Che & Don (No 5) - [2023] FedCFamC1F 470

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Che & Don (No 5) [2023] FedCFamC1F 470

File number(s): CAC 600 of 2021

Judgment of: GILL J

Date of judgment: 9 June 2023

Catchwords: FAMILY LAW - PARENTING PROCEEDINGS – Undefended – Parents complicit in disappearance of child – Parents pose unacceptable risk of harm to the child – Risk of further abduction – No contact with parents – Child to live with maternal grandmother – Sole parental responsibility to maternal grandmother

Legislation:
Family Law Act 1975 (Cth) - ss 60B, 60CA, 60CC, 65DAA, 68B and 121

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 - r 1.33

Cases cited:
Akbar & Mali and Anor [2015] FamCAFC 244

Eastley & Eastley [2022] FedCFamC1A 101

Isles & Nellisen [2022] FedCFamC1A 97

M v M (1988) 166 CLR 69

Division: Division 1 First Instance

Number of paragraphs: 142

Date of hearing: 5 June 2023

Place: Canberra

Counsel for the Applicant: Mr Stagg

Solicitor for the Applicant: Legal Aid, ACT

Solicitor for the Respondents: Litigant in person (did not participate)

Counsel for the Independent Children's Lawyer: Ms Mahony

Solicitor for the Independent Children's Lawyer: Mahony Family Lawyers
ORDERS

CAC 600 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CHE

Applicant

AND:
MR DON

First Respondent

MS TRACH

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

GILL J

DATE OF ORDER:

9 JUNE 2023

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The child, X, born 2020, shall live with the applicant grandmother, Ms Che.
3.The applicant grandmother has sole parental responsibility for the child.
4.The child spend no time with and have no communication with the father, Mr Don.
5.The child spend no time with and have no communication with the mother, Ms Trach.
6.Pursuant to s 68B of the Family Law Act 1975 (Cth), and until 2038 when X reaches the age of eighteen, it is ordered for the personal protection of X, born 2020, and Ms Che, born 1967, that:
(a)Mr Don, born 1992, is prohibited from approaching within 100 metres of X.
(b)Mr Don is prohibited from procuring or causing any person to take the person of X.
(c)Mr Don is prohibited from causing or threatening to cause bodily harm to X.
(d)Mr Don is prohibited from harassing, molesting or stalking X.
(e)Mr Don is prohibited from attempting to identify the residential address of Ms Che or X and from attempting to identify any child care or educational facility attended by X.
(f)Ms Trach is prohibited from approaching within 100 metres of X.
(g)Ms Trach is prohibited from procuring or causing any person to take the person X.
(h)Ms Trach is prohibited from causing or threating to cause bodily harm to X.
(i)Ms Trach is prohibited from harassing, molesting or stalking X.
(j)Ms Trach is prohibited from attempting to identify the residential address of Ms Che or X and from attempting to identify any child care or educational facility attended…

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.

Continue reading Che & Don (No 5)

Details

AGLC: Che & Don (No 5) [2023] FedCFamC1F 470
Case: [2023] FedCFamC1F 470
Decision Date

CaseChat Overview and Summary

The case of Che & Don (No 5) involved a dispute between Ms Che and Mr Don, parents of a child named X. The primary issue before the court was the determination of parental responsibility and contact arrangements for the child. The court was also tasked with deciding on the duration of the orders and the extent of any injunctive protections for Ms Che and X. This case was heard in the Family Court of Australia, which has jurisdiction over matters concerning the welfare of children.

The legal issues at the heart of the case included the allocation of parental responsibility, the appropriateness of contact between the parents and the child, and the duration of the orders. The court needed to consider the welfare and best interests of X, which required a detailed analysis of the circumstances surrounding both parents. Additionally, the court had to determine whether any form of contact between the parents and X would be in the child's best interests and, if so, under what conditions. The court also had to decide on the injunctive protections to be put in place to safeguard Ms Che and X from any potential harm.

The court found that it was in the best interests of X for Ms Che to have sole parental responsibility, and that there should be no contact between either parent and the child. The court reasoned that such a decision was necessary to protect X from any potential harm and to ensure the child's welfare and stability. The court further concluded that the orders should remain in effect until X reaches the age of eighteen. This decision was based on the need to provide a stable and protective environment for the child, given the circumstances of the case.

The court made orders granting sole parental responsibility to Ms Che and prohibiting any contact between either parent and X. The orders also included injunctive protections for Ms Che and X, as specified in the court's decision. These orders will remain in effect until X reaches the age of eighteen years.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The s 60B orders will be expressed to remain until X reaches the age of eighteen years old.Conclusion Orders will be made for Ms Che to hold sole parental responsibility for X. No provision will be made for either parent to have contact with X. Injunctive protections of Ms Che and X will be made as indicated above.

Ratio Decidendi

Legal Principle Established

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File number(s):	CAC 600 of 2021
Judgment of:	GILL J
Date of judgment:	9 June 2023
Catchwords:	FAMILY LAW - PARENTING PROCEEDINGS – Undefended – Parents complicit in disappearance of child – Parents pose unacceptable risk of harm to the child – Risk of further abduction – No contact with parents – Child to live with maternal grandmother – Sole parental responsibility to maternal grandmother
Legislation:	Family Law Act 1975 (Cth) - ss 60B, 60CA, 60CC, 65DAA, 68B and 121 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 - r 1.33
Cases cited:	Akbar & Mali and Anor [2015] FamCAFC 244 Eastley & Eastley [2022] FedCFamC1A 101 Isles & Nellisen [2022] FedCFamC1A 97 M v M (1988) 166 CLR 69
Division:	Division 1 First Instance
Number of paragraphs:	142
Date of hearing:	5 June 2023
Place:	Canberra
Counsel for the Applicant:	Mr Stagg
Solicitor for the Applicant:	Legal Aid, ACT
Solicitor for the Respondents:	Litigant in person (did not participate)
Counsel for the Independent Children's Lawyer:	Ms Mahony
Solicitor for the Independent Children's Lawyer:	Mahony Family Lawyers

CAC 600 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS CHE Applicant
AND:	MR DON First Respondent MS TRACH Second Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	GILL J
DATE OF ORDER:	9 JUNE 2023