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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pahari & Upadhya

Details

AGLC: Pahari & Upadhya [2022] FedCFamC2F 431
Case: [2022] FedCFamC2F 431
Decision Date

CaseChat Overview and Summary

This is a parenting matter that was fixed for a final hearing before Judge Street. The Applicant Mother appeared, represented by her solicitor, while the Independent Children's Lawyer appeared, represented by Ms Rutkowska. The Respondent Father failed to appear or be represented. The Applicant Mother sought an order that the matter proceed as an undefended hearing. The Court found that the Respondent Father had failed to comply with previous orders and that the matter should proceed as an undefended hearing. The Court took into account the principles in Lancey & Lancey and An & Zhu, as well as section 67 of the Federal Circuit and Family Court of Australia Act 2021.

The Court considered the evidence and submissions presented, including the Child-Inclusive Memorandum to the Court. The Applicant Mother sought orders for the children to live with the Respondent Father and to spend substantial and significant time with her. The Court found that the proposed orders in the Applicant Mother's Further Amended Application were in the best interests of the children. The Court took into account the views of the children, who had expressed a preference to live with the Respondent Father. The Court also noted that the Independent Children's Lawyer supported the orders as identified in the Applicant Mother's Further Amended Application.

The Court made orders for the children to live with the Respondent Father and to spend substantial and significant time with the Applicant Mother, in accordance with the Further Amended Application. The Court also made orders in relation to communication, contact, and other matters. The Court considered the evidence and submissions and was satisfied that the proposed orders were in the best interests of the children. The Court made the orders pronounced on 22 March 2022.

In summary, the Court found that the matter could proceed as an undefended hearing, considered the evidence and submissions presented, and made orders that were in the best interests of the children. The Court took into account the views of the children and the support of the Independent Children's Lawyer. The Court made orders for the children to live with the Respondent Father and to spend substantial and significant time with the Applicant Mother, as well as other orders in relation to communication, contact, and other matters.

Orders