Dalavi & Panja

Case [2022] FedCFamC1F 255

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Dalavi & Panja [2022] FedCFamC1F 255

File number(s): SYC 3199 of 2021
Judgment of: SCHONELL J
Date of judgment: 4 April 2022
Catchwords: FAMILY LAW – PARENTING – Interim Orders – Where the mother resides in Country E – Where the mother sought for the parties’ child to travel to Country E for the upcoming school holidays – Where the father opposed the application – Where the s 60CC primary and additional considerations of the Family Law Act 1975 (Cth) were considered – Where it was found that there was a risk of the mother not returning the child – Application dismissed – Costs order made.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 69ZL, 117
Cases cited:

De Luca & Farnham & Anor [2019] FamCAFC 100

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Kuebler & Kuebler (1978) FLC 90-434; [1978] FamCA 26

Line v Line (1997) FLC 92-729; [1996] FamCA 145

Division: Division 1 First Instance
Number of paragraphs: 60
Date of hearing: 4 April 2022
Place: Sydney
Counsel for the Applicant: Mr Teoh
Solicitor for the Applicant: Danielle Quinn Solicitor
Counsel for the Respondent: Ms Shea
Solicitor for the Respondent: Lander & Rogers
Solicitor for the Independent Children's Lawyer: Christina Lam & Associates

ORDERS

SYC 3199 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS DALAVI

Applicant
AND:

MR PANJA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

4 APRIL 2022

THE COURT ORDERS THAT:

1.The mother’s Application in a Proceeding filed on 5 November 2021 is dismissed.

2.By consent, Orders are made in accordance with paragraphs 11 and 12 of the Independent Children’s Lawyer’s Case Outline document filed on 30 March 2022 as set out hereunder:

11.That each party shall forthwith and within seven (7) days contact C Services on … for the purpose of enrolling X in the D Program and subject to assessment of suitability, each party shall then:

a.ensure that X attends and participates in counselling on such times, dates and places as may be advised; and

b.equally pay such fees as may be charged.

12.Pursuant to s13C, the matter be fixed for a court registered assisted dispute resolution conference.

3.Leave is granted to the respondent father to make an oral application for costs.

4.The mother pay the father’s costs fixed in the sum of $8,000 within three months from the date of the making of these orders.

5.Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons…

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AGLC
Dalavi & Panja [2022] FedCFamC1F 255
Case
[2022] FedCFamC1F 255
Decision Date

CaseChat Overview and Summary

The parties, Ms Dalavi and Mr Panja, were married in 1999 and separated in 2014. They have one child born in 2009. The mother sought for the child to travel to Country E for the upcoming school holidays. The father opposed the application. The case came before the Federal Circuit and Family Court of Australia (Division 1), which was required to consider the primary and additional considerations outlined in section 60CC of the Family Law Act 1975 (Cth). The court found that there was a risk of the mother not returning the child, and subsequently dismissed the application.

The legal issues in this case were primarily concerned with the application of section 60CC of the Family Law Act 1975 (Cth), which outlines the primary and additional considerations that the court must take into account when making decisions about the care, welfare and development of a child. The court considered the risk of the mother not returning the child to Australia, as well as the competing accounts of the child's care provided by both parents. The Independent Children's Lawyer also filed a comprehensive Case Outline and broadly supported the mother's application. The court also considered documents tendered by the father and the Child Impact Report.

The court dismissed the mother's application and made a costs order. The court found that there was a risk of the mother not returning the child, and that this risk outweighed the benefits of the child travelling to Country E for the upcoming school holidays. The court also found that the father's opposition to the application was reasonable, given the risk of the mother not returning the child. The court made orders for the parties to enrol the child in a counselling program and attend a court registered assisted dispute resolution conference. The mother was also ordered to pay the father's costs in the sum of $8,000. The court's decision was based on the evidence and submissions presented to the court, and the court's assessment of the risk of the mother not returning the child.

Orders

Orders of the court

SYC 3199 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS DALAVI

Applicant

AND:

MR PANJA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

4 APRIL 2022

THE COURT ORDERS THAT:

1. The mother’s Application in a Proceeding filed on 5 November 2021 is dismissed.

2. By consent, Orders are made in accordance with paragraphs 11 and 12 of the Independent Children’s Lawyer’s Case Outline document filed on 30 March 2022 as set out hereunder:

11. That each party shall forthwith and within seven (7) days contact C Services on … for the purpose of enrolling X in the D Program and subject to assessment of suitability, each party shall then:

a. ensure that X attends and participates in counselling on such times, dates and places as may be advised; and

b. equally pay such fees as may be charged.

12. Pursuant to s13C, the matter be fixed for a court registered assisted dispute resolution conference.

3. Leave is granted to the respondent father to make an oral application for costs.

4. The mother pay the father’s costs fixed in the sum of $8,000 within three months from the date of the making of these orders.

5. Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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.

Background

Background to the litigation

The mother relied upon a number of documents that are listed in her Case Outline. The father for his part relied upon the number of documents, which are identified in his Case Outline. The ICL filed a comprehensive Case Outline and broadly supports the mother’s application. Documents were tendered by the father, and I have read all of the material filed in the proceedings.BACKGROUND FACTS The parties were married in 1999 and separated on 5 December 2014. There is one child of their relationship who was born in 2009 An order was made for equal shared parental responsibility and other orders in relation to time on 8 April 2016. I am told that those orders have now been suspended. There has been prepared a Child Impact Report dated 29 November 2021. Paragraph 5 of that report records:5. The parents agree that X was cared for mainly by Ms Dalavi during the parents’ relationship. They also agree that Mr Panja worked fulltime, but that he was an involved and engaged parent whenever available. X was approximately five years of age at the time of the parents’ separation. Ms Dalavi and Mr Panja have provided competing accounts of X’s care at this time. X apparently lived mainly in an equal time parenting arrangement from April 2016, according to consent orders. … In the mother's affidavit of 4 May 2021 at paragraph 6, she states that on 19 October 2020 she left Sydney to travel to B City, that it was a business trip, and her intention was only to stay in B City temporarily and return approximately two weeks later. The father’s counsel points to documents in Exhibit 1 that stand inconsistent with this proposition. The father says that this trip was without notice to him or the child. That fact of itself does not seem to be an issue. In her affidavit of 4 May 2021, the mother says:7. In November 2020 I attempted to return back to Sydney and faced problems due to travel restrictions and border closures. I have been trying to return back to Australia however all attempts have been unsuccessful. I have attached my tickets and documentation in relation to my attempts to return. Annexures hereto and marked with the letter "A" is a true copy of such documentation.8. Since I have commenced residing in B City I have spent a considerable amount of time developing my business which has flourished into a thriving success. I have decided to permanently reside in B City, Country E and I am of the firm view that I will be able to provide X an extremely comfortable lifestyle here in B City, Country E. The father in his affidavit responds as follows:13. On 14 October 2020, Ms Dalavi and I exchanged the following text messages:Ms Dalavi: Hey Mr Panja. Can you please mind X from 17 Oct till 22 Oct? I’m heading off the Brisbane for my business.Me: She is with me that week Ms DalaviMs Dalavi: Its from this Saturday Mr Panja. She’s with me.Me: Oh ok, sure! Btw, the QLD borders are still shut for Sydney, I thought?Ms Dalavi: It is. Opened for me 14. On 18 October 2020, Ms Dalavi delivered X to my home and she said words to the effect of “I’m flying in the afternoon and will return to Sydney on 22 October 2020.” I responded words to the effect: “Do you want me to drop of you off to the airport?” to which Ms Dalavi replied words to the effect: “No.”15. On the evening of 18 October 2020, I said to X words to the effect: “X, why don't you call your mummy to say goodnight.” After that phone call, X said words to the effect of: “Mummy missed her flight. She is staying in the city and will fly to Brisbane tomorrow morning.” (As per the original)

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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