PARASHAR & PARASHAR

[2016] FamCA 562

FAMILY COURT OF AUSTRALIA

PARASHAR & PARASHAR [2016] FamCA 562

FAMILY LAW – CHILDREN – Undefended – Where the father seeks sole parental responsibility for the child and for the child to live with the father – Where the mother has refused the child being returned to her care – Where numerous attempts have been made to effect service upon the mother in Australia and overseas – Where it appears the mother may now live overseas – Where it is impractical for the parties to have equal shared parental responsibility for the child – Orders made as sought by the father – Mother granted liberty to apply to discharge or vary Orders.

FAMILY LAW – PROPERTY – Undefended – Where the Court is unable to make a determination as to whether the orders sought by the husband are just and equitable – Where, on balance, orders should be made to reflect the reality that each party will retain the personal property in their possession and their superannuation – Orders made as sought by the husband – Wife granted liberty to apply to discharge or vary Orders.

Family Law Act 1975 (Cth)

APPLICANT: Mr Parashar

RESPONDENT: Ms Parashar

FILE NUMBER: PAC 3686 of 2015

DATE DELIVERED: 7 July 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Stevenson

HEARING DATE: 4 July 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Nagle of O’Connell Solicitors

FOR THE RESPONDENT: There was no appearance by or on behalf of the respondent

Orders made 4 July 2016

1. On the court being satisfied that the Amended Initiating Application and affidavit of the husband being delivered to the wife at the home of her father in India by a process server on 24 June 2016 and there being no appearance by or on behalf of the wife today, Orders are made in accordance with paragraphs 1 to five inclusive of paragraph 2 of the husband’s Amended Initiating Application filed on 18 April 2016, as set out hereunder, subject to the wife having a liberty to apply to discharge or vary all or any of these Orders on 21 days’ notice:

   1.That the father, Mr Parashar, has sole parental responsibility for the child of the marriage with the mother, Ms Parashar, the child being [B] born on … 2013.

   2.That the child live with the father.

   3.That the mother spend time with the child as agreed between the parties.

   4.That neither party shall denigrate the other in the presence of or within the hearing distance of the child.

   5.That each party retain the property currently in his or her possession.

2. There is no order as to costs.

3. The father will cause a process server to deliver a sealed copy of the Orders made on 4 July 2016 and the reasons for judgment 7 July 2016 to the mother at the home of her father, being:

   C Street
   Suburb D
   City E
   India

4. Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 3686  of 2015

Mr Parashar

Applicant

And

Ms Parashar

Respondent

REASONS FOR JUDGMENT

The proceedings

1. The parties to these proceedings are Mr Parashar and Ms Parashar.  They have one child, B, who was born in 2013 and is aged three years.

2. On 4 February 2016 the father filed an Initiating Application by which he sought the following orders:

   2. Final orders sought

   1.As per future Amended Initiating Application be leave.

   2.As per interim orders sought.

   3. Interim or procedural orders sought

   1.That pending further order:-

   a)The Father, [Mr Parashar], has sole parental responsibility for the child of the marriage with the Mother, [Ms Parashar], the child being the child [B] born on … 2013.

   b)That the child live with the Father.

   c)That the child may travel with the Father outside the Commonwealth of Australia, and the Father may apply for a replacement Australian Passport for the child forthwith.

   d)That the Mother spend time with the child as agreed between the parties.

   e)That neither party shall denigrate the other in the presence of or within the hearing distance of the child.

   f)That these orders are made exparte and implemented forthwith.

   Note:

   The Mother has been informed of the orders sought on her mobile no: ...  The Mother advises that she is not in possession of the child’s passport.

3. On the first return date of the father’s Application for Final Orders, there was no appearance of or on behalf of the mother.  The Registrar granted leave to the father to file an Amended Initiating Application, which he did on the same day.  On the first return date, being 18 April 2016, the Registrar adjourned the application for possible undefended hearing to the Judicial Duty List on 4 July 2016.

4. By way of the Amended Initiating Application which he filed on 18 April 2016, the father sought the following orders:

   1.That the Father, [Mr Parashar], has sole parental responsibility for the child of the marriage with the Mother, [Ms Parashar], the child being [B] born on … 2013.

   2.That [the child] live with the Father.

   3.That the Mother spend time with [the child] as agreed between the parties.

   4.That neither party shall denigrate the other in the presence of or within the hearing distance of [the child].

   5.That each party retain the property currently in his or her possession.

   6.That the Mother pay the Father’s full indemnity costs of these proceedings.

5. On 18 April 2016 the Registrar directed the father to file and serve all affidavits in relation to parenting and property applications by 2 May 2016.  The Registrar directed further that the father file an affidavit of service or attempted service upon the mother by 20 May 2016.

6. The father deposed to his attempts to effect service upon the mother in his affidavit of 29 June 2016.  This affidavit should have been filed by 20 May 2016 but I do not consider that any significance attaches to the father’s failure to comply with that direction.  Certain of the father’s attempts to effect service occurred after that date.

7. The father deposed that he attended the Sheriff’s office on 18 April 2016 and gave instructions for service to be effected upon the mother at F Street, G Town.  The father deposed that the mother had lived in those premises with a flatmate.  The father deposed further that the flatmate informed him on 12 April 2016 that the mother had removed her belongings and those of the parties’ child from the premises.

8. A person in the Office of the Sheriff provided a report dated 23 June 2016 to the father, which referred to four unsuccessful attempts at service upon the mother at the G Town premises.  This report stated that the mother did not contact the Sheriff’s officers in response to calling cards left at the premises after each unsuccessful attempt at service.

9. The father deposed that his sister telephoned him from India in mid to late

   
   

   May 2016 and informed him that she had seen the mother at the home of her father in India.  The father then arranged for his Amended Initiating Application and affidavits to be delivered to the mother at the home of her father.  Annexed to the father’s affidavit of 29 June 2016 was a

   
   

   document which, on its face, was a notarised statement, by which

   
   

   Mr F, deposed as follows:

   I, [Mr F], Aged 29 yrs, Residing at:  … India, India-Pin-…, working as farmer, Hindu by religion, do solemnly affirm and declare that. I have served the following documents pertaining to file No.PAC … to [Ms Parashar] at her residence [C Street, Suburb D, City E] India, … Pin …, on 25-5-2016 13-30Hrs.

   Documents Served    (1) Amended Initiating application

   (Family Law)

   (2) Affidavit.

   What is stated above is true and correct.

   Place:  India.

   Date:  24-06-2016.

Background

1. The father and the mother, who are aged 32 and 30 respectively, married in India in 2009.  They were both born in India, with the father coming to Australia on 20 November 2005 and the mother arriving in this country on 7 October 2009.

2. The parties married in India in 2009 and separated on 20 July 2014.  They were divorced on 16 September 2015.

3. The father deposed that, in late January 2016, the mother informed him that she was about to be admitted to hospital and that he would care for their child during that period.  The father deposed further that, when he attempted to return the child to the mother on 31 January 2016 she said “You keep the child.  He can live with you now”.

4. The father deposed further that he told the mother that he would be in India for six weeks and that he would take the child into his care on his return.  According to the father, the mother replied “No you take him now.  He can stay with you from now on.  I already told you, you can have him”.

5. The father travelled to India on 9 February 2016 in order to remarry on 22 February 2016.  He attempted to make arrangements to take the child with him but could not make the necessary arrangements in time to accommodate the wedding plans.

6. While the father was in India, the child was cared for by his niece until 2 March 2016 and then by his mother.  The father’s mother travelled to Australia from India in early March 2016 and cared for the child until the father’s return on 4 April 2016.

7. The father deposed that he saw the mother at an airport when his mother departed from India on 2 March 2016.  He deposed further that his mother informed him that the mother was on her flight from India to Australia.

8. The father deposed that the mother was represented at an early stage in the proceedings by Juris Australia Lawyers.  He annexed to his affidavit of 4 February 2016 correspondence between this firm and his solicitor in November 2015.  The father deposed that a person from that firm attended Court on 12 February 2016.

Consideration and conclusion

Parenting

1. The child has been in the care of the father since late January 2016, apparently with the consent of the mother.  In a letter dated 2 November 2015 from Juris Australia to the father’s solicitor (Annexure “C” to the father’s affidavit of 4 February 2016) the mother proposed that the child live with him and that he have “full parental responsibility”.  The mother proposed further that the child spend time with her as agreed between the parties.

2. In my view, practicalities dictate that the father should have sole parental responsibility for the child the child.  The mother’s whereabouts have been largely unknown to the father since the child came into his care and it appears that she may currently live in India.  In such circumstances, equal shared parental responsibility is completely unviable as the father would be unable to consult with the mother and reach decisions jointly with her.

3. The order proposed by the father that the child live with him reflects reality and would seem to be appropriate in all the circumstances.  It also seems appropriate that there be an order that the child spend time with the mother as agreed by the parties.

Property

1. The father deposed that the parties own no real property.  He contended that the mother retained a sum of $75,000 in a Commonwealth Bank account in her sole name at the date of separation.  The father admitted that he retained a sum of $50,000 which was held in a joint account in 2014.

2. Realistically, I can make no determination whether the order which the father seeks would result in a just and equitable outcome.  There is no evidence from the mother.  I have no Financial Statements and limited evidence as to contributions of the parties and future needs from the father.

3. On balance, however, I determined to make the orders sought by the father in relation to financial issues.  The order merely reflects the reality that each of the parties will retain personal property and superannuation benefits which are currently in his and her respective possession.

4. I considered that the mother should be afforded a liberty to apply to set aside or vary my orders of 4 July 2016.  I will now order that the father attempt to effect service of my Orders of 4 July 2016 and my Reasons for Judgment upon the mother at the address of her father within 21 days of today’s date.

5. The father sought an order that the mother pay his costs on an indemnity basis.  I was not prepared to make any order for costs, in the absence of evidence as to the financial circumstances of either of the parties.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 7 July 2016.

Associate: 

Date: 7 July 2016