. The Respondent Father maintained that his focus is on the Children’s needs. The Respondent Father identified that the Children were allegedly reluctant to spend time with the Applicant Mother and became distressed at transitions.
The Applicant Mother filed her three affidavits, the most recent on 17 March 2022, identifying the procedural history, which included the limited engagement by the Respondent Father in that procedural history.
The Applicant Mother referred to collecting the Children in December 2020 and that, with the assistance of police, the Children got in the car and continued to cry on their way to City B, but stayed with the Applicant Mother until January 2021. The Applicant Mother reported that the Children were constantly asking to go back to the Respondent Father, and identified the activities that were undertaken. The Applicant Mother identified that the Children were sad and that she was very distressed. The Applicant Mother identified having succumbed to the Children’s wishes and requested that the Respondent Father collect the Children, and that both Children had said that they were happiest living with their father and would spend holidays with their mother. The Applicant Mother noted that she was happy if the Children were happy.
The Applicant Mother then identified that further time had been spent with the Children and through telephone contact, as well as what had occurred at the child-inclusive conference. The Applicant Mother also identified her circumstances and her desire to continue to spend time with the Children.
Even in an undefended matter, the Court must take into account the principles in pt 7 of the Act and follow the statutory pathway in accordance with Goode & Goode [2006] FamCA 1346. The Court has taken into account the objects and principles identified in s 60B of the Act, and the paramount consideration of the best interests of the Children, as identified in s 60CA of the Act. The Court has also taken into account the requirements of s 60CC of the Act in determining what is in the Children’s best interests.
In that regard, the Court specifically notes that the Court is able to take into account any views expressed by the Children, and that this is a case where the Children have clearly conveyed it as to continue to live with the Respondent Father. The Court has taken into account the primary consideration of the Children having a meaningful relationship with both parents, as well as the greater weight consideration in respect of protecting the Children.
On the evidence before the Court, the Court is satisfied that there is no unacceptable risk to the Children in respect of the proposed parenting orders, as identified in the Applicant Mother’s Further Amended Application. Given the nature of the orders that have been identified, there is no need for the Court to change the statutory conferred joint parental responsibility under s 61C(1) of the Act until the Children turn 18.
The Court is satisfied that, in the present case, the presumption of equal shared time is rebutted, and that equal shared time would conflict with the best interests of the Children on the evidence before the Court. In that regard, the Court has placed particular weight on the views expressed by the two Children. As equal time is not in the best interests of the Children, the Court must consider the making of an order consistent with the best interests of the Children, and one which is reasonably practicable for the Children to spend substantial and significant time with the Applicant Mother. The Court has taken into account the meaning of substantial and significant time, and the meaning of reasonably practicable in s 65DAA of the Act.
The Court is satisfied that it is in the best interests of the Children that they live with the Respondent Father. The Court is also satisfied that the proposed orders in the Applicant Mother’s Further Amended Application provide for substantial and significant time with the Applicant Mother that is reasonably practicable. The Court is satisfied that the proposed orders in relation to the Children spending time with the Applicant Mother, as identified in the Further Amended Application, are in the best interests of the Children.
The Court was also informed that there has been a degree of cooperation recently between the Respondent Father and the Applicant Mother in relation to contact with the Children. The Court notes that the ICL supported the orders as identified in the Applicant Mother’s Further Amended Application. In all of the circumstances, the Court is satisfied that the orders proposed are in the best interests of the two Children. It is for these reasons that the Court made the orders pronounced on 22 March 2022.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street. Associate:
Dated: 17 May 2022
0