FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Soma & Soma (No 2) [2025] FedCFamC1F 42
File number: SYC 9076 of 2022 Judgment of: SCHONELL J Date of judgment: 29 January 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Parenting Orders – Where the Court has previously made orders permitting the wife a reasonable period to vacate the property and a warrant for possession in the event the wife fails to vacate – Where the wife has failed to vacate the home – Where the husband seeks orders for the children to live with the husband until after the execution of the warrant to avoid the children being present at the property – Where there is no appearance or response by the wife – Where the Court is satisfied that there has been service on the wife of the application – Orders made for the children to live with the father for a defined period of time to avoid them being present when the warrant is executed.
FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of single expert – Where the husband seeks orders for the wife to co-sign the letter of instruction, attend interviews, and provide material to a single expert – Where the expert is jointly agreed – Orders made for the wife to co-sign the letter of instruction, attend interviews, and provide material to a single expert to progress the matter.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CA, 60 CC(2), 69ZL Cases cited: Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346 Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 29 January 2025 Place: Sydney Solicitor for the Applicant: Karras Partners Lawyers The Respondent: No appearance ORDERS
SYC 9076 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SOMA
Applicant
AND: MS SOMA
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
29 JANUARY 2025
THE COURT NOTES THAT:
A.The matter was called at 9.30 am and there was no appearance by or on behalf of the respondent.
B.Judgment is reserved to 10.30 am this day.
AND THE COURT LATER NOTES THAT:
C.The matter was called at 10.30 am and there was no appearance by or on behalf of the respondent.
AND THE COURT ORDERS THAT:
1.The children of the marriage:
(a)W born in 2009
(b)X born in 2012
(c)Y born in 2014 and
(d)Z born in 2017
(“the children”) live with the husband from 3.00 pm today, 29 January 2025 until school commences on Tuesday, 4 February 2025.
2.Orders are made in accordance with paragraphs 4, 5, 6 and 7 of the husband’s Application in a Proceeding filed 17 January 2025 as set out hereunder:
4.That the wife or her lawyers forthwith confirm and co-sign the letter of instruction forwarded to [Dr D] on 18 December 2024 and that the wife provide such documents and information required by the expert within seven days of any such request.
5.That the husband and the wife…
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CaseChat Overview and Summary
The primary legal issues before the court were whether the husband's application should be granted to protect the children from being present at the property during the execution of the warrant, and whether the wife should be compelled to co-sign the letter of instruction, attend interviews, and provide material to the single expert. The court was required to consider the welfare of the children as the paramount consideration in making any orders and to ensure that any orders made were in the best interests of the children.
In delivering the judgment, the court found that the wife had failed to vacate the property as previously ordered, and that there was no response or appearance by her in the proceedings. The court was satisfied that the wife had been properly served with the application. Given the circumstances, the court made orders for the children to live with the father from 3.00 pm on 29 January 2025 until school commenced on 4 February 2025, to avoid them being present at the property when the warrant was executed. Furthermore, the court ordered the wife to co-sign the letter of instruction, attend interviews, and provide material to the single expert, and granted leave for the husband to issue subpoenas to relevant medical practitioners and professionals. The court also reserved the husband's costs and restored the matter to the list on 48 hours’ notice.
In summary, the court made orders for the children to live with the father temporarily and for the wife to co-operate with the expert and provide necessary material. The court granted leave for the husband to issue subpoenas and reserved the husband's costs.
Orders
Orders of the court
SYC 9076 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR SOMA
Applicant
AND:
MS SOMA
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
29 JANUARY 2025
THE COURT NOTES THAT:
A. The matter was called at 9.30 am and there was no appearance by or on behalf of the respondent.
B. Judgment is reserved to 10.30 am this day.
AND THE COURT LATER NOTES THAT:
C. The matter was called at 10.30 am and there was no appearance by or on behalf of the respondent.
AND THE COURT ORDERS THAT:
1. The children of the marriage:
(a) W born in 2009
(b) X born in 2012
(c) Y born in 2014 and
(d) Z born in 2017
(“the children”) live with the husband from 3.00 pm today, 29 January 2025 until school commences on Tuesday, 4 February 2025.
2. Orders are made in accordance with paragraphs 4, 5, 6 and 7 of the husband’s Application in a Proceeding filed 17 January 2025 as set out hereunder:
4. That the wife or her lawyers forthwith confirm and co-sign the letter of instruction forwarded to [Dr D] on 18 December 2024 and that the wife provide such documents and information required by the expert within seven days of any such request.
5. That the husband and the wife attend upon [Dr D] for such interviews as are nominated by her including but not limited to, 17 and 18 March 2025, and that both parties do all things necessary to ensure that the children similarly attend any required interviews.
6. That leave be granted to the husband’s lawyers to provide [Dr D] with copies of all material produced under Subpoena including the documents produced by [Dr E], Psychiatrist.
7. That leave be granted to the husband to cause four Subpoenas to be issued to any medical practitioners, clinics, hospitals and allied health professionals who have provided or are providing treatment to the wife.
3. Leave is granted to restore the matter to the list on 48 hours’ notice.
4. The costs of the husband are reserved.
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.
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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