Dalal and Dalal - [2018] FCCA 33

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALAL & DALAL

[2018] FCCA 33

Catchwords:
FAMILY LAW – Parenting – father lives in India – father has not seen children in two years – mother alleges significant family violence.

Legislation:

Federal Circuit Court Rules 2001, rule 6.01(3)(a)
Family Law Act 1975, ss.60B(1), 60B, 60B(2), 60CA, 60CC(2), 60CC(3), 60CC(3)(h), 60CC(6), 61DA(1), 61DA(2), 61DA(4), 61F, 64, 65D, 65DAA(1), 65DAA(2), 65DAA(3)

Cases cited:

Redmond & Redmond [2014] FamCAFC 155

Goode & Goode (2006) FLC 93-286
Waterford & Waterford [2013] FamCA 33
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR [2010] HCA 4
Rice v Apslund (1978) 6 Fam LR 570

Applicant:

MR DALAL

Respondent:

MS DALAL

File Number:

MLC 2803 of 2017

Judgment of:

Judge Harland

Hearing date:

18 December 2017

Date of Last Submission:

18 December 2017

Delivered at:

Melbourne

Delivered on:

12 January 2018

REPRESENTATION

Solicitors for the Applicant:

In person

Solicitors for the Respondent:

Ms Said of Trapski Family Law

Solicitors for the Independent Children's Lawyer:

Ms Romer of Cathleen Corridon and Associates

ORDERS

All previous orders be discharged.
The mother have sole parental responsibility for X born (omitted) 2006 and Y born (omitted) 2011 (“the children”).
The children live with the mother.
The father’s time with the children be reserved.
The mother is authorised to apply for and receive an Australian passport for the children X born (omitted) 2006 and Y born (omitted) 2011 passport pursuant to section 11 of the Australian Passports Act2005 without first obtaining the written consent of the other parent.
The Independent Children’s Lawyer be discharged.

NOTATION:

In the event the father returns to Australia to live, he may bring a further parenting application. The mother agrees that this would be a significant change of circumstances.

IT IS NOTED that publication of this judgment under the pseudonym Dalal & Dalal is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2803 of 2017

MR DALAL

Applicant

And

MS DALAL

Respondent

REASONS FOR JUDGMENT

This is a parenting matter concerning X born (omitted) 2006 (“Y”), aged 11, and Y born (omitted) 2011 (“X”)[1] aged 6 (“the children”).
[1] “X” and “Y” are the names used by Family Consultant A in reference to the children in the Child Inclusive Conference Memorandum dated 13 November 2017.
This case has been before me on four occasions. Unfortunately little progress has been made. The issue currently before me is whether or not the proceedings should be finalised or remain on foot to give the applicant father a further opportunity to fully engage with proceedings and advance his case.
The father has not seen the children since December 2015 when the parties separated. Currently he lives in India.
The father commenced the proceedings on 23 March 2017 seeking that he be allowed to spend time with the children. He also sought that a registrar urgently abridge the matter. His request was denied.

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 Dalal and Dalal

Details

AGLC: Dalal and Dalal [2018] FCCA 33
Case: [2018] FCCA 33
Decision Date: 12 January 2018

CaseChat Overview and Summary

In *Dalal and Dalal*, heard by Judge Harland, the dispute concerned parenting orders for two children. The mother sought sole parental responsibility and orders for the children to live with her, along with authorisation to obtain Australian passports for them without the father's consent. The father's time with the children was reserved, and the Independent Children's Lawyer was discharged.

The court was required to determine whether to grant the mother sole parental responsibility for the children, whether the children should live with the mother, and whether to permit the mother to apply for and obtain Australian passports for the children without the father's consent. The court also considered the father's future contact with the children.

Judge Harland ordered that the mother have sole parental responsibility for the children and that they live with her. The father's time with the children was reserved, and the Independent Children's Lawyer was discharged. Crucially, the mother was authorised to apply for and receive Australian passports for the children pursuant to section 11 of the *Australian Passports Act 2005* without the father's prior written consent. The notation indicates that the father may bring a further parenting application if he returns to Australia to live, with the mother agreeing this would constitute a significant change of circumstances.

Orders

Orders of the court

All previous orders be discharged.

The mother have sole parental responsibility for X born (omitted) 2006 and Y born (omitted) 2011 (“the children”).

The children live with the mother.

The father’s time with the children be reserved.

The mother is authorised to apply for and receive an Australian passport for the children X born (omitted) 2006 and Y born (omitted) 2011 passport pursuant to section 11 of the Australian Passports Act 2005 without first obtaining the written consent of the other parent.

The Independent Children’s Lawyer be discharged.

NOTATION:

In the event the father returns to Australia to live, he may bring a further parenting application. The mother agrees that this would be a significant change of circumstances.

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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