Sastri & Kurta
[2024] FedCFamC2F 1742
•4 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sastri & Kurta [2024] FedCFamC2F 1742
File number(s): MLC 374 of 2022 Judgment of: JUDGE GLASS Date of judgment: 4 December 2024 Catchwords: FAMILY LAW – PARENTING – where the Father withdrew his parenting application after the Mother obtained an anti-suit injunction in Country B – where the Mother prosecuted her parenting application – where no objection to the Court exercising jurisdiction was taken – where orders sought by the Mother were supported by the Independent Children’s Lawyer – where the Mother made a harmful proceedings order application Legislation: Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAAA, 102QAC
Cases cited: EJK & TSL (2006) FLC 93-287
Raymond & Raymond (2024) FLC 94-180
Re Attorney-General (Cth); ex parte Skyring (1996) 135 ALR 29
Division: Division 2 Family Law Number of paragraphs: 80 Date of hearing: 25-26 November 2024 Place: Melbourne Counsel for the Applicant: Mr Whelan Solicitor for the Applicant: Fairfax Lawyers Counsel for the Respondent: Ms Tiernan Solicitor for the Respondent: Blackwood Family Lawyers Solicitor for the Independent Children's Lawyer: Ms Helberg of Victoria Legal Aid ORDERS
MLC 374 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SASTRI
Applicant
AND: MS KURTA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
4 DECEMBER 2024
THE COURT ORDERS THAT:
1.All previous Orders be discharged, including paragraph 3 of the interim Orders made 9 August 2022 restraining the parties from removing X, born in 2013, from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by removing the name of the said child from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
2.The Mother have sole parental responsibility for all major long-term issues relating to X, including but not limited to decisions relating to the care, health, welfare, education, cultural upbringing, religion and development of X.
3.X live with the Mother.
4.The Mother be permitted to travel internationally with X.
5.Pursuant to section 11 of the Australian Passports Act 2005 (Cth), the Mother be at liberty to apply for and maintain passports for the child X born in 2013 without requiring the Father’s signature.
6.The Mother be at liberty to provide a copy of these Orders to the Australian Passport Office or any other government agency required to enable her to obtain passports for X, the Australian Federal Police, and to the Visa Facilitation Services and/or the Consulate General of Country B to give effect to these Orders.
7.The Mother hold X’s passport.
8.The Mother will hold X’s Country B Visa.
9.The mother be at liberty to provide a copy of these Orders to any school X attends, or any medical practitioner and allied health practitioner treating X.
10.All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
These proceedings concern X, aged 11 years.
X’s parents ceased cohabitation in 2017, when she was four years old.
X lives with her mother, Ms Kurta, and has not spent time with her father, Mr Sastri, since August 2017.
Arising for determination is Ms Kurta’s application for parenting orders and a harmful proceedings order.
During the course of the second day of the final hearing, Mr Sastri was granted leave to withdraw his application for parenting orders and it was dismissed.
Before turning to the substantive applications, it is instructive to recite some relevant background to proceedings, both in this Court and foreign courts.
In early 2018, consent Orders were entered into between X’s parents in the Family Court of City C which included the following provisions:
That [Mr Sastri] agrees and accepts that [Ms Kurta] shall have exclusive custody, care and control of the minor daughter [X] and [Mr Sastri] or his parents, family members, relatives etc. shall never claim custody/guardianship/visitation rights over the said minor daughter before any court/authority/forum in [Country B] or anywhere else in the world.
[Ms Kurta] shall alone take all relevant decisions with respect to the minor daughter including but not limiting to the decisions pertaining to her education, vocation, vacations, marriage, hobbies, curricular, co-curricular, extra-curricular activities, health, medical exigencies, etc. and neither [Mr Sastri] nor his family members etc. shall interfere in any manner, whatsoever relating to the aforesaid affairs of the daughter [X].
[Mr Sastri] or his parents/family members/relatives etc. shall not seek custody, care or control over the daughter [X] nor shall they seek visitation rights over the said daughter at any point of time for any reason, whatsoever either in [Country B] or in any other foreign country.
[Mr Sastri] also undertakes, accepts and acknowledges that at no point of time he or his family members will ever try to meet the daughter [X] in her school, college or any other institution or outside or while she is engaged in extra-curricular or co-curricular activities or try to find out her progress.
[Mr Sastri] also accepts and undertakes that he or his family members shall not make any representation, petition or claim here in any court, authority or forum, governmental or non-governmental organizations either in [Country B] or Australia or anywhere in the world seeking any rights over the daughter [X] including but not limiting to the visitation rights. It is expressly made clear that even when the daughter attains majority, [Mr Sastri] and/or his family members/friends/relatives/agents shall not try to establish any contact with the daughter [X] either in person or through any electronic mode or through letter, etc.[1]
(emphasis added, errors per original)
[1] Affidavit of Ms Kurta filed 19 November 2024, paragraph 55.
In January 2022, Mr Sastri made application to this Court seeking parenting orders for X.
In early 2022, Ms Kurta issued proceedings in the High Court in City C for contempt of the early 2018 Orders and proceedings for damages and injunctive relief in the Family Court of City C.
In late 2022, the proceedings were returnable before the High Court of City C and adjourned until early 2023. Orders made that day record as follows:
Learned counsel for [Mr Sastri], on instructions, submits/undertakes that till the next date of hearing [Mr Sastri] will not pursue the guardianship proceedings stated to be pending before the concerned Federal Circuit Court and Family Court of Australia. It is further stated that [Mr Sastri] will not insist on “family therapy” in the concerned Australian Courts. He further undertakes to inform the concerned Court in Australia about the undertaking given in this Court today.[2]
[2] Affidavit of Ms Kurta filed 19 November 2024, paragraph 66(b).
In early 2023, Mr Sastri gave an apology and undertaking in the High Court in City C in which he stated:
I further undertake that during the pendency of the CCP No. …, I shall not insist for Family therapy at the Australian Courts and I will remain bound by the Orders dated [late] 2022 & [early] 2023 passed by this Hon'ble Court in CC No. ….[3]
[3] Affidavit of Ms Kurta filed 19 November 2024, paragraph 86.
In late 2024, Ms Kurta deposed that her injunction suit was listed for hearing a few days later, “when a final Order will be made”.[4] Inconsistently, she deposes that “[a]t the hearing [in late] 2024, my lawyer concluded his arguments and submitted written submissions on the application, which seeks an interim injunction to restrain [Mr Sastri] from continuing these proceedings given the [Country B] Final Orders”.[5]
[4] Affidavit of Ms Kurta filed 19 November 2024, paragraph 70.
[5] Affidavit of Ms Kurta filed 19 November 2024, paragraph 70.
Despite those matters, none of the parties raised any impediments to the final hearing of the parties’ respective parenting applications commencing in this Court on 25 November 2024.
At the commencement of the second day of final hearing on 26 November 2024, Ms Kurta tendered into evidence an Order made in the City C Family Court in late 2024 which records that arguments had been heard by counsel for both Ms Kurta and Mr Sastri. The Order relevantly records:
This order shall decide an application under [the relevant legislation] moved by [Ms Kurta] for restraining [Mr Sastri] from proceeding with the File No. MLC 374/2022 filed before Federal Circuit and Family Court of Australia.
….
Per record, [Ms Kurta] filed the present suit for declaration and permanent injunction to restrain [Mr Sastri] from proceeding with parenting and custody petition vide File no. MLC 374/22 filed before the Federal and Family Court of Australia at Melbourne.
….
Accordingly, application under [the relevant legislation] moved by [Ms Kurta] is allowed. [Mr Sastri] is hereby restrained from proceeding further with the parenting and custody petition vide File no. MLC 374/22 filed before the Federal and Family Court of Australia at Melbourne, till disposal of the present suit.[6]
[6] Exhibit R2.
After the parties had some time to reflect on their respective positions, Mr Sastri’s counsel advised the Court that:
… my client has instructed me to advise the court that my client will be complying with the orders issued in the [Country B] jurisdiction restraining my client from proceeding further with the application in this court. I am instructed to advise the court that the father’s application is withdrawn, borne of a desire to comply with the orders from [Country B].
Curiously, given Ms Kurta had successfully applied to restrain Mr Sastri from bringing proceedings in this Court, she sought to prosecute her own application for parenting orders in this Court. No objection was taken to her doing so. Mr Sastri did not suggest that this Court should decline to exercise jurisdiction.[7]
[7] EJK & TSL (2006) FLC 93-287 at [83].
After Mr Sastri had withdrawn his application, he tendered a marked up copy of the orders finally sought by Ms Kurta. His counsel described amendments proposed by him as “some improvements from the father’s perspective to those orders”, intended to be an “attempt to try and improve the orders”. Essentially, Mr Sastri sought the inclusion of orders which had previously been proposed by Ms Kurta but no longer pursued by her. When the inconsistency between that position and Mr Sastri’s withdrawal of his application and advised intention to be bound by the anti-suit injunction was raised with his counsel, Mr Sastri advised that he would not be pressing the relief sought by him in the marked up document.
PARENTING
Ms Kurta proposes that she have sole parental responsibility for X, that X live with her, and that she be permitted to travel internationally with X. The particulars of her application are contained in Exhibit R3, as amended orally by her counsel.
Ms Kurta’s application is supported by the Independent Children’s Lawyer.
Ms Kurta and the Independent Children’s Lawyer rely on the documents identified in their Outlines of Case.
Mr Sastri did not seek to challenge any of the evidence relied on by Ms Kurta by way of cross-examination. None of the witnesses relied on by Ms Kurta and the Independent Children’s Lawyer were required for cross-examination.
By Mr Sastri’s withdrawal of his own application, I take him to no longer be relying on the evidence set out in his own Outline of Case. Nevertheless, by the time he withdrew his application, he had been cross-examined by Ms Kurta’s counsel during the course of the first day of hearing. I will do no more here than observe his oral evidence contained some significant inconsistencies that caused me to doubt its reliability.
Although I am not compelled to accept the unchallenged and now uncontradicted evidence relied on by Ms Kurta and the Independent Children’s Lawyer,[8] Mr Sastri made no submission that I should reject any part of it. I find no basis to reject the unchallenged evidence now before the Court.
[8] Raymond & Raymond (2024) FLC 94-180 at [25] and the cases there cited.
The application falls to be determined by reference to Part VII of the Family Law Act 1975 (Cth). I am guided by the objects of that Part.[9] X’s best interests are the paramount consideration.[10] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of X and each person who has the care of her (whether or not a person has parental responsibility for her)
Any history of family violence, abuse or neglect involving X or a person caring for her (whether or not the person had parental responsibility for her)
[9] Family Law Act 1975 (Cth), s 60B.
[10] Family Law Act 1975 (Cth), s 60CA.
While the parties were living in Country B at the commencement of their relationship, Mr Sastri insisted the parties live over an hour and a half away from Ms Kurta’s family causing her to feel isolated from family and friends. Mr Sastri refused to accede to Ms Kurta’s desire to live closer to them.
After the parties had moved to Australia in 2014, Mr Sastri’s behaviour worsened. Ms Kurta felt isolated and helpless.
Mr Sastri called Ms Kurta “fucking bitch” and “whore” in front of X.
Mr Sastri yelled at Ms Kurta, blocked her in a corner and approached her closely while yelling at her. On several occasions, he punched the wall and furniture with his fist while yelling at her. On a couple of occasions, his punches caused damage to the wall and furniture. Ms Kurta was fearful of him.
Mr Sastri threatened Ms Kurta. He told her that his cousin in Country B would come around and kill her parents if she did not do what he told her to do. He said to her words to the effect of:
You better shut up you piece of shit or else I will smash your face.
If you do not tell your parents to transfer money to my account then I will make your and [X]’s life hell.[11]
[11] Affidavit of Ms Kurta filed 19 November 2024, paragraph 42(d).
Mr Sastri drank alcohol excessively approximately 10 to 12 times a month. He often returned home intoxicated late at night, slurring his words and banging doors, waking Ms Kurta and X. The noise he made caused X to cry, resulting in Ms Kurta needing to settle her back to sleep.
In early 2016, Mr Sastri came home after midnight smelling of alcohol. Ms Kurta came to the front door. Mr Sastri forcefully pushed her aside, causing her to hit her head on the wall. He abused her, calling her a “fucking bitch whore”.[12] X woke up with the commotion. As Ms Kurta settled X, Mr Sastri vomited in the bathroom. He then sexually abused Ms Kurta, groping her and forcing her to have sex. X was in the room crying. Mr Sastri yelled at X, telling her to stop crying.
[12] Affidavit of Ms Kurta filed 19 November 2024, paragraph 42(f).
Mr Sastri monitored Ms Kurta’s communication. He demanded to see her phone to read her messages and search her call log. He insisted on tracking her phone location to monitor her whereabouts.
Ms Kurta found a white powdery substance on the side of the bathtub on approximately five occasions. She also found powdery substances and white pills in zip lock bags in Mr Sastri’s pant pockets while she was doing laundry. In 2016, Ms Kurta asked Mr Sastri about the illicit drug use on three occasions. Each time, he slapped her across the face, pushed her into the wall, and called her names such as “fucking bitch”.[13]
[13] Affidavit of Ms Kurta filed 19 November 2024, paragraph 42(h).
Mr Sastri was financially controlling of Ms Kurta. He insisted on access to her bank accounts but refused her access to his. He insisted on her obtaining a credit card in her name and her adding him as a secondary card holder. He used the credit card and left Ms Kurta to pay the bill each month from her salary when she was working. He required her to justify the purchases she had made and was angry if he considered a purchase unnecessary.
After separation, when Mr Sastri attended Ms Kurta’s home to spend time with X, he sexually harassed Ms Kurta in front of X, groping her, touching her inappropriately and forcing himself on to her.
Any family violence order that applies or has applied to X or a member of her family
There are no current or previous Intervention Orders in place between Mr Sastri and Ms Kurta.
In late 2023, Police obtained an interim Intervention Order on behalf of Ms Kurta against her new husband, Mr D. Mr D was removed from her home. Subsequently, a final Order was made with limited conditions by consent without admissions. Mr D has returned to live with Ms Kurta.
Conclusions with respect to safety
It is not proposed that X would spend time with Mr Sastri. It is accordingly not suggested that she would be exposed to any further family violence that would compromise her safety.
The evidence does not satisfy me that X’s safety is unacceptably compromised by continuing to live with Ms Kurta and Mr D.
Any views expressed by X
In July 2022, X was interviewed for the preparation of a Child Impact Report. Consultant Ms K reports that:
When speaking of [Mr Sastri], [X] stated that she did not recall [Mr Sastri] that well as she described herself as a “toddler” when she last saw him. She volunteered that she believed that he used to hit her and [Ms Kurta] and remembered him yelling at her and [Ms Kurta].
[X] spoke of her relationship with [Mr Sastri] being non-existent and when querying how to create a relationship with [Mr Sastri], she stated that she does not want any contact with her biological father.[14]
[14] Child Impact Report of 3 August 2022, paragraphs 12 and 13.
In September 2022, X met Ms E, family therapist. Ms E reported that “[X] was strongly resistant to seeing [Mr Sastri] and said that she does not want to meet her father”.[15]
[15] Affidavit of Ms Kurta filed 19 November 2024, paragraph 74.
In August 2023, X was interviewed for the purpose of the preparation of a Family Report. Consultant Ms F reports that:
[X] also spoke at length about her relationship with her father. [X] advised that she does not want to see her father and that she does not miss him. She informed that in the past she witnessed her father “hitting” her mother. She recalled an incident when she woke up and witnessed her father assaulting her mother and throwing items around the house. She advised that when she witnessed this, she rushed back to bed and she cried through the night. [X] advised that from that time she became so scared of her father and she started having nightmares.
[X] advised that when she thinks about her father, she gets worried, she feels unsafe and that sometimes she starts to shiver. She advised that when she felt this way at school, she went to sit on the floor, looked down, and tucked her legs and thought about all the things that happened. She advised that she is always asking questions such as “why me, why does he have to be part of my life, why did he do those things he did, why is he wanting to see me now-is it because he is missing me, if he loves me he should have stopped his actions?”
[X] advised that when she thinks about her father’s behaviour in the past, she likens it to someone taking the risk of climbing on a cliff. She stated that “everyone knows it’s risky to get on top of a cliff, so if someone gets on top of it they are certain that it is what they want to do, they are willing to risk their life.” [X] advised that she believes that when her father behaved the way he did towards her and her mother in the past, he was certain that he wanted to destroy his relationship with them [X] advised that her father used to say to her that she is not his child, his child is a boy. [X] advised that just knowing that her father will be attending the same premises where she was during observation scared her.
[X] advised that she knows that if she had given her father the opportunity to meet her during observation, he would come and pretend to love her and she stated that she knows that he does not love her. [X] recalled an incident when he attended a party with her father post separation and whilst they were there, her father did not give her water or food for four hours and yelled at her after she told him that she was feeling hungry.[16]
[16] Family Report of 15 September 2023, paragraphs 85 to 88.
From October 2023, X participated in family therapy with Ms G. On 30 April 2024, Ms G reported that:
[X] says she has bad memories of her father although she did not elaborate on what these may have been.
…
[X] said "like I said in the last session, I don't want to meet him (her father). [X] said “it is my life and I want to make my own choices.”[17]
[17] Affidavit of Ms G filed 9 May 2024, page 11.
On 20 November 2024, Ms G reported that:
[X] appeared frustrated as she said "Mum says I should give him a go. No-one can force me to do anything. I have my rights." [X] said she feels annoyed and pressured with everyone trying to convince her to spend time with [Mr Sastri]
…
[X] said again she did not want to know anything about her father to whom she refers as her biological father [Mr Sastri]. [X] said “he ([Mr Sastri]) physically abused me and my Mum.” She said he abused her, “I shouldn't have to say it again, he hurt me and my Mum.”
…
When asked about the possibility of reconnecting with her father, [Mr Sastri], perhaps online initially, [X] said, she does not want to see or speak to [Mr Sastri].
…
When I spoke with [X] and said it was about meeting with her father, [Mr Sastri], [X] said "still have the same view I don't want to meet him. It doesn't matter to me to meet him, that is him, not me. I am not talking to him.”
[X] said “I tell Mum I don't want to see him. Mum says, just do it will be ok.” [X] asked “why do I have to do it; the Court is not listening to me.”
…
[X] said … “I have really bad thoughts when I think about my biological father.”
…
In each of the sessions above [X] remained steadfast and resolute in her views about contact with [Mr Sastri]. [X] was not open to receiving information from her father or providing him with any information about her life that may have been useful as a springboard for any future discussions or potential interactions.
….
[X] insisted it is her life, and she should be able to make her own decisions as to when and if regarding any contact with [Mr Sastri].
…
[X] has consistently stated over the three sessions since the last report on 30 April 2024, that she does not wish to know [Mr Sastri] or communicate with him. [X] has said she does not want to meet with [Mr Sastri] or have any information from him nor give him any information about her life.
[X] remains disengaged in the sessions with this therapist and clearly stated she wanted to be heard and listened to and was often silent about discussing anything related to [Mr Sastri]. This was a pattern noted in both the Child Impact Report and the Family Report where [X] shut down, when discussion focused on [Mr Sastri] and any memories she may have of him.
…
[X] in sessions continued to state emphatically that she does not want to meet [Mr Sastri] and "it is my life, and I want to make my own choices."[18]
[18] Affidavit of Ms G filed 21 November 2024, pages 11 to 13.
The Independent Children’s Lawyer met with X on 21 November 2023, 15 April 2024 and 13 November 2024. She reports that:
[X] was happy with her current circumstances and didn’t want anything to change. [X] wanted to make this clear to the Court and wanted her voice to be heard. She further expressed her dissapointment (sic) at being unable to travel overseas and described having to miss out on competitions through [sports] (sic) as she did not see the point in participating if she were unable to travel overseas as part of the competition. Further to this, she hopes to one day travel to [Country H]. She told the ICL that when she commences Secondary School she hopes to learn [Language H] and as part of the program she would like to one day travel to [Country H]. She is hoping that she will no longer be prevented to travel so she has the opportunity to travel the world.
The ICL put it to [X] that if she was to change her mind about contact with her Father when she was older, whether she would feel comfortable to disclose this to her Mother and ask whether she would feel supported. [X], despite being adamant that she would not change her mind in the future, agreed with the ICL that if it were to happen, she would feel comfortable to speak with her Mother.[19]
[19] Independent Children’s Lawyer’s Outline of Case filed 21 November 2024.
Over the course of two and a half years, X has consistently expressed a desire not to have a relationship with her father. It is not now proposed that she do so.
The developmental, psychological, emotional and cultural needs of X
I accept Consultant Ms F’s evidence that X “seems to have settled well in [Ms Kurta]’s care and that she is meeting her developmental milestones”.[20] I also accept her evidence that “given [X]’s age and stage of development, she cannot be forced to have contact with [Mr Sastri] if she does not wish for it to occur”. [21]
[20] Family Report of 15 September 2023, paragraph 96.
[21] Family Report of 15 September 2023, paragraph 120.
X’s parents are of Country B heritage. X has previously lived in Country B for extended periods of time, both prior to her parents’ separation, and thereafter. X has a strong connection with Country B culture and Country B religion. Consistent with her expressed desire to travel internationally, I am satisfied that her cultural needs are satisfied by the proposal that she again be permitted to travel internationally.
The capacity of each person who has or is proposed to have parental responsibility for X to provide for her developmental, psychological, emotional and cultural needs
Ms Kurta provides for X’s developmental, psychological, emotional and cultural needs, and has done so throughout her life.
Ms Kurta’s capacity to provide for her daughter’s educational needs is exemplified by X’s excellent educational and extra-curricular achievement. In 2023, she was selected for a high achiever’s program. She has won divisional sports competition medals.
Mr Sastri has limited capacity to provide for his daughter’s emotional needs. He has called her “worthless”, “no good” and “dumb”. He has told her “I don’t know why you were born”, and “I don’t think you’re my child.”[22] His comments caused X to become upset and silent.
[22] Affidavit of Ms Kurta filed 19 November 2024, paragraph 42(i).
Mr Sastri showed no concern for his daughter when she was in pain and crying from a medical condition as a young child. He did not attend to her while she was unable to sleep. He joked about her medical issue and made fun of her for crying.
The benefit to X of being able to have a relationship with her parents, and other people who are significant to X, where it is safe to do so
It is proposed that X will continue to live with Ms Kurta and Mr D. Mr D has a son, J, who is ten years old. J spends time with Mr D, Ms Kurta and X each alternate weekend, half of school holidays and on special occasions. X has a very good relationship with Mr D and J.
X ceased spending time with Mr Sastri in August 2017. It is not now proposed that she commence spending time or communicating with him.
Anything else that is relevant to the particular circumstances of X
X is not an Aboriginal or Torres Strait Islander child.
Parenting Conclusions
Ms Kurta has been solely responsible for X’s care since the parties ceased living together in 2017. She has effectively exercised sole parental responsibility for her in accordance with final consent Orders made in Country B in early 2018.
It is not proposed that X now be re-introduced to her father whom she has not seen for in excess of seven years.
I am satisfied that it is in X’s best interests for her mother to have sole parental responsibility for her.
Ancillary to my conclusion about parental responsibility is the authorisation of Ms Kurta to obtain a passport for X.[23] The Independent Children’s Lawyer proposed a formulation of an order to reflect that conclusion which was supported by Ms Kurta.[24] I am satisfied it is in X’s best interests.
[23] Australian Passports Act 2005 (Cth), s 11.
[24] Exhibit ICL1.
I am also satisfied that it remains in X’s best interests to live with Ms Kurta.
I consider X’s best interests to be met by being permitted to travel internationally. Ms Kurta’s unchallenged evidence is that there is no risk of abduction from Australia. I accept that evidence. I will expressly provide for the discharge of a previous Order restraining X’s parents from removing her from the Commonwealth of Australia and requesting her removal from the Family Law Watchlist.
I also find it to be in X’s best interests for her mother to hold any travel documents on her behalf, and for Ms Kurta to be at liberty to provide a copy of the Orders to relevant service providers.
HARMFUL PROCEEDINGS
Ms Kurta seeks an order in the following terms:
Pursuant to s102QAC Family Law Act 1975 Cth (“the Act”):
a.the Father is prohibited from instituting proceedings under the Act against the Mother, without leave of the Court; and
b.in the event the Father makes an application pursuant to s102QAE of the Act for leave to institute proceedings, the Court shall not notify the Mother that an Application has been made and if the Application is dismissed, that it has been dismissed.[25]
[25] Exhibit R4.
Although Mr Sastri advised through his counsel that he “accepts the proposition that leave of the Court would be required and so does not object to the order”, I did not take that to amount to Mr Sastri consenting to the proposed order. Ms Kurta did not suggest otherwise.
Section 102QAC of the Act relevantly grants the Court a discretion to make a harmful proceedings order prohibiting Mr Sastri from instituting proceedings against Ms Kurta without the Court’s leave if I am satisfied there are reasonable grounds to believe that either Ms Kurta would suffer harm if Mr Sastri instituted further proceedings against her, or that X would suffer harm if he did so.
The relevant harm is non-exhaustively defined to include psychological harm or oppression, major mental distress, a detrimental effect on Ms Kurta’s capacity to care for X, and financial harm.[26]
[26] Family Law Act 1975 (Cth), s 102QAC(2).
In determining whether to make the order, I may have regard to:
(a)the history of the proceedings under this Act between Mr Sastri and Ms Kurta; and
(b)whether Mr Sastri has frequently instituted or conducted proceedings against Ms Kurta in any Australian court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section); and
(c)the cumulative effect, or any potential cumulative effect, of any harm resulting from the proceedings referred to in paragraphs (a) and (b).[27]
[27] Family Law Act 1975 (Cth), s 102QAC(3).
It is a serious matter to deprive a person of access to the courts. “The rule of law requires that, ordinarily, a person should have access to the courts in order to invoke their jurisdiction.”[28]
[28] Re Attorney-General (Cth); ex parte Skyring (1996) 135 ALR 29 at 31.
Ms Kurta’s counsel made the following submissions:
I had considered the breadth and depth of the evidence before the court, in a more broad sense, was sufficient to indicate that after litigation of this length and of this tenor – that harm was made out, broadly. I am not in a position to particularise it further in the sense of taking your Honour, point by point, to the many allegations made by the parties in this matter as to, among other things, family violence and the uncertainties caused to their lives by the litigation.
The “breadth and depth of the evidence” before me does not satisfy me “in a more broad sense” that harm would be caused to Ms Kurta by the institution of further proceedings to warrant Mr Sastri being deprived of access to the Courts.
It is certainly regrettable that Mr Sastri, at various points in this litigation, indicated an intention not to pursue it, including cancelling appointments with Ms E and Consultant Ms F. However, much of that was done because of Ms Kurta’s pursuit in a foreign Court of relief to restrain Mr Sastri from pursuing his application in this Court, whilst at the same time seeking her own relief from this Court. When she ultimately succeeded in obtaining that injunctive relief, Mr Sastri withdrew his application.
Mr Sastri has not previously instituted proceedings in this or any other Australian court or tribunal. It could certainly not be said he has frequently done so.
There is some evidence before the Court that X experienced distress as a result of her exposure to aspects of the current litigation. Ms Kurta gives unchallenged evidence, which I accept, that:
[X] has experienced some distress, restlessness, and broken sleep, particularly before and after her meetings with the Child Impact Report writer, family therapists [Ms E] and [Ms G], and the family report writer. [X]’s school provided two reports in 2022 describing incidents at school when [X] was emotional with friends and distracted in class and expressing concern and distress about meeting [Mr Sastri].[29]
[29] Affidavit of Ms Kurta filed 19 November 2024, paragraph 36.
Nevertheless, the evidence does not satisfy me there are reasonable grounds to believe the institution of further proceedings would cause X harm. She need not be appraised of the proceedings unless and until such time as she is required to participate in a process ordered as part of them. On the evidence before me, it would be her exposure to those processes that may cause her harm, not the institution of the proceedings.
Ms Kurta’s counsel asserts that “I anticipate that it is likely that the mental distress that it would cause to my client would trickle through to the child, and there would be an impact on her, even if my client was, as she has been, careful to, as much as possible, shield [X] from this conflict and the awareness of it.” With respect, counsel’s anticipation of what is “likely” is not a matter to which I can afford any weight. No evidentiary foundation for the submission was advanced. I reject it.
As to the harm that might be caused to Ms Kurta, her counsel submits that she has been put to “extensive cost, she has been put to uncertainty in her life”. Whilst Ms Kurta has incurred significant expenditure, counsel advised that a costs application will be made. I am also bereft of evidence in relation to Ms Kurta’s financial circumstances. In those circumstances, I am unable to conclude that further proceedings would cause her financial harm.
Ms Kurta deposes that “[t]he emotional and financial stress of these proceedings and the proceedings in [Country B] have taken a toll on [Mr D] and me, and our marriage”,[30] and that “[t]he financial stress of these proceedings and the proceedings in [Country B] led to disagreements between [Mr D] and me.”[31] It is notable that the proceedings in Country B are those prosecuted by Ms Kurta, despite her own invocation of this Court’s jurisdiction. I am not satisfied that the stress to which she refers establishes a basis to deprive Mr Sastri of access to the courts.
[30] Affidavit of Ms Kurta filed 19 November 2024, paragraph 120.
[31] Affidavit of Ms Kurta filed 19 November 2024, paragraph 123.
I decline to make the harmful proceedings order proposed by Ms Kurta.
As the Independent Children’s Lawyer submits, section 65DAAA of the Act operates to restrict the circumstances in which Mr Sastri would be permitted to re-commence litigation with respect to X.
Procedural directions were agreed for the determination of any costs application without the need for further appearances.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 4 December 2024
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