Dhar & Gupta - [2021] FedCFamC2F 56

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dhar & Gupta [2021] FedCFamC2F 56

File number: PAC 3155 of 2017

Judgment of: JUDGE OBRADOVIC

Date of judgment: 16 September 2021

Catchwords: FAMILY LAW – Parenting – undefended hearing – application for the child to spend no time with the father – allegations of family violence – impact of violence on the mother’s capacity to parent – mother unwilling to facilitate a relationship between the child and the father – change of name – best interests of the child.

Legislation: Births, Deaths and Marriages Registration Act 1995 (NSW) s 28(5)
Family Law Act 1975 (Cth) ss 60CC, 61DA, 86B.

Cases cited: Banks & Banks [2015] FamCAFC 36
Chapman & Palmer [1978] FamCA 86
Howard & Howard [2016] FamCA 455
Jepson & Fleming [2018] FCCA 400
Mayes & Denning [2017] FCCA 1754
Sander & Hearn [2012] FMCAfam 812
Slater & Light [2011] FamCAFC 1

Division: Division 2 Family Law

Number of paragraphs: 61

Date of hearing: 12 May 2021

Place: Parramatta

Appearing for the Applicant: No appearance

Counsel for the Respondent: Ms Kaiti

Appearing for the Independent Children's Lawyer: Mr MacDiarmid

Solicitor for the Independent Children's Lawyer: Mark MacDiarmid Family Specialist
ORDERS

PAC 3155 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR DHAR

Applicant

AND:
MS GUPTA

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

16 SEPTEMBER 2021

THE COURT ORDERS THAT:
(1)The child X (female) born in 2016 shall be henceforth known as X.
(2)The child, X born in 2016, shall live with the mother, Ms Gupta.
(3)The mother shall have sole parental responsibility for the child.
(4)The child shall spend no time with the father, Mr Dhar.
(5)The mother Ms Gupta is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as X (female) born in 2016 be now registered as X.
(6)Pursuant s.28(5) of the Births, Deaths and Marriages Registration Act 1995 (NSW) the Registrar register the child’s name in the form specified in Order 5 herein.
(7)The Court directs that the mother forthwith serve a sealed copy of this order upon the Registrar of Births Deaths and Marriages.
(8)X born in 2016 is permitted to travel internationally, without the need for the consent of the father to be provided to the issue of a passport to X born in 2016.
(9)The mother shall be the only person with ‘parental responsibility’ of the child X born in 2016 for the purposes of applying for, and being issued with, an Australian passport for X born in 2016.

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 under the pseudonym Dhar & Gupta is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
Introduction

These are parenting proceedings 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 Dhar & Gupta

Details

AGLC: Dhar & Gupta [2021] FedCFamC2F 56
Case: [2021] FedCFamC2F 56
Decision Date: 16 September 2021

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Mr Dhar, the father, applied for a parenting order regarding his child, X, born in 2016, from his relationship with Ms Gupta, the mother. The application was heard without defence, and the court was asked to determine whether X should have contact with Mr Dhar, among other parenting issues. The central issue was whether it was in the best interests of X for her to have no contact with her father, Mr Dhar, due to allegations of family violence against the mother and the mother's unwillingness to facilitate a relationship between X and Mr Dhar. Another issue was whether the mother should be permitted to change the child’s name.

The court found that it was in the best interests of X for her to have no contact with Mr Dhar, given the serious allegations of family violence against the mother and the mother’s unwillingness to facilitate a relationship between X and Mr Dhar. The court concluded that allowing contact between X and Mr Dhar would likely cause X harm and would be detrimental to her welfare. The court also found that it was appropriate for the mother to change the child’s name to X. The court further found that the mother should have sole parental responsibility for X and should be the sole person with parental responsibility for the purposes of applying for an Australian passport for X.

The court made several orders, including that X should have no contact with Mr Dhar, that X’s name should be changed to X, that the mother should have sole parental responsibility for X, and that the mother should be the only person with parental responsibility for the purposes of applying for an Australian passport for X. The mother was also authorised to apply to the Registrar of Births Deaths and Marriages to change the child’s name in the relevant registers.

Orders

Orders of the court

PAC 3155 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR DHAR

Applicant

AND:

MS GUPTA

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

16 SEPTEMBER 2021

THE COURT ORDERS THAT:

(1) The child X (female) born in 2016 shall be henceforth known as X.

(2) The child, X born in 2016, shall live with the mother, Ms Gupta.

(3) The mother shall have sole parental responsibility for the child.

(4) The child shall spend no time with the father, Mr Dhar.

(5) The mother Ms Gupta is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as X (female) born in 2016 be now registered as X.

(6) Pursuant s.28(5) of the Births, Deaths and Marriages Registration Act 1995 (NSW) the Registrar register the child’s name in the form specified in Order 5 herein.

(7) The Court directs that the mother forthwith serve a sealed copy of this order upon the Registrar of Births Deaths and Marriages.

(8) X born in 2016 is permitted to travel internationally, without the need for the consent of the father to be provided to the issue of a passport to X born in 2016.

(9) The mother shall be the only person with ‘parental responsibility’ of the child X born in 2016 for the purposes of applying for, and being issued with, an Australian passport for X born in 2016.

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

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

Full text does not contain this section.

File number:	PAC 3155 of 2017
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	16 September 2021
Catchwords:	FAMILY LAW – Parenting – undefended hearing – application for the child to spend no time with the father – allegations of family violence – impact of violence on the mother’s capacity to parent – mother unwilling to facilitate a relationship between the child and the father – change of name – best interests of the child.
Legislation:	Births, Deaths and Marriages Registration Act 1995 (NSW) s 28(5) Family Law Act 1975 (Cth) ss 60CC, 61DA, 86B.
Cases cited:	Banks & Banks [2015] FamCAFC 36 Chapman & Palmer [1978] FamCA 86 Howard & Howard [2016] FamCA 455 Jepson & Fleming [2018] FCCA 400 Mayes & Denning [2017] FCCA 1754 Sander & Hearn [2012] FMCAfam 812 Slater & Light [2011] FamCAFC 1
Division:	Division 2 Family Law
Number of paragraphs:	61
Date of hearing:	12 May 2021
Place:	Parramatta
Appearing for the Applicant:	No appearance
Counsel for the Respondent:	Ms Kaiti
Appearing for the Independent Children's Lawyer:	Mr MacDiarmid
Solicitor for the Independent Children's Lawyer:	Mark MacDiarmid Family Specialist

PAC 3155 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR DHAR Applicant
AND:	MS GUPTA Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	16 SEPTEMBER 2021