Vaikar & Hegadi (No 2)
[2024] FedCFamC2F 1891
•24 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Vaikar & Hegadi (No 2) [2024] FedCFamC2F 1891
File number(s): MLC 1658 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 24 December 2024 Catchwords: FAMILY LAW – parenting – urgent hearing – where the independent children’s lawyer made an application via email for a watchlist order against the respondent – where the respondent wishes to travel to Country B with the child – where the respondent has travelled to Country B with the child previously and returned to Australia – where a watchlist order has been dismissed previously in these proceedings – where the independent children’s lawyer and the applicant believe there is a real concern the respondent and/or the child will stay in Country B – where the applicant is concerned of potential legal proceedings in Country B concerning the child while the respondent and child are overseas – where the respondent gave an undertaking in court that he would not commence proceedings overseas – where both parties are to contact and engage with Q Contact Centre to facilitate time with the child and applicant Legislation: Family Law Act 1975 (Cth) ss 60CA & ss 60CC Cases cited: Vaikar & Hegadi [2024] FedCFamC2F 442 Division: Division 2 Family Law Number of paragraphs: 31 Date of hearing: 24 December 2024 Place: Melbourne The Applicant: Appearing in Person Counsel for the Respondent: Mr Howe Solicitor for the Respondent: Joshi Lawyers Counsel for the Independent Children's Lawyer: Mr Horsfall Solicitor for the Independent Children's Lawyer: Yarra Family Lawyers ORDERS
MLC 1658 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR VAIKAR
Applicant
AND: MR HEGADI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
24 DECEMBER 2024
THE COURT ORDERS THAT:
1.The application of the Independent Children’s Lawyer, supported by the Applicant Mr Vaikar, for an order restraining Mr Hegadi from removing the child, X born in 2017 (‘the Child’) from the Commonwealth of Australia and to record Mr Hegadi and the child on what is known as the Commonwealth of Australia ‘Watchlist’ so as to prevent the Child from being removed from the Commonwealth of Australia, be and is dismissed.
2.Mr Hegadi be and is permitted to remove the Child from Commonwealth of Australia for the period late 2024 until early 2025 for the purpose of travel to Country B.
3.Mr Hegadi do all acts and things to complete and submit an application to Q Contact Centre, for the facility of supervised time to be available for the Child to spend supervised time with, his father, Mr Vaikar.
4.Mr Hegadi be and is restrained from permitting, or joining with any person, to issue, conduct or pursue any legal proceedings in Country B relating to the Child contrary to the orders of this Court made on 16 September 2024 (‘the Orders’).
5.The parties do all acts and things to cause and ensure that the process of supervised time at the Q Contact Centre, and the family therapy with Ms R as provided in orders 2 and 5 of the Orders continues as soon as practicable.
AND THE COURT NOTES THAT:
A.The parties are to attend a family dispute resolution conference arranged for 1 March 2025.
B.Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to communicate to the public an account of family law proceedings which identifies a party to the proceedings, a witness in the proceedings, a person related to, or associated with, a party to the proceedings, or a person who is, or alleged to be, in any other way concerned in the matter to which the proceedings relate, unless specifically authorised by the court. Penalties may apply under section 114Q of the Family Law Act 1975 (Cth) to the communication of any material contained in this report other than for use in connection with the proceedings.
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 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 section 102NA 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).
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
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, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
The matter of Vaikar & Hegadi comes before me for the third time in 2024 upon an urgent application of the Independent Children’s Lawyer (‘ICL’) to restrain Mr Hegadi from removing the child, X born in 2017 (‘the child’), from the Commonwealth of Australia and for Mr Hegadi and the child to be placed on the Commonwealth of Australia “airport watchlist” so as to prevent the child from being removed from the Commonwealth of Australia.
Background
I refer to and repeat the observations in the judgment of Vaikar & Hegadi [2024] FedCFamC2F 442. In that case, I denied an application for a watchlist order preventing Mr Hegadi from removing the child from Australia. At that time, Mr Hegadi wished to travel to Country B with the child and his daughter for the purpose of attending to the culturally-mandated funeral rites of Mr Vaikar’s late wife and the child’s mother. I refused the application, and I am told that, subsequently, Mr Hegadi and the child, together with his daughter (who is a year older than the child) travelled to Country B in 2024, and returned to Australia a month later.
On 16 September, the matter was again before me and on that day orders were made that the child live with Mr Hegadi and that there be supervised time at Q Contact Centre, but such time not commence until recommended by the family therapist, and those orders provided that the parties participate in family therapy as nominated by the ICL. Those orders were made by consent and there was no complaint before me today as to the form of those orders.
It is apparent that soon after those orders, Mr Vaikar contacted Q Contact Centre and was enrolled. However, Mr Hegadi did not. His counsel this day told me that was because he did not understand that it was necessary to do so. Mr Vaikar says, “Well, that is all well and good, but I sent his lawyers the email from the centre that pointed out the requirement of [Mr Hegadi] to also enrol.” Be that as it may, the order that the parties consented to meant that that supervised time was not to commence until the family therapist deemed that as appropriate.
The Court has further information before it than what was available on 25 March 2024. As ordered by the Court, a family report was undertaken by a Regulation 7 family consultant, Ms S. In a detailed and careful and insightful report, Ms S’s observations included the following.
67.Overall, the interaction between [Mr Vaikar] and [X] was notably positive. [Mr Vaikar] communicated with [X] using a gentle and affirming tone, maintaining appropriate conduct throughout. [X] appeared both comfortable and at ease in his father's presence, engaging in a natural and fluid dialogue. Their interactions were punctuated by frequent laughter, suggesting mutual enjoyment of each other's company. [X] displayed a keen curiosity about his identity and maintained eye contact with his father during their conversation. The atmosphere in the room was filled with positivity, as both individuals shared laughter.
…
73.Overall, the interaction between [Mr Hegadi] and [X] was marked by positivity and calmness. [X] appeared exceptionally comfortable and at ease in his stepfather’s presence. They engaged in natural and fluid conversations, filled with playful banter and shared laughter, creating a warm and cheerful atmosphere in the room.
EVALUATION
74.[X] is a vulnerable seven-year-old child who is entirely dependent on his primary caregivers to provide a safe and stable home environment, one that is free from harm and provides appropriate guidance, boundaries, and exemplary behaviour. At this critical stage of development, children are typically learning various emotional and social skills. Successfully navigating this period is crucial for fostering a sense of self-worth and helping them develop a positive sense of usefulness.
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RECOMMENDATIONS
Based on the information gathered in this assessment, the following is recommended:
98.It is recommended that [X] continues to live with [Mr Hegadi].
99.It is recommended that [X] and [Mr Vaikar] engage in joint sessions with a family therapist to reintroduce themselves to each other. Following the completion of these therapeutic sessions, [X] spends incrementally increasing time with [Mr Vaikar], with the time gradually increasing until he is spending four nights each week with [Mr Vaikar] by the time he turns eight years old.
Promptly after the 16 September 2024 orders, parts of which are recited above, Mr Vaikar contacted the contact service. Also pretty promptly after the 16 September 2024 orders, Mr Vaikar attempted to contact the nominated family therapist as nominated in the orders. That therapist was not available, (‘the first nominated therapist’). Another therapist was nominated, and Mr Vaikar chased up that therapist (‘the second nominated therapist’) and that nominated therapist was also not available. The ICL then nominated Ms R as the nominated therapist (‘the nominated family therapist’), and on or about 9 October 2024, Mr Vaikar contacted the nominated therapist by email requesting the therapy commence.
On 25 November 2024, Mr Vaikar had his first session or appointment with the nominated family therapist. The nominated family therapist then met the child and Mr Hegadi on 12 December 2024 and the family therapist contacted Mr Hegadi to discuss appointment times in the future on 18 December 2024.
It is apparent that in that conversation or at that time, Mr Hegadi requested that appointments not occur between late 2024 and early 2025. Mr Hegadi says that was because he had arranged to travel to Country B[1] to pursue a relationship with a woman who he has been introduced to and had been corresponding with. Mr Hegadi deposes that he and this woman had developed feelings for each other and Mr Hegadi is hopeful that the relationship will progress and he hopes and intends to marry in Country B in 2025.
[1] On the 26th of December 2024
It is clear enough that the nominated family therapist passed on that information to the ICL, as entirely appropriate. By this stage, the orders for family therapy were three months old, and the child has yet to meet his father in that therapy. In those circumstances, it can be understood why the nominated family therapist would inform the ICL of a request to delay the further progress of that therapy.
That information triggered the ICL contacting the Court and requesting an urgent mention of this matter. The matter was listed urgently for mention yesterday (23 December 2024) and the parties agreed that there should be a contested hearing (if the Court was able to accommodate it) this morning, (being Christmas Eve). I was able to accommodate that with the generous assistance of another judge’s associate who would otherwise have been enjoying Christmas Eve. With that assistance, I was able to arrange the hearing.
I have heard submissions from the ICL and I add that it was common ground that this hearing was to proceed as a hearing on the papers. I indicated to the parties that the Court would accommodate cross-examination if that was required or thought necessary to advance the matter. No party sought to cross-examine any other party or witness. The matter proceeded as a hearing on the papers and submissions.
The ICL submits that Mr Hegadi should not be able to attend Country B to pursue his relationship and potential marriage at this time. It was put that this is, and will be, most disruptive to the family therapy and most disruptive to the commencement of supervised time. Further, it is put that it is disruptive to the Court proceedings that are necessary to agitate X’s best interests. It was further put that there is some risk in the circumstances that Mr Hegadi will not return the child to this jurisdiction.
The words “some risk” were put in the context of some small, but not immaterial risk. It concerned the ICL that the arrangements were only incidentally communicated to the ICL and to Mr Vaikar, and that the length of the trip was more than a holiday. It was conceded that Mr Hegadi has substantial ties to the jurisdiction.
The ICL was concerned at the extent of school that would be missed and the importance of that to the child. It was also put that though Mr Hegadi had returned the child to Australia after the previous trip that he was permitted, (refer to above) there was a change of circumstances as, since then, there had been a family report and that family report, whilst recommending that the child remain living with Mr Hegadi for the time being, also recommended.
100.It is recommended that upon transitioning to living with [Mr Vaikar], [X] spends time with [Mr Hegadi] each alternate weekend from Friday until Sunday.
Further, the ICL was troubled at the paucity of information about the person who it is proposed will spend her life with the child and the manner in which this was informed to the Court, the ICL, the nominated family therapist and the child’s father, Mr Vaikar.
I raised with the ICL my concern at the burden upon Mr Hegadi of not being able to pursue ordinary human matters like a relationship, and a relationship of the seriousness that may lead to marriage with the comfort and assistance in life that such a relationship is likely to provide.
I raised the issue with counsel for the ICL that the burden of preventing Mr Hegadi of being able to pursue his life would likely interrupt, or disrupt the potential for a harmonious future relationship between the two men who are likely to be significantly involved in the child’s life for the rest of his life. That is, his stepfather Mr Hegadi who has cared for him and cared for him very well since the death of his mother, and his father Mr Vaikar who is desperately seeking to re-establish a relationship with the child.
Mr Horsfall, counsel for the ICL, with some efficiency and eloquence conceded that that was a matter that needed to be balanced along with all other matters, but that on balance, it was in the interests of the child not to disrupt the therapy, the supervised time and his schooling at this time, taking into account those matters as well as the small risk of not returning.
In response to the ICL’s submissions, Mr Vaikar submitted to me that he adopted the submissions of counsel for the ICL. The difference between the ICL and the Mr Vaikar’s position is Mr Vaikar has a much more significant concern of the child being detained in Country B. He only has a small fear that Mr Hegadi himself would detain the child in Country B, but he harbours what he says is a significant fear that the child’s maternal family, who cherish this child, would take legal proceedings in Country B and stymie the return of the child to Australia and the progression of the child’s relationship with his biological father and his other siblings, the children of Mr Vaikar and his current wife.
Mr Vaikar’s concern is exacerbated from what is a clear enough history, even on an interim hearing, of his attempts to see the child when the child and the child’s mother were in Country B, and the attitude of the maternal family that Mr Vaikar should move on and not be concerned any more with the child. Despite that, Mr Vaikar has been determined to maintain a relationship or build a relationship with the child.
Mr Hegadi deposes (with very short notice to the other parties) to having been able to advance the success of his business and to having more employees than he previously did, and to working in Melbourne. That evidence was not challenged.
I also indicate I take into account section 60CA of the Family Law Act 1975 (Cth) and section 60CC.
60CAChild's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
60CC How a court determines what is in a child's best interests
Determining child's best interests
(1) Subject to subsection (4), in determining what is in the child's best interests,
the court must:
(a) consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs ;
(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child's family.
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I am satisfied that there are actual advantages to X in being able to participate in this trip to Country B, which includes being able to participate in the culture of his mother and his mother’s extended family. I am not satisfied there is any material risk that Mr Hegadi will not return the child to Australia as he says he will.
I also note that after I raised the topic, Mr Hegadi gave instructions to his counsel that he would undertake, or consent to an order, to the effect that he would not permit or join with any person to issue or conduct or pursue legal proceedings in Country B relating to the child contrary to the orders of this Court in these proceedings, and in particular the orders of 16 September 2024. Balancing all of those matters, but primarily because of the ties that Mr Hegadi has to the Commonwealth of Australia, I am not satisfied there is any material risk that the child will not be returned.
I am satisfied that it is not in the child’s interests to make orders that would have the effect in substance of requiring his stepfather, Mr Hegadi, to effectively put his life on hold and not pursue that serious relationship of great consequence to him that he hopes to pursue.
I do take the point, crisply made by counsel for the ICL, that the lack of formal notice to the other parties to the proceedings could have been done much better by Mr Hegadi. Nonetheless, I am satisfied that his motivation is the ordinary, everyday rhythm of life and that it would not be in the child’s interests to have that rhythm of life impeded in the manner that would be the consequence of the orders pressed by Mr Vaikar and the ICL.
I have been assisted by counsel for Mr Hegadi, Mr Howe, this morning, and also the courteous and efficient submissions of Mr Vaikar, as well as counsel for the ICL.
Upon hearing the submissions of the ICL, and in particular those relating to the impact upon X’s school, Mr Hegadi altered his position, and rather than seeking to be able to remove the child from late 2024 to early 2025, as he had arranged and paid for tickets to accommodate such travel, he changed his position to indicate that he would return to Australia with the child a month earlier. I take that change of position into account as to the bona fides of Mr Hegadi in being committed to the child’s life in Australia and to respect these proceedings.
I make the date two days later rather than the planned return date because whilst I am confident that Mr Hegadi will do all acts and things to book and arrange a flight to return on the planned date in early 2025, it is my experience that with one thing and another, whether it is wild weather or technical issues with aircraft, parties can be inadvertently delayed in returning for a day or two. So, I make that date on that basis.
Those are my reasons.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for ex tempore Judgment of Judge O'Shannessy. Associate:
Dated: 17 January 2025
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