Hanjan & Mahani - [2023] FedCFamC2F 719

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hanjan & Mahani [2023] FedCFamC2F 719

File number(s): NCC 1718 of 2021

Judgment of: JUDGE CARTY

Date of judgment: 15 June 2023

Catchwords: FAMILY LAW – PARENTING – Final parenting orders – application by father to spend time with children – key issue is consideration of risk of harm to the children from being subjected to or exposed to neglect and family violence in the household of the father – impact on mother’s parenting capacity if required to facilitate the children spending time with or communicating with father – whether it is appropriate for the welfare of the children to make s.68B restraints for the personal protection of the children – proposed international travel for children with mother – best interests of children

Legislation: Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA,65DAA, 68B, Pt VII

Cases cited:
Mazorski & Albright (2007) 37 Fam LR 518

Re F: Litigants in person guidelines (2001) FLC 93-072; [2001] FamCA 348

Russell & Close [1993] FamCA 62

Re Andrew [1996] FamCA 43

Division: Division 2 Family Law

Number of paragraphs: 124

Date of last submission/s: 12 January 2023

Date of hearing: 10, 11 and 12 January 2023

Place: City G

The Applicant: Self - represented

Counsel for the Respondent: Mr Willoughby

Solicitor for the Respondent: GG Lawyers

Counsel for the Independent Children's Lawyer: Ms Hamilton

Solicitor for the Independent Children's Lawyer: HH Lawyers

Table of Corrections

15 June 2023 In paragraph 27 one reference to “She” has been corrected to show “He”.

15 June 2023 In paragraph 38 one reference to “Ms B” has been corrected to show “Mr Hill”.

15 June 2023 In paragraph 39 one reference to “herself” has been corrected to show “himself”.
ORDERS

NCC 1718 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HANJAN

Applicant

AND:
MS MAHANI

Respondent

AND:
INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE CARTY

DATE OF ORDER:

15 June 2023

THE COURT ORDERS ON FINAL BASIS BY CONSENT THAT:
1.All previous parenting orders are discharged.
2.The mother have sole parental responsibility for the children X, born in 2015 and Y, born in 2018 (“the children”).
3.The children live with the mother.
4.Pursuant to section 11(1)(b)(ii) of the Australian Passports Act 2005 the mother is permitted to apply for a passport for each of the children X, born in 2015 and Y, born in 2018 without the consent of the father.

THE COURT FURTHER ORDERS ON A FINAL BASIS THAT:
5.The children spend no time and have no communication with the father.
6.Pursuant to section 68B of the Family Law Act 1975 (Cth), for the personal protection of the children the father is restrained and an injunction is granted restraining the father from:
(a)Approaching within 200 metres of the children or either of the children;
(b)Attending at or loitering within 200 metres of the children’s place of residence or any other place where the children may reside or spend time including…

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 Hanjan & Mahani

Details

AGLC: Hanjan & Mahani [2023] FedCFamC2F 719
Case: [2023] FedCFamC2F 719
Decision Date

CaseChat Overview and Summary

This case concerns a final parenting application made by the father of two young children. The court considered three issues, the first being whether the children should spend time with, or communicate with, the father. The second was whether the father should be restrained from contacting or approaching the children, and from removing the children from the mother’s care. The third was whether the children should be permitted to travel outside Australia with the mother, without the consent of the father. The father has a history of offending including family violence, drink driving and drug possession, and has a history of poor mental health and substance misuse. The children have not spent time or communicated with the father since the parents separated. The court found that the father has not demonstrated that he has adequately addressed his mental health issues, his substance misuse and his criminal offending behaviour. The children will be exposed at an unacceptably high risk of physical and psychological harm from neglect and family violence if they spend time or communicate with the father until such time as he is able to demonstrate that his mental health is stable, that he no longer abuses alcohol or takes illicit drugs, and that he is rehabilitated and is no longer likely to commit criminal offences. Accordingly, there will be a final parenting order that the children do not spend time with or communicate with the father, and the restraints sought by the mother will be made for the personal protection of the children. The court is satisfied that the children will benefit from the opportunity to travel internationally with the mother, whether or not the father has provided his consent, and an order will be made permitting the children to travel internationally with the mother.

Orders