Damani and Damani - [2018] FCCA 3351

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAMANI & DAMANI

[2018] FCCA 3351

Catchwords:
FAMILY LAW – Interim parenting – whether or not the mother’s partner is an unacceptable risk – injunction restraining mother’s partner from coming into contact with child.

Legislation:

Family Law Act 1975, ss.60CC(2), 60CC(3)

Cases cited:

Stott & Holgar and Anor [2017] FamCAFC 152

Goode & Goode (2006) FLC 93-286
Sumner & Broad (2015) FCCA 1021
George & George (2013) FamCAFC 182
Deiter & Deiter (2011) FamCAFC 82

Applicant:

MR DAMANI

Respondent:

MS DAMANI

File Number:

MLC 5027 of 2015

Judgment of:

Judge Harland

Hearing date:

28 August 2018

Date of Last Submission:

28 August 2018

Delivered at:

Melbourne

Delivered on:

28 August 2018

REPRESENTATION

Counsel for the Applicant:

Ms Brennan

Solicitors for the Applicant:

Moores MDP Pty Ltd

Counsel for the Respondent:

Mr Moisidis

Solicitors for the Respondent:

Waters Lawyers

ORDERS

That the mother be restrained by injunction from allowing MR B to come into contact and communicate with, or approach or remain within 5 metres of [X] born 2012 (“the child”), or going or remaining within 200 metres of the Mother’s property at Suburb A, if the child is there.
The parties have liberty to apply at short notice to bring the matter back to court for review.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5027 of 2015

MR DAMANI

Applicant

And

MS DAMANI

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This matter is brought before me today for an urgent application in a case filed by the father with respect to [X]. The mother has filed a response and several affidavits in support of her position opposing the application in a case. I am not going to set out all of the submissions in discussion with counsel this morning and all of the evidence, but I will highlight the following points.
The parties initially had proceedings before the Family Court which resolved in 2015. This round of proceedings began in February 2017 when the father brought an urgent application seeking to vary the final parenting orders as a result of an assault which took place on 12 February 2017. There were two children of the relationship, [Y], who is 10, and [X], who is six and a half.
The factual circumstances surrounding the assault which took place have been an issue of heated dispute in these proceedings and is reflected in the report that Mr P prepared in these proceedings in October 2017. He had prepared a report for the family in the 2015 proceedings and will shortly be seeing the family to prepare an updated report. In his 2017 report, Mr P identifies that…

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 Damani and Damani

Details

AGLC: Damani and Damani [2018] FCCA 3351
Case: [2018] FCCA 3351
Decision Date: 28 August 2018

CaseChat Overview and Summary

In the matter of *Damani and Damani*, heard before Judge Harland, the dispute concerned an application for an injunction. The specific details of the parties' relationship and the precise nature of the dispute are not fully elaborated in the provided text, but the orders indicate a concern for the safety and well-being of a child born in 2012.

The central legal issue before the court was whether to grant an injunction restraining one party, identified as the mother, from allowing another party, identified as MR B, to come into contact with, communicate with, approach, or remain in close proximity to the child. The injunction also sought to prevent the mother from approaching or remaining within a specified distance of her own property if the child was present there.

Judge Harland granted the injunction, ordering that the mother be restrained from permitting MR B to have contact with, communicate with, approach, or remain within five metres of the child. Furthermore, the mother was restrained from going or remaining within 200 metres of her property at Suburb A if the child was present. The court also provided liberty for the parties to apply to bring the matter back for review on short notice.

Orders

Orders of the court

That the mother be restrained by injunction from allowing MR B to come into contact and communicate with, or approach or remain within 5 metres of [X] born 2012 (“the child”), or going or remaining within 200 metres of the Mother’s property at Suburb A, if the child is there.

The parties have liberty to apply at short notice to bring the matter back to court for review.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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