SHIVA & KAPIL - [2016] FamCA 231

FAMILY COURT OF AUSTRALIA

SHIVA & KAPIL

[2016] FamCA 231

FAMILY LAW – CHILDREN – Undefended hearing – where the father has failed to comply with court orders – where the father did not appear at the final hearing – where the mother seeks that she have sole parental responsibility, that the child live with her and that the child spend time with the father by agreement – where the father has not seen the child for over two and a half years – allegations of physical and verbal abuse by the mother against the father – where there are outstanding warrants for the father’s arrest – where no supervised time can occur while the warrants are outstanding – final orders made in terms of the orders sought by the mother

FAMILY LAW – COSTS – Application by the mother and the Independent Children’s Lawyer for costs – where the father has failed to comply with court orders – where the father has failed to attend court on multiple occasions – no costs order made in relation to the final hearing – costs order made in a fixed sum in the mother’s favour in relation to three court dates prior to the final hearing which the father failed to attend

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Tate v Tate [2000] FamCA 1040; (2000) FLC 93-047

APPLICANT:

Mr Shiva

RESPONDENT:

Ms Kapil

INDEPENDENT CHILDREN’S LAWYER:

Danielle Webb Lawyer

FILE NUMBER:

BRC

6001

2014

DATE DELIVERED:

13 April 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

15 March 2016

REPRESENTATION

THE APPLICANT:

No appearance

COUNSEL FOR THE RESPONDENT:

Ms Glaister

SOLICITOR FOR THE RESPONDENT:

Victoria Legal Aid

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Webb

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Danielle Webb Lawyer

Orders

IT IS ORDERED THAT

All previous orders be discharged.
The mother have sole parental responsibility for the child B born … 2012 (“the child”).
The child live with the mother.
The child spend no time with the father except and save as by written agreement between the mother and the father.
The mother be at liberty to apply for a passport for the child without the consent of the father.
The orders made by Hogan J dated 22 December 2014 be discharged AND THE COURT REQUESTS THAT the Australian Federal Police remove the name of the child B born … 2012 from the Airport Watch List at all points of international arrivals and departures in Australia.
As soon as practicable the Court forward a copy of this order to the Australian Federal Police.
The father pay the mother’s costs fixed in the sum of $1,642.
The order for the appointment of the Independent Children’s Lawyer be discharged.
All extant applications be otherwise dismissed and the matter be removed from the list of cases awaiting hearing.

IT IS DIRECTED THAT

All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SHIVA & KAPIL

Details

AGLC: SHIVA & KAPIL [2016] FamCA 231
Case: [2016] FamCA 231
Decision Date: 13 April 2016

CaseChat Overview and Summary

In the Family Court of Australia, Justice Macmillan presided over proceedings concerning the child B, born in 2012. The mother sought sole parental responsibility, that the child live with her, and that any time spent with the father be by agreement. The father had failed to comply with previous court orders and did not appear at the final hearing. The mother alleged physical and verbal abuse by the father, and outstanding warrants for the father's arrest meant that supervised time could not occur.

The court was required to determine the appropriate final orders regarding the child's living arrangements and parental responsibility, considering the father's non-compliance with court orders, his absence from the hearing, and the allegations made by the mother. Additionally, the court had to consider applications for costs made by the mother and the Independent Children's Lawyer.

Justice Macmillan reasoned that given the father's failure to comply with court orders, his absence from the final hearing, and the fact that he had not seen the child for over two and a half years, it was in the child's best interests to make orders reflecting the mother's application. The court discharged previous orders and granted the mother sole parental responsibility, with the child to live with her. Time with the father was to be only by written agreement. The court also made orders regarding the child's passport and requested the Australian Federal Police remove the child from the Airport Watch List. Regarding costs, while no order was made for the final hearing, the father was ordered to pay the mother's costs in a fixed sum of $1,642 for three prior court dates he failed to attend.

Orders

Orders of the court

IT IS ORDERED THAT

All previous orders be discharged.

The mother have sole parental responsibility for the child B born … 2012 (“the child”).

The child live with the mother.

The child spend no time with the father except and save as by written agreement between the mother and the father.

The mother be at liberty to apply for a passport for the child without the consent of the father.

The orders made by Hogan J dated 22 December 2014 be discharged AND THE COURT REQUESTS THAT the Australian Federal Police remove the name of the child B born … 2012 from the Airport Watch List at all points of international arrivals and departures in Australia.

As soon as practicable the Court forward a copy of this order to the Australian Federal Police.

The father pay the mother’s costs fixed in the sum of $1,642.

The order for the appointment of the Independent Children’s Lawyer be discharged.

10.

All extant applications be otherwise dismissed and the matter be removed from the list of cases awaiting hearing.

IT IS DIRECTED THAT

11.

All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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