Vaikar & Hegadi
[2024] FedCFamC2F 442
•25 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Vaikar & Hegadi [2024] FedCFamC2F 442
File number(s): MLC 1658 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 25 March 2024 Catchwords: FAMILY LAW – where the mother of the child has recently died – where the step father wants to take the child to Country B for funeral rituals – where the biological father seeks a watchlist order and restraint on the child from being removed from Australia – Country B not Hague convention country – where biological father alleges deceased mothers family prevented him from having relationship with the child – where family violence alleged during the relationship between the mother and biological father – where biological father has not seen six year old child for three years – where the biological father believes the step father will leave the child in Country B with maternal grandparents – watchlist order denied – where the maternal grandfather also made an undertaking in court that he ensured the child returns to Australia – where the stepfather has substantial ties to Melbourne – all other extant applications adjourned Division: Division 2 Family Law Number of paragraphs: 23 Date of last submission/s: 25 March 2024 Date of hearing: 25 March 2024 Place: Melbourne The Applicant: Litigant in Person Counsel for the Respondent: Mr Howe Solicitor for the Respondent: Joshi Lawyers ORDERS
MLC 1658 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR VAIKAR
Applicant
AND: MR HEGADI
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
25 MARCH 2024
THE COURT ORDERS THAT:
1.The application of the Applicant, Mr Vaikar (‘the Applicant’), for an order restraining the Respondent, Mr Hegadi (‘the Respondent’) from removing the child, X (‘the Child’), from the Commonwealth of Australia be and is dismissed.
2.Until further Order, the Respondent, Mr Hegadi, have sole parental responsibility for the Child.
3.The Respondent be and is entitled to remove the Child from the Commonwealth of Australia from no earlier than early 2024 and to return no later than mid-2024.
4.All extant applications be adjourned for a further interim hearing before Judge O’Shannessy on 16 September 2024 at 10:00 am.
AND THE COURT ORDERS BY CONSENT THAT:
5.The parties and the child attend upon a Family Consultant as agreed between the parties for the purposes of the preparation of a Family Report to be filed on Affidavit by 1 August 2024 AND THAT:
(a)The Family Report address the matters relevant to ss.60CC, 61DA and 65DAA of the Family Law Act 1975 and any other matters that the Family Consultant considers important to the welfare or best interests of the child.
(b)The parties comply with all reasonable directions of the Family Consultant.
(c)Within seven (7) days of these Orders, the solicitors for the Respondent provide the details of three (3) suitable family consultants for the report to the Applicant.
(d)Within seven (7) days of receiving same, the Applicant select or nominate one of those consultants.
(e)That within 7 days of being notified of the Family Consultant, the solicitor for each of the parties (or, if unrepresented, the party themselves) deliver to the Family Consultant copies of the following documents:
(i)all relevant applications, responses and relevant affidavits filed by or on behalf of his/her client in the within proceedings;
(ii)any intervention or restraining orders currently in force; AND
(iii)the settled reasons for judgment of this day.
6.The costs of such Family Report to be borne equally between the parties.
AND THE COURT ORDERS THAT:
7.The parties be at liberty to apply to Chambers if there are any issues in the organisation or payment of the Family Consultant.
AND THE COURT NOTES THAT:
A.The Applicant has expressed concern regarding the medical condition of the Child and the Respondent has advised that, to his understanding, the Child has had medical examination and advice in Country B three years ago, but the Applicant presses for a current examination performed by an Australian General Practitioner.
B.Respective applications in regard to spend time arrangements with the Applicant or Respondent or living with the Applicant or Respondent have not been dealt with on the merits.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
INTRODUCTION
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations and passages of authorities, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
The matter of Vaikar & Hegadi comes before me on an urgent basis. In 2024, Ms D, the mother of X – who is now aged six, and in Grade 1 at a primary school – died suddenly. Ms D (‘the Mother’), and Mr Hegadi (‘the Respondent’), were married and had lived together as man and wife since 2020. Also in the household of the Mother and the Respondent, was, and is the Respondent’s daughter, C, who attends the same school as X and is in Grade 3.
BACKGROUND
Mr Vaikar (‘the Applicant’), is self-employed and is 37 years of age. He has a not uncomplicated marital history but is settled now with his wife, who he married in 2019. With his wife, he has a child, E, who is three years old. The Applicant also has another child, F, who is five years of age. He is currently involved in the process of litigation, including court-ordered family therapy with the assistance of a family consultant to sort out suitable arrangements for his involvement in F's life.
The long and the short of it is that X, the child the subject of these proceedings, potentially has the joy and riches of having a number of siblings – C, his stepsister with whom he now lives, and F and E, with whom he would share the richness of having a father in common. Whether that is going to be possible or not, or in X's best interests, is too early to tell.
The relationship between the Applicant and X's mother was a difficult one and is demonstrated by the circumstances that an interim intervention order was taken out in mid-2019 between the Mother and the Applicant, and child protection were involved and prepared a case plan in 2019. According to the Applicant, the parties had separated in the previous February but his mother, with whom they had been living, continued to live with the Mother after separation and indeed, after the intervention order. The Applicant assets that he arranged, by the use of his mother as the go-between, to see X on three occasions between mid-2019 and late 2019 at a play centre and at a local shopping centre in Australia. The Applicant asserts that he had a close and appropriate father-son relationship with X at that time.
Time in Country B
Independently of each other, but roughly at about the same time in late 2019, X's parents moved back to Country B from where they had migrated to Australia. Again, when in Country B, the Applicant – I am satisfied and it does not appear disputed – sought the assistance of the maternal grandfather, Mr G, and the maternal uncle, Mr H, to allow him to see X or spend some time with him in Country B. That was entirely unsuccessful, and I have text messages before me that are in evidence and have been explained to me in a broad attempt at translation by the Applicant. I will order a transcript of the Applicant's evidence this day so that there is a record of what he told me those messages recorded.
The long and the short of it is that initial communications with Mr G from the Applicant's point of view were promising, as the Applicant courteously and in an undemanding manner requested to see X. Mr G’s responses were courteous, and he initially was at least open to facilitating that time, but ultimately took the view that the Applicant should move on with his life with his new wife, as his daughter intended to move on with hers with the Respondent.
In late 2019, the men – but not the Mother – met at a restaurant in City K, Country B, to attempt to work out an agreement. No agreement was reached, and the Applicant did not get to see X whilst they were both living in Country B at the same time. The Applicant tells me (because I called him to witness box to expand upon matters) that he attempted or considered taking legal action in Country B but the substance of the advice that he received persuaded him that there was no point. Thereafter, X's mother lived her new life with the Respondent, and the Applicant lived his new life with the mother of E. From The Applicant's point of view, every attempt he has made to maintain a connection with X has been rebuffed.
Communication between the Applicant and Respondent
In February of 2020 there were electronic communications between the Applicant and Respondent, the substance of which is that the Respondent asked the Applicant to move on and to stop interfering in the lives of himself and the Mother. Extracts from these communications are as follows:[1]
[1] Exhibit A2.
Applicant: Hey bro can u pls send few [X] recent pics plz
Respondent: Can you stop interfering in our lives
Applicant: He is my son tht u can do man
I m just asking for pics
Respondent: We have already discussed abt that in [City K]. So kindly stop messaging me. Thanks
Applicant:Nothing was sorted their u guys hold my son forcely and now you have even prob with pics
Respondent: The problem is with you. You don’t even understand one simple thing “STOP INTERFERING IN OUR LIVES” . More importantly i told you very clearly that we are protecting [X] from you and if you feel we are holding him forcefully then may file a complaint. Now stop interfering in our lives or i might have to file a complaint against you for harassment.
Applicant:I m not interfering in your life u holding my son forcely when legally u cant
Wht u waiting for do it
Respondent: Wait and watch
Applicant:Yeah i m watching do it
Recent communications
By about 2022, X's mother and father were both living in Melbourne, but separately. By a chance meeting, the Applicant learned that X, the Mother, and the Respondent were in Australia, although he did not know whether that was visiting or permanent. The Applicant did not hear further from the Mother, nor did the Mother hear from the Applicant until she passed. A common friend informed the Applicant of the passing of the Mother soon after it occurred. The following day, the Applicant made contact with Mr G, X's maternal grandfather, seeking that he be involved in X's life and expressing the view that X should be with him as he was his father. It is now agreed that the Applicant and the Respondent will jointly fund a single expert family consultant report to be prepared for the purposes of ascertaining X's best interests.
THESE PROCEEDINGS
The matter came before me as a matter of urgency because the Applicant filed an application on 16 February 2024 seeking to restrain the Respondent from travelling overseas to Country B with X.
Respondent’s application to take X to Country B
The matter was brought forward when the Respondent then sought the court's permission and effectively, blessing, to take X to Country B. The Respondent’s material enclosed an intervention order that his late wife, the Mother, had obtained against the Applicant, the case plan of late 2019, and return air tickets for himself and X, showing intent to travel between Melbourne and Country B for one month. The Respondent’s reason for wanting to take X with him is so that, in accordance with X and the Mother’s culture, appropriate respects and ritual can be performed with the Mother’s remains. The Respondent has asserted that he has planned this trip during the Easter holidays so that the children, X and C, do not miss too much school.
The Respondent has set out his reasons as to the importance of himself, the Mother’s family, and X attending to that ritual as follows:[2]
we cremated [Ms D]. As per [our] religion, it is a ritual [to cremate] for the peaceful departure of the soul.
[2] Paragraph 41 of the Respondent’s affidavit filed 20 March 2024.
That tradition and culture and the practice of it was not in question in the proceedings before me.
Respondent’s ties to Australia
The Respondent has also set out his ties to Australia in several paragraphs of his affidavit:[3]
[3] Respondent’s affidavit filed 20 March 2024.
16.On or around [early] 2023, [Ms D] and I purchased our matrimonial home at [J Street, Suburb L]. We moved into the matrimonial home sometime in [mid]-2023.
…
44. The children and I enjoy a very stable life here in Australia and Australia is now our home.
45. I am self-employed and have been running a successful business in [Suburb M], Victoria since [mid]-2022. I am a sole director of the company, [N Pty Ltd]. I am also one of the directors of [O Pty Ltd] and [Ms D] was the other director. I have more than [7] full time employees working in the business and more than [20 people] across Melbourne who are our clients. I have leased a premises at [Suburb M] for 3 years from [mid]-2022. Further, I have stock, furniture and machinery worth more than $500,000.
46. Further, my assets include [motor vehicles] registered under my name. I have also recently purchased a land in [Suburb P] for investment purposes. The settlement of the land is [in early] 2024. Soon after the settlement, I plan to build [a] house on [Suburb P] land for which the building contract has been signed and loan has been approved by NAB.
47. In addition to that we also have our current home at [Suburb L], Vic.
The long and the short of it is that the Respondent has very substantial ties to Australia and is settled here and is a permanent resident of Australia. X is an Australian citizen, and I am satisfied that the Respondent’s very substantial ties to Australia and the apparent logic of events and the ordinary rhythm of life of those seeking to get ahead in this country and provide for their family would mean that it would be almost inexplicable for the Respondent not to ensure that X returns with him to Australia.
Applicant’s concerns regarding maternal grandfather
The Applicant's anxiety about X not returning centres more on X's maternal grandfather than on the Respondent, as detailed in his affidavit:[4]
3. There is a real and immediate risk of [Mr Hegadi] leaving the country within the week with [X] without my consent and not returning, as I believe that the Respondent intends to hand over the child, [X] to the maternal grandparents in [Country B] which is a non-Hague Convention country.
…
14. If [X] is taken to [Country B], I will not be able to ensure his return to Australia. If the child does not return, it would be difficult for him to have a meaningful relationship with me. I have been estranged from my child for 3 years not because my late wife took him to [Country B] to remarry and visit her parents without my consent.
…
25. I last caught a glimpse of [X] at [a park] when I took my family there in [early] 2023. I saw [Ms D], [Mr Hegadi], [F] and who I now realise must have been [X]’s step-sister.
26. To my utter heartbreak, [X] didn’t recognize me. I didn’t want to make a scene and I was so far removed from their lives that I wasn’t even sure about whether they were visiting Australia or living here. [Ms D] would travel back and forth twice or thrice a year even during our marriage.
[4] Applicant’s affidavit filed 15 February2024.
In those circumstances and Mr G (the maternal grandfather) being present in court, I called him to the witness box where he gave sworn evidence and demonstrated an apparent joy and comfort in X's life in Australia, including his life at school and his life with his stepsister, C, and living with the Respondent. Mr G gave me an oral undertaking in the witness box, and I will order a transcript of Mr G's evidence as well. I found Mr G's evidence to have a verisimilitude about it and I place great store and comfort in the formal promise that he gave me that he will ensure, and do what he can to ensure, that X returns with the Respondent.
Risks of X travelling to Country B
It is common ground that Country B is not a Hague Convention country. The reality is it would be difficult for the Applicant to obtain the return of X to Australia in all of the circumstances. If X was not returned to Australia, the consequences for X would be catastrophic. It will seriously impair his life. However, the risk of that happening, in my assessment, is very small, and I am satisfied that there is only a very small risk to X's welfare if he goes to Country B.
I must balance the consequences of the matter that we are concerned about, or the risk, with the likelihood of the feared event occurring. Sometimes the seriousness or the consequences of the risk is so important that a very tiny risk would justify a restraint. In this case, I am not satisfied that that is so. I am satisfied that the Respondent will return X to Australia and that is in the Respondent’s interests to ensure that X returns to Australia.
Decision to allow X to travel to Country B with Respondent
In all of those circumstances, I will not restrain the Respondent from leaving with X, and I will not make a watch order. To ensure that there is no trouble coming or going, I will make an order that the Respondent be permitted to take X to Country B and return to Australia with him, and I will extend the dates assuming there is some glitch with airlines – in this day and age, you can never be certain they will return on time – and I propose to make that from no earlier than early 2024 and return no later than mid-2024.
To ensure that there is no difficulty with the Respondent looking after X in the meantime, I am satisfied that it is in X's interests that the Respondent has a ‘for the time being’ or interim order for sole parental responsibility.
I otherwise adjourn all extant applications for further interim hearing before me on a date to be fixed which will be in my next interim week, some months away.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 25 March 2024
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