Bahri & Lannick - [2022] FedCFamC2F 1753

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bahri & Lannick [2022] FedCFamC2F 1753

File number(s): PAC 5379 of 2020

Judgment of: JUDGE NEWBRUN

Date of judgment: 16 December 2022

Catchwords: FAMILY LAW – PARENTING – Final hearing – Best interests of children – Final Orders made.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DAA

Cases cited: Saif & Saif [2020] FamCA 119

Division: Division 2 Family Law

Number of paragraphs: 245

Date of hearing: 4–5 October 2022, 25 November 2022

Place: Parramatta

Counsel for the Applicant: Mr Pickering

Solicitor for the Applicant: Ark Law Lawyers

Counsel for the Respondent: Ms Bateman

Solicitor for the Respondent: Inner West Solicitors Pty Ltd

Counsel for the Independent Children's Lawyer: Mr Blank

Solicitor for the Independent Children's Lawyer: Claremont Legal
ORDERS

PAC 5379 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BAHRI

Applicant

AND:
MS LANNICK

Respondent

Order made by:

JUDGE NEWBRUN

DATE OF ORDER:

16 DECEMBER 2022

THE COURT ORDERS THAT:
1.The children X born in 2014 and Y born in 2016 (“the children”) live with the mother.
2.The mother have sole parental responsibility for the children.
3.The children spend no time with the father.
4.The father and/or his agents are restrained by injunction from communicating with, contacting or attempting to contact the children and/or the mother.
5.The father, and/or his agents, are restrained by injunction from attending any school which the children attend.
6.The mother is to ensure that X continues to attend upon all appointments as scheduled by all of X’s mental health care practitioners, until such time as those practitioners recommend otherwise and comply with all recommendations given by those practitioners.
7.Pending further Order, the mother and the father, and his/her servants and/or agents, be and are hereby restrained by injunction from removing or attempting to remove the children X born in 2014 and Y born in 2016 from the Commonwealth of Australia.
8.The Marshall and all officers of the Australian Federal Police and of the police forces of the various states and territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the said children, X born 2014 and Y born in 2016 on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the children’s name on the Watchlist until further Order of 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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Bahri & Lannick [2022] FedCFamC2F 1753
Case: [2022] FedCFamC2F 1753
Decision Date

CaseChat Overview and Summary

This final parenting hearing concerns the two children born in 2014 and 2016. The Independent Children's Lawyer and the mother seek orders in accordance with their proposed Minute of Order, including that the children live with the mother, the mother have sole parental responsibility for the children, and the children spend no time with the father. The father seeks orders for the children to live with the mother and the father on a week about basis, with changeover to occur at the conclusion of school, or if a non-school day at 3:00pm each Friday. The father also seeks orders that he spend time with the children on special days, including on their birthdays, and that he and the mother be permitted to attend all events involving the children that parents are ordinarily invited to attend. The father also seeks orders that he and the mother both be entitled to contact the children by telephone or other electronic means on the Mondays, Wednesdays and Sundays between 5:00pm and 6:00pm, that the children are not in their care, and the other parent is to provide the children with privacy during such communication with their parents. The father also seeks orders that the parties are to keep the other party informed of their mobile phone number and current residential address and to notify the other within 48 hours of a change to their mobile telephone number or residential address. The father seeks orders that the parties be entitled to contact the school to inform themselves in relation to the children's schooling and to receive all documents that are parents ordinarily receive, including school reports, newsletters and school information. The father seeks orders that each parent be permitted to travel with the children out of Australia, provided such period of proposed travel takes place during the time the child/ren are living with that parent pursuant to these Orders unless otherwise agreed between the parties in writing via email and also provided that: the occasions on which the parent takes the children out of Australia are to coincide with the school holidays of public schools in New South Wales; the parent proposing such holiday shall notify the other parent no less than 30 days prior to the departure date of such proposed trip, and shall provide to the other parent at this time: particulars including the proposed itinerary and proposed period of such trip; at least 10 days before departure, a final itinerary including contact telephone numbers and full street addresses of where the child/ren will be staying; copies of return airline tickets and details of flights once booked and irrespectively at least 10 days before departure. The Court found that the parties separated in December 2014. The mother asserted that the father was the perpetrator of family violence, including coercive and controlling family violence, which the father denies. The Court found that the father perpetrated family violence, including both alleged physical and coercive and controlling family violence, against the mother. The Court found that there is an unacceptable risk of physical and psychological harm posed to the children in spending supervised or unsupervised time with the father. The Court found that prospectively, the children may benefit from having a meaningful relationship with the father but only if it is safe for them to do so. The Court found that presently it will not be safe for the children to develop a relationship with the father. The Court found that the father lacks significant insight into the nature and harmful effects upon the mother and children of the above referred coercive and controlling family violence. The Court found that the father has difficulty regulating his emotions, in particular anger, so as to be able to act in a manner that is not abusive to others. The Court found that the father has no insight into the harmful effects of this violence upon the mother and children. The Court found that it will be in the best interests of the children that the mother have sole parental responsibility for them. The Court found that such an order will minimise the risk of conflict occurring between the parties if they otherwise had to reach agreement in relation to major decisions affecting the children. The Court made the following parenting orders: the children live with the mother; the mother have sole parental responsibility for the children; the children spend no time with the father; the father and/or his agents are restrained by injunction from communicating with, contacting or attempting to contact the children and/or the mother; the father, and/or his agents, are restrained by injunction from attending any school which the children attend; the mother is to ensure that X continues to attend upon all appointments as scheduled by all of X's mental health care practitioners, until such time as those practitioners recommend otherwise and comply with all recommendations given by those practitioners; the mother and the father, and his/her servants and/or agents, be and are hereby restrained by injunction from removing or attempting to remove the children from the Commonwealth of Australia; and the Marshall and all officers of the Australian Federal Police and of the police forces of the various states and territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the said children on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the children's name on the Watchlist until further Order of the Court.

Orders