Daiber & Najaran
[2021] FedCFamC2F 188
•6 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Daiber & Najaran [2021] FedCFamC2F 188
File number: MLC 10147 of 2017 Judgment of: JUDGE O'SHANNESSY Date of judgment: 6 October 2021 Catchwords: FAMILY LAW – Final parenting – where applicant discontinues – where respondent seeks final orders – sole parental responsibility for respondent – children to live with respondent – matter finalised. Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 8 Date of hearing: 6 October 2021 Place: Melbourne The Applicant: Appeared In Person (Discontinued) Counsel for the Respondent: Ms P Chia Solicitor for the Respondent: Nicholas James Lawyers Solicitor for the Independent Children's Lawyer: Barbayannis Lawyers ORDERS
MLC 10147 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DAIBER
Applicant
AND: MS NAJARAN
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
6 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Applicant have leave to discontinue his application filed 2 October 2017.
2.All previous orders relating to the children X born in 2006, Y born in 2009 and Z born in 2012 ('the children') be discharged.
3.The Respondent Mother have sole parental responsibility for the children.
4.The children live with the Respondent Mother.
5.A transcript of today's hearing and the settled ex tempore reasons be provided to all parties and former parties to the proceedings.
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, except in very limited circumstances, to publish 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 Daiber & Najaran has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
These are the settled reasons of judgment delivered ex tempore. This is the second decision that I have made in this matter and these reasons should be read in conjunction with the previous reasons known as Daiber & Najaran [2020] FCCA 3655.
When the matter was previously before me, Mr Daiber (‘the Applicant’) was facing serious criminal charges relating to Ms Najaran (‘the Mother’). The Applicant has since been acquitted before a jury in the County Court of Victoria on those charges and I am told and accept that at least some of the children gave evidence against him in those proceedings. At all times, the Applicant denied the charges against him in the proceedings before me.
When the matter was previously before me, it was contended by the Mother that the Applicant would not receive a visa. At that time, the Applicant was in immigration detention. This morning, the matter came on before me and the Applicant has told me and I accept that he has been acquitted of all charges before a jury, that he has a valid visa, and is no longer in immigration detention.
He told me that approximately three weeks ago, he determined that he wished to discontinue his role in these proceedings, and this morning he was not compelled to tell me why, but he chose to tell me why he wished to discontinue the proceedings. His reasons were that it is a considerable time since he has seen the children and that he does not wish to distress the children any further by attempting to force their mother to permit him to spend time with the children.
He speculates that maybe when the children are adults that they may wish to spend time with him. In the circumstances where the children relatively recently gave evidence against him and he was acquitted of those charges, it would appear that there may have been real practical difficulties in re-establishing any relationship between the Applicant and the children.
Before me this day, the Independent Children's Lawyer (‘the ICL’) has raised with me that in the circumstances of the Applicant’s intention to discontinue the proceedings that he should be permitted to do so, and there was no opposition from the Mother to that proposition. In addition, the ICL, raises that there should be an order discharging all previous orders relating to the children, a further order that the Mother have sole parental responsibility for the children, and a further order that the children live with the Mother. Ms Chia, counsel on behalf of the Mother agrees with those orders and seeks that I make them, and I will.
Ms Chia seeks a further order, and that is an explicit order to the effect that the Applicant have no contact with the children. In all of the circumstances of this case, I am not persuaded that it is an appropriate order to be made. That does not mean that the Applicant has any right or entitlement to spend time with the children, certainly in their minority. The Applicant would only be able to spend time with the children with the agreement of the Mother, in my view. However, in all the circumstances, I do not propose to make the additional order as sought by the Mother's counsel.
Otherwise, I will order that a transcript of the proceedings this morning be made and be made available to the parties. In addition, when these reasons are settled, they will be provided to the current parties and also to the Applicant, as, in my view, he should have the formal record of the proceedings.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 14 October 2021
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