Perkesh and Said

[2014] FamCA 253

FAMILY COURT OF AUSTRALIA

PERKESH & SAID [2014] FamCA 253

FAMILY LAW – Parenting; undefended

Family Law Act 1975 (Cth)

APPLICANT: Ms Perkesh

RESPONDENT: Mr Said

FILE NUMBER: MLC 2471 of 2013

DATE DELIVERED: 4 April 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tran

SOLICITOR FOR THE APPLICANT: Coolabah Law Chambers

THE RESPONDENT: No appearance

Orders

1. That the applicant have leave to proceed without further notice to the husband on an undefended basis.

2. That the mother have the sole parental responsibility for the children B born … 2005; C born … 2010 and D born … 2012.

3. That the children live with the wife.

4. That the reasons this day be transcribed and be placed on the court file.

5. That a copy of this order and in due course, the reasons for judgment this day be served by post by the solicitor for the wife upon the husband at his last known address in Country E.

6. That the husband have leave to seek to set aside these orders, which leave will expire one month after the service of the order.

7. Any application for such leave shall be by way of application in a case supported by an affidavit including setting out reasons why he did not attend and has not participated in these proceedings.

8. That subject to these orders above, all outstanding applications are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Perkesh & Said 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 MELBOURNE

FILE NUMBER: MLC 2471 of 2013

Ms Perkesh

Applicant

And

Mr Said

Respondent

REASONS FOR JUDGMENT

1. By an application filed on 4 April 2013, Ms Perkesh (to whom I shall refer as “the wife”) brought an action to seek orders in relation to the parenting of three children from Mr Said (“the husband”).  The three children are B, who was born in 2005; C, who was born in 2010; and D, born in 2012. 

2. Despite the fact that there have been proceedings in Country E about these children, the husband has never entered any appearance here, attended any court hearing in Australia, nor filed any response to the application by the wife. 

3. In discussions which the transcript will have recorded, I expressed concerns about whether or not the husband knew what has and is happening in Australia, but as has been pointed out by Mr Tran on behalf of the wife, the husband has had ample opportunity to come to Australia to have his say.  Indeed, the evidence shows that the husband originally introduced the wife to Australia, and they had a relatively short period of life here together, during which one of the children was born.  Their third child was subsequently born when the wife returned to Australia alone after the relationship ended. 

4. There are affidavits of service on the file, and the husband has been called and not appeared.  It seems clear from the documents I have read that the husband is represented by lawyers in Country E.  On the basis of all of that, I can presume that the husband has had an opportunity to be heard, and has chosen not to participate.  There is no evidence before me at all that he has written any correspondence to the court, or to the solicitor for the wife.  Nor is there any evidence that he has contacted the wife and/or the children subsequent to the children being reunited with their mother in Australia. 

5. It is in the interests of the children that this matter be resolved, and on that basis, I propose to give the wife leave to proceed on an undefended basis, as was foreshadowed in the orders that I made on 5 February 2004, which have been served on the husband by post. 

6. This case has taken some time to get to this point, mainly because this Court was troubled about the proceedings in Country E.  In November 2011, Johns J ordered that the wife file an affidavit from her lawyer in Country E, indicating the nature of the proceedings about the children and their pending nature, and whether they had been concluded. 

7. That affidavit has never been filed, for reasons that have been explained, but I do have the benefit of an order of the Country E court, which was made on 12 April 2013.  It seems in those proceedings, the husband was the petitioner and the respondents were the parents of the wife.  That application seemed to have been brought on the basis that the husband was claiming that the children were in the custody of the wife’s parents, and he wanted them back.  The order is somewhat convoluted, and in a language that is no doubt made more difficult by virtue of the translation, but in the end, the judge dismissed the husband’s application. 

8. That dismissal seems to have been on the basis of a technicality, and I quote: 

   The petitioner has not placed any material before the court that the children are in the custody of the respondents.

9. I am a little uncomfortable about that because when proceedings began in this court, the wife filed an affidavit which made abundantly clear that the children had been left by her with her parents in Country E.  In a second affidavit, she describes the children as living with her family.  I doubt very much whether there could be any other inference drawn than that they were in the care of her parents. 

10. Be that as it may, the husband is not here to refute the allegations of the wife, and on that basis, I propose to treat the evidence of the wife as unchallenged. 

11. The parties married in the traditional way by arrangement between the respective families.  The history set out in the affidavit of the wife is sad, but indicates that not long after the marriage took place, the relationship became violent.  The wife, on one occasion in Australia, resorted to assistance from not only the police, but also an intervention order, but after discussions with the husband, went back and varied it to return to live with him. 

12. The wife also went back to Country E.  There, she was subjected to violence and resorted to assistance from the Country E authorities.  That did not seem to ultimately resolve the matter, other than to end the marriage.

13. For a period of time, the wife returned to Australia.  She was pregnant with D, and she then gave birth in Australia.  It would seem that the husband has had no contact at all with D. 

14. The other two children otherwise remained with her parents or family in Country E, and by negotiation with the Australian authorities, the wife was able to obtain passports which enabled them to recently come to Australia. 

15. As such, the family of the wife and the three children are now reunited in Australia.  I am told, and there is no evidence to the contrary, the husband has made no endeavour to contact the children since they have returned to Australia. 

16. Because of the matters set out earlier, I propose to give the husband leave to come to Australia to set aside these orders in the event that he feels aggrieved in some way by them, or if the documents have not been brought to his attention. 

17. On any view of the evidence before me, the wife has had the sole responsibility for the care of D since the child was born in 2012, and the wife’s parents have been the predominant carers of the other two children subsequent to the wife leaving Country E, until they were brought to Australia.  The husband has had virtually no contact with these children for what appears to be a number of years. 

18. Part VII of the Family Law Act provides that in proceedings relating to a parenting dispute, the court must consider the best interests of the children as the paramount consideration. In other words, the best interests of the children must be the court’s focus when making orders in relation to children. To determine what is in the best interests of the children, the court is obliged to consider the matters set out in section 60CC.

19. Even with limited evidence in this particular case, and particularly because it is unchallenged, I can make a number of findings.  S 60CC requires the court to consider the benefit of the children having a meaningful relationship with both parents, but also the need to protect them from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. 

20. I cannot make an order that the children will benefit from a relationship, let alone a meaningful one, with their father if he does not participate in the proceedings.  Whilst there was an unsuccessful application in Country E to remove the children from their extended family, there does not seem to have been any other application involving the children for contact, or some other form of communication. 

21. With the husband not having done that, and not having brought any proceedings here, it is hard for me to make any finding other than that these children are not benefiting from having any relationship at all with their father.  I find that they do have a very close and loving relationship with their mother.  Whilst they were in Country E, there was regular contact with the mother here in Australia, during which time the children indicated that they wanted to be with her.

22. The evidence also shows that this case is surrounded by family violence.  There are many allegations by the wife, including police involvement and the children seem to have been present when that abuse occurred.  The children need to be protected from that, and to the extent that the husband intends in the future to seek any orders in relation to the children, he will need to focus on how the children are going to be protected from the sort of violence that I find has existed up until now.

23. Section 60CC(3) sets out a number of other considerations for the court.  The children do not appear to me to be old enough to have sufficient understanding to express a view about any future relationships.  On the evidence, I find there does not appear to be any relationship at all with the children, so I am unable to try and define what it is that forms the basis of any order that they can have some time with their father.  The nature of the relationship with the mother seems to be extremely close. 

24. A third additional consideration is the extent to which each of the parents has taken the opportunity to participate in decision-making.  For the reasons I have articulated, it will be apparent that the husband has not taken any steps to have time or participate in decisions about the children.  It could not be said that the husband was not aware of the residence of the wife, because she has at all times been on the record as showing her residential address, and also having a solicitor with whom the husband could communicate. 

25. Another of the considerations is the extent to which the parent has fulfilled obligations to maintain the child or children.  In this case, there is no evidence that the husband has provided any support for the children at all.  On the other hand, the wife has been providing all of the financial support both now and when the children were in Country E. 

26. Other matters in s 60CC which are relevant relate to the capacity of the parents to provide for the needs of the children, including emotional and intellectual needs.  There is no evidence that I can see that the husband disputes the wife’s capacity.  Indeed, the orders to which I have referred from the Country E court do not make any criticisms of the wife as a parent, but certainly do make criticisms of her as a wife.  None of assists me in relation to the husband’s capacity to provide for the needs of the children, nor indeed is there any criticism of the role of the wife. 

27. One of the other factors to be taken into account is the attitude to the children and to the responsibilities of parenthood demonstrated by the parents.  Leaving aside the family violence and its indication of responsibility in a parent, the husband’s silence in relation to his approach to the future of his children is damning.  It indicates a lack of responsibility because he says nothing about having an involvement in the future of these children. 

28. I have already mentioned the family violence issues, and intervention order.  The Court is obliged to take into account the nature of the order, the circumstances in which it was made, any evidence admitted in the proceedings.  It is also the obligation to draw inferences from findings made by that particular court, and any other relevant matters surrounding it.  I am unable to make any findings about the matter, other than the fact that the orders were sought and precipitated from police involvement, and on that basis, I can conclude that the court was at least satisfied that the wife and the children needed protection.

29. In this particular case, it is a question of whether it would be preferable to make an order that would be least likely to lead to future proceedings between the children.  The court has adjourned the proceedings on two or three occasions, now, and the husband has not participated.  He has lawyers in Country E, and has chosen, for one reason or another, not to participate. 

30. There is little point, therefore, in delaying these proceedings any longer, when it is clear that the children are now in Australia, are in the care of a person who is their parent, and who, on the evidence, which is unchallenged, seems to be doing a very good job in respect of their care.  On that basis, it seems sensible to make final orders and to preclude the proceedings now.

31. In the matter of Perkesh and Said, I make final orders in terms of paragraph 1 and 2 of the orders sought by the wife in the amended application filed on 4 October 2013.  I make an order that the order be served upon the husband by post as soon as practicable.  I will make a further order that these reasons be transcribed, and a copy be sent to the husband by the solicitor for the wife as soon as they are available.  The fifth order will be that the husband have leave to seek to set aside these orders within one month after service upon him by post of the orders this day, on the basis that he files an application supported by an affidavit, setting out, amongst other things, why he has not participated in the proceedings until now.  And I otherwise dismiss the proceedings filed on 4 October 2013.   

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 April 2014.

Associate: 

Date:  4 April 2014