FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hira & Dipak [2024] FedCFamC2F 285
File number(s): PAC 179 of 2023 Judgment of: JUDGE HARLAND Date of judgment: 5 March 2024 Catchwords: FAMILY LAW – parenting – family violence – sole parental responsibility – father has not seen the children since separation – where the father shows lack of insight and failure to address his behaviour – where the father poses an unacceptable risk to the children – whether or not orders should be made for no time or for supervised time – whether time should be graduated to unsupervised – whether or not orders should be made for family therapy – airport watchlist and passport orders Legislation: Australian Passports Act 2005 (Cth) ss 11
Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 64 , 65D, 68P(3), 68Q, 69ZW
Family Law Amendment Act 2023 (Cth)
Cases cited: Isles & Nelissen [2022] FedCFam1A 97
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Sokghi & Danwar [2022] FedCFamC2F 1654
Waterford & Waterford [2013] FamCA 33
W & G [2005] FamCA 617,
Division: Division 2 Family Law Number of paragraphs: 200 Date of hearing: 24, 25, 29 and 30 January 2024 Place: Melbourne Counsel for the Applicant: Ms Burgess Solicitor for the Applicant: Taylor Rose Counsel for the Respondent: Mr Myles Solicitor for the Respondent: Victoria Legal Aid Counsel for the Independent Children’s Lawyer: Ms Stavrakakis Solicitor for the Independent Children’s Lawyer: CMB Legal ORDERS
PAC 179 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HIRA
ApplicantAND: MS DIPAK
RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT:
1.All previous parenting orders and interim watchlist order be discharged.
2.The mother have sole parental responsibility for the children X born in 2011 and Y born in 2016 (‘the children’).
3.The children live with the mother.
4.The children spend no time with the father.
5.Save in accordance with order 6 and 7 herein, the father is hereby restrained by injunction from communicating with the children.
6.The father be permitted to send a card to the children on two occasions each year namely, 7 days prior to the children’s respective birthdays and 7 days prior to Christmas Eve.
7.The father be permitted for the year 2024 only, to send a card to X for her birthday at the same time as sending a card for Y’s birthday.
8.For the purposes of facilitating orders 6 and 7 herein:
(a)The father will send the cards to the children at an address which shall be nominated by the mother (via her solicitor) to the father (via his solicitor) within 14 days from the dates of these orders;
(b)The mother be permitted to open and view the cards prior to providing them to the children and the mother must pass them on to the children unless they are inappropriate in accordance with…
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- [2024] FedCFamC2F 285
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CaseChat Overview and Summary
The court was required to determine several key legal issues, including whether the father should be granted any contact with the children, whether such contact should be supervised, and if so, under what conditions. Additionally, the court needed to decide on the appropriateness of family therapy for the children and whether certain travel restrictions and passport controls should be implemented to prevent the children from being removed from Australia.
The court concluded that the father posed an unacceptable risk to the children due to his lack of insight and failure to address his behaviour, which was substantiated by evidence of family violence. Given this, the court determined that the father should have no contact with the children, except for the limited and controlled communication through cards twice a year. The court also mandated family therapy for the children and issued passport restrictions and a watchlist to prevent the children from being removed from Australia. Furthermore, the court granted the mother sole parental responsibility and the authority to obtain passports for the children without the father's consent.
The court's orders reflect its determination that the father's past conduct and current behaviour present a significant risk to the children's safety and well-being. The restrictions placed on the father's communication and the stringent measures to prevent the children's removal from Australia underscore the court's commitment to protecting the children in this case.
Orders
Orders of the court
PAC 179 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR HIRA
Applicant
AND:
MS DIPAK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT:
1. All previous parenting orders and interim watchlist order be discharged.
2. The mother have sole parental responsibility for the children X born in 2011 and Y born in 2016 (‘the children’).
3. The children live with the mother.
4. The children spend no time with the father.
5. Save in accordance with order 6 and 7 herein, the father is hereby restrained by injunction from communicating with the children.
6. The father be permitted to send a card to the children on two occasions each year namely, 7 days prior to the children’s respective birthdays and 7 days prior to Christmas Eve.
7. The father be permitted for the year 2024 only, to send a card to X for her birthday at the same time as sending a card for Y’s birthday.
8. For the purposes of facilitating orders 6 and 7 herein:
(a) The father will send the cards to the children at an address which shall be nominated by the mother (via her solicitor) to the father (via his solicitor) within 14 days from the dates of these orders;
(b) The mother be permitted to open and view the cards prior to providing them to the children and the mother must pass them on to the children unless they are inappropriate in accordance with order 8(c); and
(c) The provision of cards by the father to the children is permitted on the conditions that the father does not, through any card:
(i) denigrate, in any way, the mother, the children, or any person related to the children, including using abusive or belittling language;
(ii) seek to find out any location at which either child, together or separately, is going to be situated, including but not limited to the children’s residence, school/s, extra-curricular activities, or any childcare facility at which they attend;
(iii) mention, to either child, anything concerning any family law proceedings relating to the children or either child;
(iv) pressure either child to spend time or communicate with him; or
(v) pressure the mother, through either child or directly, to have either or both children spend time or communicate with him.
9. The mother forthwith do all things necessary to ensure the children engage with a family therapist/counsellor experienced in family law and family violence issues for the purposes of counselling to address the issues raised in the Child Impact Report dated 15 August 2023.
10. The mother be permitted to provide said family therapist/counsellor with a copy of the Child Impact Report dated 15 August 2023 and a copy of these reasons.
11. In the event the father engages in counselling to address the issues of risk, the father be permitted to provide said counsellor a copy of the Child Impact Report dated 15 August 2023 and a copy of these reasons.
12. The mother be permitted to provide a copy of these orders to the children’s schools.
13. Pursuant to section 11 of the Australian Passports Act 2005 (Cth) the mother be permitted to obtain Australian Passports for the children or renew them as required without the consent of the father.
14. For a period of two years from the date of these orders, the father MR HIRA born in 1980 and the mother MS DIPAK born in 1983 and their servants and or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the children X born in 2011 and Y born in 2016 from the Commonwealth of Australia.
15. It is requested that the Australian Federal Police give effect to this order by placing the name of the children on the Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s name on the Watchlist for a period of two years from the date of these orders.
16. In 30 days, the Independent Childrens Lawyer is discharged.
17. All extant applications are dismissed.
AND THE COURT NOTES THAT:
A. Orders 6 to 8 above are inconsistent with orders 5 and 9 of the family violence order made in Court at City B in early 2023 which names the mother and children as protected persons in that they do not allow the father to see or communicate with the children unless via card.. The Court notes that order 4 prohibits the father from spending time with the children.
B. Pursuant to section 68Q of the Family Law Act 1975 (Cth), to the extent of the inconsistency, the family violence order is invalid.
C. In accordance with section 68P(3) of the Family Law Act 1975 (Cth), the Court will provide a copy of these orders to:
(a) Victoria Police;
(b) The Department of Families Fairness and Housing; and
(c) The Registrar of the Court at City B.
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
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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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