FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Anuja & Danhri [2024] FedCFamC2F 323
File number(s): MLC 6189 of 2022 Judgment of: JUDGE HARLAND Date of judgment: 15 March 2024 Catchwords: FAMILY LAW – parenting –family violence – where the mother seeks time between the father and the child be decreased – where the father seeks for an increase in time with the child – where the parties cannot agree on special days – the mother seeks to travel overseas with the child - airport watchlist order sought Legislation: Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 64 , 65D, 67Z, 68Q Cases cited: Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Waterford & Waterford [2013] FamCA 33
Division: Division 2 Family Law Number of paragraphs: 86 Date of hearing: 15 and 16 February 2024 Place: Melbourne Solicitor for the Applicant: Mr Lakshman of TFA Legal Counsel for the Respondent: Ms Johnson Solicitor for the Respondent: Altona Legal ORDERS
MLC 6189 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ANUJA
Applicant
AND: MR DANHRI
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
15 MARCH 2024
THE COURT ORDERS THAT:
1.All previous parenting orders and interim watchlist order are discharged.
2.For the purpose of these orders until X starts school, school holidays referred to in the orders will be defined in accordance with the Victorian Government’s gazetted school term and holiday dates. Once the child commences school, school holidays will be defined in accordance with that school’s calendar year.
3.The parties have equal shared parental responsibility for the child X born in 2020.
4.The child live with the mother.
5.The child spend time with the father as follows:
(a)Until the child commences school:
(i)In week 1, Friday from 3.30pm until 9.00am Monday; and
(ii)In week 2, Thursday from 3.30pm until 9.00am Friday.
(b)When the child commences school, from the first weekend of second term when the child commences school:
(i)In week 1, Thursday from the conclusion of school or 3.30pm if not a school day to Friday morning at the commencement of the school day or 9.00am if a non-school day; and
(ii)In week 2, Thursday from the conclusion of school or 3.30pm if a non‑school day to the commencement of school on Monday or 9.00am if a non-school day.
(c)From September 2024 until the child commences school the father spend time with the child in accordance with the Victorian gazetted school term holiday schedule for a five night block of time commencing on the first Saturday of the holidays at noon and concluding Thursday at 9.00am and in the long summer vacation for two five night blocks of time commencing 26 December 2024 and 11 January 2025.
(d)Upon the child commencing school and from the conclusion of first term the child spend time with the father in school term holidays for the first week commencing at 12 noon on the first…
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CaseChat Overview and Summary
The legal issues addressed by the court included determining the appropriate schedule for the child to spend time with each parent, establishing guidelines for special occasions, and assessing the implications of overseas travel on the child's well-being. The court needed to consider the parties' inability to agree on special days and the mother's request to travel overseas with the child. Additionally, the court had to decide on the implementation of an airport watchlist order to prevent the child from being taken out of the country without the necessary permissions.
The court ruled that both parents have equal shared parental responsibility for the child. It ordered that the child would live primarily with the mother but would spend specific periods with the father, including detailed arrangements for weekends, school holidays, and special occasions. The court also imposed restrictions on the child's overseas travel until the child turns seven, requiring detailed notifications and itineraries for any planned trips. Furthermore, the court mandated the placement of the child's name on the airport watchlist until the child reaches the age of seven, to ensure compliance with the travel restrictions. The father's application for costs was dismissed, and all other pending applications were also dismissed.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. All previous parenting orders and interim watchlist order are discharged.
2. For the purpose of these orders until X starts school, school holidays referred to in the orders will be defined in accordance with the Victorian Government’s gazetted school term and holiday dates. Once the child commences school, school holidays will be defined in accordance with that school’s calendar year.
3. The parties have equal shared parental responsibility for the child X born in 2020.
4. The child live with the mother.
5. The child spend time with the father as follows:
(a) Until the child commences school:
(i) In week 1, Friday from 3.30pm until 9.00am Monday; and
(ii) In week 2, Thursday from 3.30pm until 9.00am Friday.
(b) When the child commences school, from the first weekend of second term when the child commences school:
(i) In week 1, Thursday from the conclusion of school or 3.30pm if not a school day to Friday morning at the commencement of the school day or 9.00am if a non-school day; and
(ii) In week 2, Thursday from the conclusion of school or 3.30pm if a non‑school day to the commencement of school on Monday or 9.00am if a non-school day.
(c) From September 2024 until the child commences school the father spend time with the child in accordance with the Victorian gazetted school term holiday schedule for a five night block of time commencing on the first Saturday of the holidays at noon and concluding Thursday at 9.00am and in the long summer vacation for two five night blocks of time commencing 26 December 2024 and 11 January 2025.
(d) Upon the child commencing school and from the conclusion of first term the child spend time with the father in school term holidays for the first week commencing at 12 noon on the first Saturday and concluding at 12 noon on the middle Saturday and on a week about basis during the long summer vacation commencing the first Saturday of the school holidays at 12 noon.
(e) Following term holidays and the long summer holidays, the weekly school term arrangements will resume in the same pattern that would have occurred had the fortnightly arrangements continued throughout the holiday periods.
(f) On special occasions at times to be agreed between the parties in writing, and failing agreement as follows:
(i) On Father's Day weekend, if the child is not otherwise spending time with the father that weekend, with the father from the conclusion of school/ creche or childcare on Friday (or 4.00pm) until the commencement of school / creche or childcare on Monday (or 9am).
(ii) On Mother's Day weekend, if the child is not otherwise spending time with the mother that weekend, the fathers time be suspended from the conclusion of school/ creche or childcare on Friday (or 4.00pm) until the commencement of school / creche or childcare on Monday (or 9am).
(iii) On the child’s birthday in even numbered years:
A. With the father from the conclusion of school / childcare or creche (or 9 am if a non-school day) on the day prior to the birthday until the conclusion of school / childcare or creche (or 12 noon) on the day of the birthday.
B. With the mother from the conclusion of school / childcare or creche (or 12 noon) on the birthday to the start of school / childcare or creche (or 9 am) on the day after the birthday.
(iv) For the child’s birthday in odd numbered years:
A. With the mother from the conclusion of school / childcare or creche (or 9 am if a non-school day) on the day prior to the birthday until the conclusion of school / childcare or creche (or 12 noon) on the day of the birthday.
B. With the father from the conclusion of school / childcare or creche (or 12 noon) on the birthday to the start of school / childcare or creche (or 9 am) on the day after the birthday.
(v) For the father’s birthday, if the child is not otherwise spending time with the father that day, from the conclusion of school/childcare or creche (or 9 am) until the start of school /childcare or creche (or 9 am) the following day.
(vi) For the mother’s birthday, if the child is not otherwise spending time with the mother that day, from the conclusion of school/childcare or creche (or 9 am) until the start of school /childcare or creche (or 9 am) the following day.
(vii) For one half of the religious holidays in even numbered years:
A. For Diwali and another religious festival with the father from 5 pm on the day before the holiday until 9am on the day following the holiday.
B. For other religious festivals with the mother from 5 pm on the day before the holiday until 9am on the day following the holiday.
(viii) For one half of the religious holidays in odd numbered years:
A. For Diwali and another religious festival with the mother from 5 pm on the day before the holiday until 9am on the day following the holiday.
B. For other religious festivals with the father from 5 pm on the day before the holiday until 9am on the day following the holiday.
6. If the mother cancels the father’s time with X due to illness, the mother is to obtain a medical certificate within 48 hours and provide a copy to the father.
7. If the father is unable to spend time with X in accordance with these orders due to X being unwell, the father is to have makeup time with X in the following week.
8. All changeovers that do not occur at the child’s daycare, kinder or school are to occur at the Suburb B McDonalds or such other location as agreed between the parties in writing.
9. Neither party will be allowed to take the child overseas until the child turns 7 years or unless agreed between the parties in writing and upon the child turning 7 years each party will be at liberty to take the child out of Australia for holiday during the child's time with them, provided:
(a) The child is not taken to an overseas destination where the Australian government warning for that destination is 'Reconsider Travel' or 'Do Not Travel' or equivalent warning
(b) The party taking the child overseas shall provide the other party with no less than 30 days' notice in writing of the planned travel.
(c) The travelling parent provides the other party with a detailed travel itinerary and contact details for the child while they are overseas including copies of return tickets
(d) The travelling parent ensures at all times they provide a phone number for the other parent to contact the child each day and they facilitate such call.
10. Each party will do all things necessary to renew the child’s passport and citizenship documents, this includes the completion of necessary administrative documents in a timely manner.
11. When the child is not travelling overseas, the mother will hold the child's passport and the father will hold the child’s citizenship documents.
12. Until the child is 7 years of age, the mother MS ANUJA born in 1991 and the father MR DANHRI born in 1990 and their servants and or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the child X born in 2020 from the Commonwealth of Australia.
13. It is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the child reaches 7 years of age.
14. The father’s application for costs reserved on 19 December 2022 be dismissed.
15. All extant applications are dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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