FAMILY COURT OF AUSTRALIA
Manesh & Manesh (No. 3) [2021] FamCAFC 113
Appeal from: Manesh & Manesh [2020] FamCA 792 Appeal number(s): SOA 86 of 2020 File number(s): MLC 8955 of 2019 Judgment of: ALDRIDGE, WATTS & AUSTIN JJ Date of judgment: 16 July 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against interim parenting orders – Father to have no time with the child – Allegations of family violence – Where the primary judge did not err in finding an unacceptable risk – Where supervision would not ameliorate the unacceptable risk – No evidence put before the primary judge as to details of proposed supervision – Finding of unacceptable risk was open on the evidence – Where significant weight was given to the child’s views – Unchallenged evidence as to the child’s age and maturity – Where the father chose not to participate in the Family Report interviews – Appeal dismissed – Written submissions to be provided as to costs. Legislation: Family Law Act 1975 (Cth) s 60CC(3)
Family Law Rules 2004 (Cth) Sch 3
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Marvel v Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
Meadows & Meadows (2019) FLC 93-883; [2019] FamCAFC 1
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Redmond & Redmond [2014] FamCAFC 155
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
SS & AH [2010] FamCAFC 13
Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207
Division: Appeal Division Number of paragraphs: 64 Date of hearing: 26 April 2021 Place: Heard in Melbourne, delivered in Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Goddard Solicitor for the Respondent: Freeman Family Law The Independent Children's Lawyer: Did not participate in the appeal ORDERS
SOA 86 of 2020
MLC 8955 of 2019APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR MANESH
Appellant
AND: MS MANESH
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE, WATTS & AUSTIN JJ
DATE OF ORDER:
16 JULY 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.Costs are reserved.
3.The appellant is to file and serve written submissions dealing with the issue of costs within fourteen (14) days of these orders, with the respondent to file submissions in response within a further fourteen (14) days. The appellant to have the option to file submissions in reply within a further seven (7) days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons…
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- AGLC
- Manesh and Manesh (No. 3) [2021] FamCAFC 113
- Case
- [2021] FamCAFC 113
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal were whether the primary judge's findings of an unacceptable risk of harm were open on the evidence and whether the proposed orders for supervision could have mitigated this risk. The father contended that the primary judge did not adequately explain why the evidence led to a finding of an unacceptable risk, did not consider all the evidence, and gave excessive weight to certain evidence. The Court examined the evidence presented, including allegations of serious family violence by the father, the child's account of her experiences, and the father's denial of these allegations. The Court concluded that the primary judge's findings were adequately supported by the evidence and that the proposed supervision would not have ameliorated the unacceptable risk.
The Court of Appeal held that the primary judge did not err in finding an unacceptable risk of harm and that supervision would not have been an effective measure to mitigate this risk. The Court found that the primary judge provided sufficient reasons for his decision and adequately weighed the evidence presented. The father's submission that the primary judge did not consider all the evidence or gave excessive weight to certain evidence was rejected. The Court also noted that the father chose not to participate in the Family Report interviews, which further undermined his case. The appeal was dismissed, and the Court reserved costs, directing the parties to file written submissions on the issue of costs within specified timeframes.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. Costs are reserved.
3. The appellant is to file and serve written submissions dealing with the issue of costs within fourteen (14) days of these orders, with the respondent to file submissions in response within a further fourteen (14) days. The appellant to have the option to file submissions in reply within a further seven (7) days.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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