Satya and Wiyata (No 2)

[2012] FamCA 309

FAMILY COURT OF AUSTRALIA

SATYA & WIYATA (NO 2) [2012] FamCA 309

FAMILY LAW – CHILDREN - Undefended

Family Law Act 1975 (Cth)

APPLICANT: Ms Satya

RESPONDENT: Mr Wiyata

FILE NUMBER: MLC 9519 of 2011

DATE DELIVERED: 17 February 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 17 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Raniga

SOLICITOR FOR THE APPLICANT: RRR Lawyers

THE RESPONDENT: No appearance

Orders

1. That the applicant wife have leave to proceed in the absence of the husband as an undefended proceeding.

2. That there be orders of the Court in terms of the minutes annexed hereto and marked “A”.

3. That the application filed 21 October 2011 is otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Satya & Wiyata (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9519 of 2011

Ms Satya

Applicant

And

Mr Wiyata

Respondent

REASONS FOR JUDGMENT

1. This is an application which was filed in the court in October 2011, by Ms Satya.  The respondent is her husband, Mr Wiyata.  For my convenience I shall refer to the parties as husband and wife.

2. The parties married in 1991 and separated in December 2010.  There are three children of the marriage, the first of whom was born in 1995 and is therefore coming up to 17 years of age and the younger two children, who were born in 2000 and who this year will turn 12.

3. The application has had a number of hearings and, ultimately, came before me on 24 January this year.  The husband had not filed material subsequent to November 2011, so on 24 January 2012, he having failed to comply with directions, I adjourned the matter to today and indicated that if he did not file material, then the wife would have leave to proceed today on an undefended basis.  I made provisions in the orders in January for the service of the relevant documents.

4. Apart from the fact that no further material has been filed by the husband, he is not here today.  The curious feature of this application is that the wife initially sought both parenting and property orders, but she is now no longer proceeding with the property application.  She sets out why that is so but the reality is that it does not matter; that is her choice.  What she seeks to do today is to proceed with the parenting orders.

5. The wife seeks orders that the children live with her and that she have sole long term responsibility for their care, welfare and development and that the husband’s time with the children be reserved. 

6. I do not propose to make an order that the time between the husband and the children be reserved because that is a matter entirely for him.  It seems better that the orders are silent about what time he has with them and he can make arrangements with the wife.

7. The wife also seeks orders that the husband be restrained from leaving the Commonwealth of Australia and that the children remain on the passport watch system.  I think there is sufficient evidence in this case to justify that order being made. 

8. The Australian Federal Police are being required to interpret orders and work out what arrangements the parties agree between themselves.  It seems better that there be a sundown clause on an order like that and having regard to the fact that the youngest children are coming up 12 years of age, three years from now is sufficient time.  By that stage they will almost be 15 years of age and the oldest child will be over the age of majority.

9. The evidence of the wife is set out in a number of affidavits.  She describes the schooling, the arrangements that she has for the care of the children, their extra‑curricular activities and how she is supporting them.  For reasons best known to the husband he has decided not to participate and, therefore, I do not know what his views are about the welfare of his children.

10. There is evidence to show that the husband had plans to take the children out of Australia back to his native land.  That upset the children and on that basis, it would not be in their best interests for that to occur.  Without some explanation from the husband as to why that happened and what his intentions are, I think it is important that there at least be an injunction precluding the children from leaving the country. 

11. The difficulty with the injunction is that it will, effectively, preclude the wife from leaving the country with the children as well, so to the extent that there is going to be an order in the next three years covering the children, any person who wishes to take them on a holiday will need to think about how that occurs.

12. I am satisfied that the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) have been satisfied by the evidence. That particular provision requires that the court only make an order if it is satisfied that it is in the best interests of the children for a parenting order to be made. One of the parenting orders sought here is that the wife have sole long term responsibility for the children. Sadly, I do not know what it is that the husband seeks for his children in the future. Had he been here, it is conceivable that the court would have looked at the question of whether or not the presumption of equal shared parental responsible was rebutted. As he is not here I presume that there is a basis for him to say that when the wife asserts that it is in the best interests of the children for her to have sole long term responsibility, he does not dispute that.

13. To determine what is in the best interests of the children, the court is obliged to look at the provisions of s 60CC.  Each of those factors is set out in the material provided by the wife.  I am satisfied that it is in the best interests of the children for the orders to be made in the terms set out in the minutes to which I have referred.

14. I note, specifically, that the draft which has been provided to the husband and upon which he has not responded, the wife has suggested that an order be made effectively allowing the husband time by agreement.  Whilst I have some reservations about that, it is better than the reserved position.

15. The other matter that the wife seeks an order about is that the children’s passports which had been deposited by the wife in the registry, be returned to her.  This court ought not be a repository or a safe deposit box.  I see no reason why, if the wife has sole parental responsibility she should not have those passports back.

I certify that the preceding Fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 17 February 2012.

Associate: 

Date:  17 April 2012