Long & Tranh - [2008] FamCA 730

FAMILY COURT OF AUSTRALIA

LONG & TRANH

[2008] FamCA 730

FAMILY LAW – CHILDREN – Parental responsibility– Not in interests of child to have relationship with father – Mother has sole parental responsibility

FAMILY LAW – CHILDREN – With whom a child spends time – Not in best interests of child to require child to spend time with the father

FAMILY LAW – CHILDREN – Mother permitted to remove the child from jurisdiction from time to time

FAMILY LAW – SELF REPRESENTED LITIGANTS – Whether father a vexatious litigant – Order made under s 118 of the Family Law Act 1975 (Cth)

FAMILY LAW – COSTS – Notwithstanding entitlement of ICL to costs clearly established, in view of the resources of the father no order made

Family Law Act 1975 (Cth) Ss 106A and 118

APPLICANT:

Ms Long

RESPONDENT:

Mr Tranh

INDEPENDENT CHILDREN’S LAWYER:

S P Nasti & Co.

FILE NUMBER:

PAF

2203

1994

DATE DELIVERED:

13 August 2008

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

13 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Self represented.

COUNSEL FOR THE RESPONDENT:

Self represented.

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Braine of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

S P Nasti & Co.

Orders

That all previous parenting orders are hereby discharged.
That the mother Ms Long (hereinafter referred to as “the mother”) be allocated sole parental responsibility for the child born on in October 1993 (hereinafter referred to as “the child”) including the sole parental responsibility for obtaining overseas travel documents for the child, including a passport.
That the child live with the mother.
That the child spend no time with the father Mr Tranh (hereinafter referred to as “the father”) unless the child expresses a wish to do so.
That within 28 days of the making of these orders the father do all necessary and required things of him and sign all documents and consents required of him to enable the mother and/or the child to:
(i)Obtain a passport or visas for the child to allow the said child to travel overseas.
(ii)To remove the child and/or his mother from any airport watch list.
Should the father refuse or neglect to sign any document and/or give any consents reasonably required of him pursuant to Order 5 above then a registrar of the Family Court of Australia is hereby authorised pursuant to Section 106A of the Family Law Act 1975 (Cth) to do all acts and things necessary that should have been done by the father to give effect to these orders.
All other applications are dismissed.
That subject to Section 118 of the Family Law Act of 1975 (Cth), except for any appeal against these orders, both parties are restrained from the date of these orders from instituting any proceedings in any court exercising jurisdiction under the Family Law Act 1975 (Cth), without first obtaining the permission of a Judge of the Family Court of Australia sitting at the registry at Parramatta.

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 Long & Tranh

Details

AGLC: Long & Tranh [2008] FamCA 730
Case: [2008] FamCA 730
Decision Date: 13 August 2008

CaseChat Overview and Summary

In the matter of *Long & Tranh*, Coleman J of the Family Court of Australia considered applications concerning the parental responsibility and living arrangements for a child born in October 1993. The proceedings involved the mother, Ms Long, and the father, Mr Tranh. The core of the dispute revolved around the child's relationship with the father and the mother's ability to have the child live with her and travel internationally.

The court was required to determine whether it was in the child's best interests to have a relationship with the father, and consequently, with whom the child should spend time. Furthermore, the court had to consider the mother's request to be permitted to remove the child from the jurisdiction from time to time. A related issue was whether the father should be declared a vexatious litigant under section 118 of the *Family Law Act 1975* (Cth), and the question of costs.

Coleman J reasoned that it was not in the child's best interests to spend time with the father, and therefore, the mother should have sole parental responsibility. The court ordered that the child live with the mother and spend no time with the father unless the child expressed a wish to do so. The father was directed to provide all necessary consents for the child to obtain a passport and visas, and to travel overseas, with a registrar authorised to execute these documents if the father refused. The court also made orders restraining both parties from instituting further proceedings without judicial permission, and dismissed all other applications. The father's confirmation that he would not sign the necessary documents meant the mother could proceed directly to seek the registrar's signature.

Orders

Orders of the court

That all previous parenting orders are hereby discharged.

That the mother Ms Long (hereinafter referred to as “the mother”) be allocated sole parental responsibility for the child born on in October 1993 (hereinafter referred to as “the child”) including the sole parental responsibility for obtaining overseas travel documents for the child, including a passport.

That the child live with the mother.

That the child spend no time with the father Mr Tranh (hereinafter referred to as “the father”) unless the child expresses a wish to do so.

That within 28 days of the making of these orders the father do all necessary and required things of him and sign all documents and consents required of him to enable the mother and/or the child to:

(i) Obtain a passport or visas for the child to allow the said child to travel overseas.

(ii) To remove the child and/or his mother from any airport watch list.

Should the father refuse or neglect to sign any document and/or give any consents reasonably required of him pursuant to Order 5 above then a registrar of the Family Court of Australia is hereby authorised pursuant to Section 106A of the Family Law Act 1975 (Cth) to do all acts and things necessary that should have been done by the father to give effect to these orders.

All other applications are dismissed.

That subject to Section 118 of the Family Law Act of 1975 (Cth), except for any appeal against these orders, both parties are restrained from the date of these orders from instituting any proceedings in any court exercising jurisdiction under the Family Law Act 1975 (Cth), without first obtaining the permission of a Judge of the Family Court of Australia sitting at the registry at Parramatta.

Amended Order Notation:

That the father has confirmed to the Court that he will not sign the documents referred to in these orders and in those circumstances the mother need not further submit such documents to the father before seeking the Registrar of the Family Court to sign such documents pursuant to Section 106A of the Family Law Act 1975 (Cth).

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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