URBAN & DALVI

[2020] FamCA 777

FAMILY COURT OF AUSTRALIA

URBAN & DALVI [2020] FamCA 777

FAMILY LAW – JURISDICTION – where it was the father case  that the mother’s application be summarily dismissed because the Family Court did not have jurisdiction – where the mother and child are originally from Country B but live and have permanent residency in Australia – where the father lives in Country B –  where the court has jurisdiction and is clearly an appropriate forum – where the court has the power to determine the mother’s application for interim parenting orders - where interim parenting orders are made that preserve the status quo and reflect the current parenting arrangements – where the presumption of equal shared parental responsibility is not applied – where it is in the child’s best interests for the mother  to have interim sole parental responsibility for the child – where the mother is permitted to apply for a Resident Return Visa for the child without the consent of the father

FAMILY LAW – PRACTICE AND PROCEDURE – Application – Dismissal or Striking Out – where orders are made dismissing the father’s application for summary dismissal

Family Law Act 1975 (Cth) ss 45A, 60CC, 67E, 69H
Family Law Rules 2004 (Cth) r 10.3

Banks & Banks (2015) FLC 93-637
Lindon v Commonwealth (No 2) (1996) 136 ALR 251

APPLICANT: Ms Urban

RESPONDENT: Mr Dalvi

FILE NUMBER: MLC 3854 of 2020

DATE DELIVERED: 16 September 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 1 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Jenkinson

SOLICITOR FOR THE APPLICANT: Romer Maud Family Lawyers

SOLICITOR FOR THE RESPONDENT: In Person

Orders Made on 1 September 2020

IT IS ORDERED THAT

1. The Father’s application for summary dismissal of the Mother’s Initiating Application filed 20 April 2020 be dismissed.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The Mother have sole parental responsibility for X born … 2020 (“the child”).

2. The child reside with the Mother in Australia.

3. The Father spend time and communicate with the child as follows:

   a.At times agreed between the parties in writing; and

   b.By telephone, Skype, WhatsApp or other electronic means at all reasonable times.

4. The parties will communicate with each other about the child respectfully via text, email and/or an agreed App, and in the event of an emergency affecting the child, by telephone.

5. The parties shall keep each other informed of their contact details including residential address, contact phone numbers, and email address, and advise of any change to such details within 48 hours.

6. The Mother authorise the Father to obtain information regarding the child’s educational progress directly from the child’s school including school reports, notices, orders for photographs; and attend any school function that parents are invited to attend.

7. The parties notify each other as soon as practicable in the event of child becoming ill or being injured and/or requiring medical attention in their care, and the parties notify each other and include the names and contact details of any medical professionals the child may have consulted.

8. The Mother will notify the Father in writing 30 days prior (save in the event of an emergency in which the Mother shall notify the Father as soon as practicable) of her intention to travel overseas with the child, including providing details in relation to the destination and duration of the trip and she should provide a contact telephone number for the child.

9. The mother be at liberty to complete and apply for a Resident Return Visa for the child (form 1229) without requiring the consent of the father.

IT IS FURTHER ORDERED THAT

1. All extant applications be adjourned for further hearing in the Senior Registrar Duty List to 10.00 am on 14 October 2020.

2. By 4.00 pm on 9 October 2020 the Father file and serve an Amended Response to the Mothers Initiating Application filed 20 April 2020 setting out the particulars of any parenting orders he seeks.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Urban & Dalvi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3854 of 2020

Ms Urban 

Applicant

And

Mr Dalvi

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter was listed for hearing before me in the Judicial Duty List on 1 September 2020. The mother filed an Initiating Application on 20 April 2020 seeking final and interim parenting orders in relation to the child of the relationship, X born … 2012 (“the child”), who is currently eight years of age. The mother was represented by counsel before me whilst the father was unrepresented and appeared by video from Country B.

2. On 17 June 2020 the father filed his Response to the mother’s Initiating Application in which he opposed the mother’s application and sought final and interim orders in the following terms:

   1. It is respectfully prayed before this Hon'ble Court to DISMISS the case with file number MLC3854/2020 of the Applicant (Ms. Urban) by REFUSING TO GRANT ANY OF THE ORDERS SOUGHT IN THE "Initiating Application (Family Law)" (File Number MLC3854/2020), "Notice of Risk" (File Number MLC3854/2020) and "Affidavit" (Transaction Ref: …96 for file MLC3854/2020) filed by the Applicant

   2.It is respectfully prayed before this Hon'ble Court to DISMISS the case with file number MLC3854/2020 of the Applicant (Ms. Urban) by REFUSING TO GRANT THE ORDERS SOUGHT IN THE "APPLICATION", including the orders sought in the section "The Orders Sought" in page 1 of the "Initiating Application (Family Law)" (File Number MLC3854/2020), the Final Orders as sought in PART — A of the "Initiating Application (Family Law)" (File Number MLC3854/2020), and the Interim or Procedural Orders as sought in PART — A of the "Initiating Application (Family Law)" (File Number MLC3854/2020), and all other orders sought in the "Initiating Application (Family Law)" in the interest of justice and equity;

   3.It is respectfully prayed before this Hon'ble Court by the Respondent to DISMISS the case of the Applicant by REFUSING to grant the orders sought in the "Affidavit" bearing Transaction Ref: …96 for file MLC3854/2020, in the interest of justice and equity;

   4.It is respectfully prayed before this Hon'ble Court by the Respondent to DISMISS the allegations stated in the "Notice of Risk" (File Number: MLC3854/2020) against the Respondent as false, incorrect, misleading and defamatory, in the interest of justice and equity;

   5.It is respectfully prayed before this Hon'ble Court by the Respondent to IMPOSE heavy fine/penalty on the Applicant, for misleading and wasting the valuable time of this Hon'ble Court, in the interest of justice and equity;

   6.It is respectfully prayed before this Hon'ble Court by the Respondent to INITIATE, AND ISSUE DIRECTION to the lawful authorities to commence appropriate legal action against the Applicant, as provided in the Australian laws for abusing the process of law and for concealing the material facts and for providing false information and for false allegations against the Respondent and for not producing the relevant documents pertaining to this case, in the interest of justice and equity.

3. The father filed an Affidavit which was in summary a statement of objection to the court’s jurisdiction and a case outline which was in similar terms. He did not otherwise respond to the mother’s Affidavit or address her application for parenting orders. The father’s case was in summary that the parties and the child being Country B citizens and being married in accordance with Country B Laws this Court does not have jurisdiction to make parenting orders with respect to the child and it is the Country B courts which should determine the matter. Although not clearly enunciated the father’s case was in essence that the mother’s application should be summarily dismissed on the basis that this Court does not have jurisdiction to deal with the mother’s application.

4. Having read the parties respective Affidavits and Case Outlines and having heard their submissions on 1 September 2020 I dismissed the father’s application to dismiss the mother’s application on the grounds that this Court does not have jurisdiction and made the following interim orders:

   a)That the mother have sole parental responsibility for the child;

   b)That the child reside with the mother;

   c)That the father spend time and communicate with the child at all times agreed between the parties in writing and by telephone, skype, WhatsApp or other electronic means at reasonable times;

   d)That the parties communicate with each other about the child respectfully through text, email and/or an agreed App or in the event of an emergency affecting the child by telephone;

   e)That the parties shall keep each other informed of their contact details including residential address, phone numbers and email addresses and advise of any change within 48 hours;

   f)Mother authorises father to obtain all educational information relating to the child and health information;

   g)That the mother will notify the father in writing 30 days prior (save in the event of an emergency when she will notify him as soon as practicable) of any intention to travel overseas with the child providing all details  such as the destination and duration of the trip and a contact telephone number for the child;

   h)That the mother be at liberty to complete and apply for a Resident Return Visa for the child (form 1229) without requiring the consent of the father

5. The matter was thereafter adjourned to the Senior Registrar’s Duty List for hearing on 14 October 2020 and I reserved my reasons. These are my reasons.

Background

1. The mother is currently 39 years of age and resides with the child in Australia. The father is currently 37 years of age and resides in Country B. Both the father and mother and the child were born in Country B.

2. The parties commenced their relationship in 2003 and were married in City C in Country B on … 2009. The parties separated on a final basis on 26 December 2018.

3. In 2012 the mother was granted permanent residency in Australia, the child was granted permanent residency in 2013. On 4 February 2018 the mother relocated to Australia and the child joined her in Australia on 20 March 2018. The mother and the child have continued to live in Australia. In December 2018 the father travelled to Australia to spend time with the mother and the child.

4. In March 2019 the mother and the child travelled to Country B to visit the maternal grandmother. On 22 March 2019 the father provided his consent for the grant of the child’s Return Resident Visa. The child’s Return Resident Visa expired on 21 March 2020 and the father has refused to provide his consent for the issue of a Return Resident Visa for the child.  

5. In October the father travelled to Australia to spend time with the child. The father spent time with the child between 24 to 31 October 2019 before returning to Country B.

6. On 20 April 2020 the mother commenced these proceedings in the Federal Circuit Court of Australia.

7. On 15 June 2020 Registrar George made orders transferring the matter to this Court with a notation to those orders that the matter has been transferred because the issue of forum has been raised by the father.

Legal Principles

Jurisdiction:

1. Section 69H of the Family Law Act 1975 (Cth) (“the Act”) confers jurisdiction upon the Family Court of Australia to make orders in relation to matters arising under Part VII of the Act. Part VII deals with matters relating to children and gives the court the power to decide any parenting issue that arises under this part.

2. Section 69E of the Act states as follows:

   69E Child or parent to be present in Australia etc.

   (1)Proceedings may be instituted under this Act in relation to a child only if:

   (a)The child is present in Australia on the relevant day (as defined in subsection (2)); or

   (b) The child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or

   (c)A parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

   (d)A party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

   (e)It would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.

Summary Dismissal:

1. The courts power to summarily deal with proceedings before it is found in s 45A of the Act and Rule 10.3 of the Family Law Rules 2004 (Cth) (“the Rules”). Section 45A of the Act provides as follows:

   45A Summary decrees

   No reasonable prospect of successfully defending proceedings

   (1)The court may make a decree for one party against another in relation to     the whole or any part of proceedings if:

   (a)The first party is prosecuting the proceedings or that part of the        proceedings; and

   (b)The court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings.

   No reasonable prospect of successfully prosecuting proceedings

   (2)The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:

   (a)The first party is defending the proceedings or that part of the proceedings; and

   (b)The court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.

   When there is no reasonable prospect of success

   (3)For the purposes of this section, a defence or proceedings or part of proceedings need not be:

   (a)  Hopeless; or

   (b)  Bound to fail;

   To have no reasonable prospect of success.

   Proceedings that are frivolous, vexatious or an abuse of process

   (4)The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.

   (5)To avoid doubt, proceedings or a part of proceedings are not frivolous, vexatious or an abuse or process merely because an application relating to the proceedings or the part is made and later withdrawn.

2. Part 10.3 of the Rules is as follows:

   Part 10.3—Summary orders and separate decisions

   10.12 Application for summary orders

   A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:

   (a)The court has no jurisdiction;

   (b)The other party has no legal capacity to apply for the orders sought;

   (c)It is frivolous, vexatious or an abuse of process; or

   (d)There is no reasonable likelihood of success.

   10.13 Application for separate decision

   A party may apply for a decision on any issue, if the decision may:

   (a)Dispose of all or part of the case;

   (b)Make a trial unnecessary;

   (c)Make a trial substantially shorter; or

   (d)Save substantial costs.

   10.14 What the court may order under this Part 

   On an application under this Part, the court may:

   (a)Dismiss any part of the case;

   (b)Decide an issue;

   (c)Make a final order on any issue;

   (d)Order a hearing without an issue or fact; or

   (e)With the consent of the parties, order arbitration about the case or part of the case.

   Note: This list does not limit the powers of the court. The court may make orders on an application, or on its own initiative (see rule 1.10).

3. In Lindon v Commonwealth (No 2) (1996) 136 ALR 251 (“Lindons Case”) at page 256 Kirby J said with respect to the principles governing applications for summary dismissal as follows:

   It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.

   To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.

   An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes tum an apparently unpromising cause into a successful judgment.

   Summary relief of the kind provided for by O 26, r I8, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.

   If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26, r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim.

   The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

   (Footnotes omitted)

4. This test in Lindons Case must be read subject to s 45A of the Act and Part 10.3 of the Rules.

Discussion

1. In my view this Court clearly has the jurisdiction and the power to make the orders sought by the mother. Although the father confirmed that there are no proceedings on foot in Country B I am satisfied that even if there had been and there was a dispute as to the appropriate forum this Court would not be a clearly inappropriate forum for the determination of any dispute with respect to the parenting arrangements for the child in this case. To the contrary in my view it is an appropriate forum.  The child is a permanent resident of Australia as is the mother and they have been living in Australia since March 2018.

2. Although having indicated to the father that this Court had jurisdiction and given him the opportunity to make further submissions with respect to why the court should not deal with the mother’s application all the father could add was that his counsel in Country B had advised him that this Court does not have jurisdiction.

1. There is in my view no basis for dismissing the mother’s application let alone dismissing it summarily. Accordingly I dismissed the father’s application for summary dismissal of the mother’s Initiating Application and proceeded to deal with the mother’s application for parenting orders. The father not having responded to the substance of that application and having determined that the matter should be adjourned to allow him the opportunity to do so the issue was what if any parenting orders should be made on an interim basis.

2. The orders the mother seeks being parenting orders the paramount consideration is the child’s best interests. In determining what orders will be in a child’s best interests the court must consider the matters in s60CC (2) and (3) of the Act. In  Banks & Banks (2015) FLC 93-637 the Full Court said (at [50]) as follows:

   When it is obvious that the findings made as to some of the s60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

3. The presumption of equal shared parental responsibility applies unless there are reasonable grounds to believe that a parent or a person who has lived with a parent has engaged abuse of the child or family violence. The presumption applies when the court is making an interim order unless the court considers that it would not be appropriate in the circumstances of the case for it to apply. The presumption of equal shared parental responsibility may be rebutted by evidence that it would not be in the child’s best interests for that child’s parents to have equal shared parental responsibility.

4. There are allegations made by the mother of family violence by both the father and his parents during the marriage. However not only has that evidence not been tested as yet the husband has not responded to those allegations. In these circumstances I am satisfied that it would not be appropriate to apply the presumption of equal shared parental responsibility. However, at least in the interim, I am satisfied that it would also not be practical where the father lives in Country B and has had little involvement in the child’s life since March 2018 for him to make any major decisions with respect to the child’s welfare, The mother also deposes to the father’s failure to respond to her messages with respect to the child’s welfare and that his responses to her queries about his long term plans were evasive. There is also the issue of the father’s refusal to sign the application for the child’s Resident Return Visa. In these circumstances I am satisfied that it is not in the child’s best interests for the father and mother to have equal shared parental responsibility and that in circumstances where someone must be in a position to make decisions with respect to the welfare of the child that in all of the circumstances of this case until further hearing it is in the child’s best interests that it be the mother.

5. The mother deposes to the visits the father has made to Australia to visit the child and her willingness to facilitate the child spending time and communicating with him including providing the child with a separate mobile phone so that they can communicate directly. I am satisfied that the child would benefit from a meaningful relationship with the father and that the mother will encourage their relationship.

6. The child has been in the mother’s sole care in Australia since March 2018 and she has been responsible for her physical, emotional and financial needs without any contribution by the father. She describes the child as thriving at school both academically and socially. Significantly in my view in this case the father has not instituted any parenting proceedings with respect to the child in Country B or Australia. 

7. In all of the circumstances I am satisfied that the interim orders the mother seeks confirm arrangements for the child that have been in place since March 2018 and that it is in the child’s best interests to make interim orders formalising those arrangements. It is also in my view important that if the mother were for some reason required to travel to Country B at short notice that she should be able to do so secure in the knowledge that she and the child can return to their home in Australia. In my view whilst having considered the matters in s60CC(2) and (3) of the Act the circumstances of this case do not require a detailed analysis of each and every one of those considerations particularly in circumstances where there is to be a further hearing in a matter of weeks.

8. The matter having been adjourned for further hearing in the Senior Registrars Duty List on 14 October 2020 the father will have time to obtain legal advice as I have recommended he do and file answering material in anticipation of that further hearing in the event that the parties are unable to agree upon the arrangements for their child.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 16 September 2020.

Associate:  

Date:  16 September 2020