Sachar and Kalita and Anor

[2020] FCCA 383

FEDERAL CIRCUIT COURT OF AUSTRALIA

SACHAR & KALITA & ANOR [2020] FCCA 383

Catchwords:
FAMILY LAW – Parenting – Application for the Father’s telephone time with the children to be suspended – allegations of domestic violence – various procedural Applications dismissed including an Application for the matter to be transferred to the Family Court of Australia and for the Court to appoint a lawyer for the Applicant – Application for Review of a decision by the Registrar dismissed – Orders for supervised telephone time only with the Father.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2)(a) & (b) and (2A).

Federal Circuit Court of Australia Act 1999 (Cth), s.104(2)

Federal Circuit Court Rules 2001 (Cth), rr.12.01, 12.03, 20.01, 23.03

Cases cited:

Collu & Rinaldo [2010] FamCAFC 53

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) 41 Fam LR 483

Moose & Moose (2008) FLC 93-375

Slater v Light (2013) 48 Fam LR 573

Applicant: MR SACHAR

First Respondent: MS KALITA

Second Respondent: MR B SACHAR

File Number: MLC 5428 of 2018

Judgment of: Judge WJ Neville

Hearing date: 10 December 2019

Date of Last Submission: 10 December 2019

Delivered at: Canberra

Delivered on: 11 March 2020

REPRESENTATION

Solicitors for the Applicant: Self-represented

Solicitors for the First Respondent: Legal Aid ACT

Solicitors for the Second Respondent: No appearance

Solicitors for Independent Children’s Lawyer: Strong Law Pty Ltd

ORDERS

1. All previous orders for the Father to spend time with the children be suspended.

2. The Father spend supervised time with the children by telephone for up to 45 minutes on one occasion per week as follows:

   (a)With the Father calling the children from A Contact Centre;

   (b)At a time to be agreed between the parties and A Contact Centre;

   (c)With the parties and A Contact Centre being authorised to record the calls;

   (d)With all telephone calls to be in English; and

   (e)At the Father’s expense.

3. The matter be listed for further directions on 24 April 2020 at 2:00pm in CANBERRA.

4. The matter be listed for Final Hearing for 3 days commencing on 6 October 2020 at 10:00am in CANBERRA.

5. The provisions of section 102NA(1)(c)(iv) of the Family Law Amendment (Family Violence and Cross- Examination of Parties) Act 2018 (Cth) apply to these proceedings such that the Applicant Father is precluded from directly cross-examining the other parties.

6. The self-represented Applicant Father is directed to forthwith attend upon the office of the Legal Aid Commission to apply for representation for the Final Hearing so that cross-examination, if it is to occur, is via a legal representative. Failing the Applicant Father obtaining representation, he will not be permitted to directly cross-examine the other parties.

7. Evidence in chief at the Hearing be by way of Affidavit. Oral evidence in chief will only be permitted by leave. Affidavits must comply with Divisions 2.1 and 15.4 of the Federal Circuit Court Rules 2001.

8. The Applicant is to pay any hearing fee or seek a waiver of the fee no later than 14 days prior to the Final Hearing.

9. No later than 21 days prior to the Final Hearing, each party is to file and serve:

   (a)one affidavit setting out any further evidence in chief;

   (b)one affidavit of each lay witness intended to be relied upon at trial; and

   (c)one updated financial statement. 

10. The parties cannot rely on any material filed later than 21 days prior to the Final Hearing without the leave of the Court.

11. No later than 7 days prior to the Final Hearing, each party is to file and serve on all other parties and the Court a case outline, setting out:

    (a)the final orders sought;

    (b)a summary of the issues in dispute;

    (c)a list of documents intended to be relied upon;

    (d)a list of authorities intended to be relied upon; and

    (e)a statement of asserted assets and liabilities.

12. No later than 7 days prior to the Final Hearing, an editable Microsoft Word copy of the case outline must be emailed to [email protected].

13. No later than 7 days prior to the Final Hearing, the Independent Children’s Lawyer is to prepare a chronology, to be settled with the parties.

14. The parties are to notify any Family Consultant or other Court appointed expert required to give evidence at the trial a minimum of 6 weeks prior to trial.

15. Subpoenæ be returnable no later than 7 days prior to the Final Hearing.

16. The Applicant’s Applications in a Case filed on 11^th September 2019, 24^th October 2019 and 5^th December 2019 be dismissed.

17. The Applicant’s Application for Review filed on 3^rd December 2019 be dismissed.

18. The First Respondent’s Application in a Case filed on 16^th April 2019 is otherwise dismissed.

19. Otherwise, all interim Applications be dismissed.

THE COURT NOTES THAT:

(A)The Applicant filed an Affidavit filed on 18th October 2019, in which he attached two ‘Applications’.  These Applications have not been formally filed with the Court and are not in proper form. Accordingly, they are not to be filed.

(B)If in any proceedings there are allegations of family violence and the provisions of Section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

(C)Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

(D)Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

(E)If Section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

(F)Failure to comply with hearing directions could result in Orders for costs (including personal costs Orders) and the possibility that the Court will not hear the matter on the scheduled dates, or that the matter may proceed undefended, including against the Second Respondent who has not engaged in the proceedings to date.

(G)Should the matter settle prior to the Final Hearing, or should the Final Hearing be listed to another date, the party who put any expert on notice must notify them that they are no longer required to give evidence, at the earliest possible time. Failure to do so may result in Orders for costs (including personal costs Orders) for hearing related expenses incurred by that expert.

(H)All parties and practitioners must attend the Final Hearing in person.

IT IS NOTED that publication of this judgment under the pseudonym Sachar & Kalita & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

MLC 5428 of 2018

MR SACHAR

Applicant

And

MS KALITA

First Respondent

MR B SACHAR

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. To be blunt, the Applicant Father, Mr Sachar, is his own worst enemy.  He files material on a regular basis that is, more often than not, of little use and more a litany of what he claims to be “abuses” by various Courts, and the Mother (among others), that are designed (in his view) to oppress him in almost every respect.  In particular, he claims that these “abuses” are designed to thwart his time with the four young children who are the subject of these proceedings.

2. In the last nine months, the Father has filed four Applications all of which are dealt with in these reasons.  These included an Application for Review of a decision by the Registrar, made on 12^th November 2019, to vacate a Conciliation Conference.  What is set out in that Application is typical of the kind of material filed by the Father.

3. One of the grounds of the Application for Review was in the following terms (giving every allowance for the Applicant as a self-represented litigant):

   Registrar … was not co-operating with Applicant and exceeded power.

4. The Applicant was advised by the Registry that this Application was out of time, pursuant to Rule 20.01 of this Court’s Rules.  Accordingly, Mr Sachar required an extension of time to allow this Application to proceed.  His Application for Review included what appears to be a “letter” or note to the “CEO/Chief Justice”.  His grounds or reasons for the extension of time are that he has “ongoing matters in various jurisdictions and person [sic] hardship.”

5. Next he referred to a document which, he said, is “from an unreliable [but unspecified] source” which makes it “unable to be accepted”, in his view.  He then stated that “the reasons [are] not comprehended and vague.” 

6. The Father was advised by the Registry to get legal advice.  To this he replied in his supporting “letter/note” that legal advice has not been available to him.  As noted below, another of Mr Sachar’s Applications is that the Court direct the Law Society, or other similar body, to provide him with legal advice.

7. Further, and by way of general comment that is unrelated to any specific Application before the Court, it is alarmingly common that what should be a straight-forward mention or directions hearing turns into a much longer (sometimes 90 minutes or thereabouts) discourse.  Such events are largely taken up with the Applicant Father arguing about a wide range of injustices he perceives to have been perpetrated against him, usually by others.[1]  In passing, I note that the Father spends significant amounts of his time sitting in the back of this Court watching and listening to other matters.  Nothing turns on this observation.

   [1] See, for example, the notations to the Orders made on 9^th April 2019, which refer to the inordinate length of time of the directions hearing and to some of the large number of complaints made by the Father.

8. The four children who are the subject of this litigation are W (born in 2004), X (born in 2010), Y (born in 2012), and Z (born in 2013).  There is a property component of the litigation as well, which includes a claim by the Wife that a property in Melbourne was improperly transferred by the Husband to one of his relatives.  She says that this was designed to thwart the Wife’s claims.  Although the Husband’s brother has been formally joined to the proceeding and Orders made for him to file material, he has not done so or otherwise participated in the matter thus far, other than a brief appearance before the Court in Melbourne quite some time ago.  Thus the property aspect seems to be just as fraught as the parenting aspect.

Procedural history & evidence summary

1. Although a lengthy process, it is nonetheless important to record in full the following complicated litigation history - thus far.  What follows also conveniently provides a summary of the evidence of the parties, plus what is contained in a Memorandum provided by a Family Consultant.

2. The early stages of the matter were conducted out of the Melbourne Registry of the Court.  The Father’s original Application, filed 17^th May 2018, only sought Orders in relation to parenting.  The Mother’s Response, filed 7^th June 2018, sought Orders in relation to both parenting and property.

3. On 15^th June 2018, Consent Orders were made in relation to the provision of disclosure, for example, regarding particulars of payments from the proceeds of sale of the former marital residence at C Street, Suburb D, Victoria (“the C Street, Suburb D property”).  Parenting Orders were also made on this occasion, as well as a restraint on the Husband from dealing with funds from specified Westpac bank accounts.

4. On 22^nd June 2018, among other things, the Father’s brother, Mr B Sachar, was restrained from transferring, encumbering or otherwise dealing with the former marital residence, the C Street, Suburb D property.  The Husband’s [then] lawyer agreed to retain in his trust account funds transferred to him by the Applicant.

5. On 11^th July 2018, the matter was transferred to the Canberra Registry of this Court.  Various notations were made in relation to, among other things, the Applicant dealing with funds in other, named bank accounts.

6. On 3^rd August 2018, the Mother filed an Application in a Case seeking Orders for substituted service on the Father’s brother, and for the suspension of the Father’s time with the children.

7. On 6^th August 2018, with no appearance by the Father, Orders were made for the Father’s time with the children to be suspended, and for the Father’s brother to be served with the Mother’s Application, and the Orders made on 22^nd June 2018, via email.  The Court also ordered the appointment of an Independent Children’s Lawyer (“ICL”).

8. Pursuant to Notations and Orders made on 19^th September 2018, and again without any appearance by the Father, the Court recorded that it was advised by the Mother’s lawyer, and the ICL, that the Father was to be sentenced in the Local Court in Melbourne on 20^th September 2018 in relation to offences perpetrated against her.

9. Also on 19^th September 2018, the Court made Orders whereby, in the absence by the Father of filing a relevant Application in 14 days, final Orders would be made as sought by the Mother.  Those Orders sought were for the Mother to have sole parental responsibility for the children.  Further, once a Family Violence Order against the Father expired on 20^th August 2019, the Father was to spend Facetime/Skype with the children as set out in the Orders, and any other time as agreed in writing between the parties.

10. On 3^rd October 2018, despite it not complying with relevant rules, and upon the Father’s “insistence” as recorded by Registry staff, the Father filed an Application in a Case and Affidavit.  The Father sought that the Orders made on 19^th September 2018 be set aside, there be a family report under s.11F of the Family Law Act 1975 (“the Act”), there be a psychiatric report of the Mother, for the Father to spend time with the children, and that the parties attend a family dispute resolution conference.

11. In his supporting Affidavit, the Father alleged (without providing any particulars) the children to be at “serious risk” from the Mother (among others).  The Father claimed that (a) earlier [unspecified] Orders had provided him with leave to attend any Court event by telephone, (b) he was having difficulty obtaining legal representation, and (c) he had been the primary carer for the children since birth.

12. On 4^th October 2018, the Court made orders setting out a timetable for the Father to file material, and confirming Orders that all parties, and the Father’s brother, be restrained from dealing with the C Street, Suburb D property or any of its proceeds of sale.  On that same date, the Father filed a Financial Statement in which he listed the C Street, Suburb D property as his residence and his occupation as “student”.

13. On 2^nd and 5^th November 2018 the Father filed material, which included a Notice of Address in Canberra.  His Affidavit filed at this time complained about (a) his arrest by the Australian Federal Police, which seems to have arisen from a breach of a Family Violence Order, (b) Legal Aid ACT’s refusal of a grant of legal aid in circumstances where the Mother is represented by that Office, (c) the conduct of Registry staff, and (d) the Commonwealth Court’s Portal allegedly not working for him.

14. In a second Affidavit filed on 5^th November 2018, the Father contended that the C Street, Suburb D property was jointly owned by him and his brother.  He said that the title to the property was only in his name.  He contended that the property had been valued at $450,000 but at auction the highest offer was only $350,000.  He said that the Wife refused to take any responsibility for the mortgage, following which he confirmed that the property was sold to his brother for an unspecified amount, but which was (he said) “well above the market value.”  He went on to say that his brother had offered to buy the property for $504,000.

15. He said that the property ultimately sold with net proceeds of $234,000 placed in the Applicant’s Westpac account.  Unclearly, he stated further that “the balance of $104,000 was adjusted into the property for the contribution [of $35,000]” of his brother.  He claimed that his brother had paid $15,000 in mortgage payments.  He further stated (again unclearly) that he paid $81,000 to his brother, but then also stated that the balance in the account was $153,000 of which $60,000 remained in the account that belonged to the Applicant Husband.  A further balance of $93,000 was referred to.  He then itemised (without documentation) a range of expenses which he said totalled $95,667.60.

16. The Applicant filed a third Affidavit on 5^th November 2018 in which he outlined a range of diverse matters, from an alleged investigation by the “law commission” into the conduct of some un-named “previous private lawyer”, to the Father seeking interim parenting Orders.

17. On 5^th November 2018, the Court made Orders for the parties and children to attend a s.11F conference, and for the Father to provide copies of any bail conditions that might relevantly affect his attendance at such a conference.

18. On 12^th December 2018, the Respondent Mother filed an Application in a Case, which sought to have the Father’s brother joined as a party to the proceeding, and that the brother provide relevant details regarding the purchase of the C Street, Suburb D property and any mortgage payments made by him.

19. In her supporting Affidavit to this Application, also filed on 12^th December 2018, the Wife confirmed by documents attached to her Affidavit that the Husband was the sole owner of the C Street, Suburb D property, which was confirmed to have been sold for $504,000.  At that time, there was a mortgage over it of $172,000.  The Wife deposed that she was unaware of what happened to the remaining proceeds of sale of $332,000.  She denied that the Father’s brother paid any deposit on the property, and asserted that all mortgage payments came from the Husband’s bank account.

20. The Father sought that there be a Punjabi interpreter at the next Court event.  This is in circumstances where there has been no obvious difficulty in the Court understanding anything the Father has written or said in open Court, and no obvious difficulty on the Father’s part.  I should note in this regard that on occasions, the Court has arranged an interpreter but then the Father has not required their assistance.

21. On 12^th December 2018, the Father filed a further Affidavit in which he outlined his more specific concerns about his previous legal representation from a [named] lawyer in Melbourne.  As a result, he said, of this poor representation, he wanted all previous “judgments and orders” vacated and a re-trial of his family law matters.  He stated further: “the Applicant has not received support [sic] emotional, financial or legal despite being the victim of family violence.…”  Over the 52 paragraphs of this Affidavit, the Applicant referred to, among other things, a range of previously raised complaints and claims.  These included various parenting Orders sought, complaints regarding financial disclosure by the Wife and other matters pertaining to the property aspect of the dispute.  The Father sought copies of all legal advice provided by the Legal Aid Office to the Mother.  Obviously to do so would be a breach of legal professional privilege, among other things.

22. Not for the first time, or the last, the Father claimed that he was unable to provide a “proper response to the proceedings” without the assistance of legal representation.  Again, the Father claimed that he had been the children’s primary carer.  Helpfully, the Father provided a copy of his most recent bail conditions (Annexure A4), which had previously been requested by the Court.

1. On 15^th March 2019, the Court released a s.11F Memorandum from a Family Consultant, Ms E.[2]  Briefly stated, the Report writer said that her albeit limited assessment indicated that there were serious risk factors present in the matter.  She noted in her report of the interviews with the three children that none of them wished to spend time with the Father and were very content with their Mother.  She said that there should be consideration of suspending the telephone time between the Father and the children.  She said that it appeared that the children had been emotionally harmed due to exposure to family violence.

   [2] In this Report, Ms E noted that although the Father said that he wished there to be available a Punjabi interpreter, he also confirmed (par.4) that he understood English.

2. Between the December Court event and the next such occasion, on 9^th April 2019, there was a change in the ICL.  In part, this was due to the Father raising complaints against the previous ICL.  Rather than contesting them, the previous ICL considered it to be more expeditious that she retire from that role and a new ICL be appointed.

3. On 9^th April 2019 there was a very long directions hearing (some 90 minutes or thereabouts), with the Father doing most of the talking. The range of matters he complained about on this occasion were summarised in the notations to the Orders that subsequently issued. I will not repeat them here, except to note in particular his complaints (a) against the appointment of a new ICL (he said that [unidentified] “illegal procedures” were used), and (b) a complaint against the Family Consultant who conducted the interviews for the s.11F conference.

4. The Father referred summarily to various matters before other Courts, and said that he wanted this proceeding to be dealt with by the “Full Bench of the Federal Court”.  Without any particulars, the Father also sought that I recuse myself, ostensibly because I made Orders on 17^th September 2018 when the Father did not attend Court.

5. Orders were made on 9^th April 2019 for the Father to file any Amended Initiating Application within 28 days regarding proposed parenting Orders, and for the Mother to file a Financial Statement within 28 days.

6. Also on 9^th April, the Father filed a Contravention Application regarding alleged breaches by the Mother regarding the children speaking with him.  Two Affidavits were filed by the Father in support of this Application.

7. On 15^th April 2019, the Mother filed an Application in a Case (and supporting Affidavit) in which she sought Orders for the Father’s telephone time with the children be suspended.  She said that the Father regularly was either not available, or he continued to raise with the children inappropriate matters despite being warned by the Mother’s lawyer in writing not to do so.  She said that the Father was often rude and abusive to the children during telephone and Skype calls, which led to them regularly being upset.  The Mother also filed a Financial Statement at this time.

8. On 15^th May 2019, the Court made Orders for the Father to file material in response to the Mother’s Application in a Case (filed 16^th April, which he said he had not seen), and for all outstanding Applications to be listed for hearing on a date to be advised.  Further, the Court ordered that the matter be listed for final hearing in 2020 on dates to be advised, as well as Orders for a s.62G report.

9. On 22^nd August 2019, an employee with the ICL’s firm, affirmed and filed an Affidavit, which annexed correspondence between the ICL and the Father relating to his telephone calls with the children being supervised by A Contact Centre.  By email dated 5^th July 2019, the ICL confirmed with the Father that he did not agree with this occurring.

10. On 22^nd August 2019, the Mother filed an Affidavit that set out a detailed chronology of scheduled telephone calls (28 of them) between the Father and the children – those that took place and those that did not - between 17^th May 2019 and 19^th August 2019.  The Mother recounted a range of difficulties with these calls which, in general terms here, she said are not child-focussed, discuss the current litigation, and where the Father allegedly at times yells at the children.  In this Affidavit, the Mother set out the dates upon which she facilitated the children’s telephone calls with the paternal Grandparents in India.

11. On 23^rd August 2019, the Father arrived at the interim hearing approximately 30 minutes late.  By that time, the Court had already dealt with a number of Applications.  Notwithstanding his lateness, the Court permitted the Father to make submissions regarding those earlier Applications.  In the result, as noted in the Orders of that date, a range of Applications were dismissed, while another was withdrawn.  In addition to these matters, the Court made Orders for the parties to file further material, for the Father’s brother to be joined to the proceedings, and for him to file material specified in the Orders.  The parties also agreed that all remaining outstanding issues could and should be dealt with by way of written submissions.

12. In accordance with the 23^rd August 2019 Orders, the Mother and the ICL filed their respective Minutes of Orders Sought.  The Father did not file his Minute of Orders Sought until 6^th September 2019.

13. On 11^th September 2019, the Father filed an Application in a Case by which he sought that the Court provide him with a lawyer, pursuant to Rules 12.01 and 12.02 of the Federal Circuit Court Rules 2001.  His Affidavit filed in support provided no information other than [incorrectly] to assert that he had been informed by my Associate that he needed to file this Application.

14. On 23^rd September 2019, the Mother filed written submissions regarding among other things, the suspension of the Father’s telephone time with the children, and parental responsibility.  She also sought a substituted service Order in relation to the Second Respondent, the Father’s brother, namely that service be effected via email to the Father’s email address.

15. The ICL’s submissions were filed on 15^th October 2019.  The Father did not file written submissions as directed.

16. On 27^th September 2019, with detailed notations that set out the procedural course up to that point, Orders were made for the parties to attend a Conciliation Conference on 26^th November 2019 at 9.30am.

17. On 18^th October 2019, the Court made Orders for the Respondent Mother/Wife to serve relevant documents on the Second Respondent via the Father’s email address.  Those Orders noted that the Father’s Application in a Case, filed 11^th September 2019, and the Mother’s Application in a Case, filed 16^th April 2019, remained reserved for judgment.

18. Also on 18^th October 2019, the Father filed an Affidavit, which had annexed to it (a) a Minute of his Orders Sought, (b) a letter from the Registrar, dated 12^th September 2019, in which she outlined a series of flaws in the documents the Father had filed at that time and the Rules of this Court that had not been complied with, (c) a further Affidavit, affirmed 12^th September 2019, which simply stated that he had filed an Application on 11^th September, (d) an Application in a Case that sought to have the matter transferred to the Chief Judge, and (e) an unsigned Application in a Case that sought (so it seemed) that the email address of the Father was sufficient for service, and that the matter be transferred to the “Family Court/Federal Court Bench.”

19. On 24^th October 2019, the Applicant Father filed a further Application in a Case in which he sought Orders that (a) the matter be transferred to the Family Court, (b) he be provided with legal assistance, and (c) [unspecified] procedural fairness be given to him.  His Affidavit filed in support simply stated that “discrimination & procedural unfairness in the courts to the Applicant.”

20. On 12^th November 2019, according to the Bench Sheet on file, the Registrar attempted to hold a compliance check prior to the Conciliation Conference.  In the course of speaking with the Husband, the Registrar sought clarification of various matters.  The Husband said that he proposed to appeal the substituted service Order in relation to his brother.  The Registrar indicated that due to the lack of readiness for the Conference and the lack of compliance with procedural Orders, the Conciliation Conference date would be vacated.  The Husband said that he would appeal this decision.

21. On 3^rd December 2019, the Husband filed an Application for Review of the Registrar’s decision to vacate the Conciliation Conference.  I have noted earlier in these reasons the outline of that Application and the curious reasons given.

22. On 5^th December 2019, the Father filed a further Application in a Case which sought Orders for the children to spend “face-to-face” time with him and that the matter be transferred to the docket of a [named] Judge who happened to be visiting this Registry.  The Father’s supporting Affidavit simply stated that it was in the best interests of the children to spend face-to-face time with the Father.

Further procedural matters

1. Given the long history outlined above, in my view it is best (and appropriate) now to deal with a number of Applications that can be dispensed with or disposed of quickly.  In particular, this would include those Applications that are fundamentally flawed by obvious non-compliance with the Rules of Court, and or those that, on their face, are patently without any evidence to support them.  This course will enable the Court to focus on the more substantive issues that require determination.

2. The Father’s Applications in a Case, filed respectively on 11^th September 2019, 24^th October 2019, 5^th December 2019, must be dismissed for the following reasons.  I will deal separately with the Application for Review regarding the Registrar’s decision to vacate the Conciliation Conference, filed 3^rd December 2019.

3. The Application filed on 11^th September sought Orders that the Applicant be provide with a lawyer under Part 12 of this Court’s Rules.  Under those Rules, two things are immediately evident.  First, Rule 12.02 states (emphasis added): “The Court may refer a party to a lawyer for legal assistance ….”  Thus such referral is entirely discretionary.

4. Secondly, Rule 12.03 states that “a party is not entitled to apply to the Court for a referral under Rule 12.02.”  On the clear application of this Rule, the Applicant is not entitled to make the Application that he has.  For this reason alone, the Application has been made in breach of the Rules.  Even if that were not the case, in the exercise of my discretion I am disinclined to make such a referral in any event.  There are a number of reasons for taking this approach.  It is sufficient to note that the Applicant has regularly flouted Court Orders by not complying with, for example, the direction to provide material regarding the C Street, Suburb D property.  In such circumstances, to make a referral would, in effect, be to reward the Applicant’s consistent non-compliance with Orders.

5. There are two unfiled Applications attached to the Applicant’s Affidavit, filed 18^th October 2019.  Essentially they seek to have the proceedings transferred to the Chief Judge.  Because they are not formally filed, and are not in proper form, for more abundant caution, I simply make a notation (should it be necessary) that those Applications are not to be filed.

6. The Application filed on 24^th October 2019 seeks to have the matter transferred to the Family Court.  The Father’s Affidavit in support simply asserts that there has been “discrimination and procedural unfairness in the courts to the Applicant.”  There are no particulars of these claims.  Absent any such particulars, the Court is in no position to determine the assertions made by the Applicant.  He has not been prevented from filing documents that comply generally with the Rules; he has not been prevented from providing either written or oral submissions on any matter.  This Application cannot succeed and must be dismissed.

7. The Application filed on 5^th December 2019 sought Orders that the matter be transferred to the docket of Judge Myers, and that the Father have “face to face time” with his children.  Judge Myers does not sit in Canberra.  A litigant’s personal preference for one judicial officer over another is otherwise known as “judge shopping.”  It is not permitted.  A matter may be heard by another Judge only where there is a specific and appropriate reason for this to occur.  No such reason is articulated here.

8. Likewise, the Order seeking “face-to-face” time with the children is a form of review of previous Orders that permits, at this stage and in the light of the s.11F Memorandum, only telephone time between the children and the Father. It is a quasi-appeal. It is not appropriate for me to review my own decision. If the Father wishes to appeal, he is at liberty to do so, presumably with leave for being out of time. This Application cannot succeed and must be dismissed.

The Application for Review

1. Although I have commented earlier in these reasons on the Application for Review of the Registrar’s decision, I will consider it again briefly here.  This Application was filed on 3^rd December 2019.

2. Such an Application is to be conducted in accordance with Rule 23.03, which provides, among other things, for it to proceed as a hearing de novo.[3]  I have earlier noted the reasons given by the Registrar as set out in the Bench Sheet, dated 12^th November 2019, which included the Husband not relevantly providing financial details particularly of the C Street, Suburb D property.

   [3] See also s.104(2) of the Federal Circuit Court of Australia Act 1999 (Cth).

3. Further, under the Rules, such an Application must be filed within 7 days.  The current Application for Review is clearly outside the prescribed time.

4. Further, there was no Affidavit filed on the same date as this Application.  The only Affidavit filed by the Applicant at or near this date was filed on 5^th December 2019.  This Affidavit does not deal with any matter relevant or related to the Registrar’s decision to vacate the Conciliation Conference.  The Father’s Affidavit deals only, and very briefly, with parenting matters.

5. Although not in proper form, I will take account of the “letter” attached to the Application as the Applicant’s evidence. 

6. Summarised, that letter refers seeks an extension of time for the Application due to what he generally refers to as “hardship” arising from his various matters in other Courts.  Next, the Applicant referred to (a) an unidentified document from “an unreliable source” which must be rejected, (b) reasons (presumably of the Registrar) that are said to be “not comprehended and vague”, but with no particulars given, and (c) advice given to him by Registry staff to obtain legal advice.  None of these matters disclose any relevant error by the Registrar in the decision to vacate the Conciliation Conference.  The Application for Review must therefore be dismissed.

7. Having dealt with all outstanding Applications, except that of the Mother, filed 16^th April 2019, I move to that Application.  In doing so, I note that the Father has not complied with directions to file submissions, although he has set out in a range of documents (noted above) his desire to spend face-to-face time with the children and his general concerns about their welfare.  The Mother and the ICL have both filed submissions, which are set out below.

Orders sought by the Applicant

1. The Applicant’s Application in a Case, filed on 11^th September 2019, sought Orders as follows:

   1. A lawyer under the Federal Circuit Court Rule 2001 (12.00) 12.01, 12.02 etc etc.

2. The Applicant’s Application in a Case, filed on 24^th October 2019, sought Orders as follows:

   1. Matter be transferred to Family Court.

   2. Legal assistance be provided to applicant.

   3. Procedural fairness be provided to applicant.

3. The Applicant’s Application for Review, filed on 3^rd December 2019, sought Orders as follows:

   1. Conciliation Conference be heard.

   2. Registrar Munro was not cooperating with applicant & exceeded power.

4. The Applicant’s Application in a Case, filed on 5^th December 2019, sought Orders as follows:

   1. Spend time with children face to face.

   2. Transfer proceedings to Judge Meyers.

5. The Applicant also filed a Minute of Orders Sought on 6^th September 2019, pursuant to the Orders dated 23 August 2019, as follows (errors in original):

   Minute of Order Sought Applicant

   1. That children live with the father

   2. The father and grandparents have sole parental responsibility

   3. Father be allowed physical contact immediately with his children

   4. The time be increased with children to visit school and over the phone

   5. Respondent to stay away from children and during any communication with children And stop stalking applicant father.

   1. Extra time be provided with Z

   2. Father birthday be celebrated with children in 2019.

   3. Grandparent spend time as follows:-

   1. Video call and phone call and sms and mail and email as required

   2. Special occasion time in person

   3. Grandparents have parental responsibility

   4. Respondent to stay away from children and during any communication with children

   5. Amendment to minutes as applicant has not any legal advice since Mr G suspension and withdrawal 

   6. Ms Kalita to provide security for property orders

   7. All applicant accounts be unfrozen immediately

   8 Ms Kalita to fulfil all contractual obligations with various parties including applicant father

   9 Ms Kalita to pay for all the costs and expenses Bourne by applicant father

   10 crown be made party to proceddings

Orders sought on behalf of the First Respondent

1. The First Respondent filed a Minute of Orders Sought on 6^th September 2019, as follows:

   MINUTE OF ORDERS SOUGHT BY RESPONDENT MOTHER

   UNTIL FURTHER ORDER:

   1.   That the children live with the mother.

   2.   That the mother have sole parental responsibility for the children.

   3.   That the time the children spend with the father be suspended until further Court Order.

   4.   That the time the paternal grandparents spend with the children be as follows:

   5.   Via Skype/FaceTime/WhatsApp or equivalent, the first Sunday of each month, at 7:30pm.

   6.   The respondent mother is to facilitate the calls between the paternal grandparents and the children.

   7.   The respondent mother is at liberty to record these calls.

   Property

   8.   The Respondent Mother be granted leave to continue to serve the 2^nd Respondent via the email of the Applicant, as per Order 2 of the Orders dated 6 August 2019 or until such time as the 2^nd Respondent files a Notice of Address for Service.

   9.   The respondent mother have liberty to file an amended Response and affidavit material in relation to property proceedings after the 2^nd respondent files his response and affidavit material in these proceedings.

Orders sought by the Independent Children’s Lawyer

1. The Independent Children’s Lawyer filed a Minute of Orders Sought on 6^th September 2019, as follows:

   MINUTE OF ORDERS SOUGHT BY THE INDEPENDENT CHILDREN'S LAWYER

   1. That all previous orders for the Father to spend time with the children be vacated.

   2. That the Father spend supervised time with the children by telephone for up to 45 minutes on one occasion per week as follows:

   (a) With the Father calling the children from A Contact Centre;

   (b) At a time to be agreed between the parties and A Contact Centre;

   (c) With the parties and A Contact Centre being authorised to record the calls; and

   (d) At the Father’s expense.

Further evidence

1. Given what has already been summarised, it is sufficient here to note the following from the s.11F Memorandum of Ms E, released to the parties on 15^th March 2019.  It will be admitted into evidence as Exhibit A.

2. Under the section of her Report headed “Care Arrangements”, Ms E recorded the following (pars.8 – 13):

   [8] The Order of 19/09/2018, provides for the children to live with Ms Kalita and have telephone communication with Mr Sachar each Wednesday at 7:30pm.

   [9] The writer asked Mr Sachar about his telephone communication with the children. Mr Sachar did not provide a clear response. Ms Kalita says that the parties agreed after the 19/09/2018 order was made, that Mr Sachar would have telephone communication with the children each Monday and Wednesday at 6pm. However, Ms Kalita says that at the start of February 2019, Mr Sachar advised that he would not telephone the children on Wednesdays because he had classes. Ms Kalita reports that she supervises Mr Sachar’s telephone communication with the children.

   [10] Ms Kalita says that the children to do not want telephone communication with Mr Sachar because he is allegedly aggressive on the telephone.

   [11] Mr Sachar states that he last spent face-to-face time with the children in around August/September 2018, Mr Sachar was unclear why he had ceased spending face-to-face time with the children.

   [12] Ms Kalita reports that the children ceased spending face-to-face time with Mr Sachar in July 2018, because he was allegedly aggressive towards the children during their last supervised contact. Ms Kalita alleges that at the end of the last contact, Mr Sachar grabbed and tried to pull the children into his car, and when they refused to go with him, he forcibly entered the car that the children were travelling in with their supervisor.

   [13] Ms Kalita states that the children are currently waiting to start spending supervised time with Mr Sachar at A Contact Centre. Ms Kalita says that she does not know how often the children will have contact with Mr Sachar at A Contact Centre.

1. Next the Family Consultant identified the following as “issues in dispute.”  In general terms, and subject to what is said later in these reasons, I agree with the issues noted, thus (pars.15 – 17):

   [15] Who the children will live, the amount of time they will spend with each party, and whether Mr Sachar’s time with the children requires supervision.

   [16] Mr Sachar proposes that the children live in an equal shared care arrangement, and that the children spend 3-4 days each week with each party.

   [17] Ms Kalita proposes that she is granted sole parental responsibility, that the children live with her, and that they spend time with Mr Sachar as determined by the Court. In the interim, Ms Kalita proposes that Mr Sachar’s telephone communication with the children is suspended.

2. There are a number of allegations of family violence identified by Ms E, at pars.18 – 28 of her Report:

   [18] Ms Kalita reports that a Family Violence Order (FVO) was issued protecting her from Mr Sachar on 20/08/2018, and that this expires on 21/08/2019. Ms Kalita says that the FVO was issued after Mr Sachar allegedly assaulted her in December 2017, by choking her, punching her on the face, head, back and arms, and threatening to kill her. Ms Kalita states that Mr Sachar was subsequently convicted of assaulting her. Mr Sachar denies assaulting Ms Kalita.

   [19] Ms Kalita alleges that Mr Sachar has breached the FVO by threatening her on the telephone and in text messages. Ms Kalita alleges that Mr Sachar has been charged with breaching the FVO.

   [20] Ms Kalita alleges that throughout the parties’ relationship, Mr Sachar and his brother, who also lived with them, physically abused her, including, when she was pregnant. Ms Kalita alleges, that Mr Sachar’s behaviour included, slapping her, choking her, throwing objects, calling her highly offensive names, and threatening to kill her and her family. Ms Kalita alleges that during one incident, Mr Sachar pointed a knife close to her right eye and said “I have the power to put it in your eye.” Ms Kalita advises that she has suffered broken ribs, bruising and cuts because of Mr Sachar’s alleged assaults.

   [21] Ms Kalita alleges that Mr Sachar was “very controlling” and limited her access to electricity and money, she also alleges that he restricted her capacity to socialise with friends and family.

   [22] Ms Kalita says that the children have been traumatised by witnessing, Mr Sachar’s alleged abuse of her. Ms Kalita advises that Mr Sachar’s alleged behaviour caused her to feel frightened, and that she continues to be frightened of him.  Ms Kalita states that she is worried that Mr Sachar and/or his family are stalking her.

   [23] Mr Sachar asserts that he has never behaved in a way that would cause Ms Kalita to feel unsafe.

   [24] Mr Sachar alleges that when the parties were a couple, Ms Kalita would grab him and shake him. Mr Sachar also alleges that during their arguments, Ms Kalita would self-harm by punching and cutting herself. Mr Sachar advises that Ms Kalita self-harmed “to get sympathy.” Alongside this, Mr Sachar alleges, that when Ms Kalita was angry she would throw objects such as dishes, and that she once broke a mobile telephone.

   [25] Mr Sachar alleges that in December 2017, the paternal grandfather assaulted Ms Kalita and then assaulted him.

   [26] Mr Sachar alleges that Ms Kalita has threatened to harm him and his family, when the writer sought detail from Mr Sachar regarding the threats, he did not provide clear information about the threats made.

   [27] Mr Sachar alleges, that during the parties’ relationship, Ms Kalita was controlling and restricted his access to money and to their car.

   [28] Ms Kalita denies Mr Sachar’s allegations and asserts that she has never behaved in a way that would make Mr Sachar feel unsafe.

3. In the next section of her Report, under the heading “Parenting capacity” (pars.29 – 34), Ms E noted (among other things) still further allegations by the parties against each other regarding various “beatings” that are said to have been carried out against the children.

4. As recorded in the Report, Ms E noted mutual allegations of mental health issues including threats, by each parent at different times, to self-harm, and also to commit suicide.  In this regard the Father said to Ms E that he was seeing a psychologist, psychiatrist and neurosurgeon to help him deal with the “depression and stress” that is being caused to him by the Mother.  He advised the Family Consultant that he does not take any medication for these matters.

5. In the light of the matters just noted, unsurprisingly the co-parenting relationship, as recorded by Ms E, was fractious and very strained.

6. In my view, the reports of the interviews with each of the children is perhaps the most instructive and important part of this Report.  Those sections of the Report, admittedly somewhat lengthy, were as follows (pars.42 – 77):

   Y aged 6 years and 10 months

   [42] Y was interviewed alone, he engaged willingly with the writer, however he seemed nervous and took deep breaths during the interview. Y’s presentation was consistent with his chronological age.

   [43] There was no indication that Y’s views had been influenced by any adult.

   [44] Y said that he did not know why he was seeing the writer.

   [45] Y rates spending time with Mr Sachar as 1/10, and says this is because, “He hit me in Melbourne [where he used to live with his parents].”  Y said that Mr Sachar used to “hit me all the time”, and that there was one particularly upsetting incident where Mr Sachar hit him on the nose.

   [46] When asked if there is anything else that makes him feel sad, worried or scared when he spends time with Mr Sachar, Y said that Mr Sachar had hit his brothers and Ms Kalita “lots of times” and that he “hit Mum’s eyes”.

   [47] Y did not identify anything that he enjoys doing with Mr Sachar.

   [48] In response to being asked about his telephone communication with Mr Sachar, Y said it is “Very bad, he [Mr Sachar] said the ‘F word’.”

   [49] Y rates spending time with Ms Kalita as 10/10, and says this is because when he asks her to buy H (toy) she buys them.

   [50] Y states that he enjoys cooking and playing sports with Ms Kalita.

   [51] Y advises there is nothing that makes him feel sad, worried or scared when he spends time with Ms Kalita.

   [52] Y’s wish for his family is to have more H.

   [53] When asked what he would say if he was in charge, Y said that he would say live with Ms Kalita because, “She makes me happy”. When asked how much time he thought he should spend with Mr Sachar, Y said “one minute”. Y says that he does not want to have telephone communication with Mr Sachar.

   X aged 8 years and 2 months

   [54] X was interviewed alone, he engaged willingly with the writer, however he presented as anxious and often held onto his chair during the interview. X’s presentation was slightly younger than his chronological age.

   [55] There was no indication that X’s views had been influenced by any adult.

   [56] X said that he did not know why he was seeing the writer.

   [57] X rates spending time with Mr Sachar as 1/10, and said that he did not know why he had provided this rating.

   [58] X did not identify anything that he enjoys doing with Mr Sachar.

   [59] In response to being asked if there is anything that makes him feel sad, worried or scared when he spends time with Mr Sachar, X said that Mr Sachar had hit him and his brothers many times, and this included Mr Sachar hitting them on the face.

   [60] When asked about his telephone communication with Mr Sachar, X said it is “Bad, he [Mr Sachar] says bad words.”

   [61] X rates spending time with Ms Kalita as 10/10, and said that he did not know why he had provided this rating.

   [62] X says that he enjoys playing cards and going shopping for H with Ms Kalita.

   [63] X advises there is nothing that makes him feel sad, worried or scared when he spends time with Ms Kalita.

   [64] X did not have any wishes for his family.

   [65] When asked what he would say if he was in charge, X said that he would say live with Ms Kalita because, “She’s nice”. X said that he did not think he should have any contact or communication with Mr Sachar and said this is because Mr Sachar had been “bad” to W. It was unclear from X’s narrative how Mr Sachar had been “bad” to W.

   W aged 9 years and 10 months

   [66] W was interviewed alone, he engaged willingly with the writer, however he seemed nervous, and at times fidgeted in his chair. W’s presentation was consistent with his chronological age.

   [67] There was no indication that W’s views had been influenced by any adult.

   [68] W said that he thought he was seeing the writer to discuss Mr Sachar.

   [69] W rates spending time with Mr Sachar as 1/10, and says this is because, “He always says the ‘F word’ and he doesn’t want to talk to me and I don’t want to talk to him.” 

   [70] When asked if there is anything else that makes him feel sad, worried or scared when he spends time with Mr Sachar, W said that Mr Sachar tells him to go away when they speak on the telephone. W reports that when his parents’ relationship was intact he felt concerned because, “He [Mr Sachar] was fighting at night [with Ms Kalita], I couldn’t sleep, he broke everything.”

   [71] W did not identify anything that he enjoys doing with Mr Sachar.

   [72] W rates spending time with Ms Kalita as 10/10, and said this is because, “When I need something she gives it to me.”

   [73] W says that when he spends time with Ms Kalita, he enjoys playing cards and going shopping with her especially when she buys him “a surprise.”

   [74] W advises there is nothing that makes him feel sad, worried or scared when he spends time with Ms Kalita.

   [75] W’s wish for his family is that he did not have to attend Court.

   [76] When asked what he would say if he was in charge, W said that he would say live with Ms Kalita because, “I can do anything with her”. W advises that he does not think he should spend any time with Mr Sachar because, “When Dad is angry he hits me – he hit me on the face.” W says that he does not want any telephone communication with Mr Sachar because “He [Mr Sachar] gets angry and I don’t like it.”

   [77] At the end of the interview when the writer asked W if he wanted to tell the writer anything else, W said, “When I was living with Dad I was so scared to say I needed something in case he hit me.” W commented about his maternal grandmother, “She’s so nice, she sings to me.” W also said that he likes it when his maternal grandfather takes him to the park.

7. In the light of the matters canvassed in her Report, the Family Consultant set out the following “future directions” (pars.78 – 82):

   [78] This limited assessment suggests there are serious risk factors which will require careful assessment. Until such an assessment occurs caution may be required in terms of the children spending any time with Mr Sachar due to the serious allegations of family violence.

   [79] It is suggested that given the concerns highlighted by Ms Kalita and the children regarding the children’s telephone communication with Mr Sachar, consideration is given to temporarily suspending it.

   [80] The children may have been emotionally harmed due to witnessing and possibly being subjected to family violence.

   [81] It is suggested that the children may benefit from participating in A Contact Centre’s ‘Kids And Youth Are Kool post Separation’ (KAYAKS) program.

   [82] If the matter proceeds to Final Hearing a Family Report is likely to clarify issues.

Submissions by the Applicant

1. As already noted, the Father has filed no submissions pursuant to the Orders made on 23^rd August 2019.

Submissions on behalf of the First Respondent

1. The First Respondent’s submissions, filed 23^rd September 2019, were as follows:

   Written Submissions: Respondent Mother

   Suspension of Time and Parental Responsibility

   1.   These submissions are in response to the Minute of orders Sought by the Respondent Mother filed 6 September 2019.

   2.   The mother relies on her affidavit filed 4 June 2018, 16 April 2019, and 21 August 2019, along with as the Child Inclusive Memorandum dated 15 March 2019.

   3.   The mother seeks that the children live with her and have sole parental responsibility of the children.

   4.   The children have lived with the mother in Canberra since December 2017, when the respondent mother fled the family home in Melbourne due to severe violence by the Applicant father as outlined in the mother’s affidavit of 4 June 2018. The father has had no face to face contact with the children since time was suspended on 19 September 2019.

   5.   The father has supervised telephone time with the children, however there have been many issues with these calls. 

   6.   The Applicant Father often misses these calls. During the period of 20 May 2019 until 24 June 2019, The applicant only picked up one phone call from the children.

   7.   When the telephone calls do occur, the applicant is often abusive on these calls and cause the children to become distressed. This is discussed in paragraph 11 of the mothers affidavit filed 16 April 2019, and the affidavit filed 21 August 2019.

   8.   The father has many inappropriate conversation with the children. This has been outlined in the mother’s affidavit material, and has caused the mothers solicitor to write to the father on 3 December 2018 and 20 March 2019, asking for this behaviour to stop. Copies of this correspondence is attached to the mother’s affidavit material filed 16 April 2019.

   9.   The applicant father has on occasion asked the children to come visit him, as stated in paragraph 118 of the mothers affidavit filed 21 April 2019. The applicant caused distress to the children by yelling at them when they did not give him the desired response.

   10.    The Child Inclusive Memorandum dated 15 March 2019 states that consideration should be given to suspending telephone time with the Applicant. This memorandum also highlighted that the limited assessment suggests high risk factors that require careful assessment.

   11.    The report writer further states that the children may have been emotionally harmed due to witnessing and possibly subjected to family violence.

   12.    As the father is not participating in telephone conversations in a meaningful way with the children, the mother asks the Court to suspend telephone time until further Court Order.

   Telephone time with Paternal Grandparents

   13.    The mother has been facilitating time with the paternal grandparents who reside in India.

   14.    The mother intends to continue to facilitate this relationship between the grandparents and the children on a monthly basis.

   15.    The mother wishes to have liberty to record the telephone calls, in the event that they deteriorate to the same level that has occurred with the Applicant Father.

   Property

   16.    The mother requests to be able to continue to serve any documents on the second respondent, Mr B Sachar, by way of the Applicant father’s email address.

   17.    The mother does not know the whereabouts of Mr B Sachar.

   18.    The mother’s solicitor has previously attempted to serve Mr B Sachar on the address provided, as well as the former matrimonial home of the applicant and respondent.

   19.    The mother has previously filed affidavits of Mr J on 9 July 2018 and Mr K on 3 August 2018. These affidavits of service show that Mr B Sachar could not be located.

   20.    His Honour made Orders on 6 August 2018 that granted leave for service via the applicant’s email. The mother asks that this continue until such time as the second respondent files a Notice of Address for Service.

Submissions by the Independent Children’s Lawyer

1. The ICL’s submissions, filed 14^th October 2019, were as follows:

   1.   That all previous orders for the Father to spend time with the children be vacated or at least suspended. If the Mother's evidence is accepted then there is a risk that the children have been exposed to family violence at the hands of the father. The Child Inclusive Memorandum of 15 March 2019 suggests that there are high risk factors in the children spending time with the Father, including a further suggestion that it might be appropriate to suspend telephone time. The safest path at this time would be to suspend the face to face time with the children, pending the Father demonstrating his capacity to communicate by telephone or Facetime while supervised at A Contact Centre.

   2.   That notwithstanding the suggestion of suspending telephone time, as contained in the Memorandum, there may be benefit in the children spending telephone and/or Facetime with the Father if it is supervised by A Contact Centre. In addition, the recording of that communication will be of assistance to the Court in future determinations about the Father's time with the children.

   3.   That the benefit to the Father would be to allow him to demonstrate his capacity to be child focussed when communicating with the children. The Mother alleges that the phone calls are distressing for the children, due to the manner in which he speaks to the children and the content of his conversation. If the Mother's evidence about this is accepted then the Court would find there is a risk in this form of communication continuing.

   4.   That the benefit to the children, if the Father was appropriate in his communications, would be the maintenance of their relationship with him, pending further or final order.

   5.   That the risk of the Father behaving inappropriately during such communication would be ameliorated to some extent by the presence of a qualified supervisor. They would be able to redirect the Father if they determined that he was becoming inappropriate and to terminate the call if he did not follow their guidance.

   6.   That to some extent this would be an opportunity for the Father to defend himself against the allegations of the Mother and/or to disprove those allegations by demonstrating his emotional control and focus on the children's needs.

   7.   That the Mother could be reassured if the communications went smoothly and may reconsider her position, once the calls were established and going well for the children.

   In summary, it is submitted that the Orders sought by the ICL should be made and if the Father does not take the opportunity to communicate with the children then no harm has been done by way of imposing a risk to the children. If he does take the opportunity and demonstrates the required emotional restraint and the capacity to communicate appropriately then the children will benefit, while the risk will be monitored and controlled by qualified supervisors.

Outline of principle

1. In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully I adopt her Honour’s comments. Brown J said:[4]

   [3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

   [4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

   [5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.

   [6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))

   [4] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].

1. Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined various other points of reference. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[5]

   [20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions.  At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach.  The paragraph continues:

   The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.

   [21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division.  The objects use the words “meaningful involvement”.

   [22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:

   The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody.  The presumption relates solely to the decision making responsibilities of both parents.  New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.

   [5] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks.

   [23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):

   [196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship.  This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents.  This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time.  The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders.  This is set out in s 60CA by item 9.

   …

   [199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement.  It is intended to ensure a focus both on the amount of time and the type of time.  It would include both day time contact and night time contact.  It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child.  It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.

   [24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”.  A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”.  These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989.  It defines “meaning” (in generalised use) as “significance”.  The examples provided take the matter no further.

   [25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”.  Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.  I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitive [sic] one.  Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In applying these principles, I remind myself in particular of the terms of s.60CC(2) and (2A), which are as follows (emphasis added):

   The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:          Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

3. In general terms, and without setting them out, in relation to the Court’s protective responsibilities I also remind myself of the principles outlined by the Full Court in Slater v Light regarding the relevant assessment of “risk”.[6]

   [6] Slater v Light (2013) 48 Fam LR 573 at [34] – [40].

Consideration & disposition

1. Procedurally, because the Father has filed no submissions in accordance with the August 2019 Orders, the Court could simply adopt either or both of the submissions by the Mother and the ICL and make relevant Orders.  I will not immediately proceed along this course.  I will note, again, the Father’s main contentions set out in the material he has filed, regardless of whatever issues as to form or substance they otherwise present.

2. I recall again in these reasons the multiple times the Father has maintained that (a) since their birth, he has been the children’s primary carer, (b) the danger or risk to the children the Mother poses to them, especially being in her primary care, and (c) the children want to spend face to face time with him. Accepting that the Court is typically in this interim stage, in a “he said – she said” situation, the claims by the Father are not sustainable, notably the claims under (b) and (c) just noted. The independent evidence, admittedly still formally untested, of the Family Consultant recorded in the s.11F Report, refutes firmly those claims by the Father.

3. In my view, the submission of the ICL in particular helpfully and thoroughly set out the risks of telephone time between the Father and the children.  They also helpfully and thoroughly set out the benefits for the Father in his telephone time with the children being supervised at A Contact Centre.  However difficult the course suggested by the ICL might be, the longer-term benefits, including the opportunity for the Father to demonstrate his ability to put the children’s best interests before all else, will be manifest.

4. I accept and adopt the submissions of both the Mother and the ICL.  The Orders sought by the ICL are, in my view, in all the circumstances, in the children’s best interests.  They will be made. Further, so as to ensure that conversations with the children can be monitored, the telephone conversations between the Father and the children are to be in English, not Punjabi.

5. In relation to property matters, because earlier Orders have not been discharged, it is unnecessary to make any further Orders regarding service on the Second Respondent via the Father’s email.  That Order remains in force.

6. The matter will be re-listed in approximately 6 weeks’ time, primarily to check what, if any, other Orders in relation to property should be made.  This is in circumstances where the Second Respondent has not engaged with the litigation, his whereabouts remain unknown, and some proceeds of sale (as I understand) remain frozen by Court Order in a bank account of the Applicant.

7. In all of the circumstances, the matter will be allocated final hearing dates. And because the Father is unrepresented, and there are significant allegations of family violence, plus having regard to the Father’s bail conditions that arise from family violence, there will be an Order in his favour under s.102NA of the Act.[7]

   [7] As noted earlier in these reasons, Annexure A4 to the Father’s Affidavit, filed 12^th December 2018, is a copy of a Notice of Continuance of Bail relating to “Family Violence”, dated 4^th December 2018.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge WJ Neville

Date: 12 March 2020