Yalpat and Yalpat (No 4)

[2019] FamCA 967

FAMILY COURT OF AUSTRALIA

YALPAT & YALPAT (NO. 4) [2019] FamCA 967

FAMILY LAW – CHILDREN – Child spend time with the Father.

FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal sought.

Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) 10.12
APPLICANT:	Mr Yalpat

RESPONDENT: Ms Yalpat

FILE NUMBER: CAC 1305 of 2018

DATE DELIVERED: 12 December 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 12 December 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Infinity Legal

Orders

1. The Father's Amended Application in a Case filed 26 November 2019 is dismissed.

2. The Mother's Application for Costs in this matter is reserved to the final hearing of the matter in order to enable criteria set out in s 117 to be then considered.

IT IS NOTED THAT

1. The Father has been wholly unsuccessful in relation to this Application in a Case.

IT IS FURTHER ORDERED THAT

1. The matter is transferred to the Registrar's list pending further Application or the removal of the matter to give directions for trial.

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  Yalpat & Yalpat 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 CANBERRA

FILE NUMBER: CAC 1305 of 2018

Mr Yalpat

Applicant

And

Ms Yalpat

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. Today's proceedings involve an Amended Application in a Case and an affidavit in support filed by the Father on 26 November 2019 in accordance with directions given on 4 November 2019.

2. The Application in a Case involves the arrangements for X to spend time with his Father.  X is at present two years old. 

3. The Mother, who is the Respondent, seeks a summary dismissal of this Application pursuant to rule 10.12.  She alleges that the Application in a Case about X is frivolous, vexatious or an abuse of process and also that there is no reasonable likelihood of success.

4. The context of the Application is that there was a contested hearing regarding X on an interim basis held on 8 February 2019.  Time was ordered between X and his Father. 

5. There was a further contested hearing again on an interim basis about X on 22 March 2019.  Further orders were made as to X spending time with his Father increasing that time.

6. The parties subsequently took part in a Child Inclusive Conference and then entered into consent orders on 23 August 2019.  Those consent orders provided for a substantial change in the time that X spends with his Father, providing a scheme for the transition of that time into overnight time.  That transition takes place in stages and is currently on the cusp of overnight time which will commence from 1 January 2020 and then transition again to overnight time every week from 1 March 2020.  It is in those circumstances that the Father has filed an Application in a Case.

7. He seeks in his Application in a Case significant variation to the consent orders increasing significantly the time that he would spend with X and also making provision for special occasions.  He complains that the agreement or rather the consent orders are inadequate, that they conflict with X's rights and developmental needs, that they do not provide enough time for X with the Father and that X spends more time with the Mother's partner then with the Father.  It is an Application which calls on the Court to exercise its jurisdiction in respect of X in the pursuit of orders that will promote X’s best interests.  Considerations for X’s best interests include matters such as the benefits of meaningful relationship that he might have with his Father and also his developmental needs. 

8. However, in the face of the contested orders and then the consent orders which provide for a transition an increase in the time that X spends with his Father, the Father has provided no evidence demonstrative that a change is now in X’s best interests.

9. The bulk of the material that he supplied to the Court can be described as either submission or argument with almost no substantive evidence produced, that means that consideration could be given to X’s best interests and to establishing that an arrangement other than those set out in the consent orders is in his best interests. It may well be that the Father is correct in the matters that he asserts, that is, he is correct that X’s best interests will be served by special occasion time and by an increase in the time that X’s spends with the Father, but absent adequate supporting evidence his Application has no reasonable likelihood of success and will be dismissed. 

10. Despite submissions on behalf the Mother that I should find that his Application is frivolous, vexatious and an abuse of process I am not prepared to come to that conclusion.  The Application seems more misguided than fitting any of those three descriptions.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 12 December 2019.

Associate:

Date:  16 December 2019