Szalai & Szalai (No 3)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Szalai & Szalai (No 3) [2024] FedCFamC1F 838

File number(s): DNC 45 of 2023
Judgment of: KARI J
Date of judgment: 12 December 2024
Catchwords: FAMILY LAW – CHILDREN – Where the father’s Response to Final orders was dismissed and struck out in circumstances where the Court formed the view that the father was not prosecuting the proceedings with due diligence –Where the father makes an oral application to have his Response reinstated – Where the father has failed to comply with procedural orders as well as orders for time spending at a contact centre – Apprehension that the father is using these proceedings to perpetrate further family violence upon the mother – Father’s oral application refused – Proceedings are finalised with orders made in terms of the mother’s Amended Initiating Application
Legislation:

Family Law Act (1975) ss 60CC, 61C, 68LA, 69ZN, 95, 96, 102NA

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 69

Family Law Rules 2004 (Cth) r 16.05

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Ch 10, rr 2.14, 2.18, 8.13, 10.13, 10.26, 10.27, 15.15
Cases cited:

Allesch v Maunz (2000) 203 CLR 172

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Barbey & Tuttle (2013) FLC 93-534

Szalai & Szalai [2023] FedCFamC2F 977

Szalai & Szalai [2024] FedCFamC1F 757

Szalai & Szalai (No 2) [2024] FedFamC1F 805

Szalai & Szalai (No 2) [2024] FedCFamC2F 1709
Division: Division 1 First Instance
Number of paragraphs: 86
Date of hearing: 25 November 2024
Place: Adelaide via Webex
Counsel for the Applicant: Mr Fernandez
Solicitor for the Applicant: Duggan Family Lawyers
Solicitor for the Respondent: Litigant in person
Solicitor for the Independent Children's Lawyer: Ms Farmer of AFL Withnalls Lawyers

ORDERS

DNC 45 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS SZALAI

Applicant
AND:

MR SZALAI

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

KARI J

DATE OF ORDER:

12 DECEMBER 2024

THE COURT ORDERS THAT:

1.The Respondent’s oral application to reinstate his Response for Final Orders filed 12 April 2023 is dismissed.

2.The Mother have sole responsibility for the children, X, born 2014 and Y, born 2016 ("the children").

3.The children live with the Mother.

4.The children shall spend supervised time with the Father at D Contact Service subject to their availability.

5.On the following days of significance, the children shall communicate with the Father via telephone, with the Father to instigate the telephone call to the Mother:

(a)On Father's Day, at 6.30 pm;

(b)On the Father's birthday, at 6.30 pm;

(c)On X's birthday, at 6.30 pm; and

(d)On Y's birthday, at 6.30 pm.

6.The children shall otherwise communicate with the Father via telephone each Thursday at 6.30 pm, with the Father to instigate the telephone call to the Mother.

7.The parties shall communicate via email in relation to the children’s school fees or extra curricular activity fees only.

8.The parties shall…

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Details
Case
[2024] FedCFamC1F 838
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms Szalai (the mother) sought final parenting orders in relation to the two children of the parties' relationship, X born 2014, and Y born 2016. The mother and Mr Szalai (the father) had separated in 2017 and divorced in 2018. The mother asserted a history of family violence by the father and alleged that the father had paid limited child support. The children had lived with the mother since the separation and had spent sporadic time with the father in the post-separation period. The mother sought sole responsibility for the children, for the children to live with her, and for the children to spend time with the father under supervision at a contact service. The father filed a Response to the Application for Final Orders, however, his Response was dismissed and struck out by the Court due to the father not prosecuting the proceedings with due diligence. The father subsequently made an oral application to have his Response reinstated. The Court was required to determine whether the father's oral application to have his Response reinstated should be granted. The Court found that the father had failed to comply with procedural orders as well as orders for time spending at a contact centre. The Court was also of the apprehension that the father was using these proceedings to perpetrate further family violence upon the mother. The Court dismissed the father's oral application to have his Response reinstated. The Court made orders in terms of the mother's Amended Initiating Application. The Court made orders that the mother have sole responsibility for the children, that the children live with the mother, that the children spend supervised time with the father at D Contact Service, and that the children communicate with the father by telephone at specified times. The Court also made orders restraining the parties from denigrating each other, from discussing the court proceedings with the children, from discussing adult issues and parenting issues with the children, and from discussing extreme religious beliefs with the children. The Court further made orders restraining the father from approaching the mother, from attending at the mother's place of employment, from video recording or taking photographs of the mother, and from exposing the children to abuse or family violence. The Court also made orders in relation to passports, citizenship applications, travel, and name changes of the children. The Court discharged the appointment of the Independent Children's Lawyer and dismissed the proceedings as finalised, subject to any appeal.

Orders

Orders of the court

DNC 45 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS SZALAI

Applicant

AND:

MR SZALAI

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

KARI J

DATE OF ORDER:

12 DECEMBER 2024

THE COURT ORDERS THAT:

1. The Respondent’s oral application to reinstate his Response for Final Orders filed 12 April 2023 is dismissed.

2. The Mother have sole responsibility for the children, X, born 2014 and Y, born 2016 ("the children").

3. The children live with the Mother.

4. The children shall spend supervised time with the Father at D Contact Service subject to their availability.

5. On the following days of significance, the children shall communicate with the Father via telephone, with the Father to instigate the telephone call to the Mother:

(a) On Father's Day, at 6.30 pm;

(b) On the Father's birthday, at 6.30 pm;

(c) On X's birthday, at 6.30 pm; and

(d) On Y's birthday, at 6.30 pm.

6. The children shall otherwise communicate with the Father via telephone each Thursday at 6.30 pm, with the Father to instigate the telephone call to the Mother.

7. The parties shall communicate via email in relation to the children’s school fees or extra curricular activity fees only.

8. The parties shall communicate in relation to the children via telephone in the event of an emergency only.

9. The Mother shall do all things necessary to obtain a passport for each of the children, including but not limited to:

(a) The Mother will prepare the necessary passport application forms;

(b) The Mother will meet the costs of the children's passports applications;

(c) The Mother will notify the Father in writing once the passports have been issued; and

(d) The Mother will retain possession of the children's passports.

10. The Mother shall do all acts and sign all things necessary to apply for Country C Citizenship for each of the children, including but not limited to:

(a) The Mother will prepare the necessary Country C Citizenship application forms;

(b) The Mother will meet the costs of the Country C Citizenship applications;

(c) The Mother will notify the Father in writing if the Country C Citizenship has been approved; and

(d) The Mother will retain possession of the Country C Citizenship forms.

11. The children be permitted to travel interstate and/or overseas with the Mother provided that the Mother provides the Father with itineraries, contact addresses and telephone numbers for the children whilst they are interstate or overseas so that the children can communicate with the Father via telephone once a week.

12. Provided the Mother has given notice to the Father in accordance with paragraph 11 above, the children be permitted to travel to Country C with the Mother for up to six weeks per year, with the Mother to pay the expenses of the children's flights and accommodation and the Mother shall provide to the Father, the itineraries, contact addresses and telephone numbers for the children whilst they are overseas.

13. That the parties be restrained by injunction and an injunction issued restraining each of the parties from:

(a) Denigrating the other parent or the parent's partner or members of that parent's family in the presence of or within the hearing of the children or any of them and each parent remove the children from the hearing of anyone else who may be denigrating the other parent or that parent's partner or family;

(b) Discussing the court proceedings with the children or allowing the children to read or view any court documents or permitting any person to do so;

(c) Discussing adult issues and parenting issues with the children or permitting any person to do so; and

(d) Discussing extreme religious beliefs with the children or permitting any person to do so.

14. Pursuant to s 68B(1) of the Family Law Act 1975 (Cth), for the personal protection of the Mother and the children, the Father is restrained and an injunction is granted restraining the Father from:

(a) Approaching the Mother in person;

(b) Attending at the Mother's place of employment; and/or

(c) Video recording or taking photographs of the Mother.

15. The Father is restrained and an injunction is granted restraining the Father from:

(a) Attending at the Mother's residence unless otherwise agreed by the Mother in writing;

(b) Attending at the children's school with the exception of attendances for parent/teacher interviews, school assemblies and upon invitation by the school;

(c) From exposing the children to abuse (including verbal abuse) or family violence and that the father will take all measures necessary to remove the children from any act of family violence should such circumstances arise;

(d) From posting to any social media account negative or derogatory comments including photos or information in relation the children, the parents or these proceedings;

(e) From communicating with the mother except in accordance with these orders for issues in relation to the children and the father shall ensure his communication remains polite and respectful;

(f) From using the children as a conduit to pass messages to the other parent; and/or

(g) From discussing, commenting or exposing the children to his religious beliefs.

16. That a copy of Orders authorises the child's children's school and medical practitioners to provide to each of the parties:

(a) Copies of school reports, school newsletters, school photo application forms, parent/teacher interview notices and so forth regarding the educational needs of the children;

(b) Copies of medical reports including any referrals, information regarding any medical condition suffered by the children, including treatment and any other information or material concerning the health and wellbeing of the children; and

(c) If the above material is provided to the Father, any contact details of the Mother included in that material shall be redacted by the school or medical practitioner.

17. That the Mother and Father shall:

(a) Forthwith, shall exclusively use the name "[X]" and "[Y]" as the names of the children of the relationship formally known as "[…]" and "[…]".

18. That the Mother shall:

(a) Forthwith, do all things necessary, including making application and executing documents, to seek the alteration of the names of the children in the Register of Births, Deaths and Marriages to:

(i) Change X's name from "[his previous name]" to "[X]"; and

(ii) Change Y's name from "[her previous name]" to "[Y]".

19. The Mother shall pay such fees, if any, as are applicable to an application for an alteration of the Register of Births, Deaths and Marriages.

20. The Mother shall pay such fees, as are applicable to obtain one copy of the children's updated Birth Certificates, once the name changes have been made.

21. The Father shall pay such fees, as are applicable to obtain one copy of the children's updated Birth Certificates, once the name changes have been made.

22. The appointment of the Independent Children’s Lawyer be discharged, subject to any appeal.

23. The proceedings otherwise be dismissed as finalised

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

In the reasons that follow various facts are summarised. The facts that have been summarised have been taken from the material filed by the mother. It is difficult to discern the agreed facts and those matters of controversy between the parties, because the father has failed to file an affidavit in these proceedings which meaningfully engages with and/or responds to the assertions made by the mother in her material, nor has he ever filed a detailed affidavit putting his version of events before the Court. Accordingly, throughout these reasons where it is apparent that there is a controversy between the parties the same shall be identified and given the nature of the hearing, no findings are made resolving those controversies.BACKGROUND The mother was born in Country C in 1982 and she is 42 years of age. The father was also born in Country C in 1981 and he is 43 years of age. The parties started cohabitating in 2006, married in 2008, separated in 2017 and divorced in 2018. The early part of the parties’ relationship and their marriage took place in Country C. The parties relocated to Australia shortly after their marriage and moved to live in City E in 2012. There are two children of the parties’ relationship, X born 2014, and Y born 2016. Each of the children bear the name given to them by the parents, together with the middle name given to each of them by the father. The mother asserts that there is a history of family violence between the parties. In her various documents filed in the proceedings, the mother has made allegations as to incidences of family violence, and in particular, incidences that have resulted in the making of family violence orders which named the mother as a protected person and the father as the defendant as follows:(a)A Domestic Violence Order (“DVO”) made in late 2015, which the mother describes as a “full non-contact” DVO… [which] required [Mr Szalai] to leave the house and he left.” (Mother’s affidavit filed 1 February 2023 at paragraph 32). The mother says that this order was made to protect herself and X (Mother’s affidavit filed 20 July 2023, paragraph 60). The mother, however, says that as a result of continual pressure from the father to withdraw the DVO, she finally did so in early 2016, with the father giving a 12-month undertaking “with non-violence terms” (Mother’s affidavit filed 20 July 2023, paragraph 62).(b)In early 2021, the mother says that with the assistance of the Domestic Violence Legal Service, she made an application for a DVO, with an Interim DVO made in the Local Court in early 2021, naming the mother as the protected person and the father as the defendant. The terms of the DVO permitted communication between the parties regarding the children. (c)The mother says that the father breached the terms of the DVO by communicating with her unrelated to the children in early 2022. The mother says the father was arrested and spent a night in custody. Following his release, she says that the father parked outside her home, resulting in further police attendance and the father’s arrest. The mother says that the father was convicted of two counts of breaching the DVO.(d)The mother says that in about September 2022, the father emailed her legal representatives about the DVO in the following terms (Mother’s affidavit filed 1 February 2023, paragraph 49):“…Without prejudice I am making the following proposal to [Ms Szalai]. If she enters in marriage with covenant with me under the commonwealth law, I’m going to grant her everything she wants, I’m going to give her all of my assets and income, and I will carry her on my hands. I am looking forward to her reply. Let’s not forget that without forgiveness there’s no life…”(As per the original)(e)The proceedings for a final DVO were finally heard at a final hearing in late 2023, after several earlier attempts to do so. Reasons were delivered in early 2024, and the Court has the benefit of those reasons (annexed to the affidavit of the mother filed 21 November 2024). When regard is had to those reasons, the findings that were made included:(i)The Interim DVO made in 2015 arose from an argument between the parties which saw the father slap the mother twice to her face and smash bottles in the kitchen in the presence of at least one of the children.(ii)The father was found to have breached that interim DVO without a conviction being recorded in early 2016.(iii)The father was found to have committed two further breaches of the DVO in early 2021, with a conviction recorded and a good behaviour bond imposed. Each of those breaches relating to text message communication to the mother by the father.(iv)The father had (on the balance of probabilities), displayed a pattern of conduct towards the mother “which is definitely persistent and so frequent as to constitute harassment and is intimidation”.(v)The father’s assertions that the recent communications were emergencies were “…absurd but are unfortunately indicative of his attitude of entitlement and show a disregard in general to the court orders he was restrained under… They also show a disregard in relation to appropriate boundaries regarding the Applicant and I find it is also evidence of controlling behaviour which could result in wearing down the Applicant’s resolve in relation to having no contact with the Defendant.”(vi)The mother suffered “mental turmoil”, and she “genuinely feared for her safety”, with the father attempting to harass the mother into “resuming the relationship”.(vii)The father “lacks insight into his past conduct” and “appears to have little capacity for self-regulation and restraint”.(f)Ultimately a final DVO was made in early 2024 protecting the mother from the father for a period of three years.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The mother asserts that the father has paid limited Child Support since separation as follows:(a)Until the end of 2021 at the rate of $34 per month in accordance with a Child Support Assessment.(b)From December 2022, pursuant to a reassessment of Child Support at the rate of $34 per week, with only two payments being made as at 1 February 2023, in the amount of $37.17 on 22 December 2022, and $88.85 on 13 January 2023 (Mother’s affidavit filed 1 February 2023, paragraphs 95-97).THE POST-SEPARATION PARENTING ARRANGEMENTS The children have lived with the mother since separation. The mother asserts that the children have spent sporadic time with the father in the post separation period as follows (per the mother’s affidavit filed 20 July 2023):(a)From 2018 until May 2020, the time spending was sporadic, with the father being uncontactable from April to September 2019.(b)On 6 May 2020 a Parenting Plan was signed between the parties providing for the children to spend time with the father during the day each Saturday to attend church with the father and each Sunday evening until Tuesday afternoon. The mother asserts the father did not comply with this Parenting Plan and that ultimately X spent approximately one night a week with the father and Y spent approximately one night every three weeks with the father.(c)From late 2020 to January 2021, the children spent a couple of hours a week, separately, with the father.(d)At some point in 2021 the children did not see the father for about five months.(e)In early March 2022 the children began spending time with the father each Sunday afternoon until the commencement of school on Monday (I query however whether this was in fact in the year 2021 given the balance of matters deposed by the mother).(f)From January 2022 to September 2022 the children’s time spending again became sporadic with the father randomly texting the mother to spend time with the children rather than adhering to set dates and times.(g)In September 2022 the children began spending time with the father from 5.00 pm Friday until 5.00 pm Saturday. This arrangement ended when the father’s car broke down towards the end of that month.(h)Between December 2022 and February 2023 the children did not spend time with nor communicate with the father, other than one period of time where X spent a Sunday with the father.(i)Between February 2023 and May 2023 the children spent time with the father between 5.00 pm and 7.00 pm on Sunday for three out of every four weekends.THE LITIGATION These proceedings were commenced by the mother when she filed an Application for Final Orders on 1 February 2023. By that application the mother sought detailed parenting orders. In summary, the orders the mother sought provided for:(a)The mother to have sole parental responsibility for the children.(b)The children to live with the mother.(c)The children to spend time with the father each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday.(d)Communication between the children and the father via telephone, FaceTime or skype each Wednesday at 6.30 pm.(e)Passport applications for the children, with the mother to thereafter retain possession of the children’s passports.(f)The parties’ application for Country C citizenship for the children.(g)The children’s travel to Country C with the mother for up to four weeks each year.(h)Injunctions restraining each of the parties from:(i)Denigrating each other or members of their respective families in the presence of within hearing of the children, or permitting others to do so;(ii)Discussing the court proceedings with he children or allowing the children to read or view court documents;(iii)Discussing adult issues and parenting issues with the children; and(iv)Discussing extreme religious beliefs with the children.(i)The provision to each of the parties of the children’s school and medical records.(j)The name change of each of the children such that the middle name of each of the children be removed and X’s first name to be changed.