NASHI & SHONA - [2016] FamCA 291

FAMILY COURT OF AUSTRALIA

NASHI & SHONA

[2016] FamCA 291

FAMILY LAW – CHILDREN – With whom the child lives – With whom the child spends time – Parental responsibility – Best interests of the child – No participation by the father – Issues of family violence – Issues of the father’s mental health – Unacceptable risk of harm – Need to protect the child from harm – Nature of the child’s relationship with each parent – Capacity of each parent to provide for the child’s needs – Attitude to the child and responsibilities of parenthood – Travel

FAMILY LAW – PRACTICE AND PROCEDURE - Non-appearance of a party – Undefended final hearing.

Evidence Act 1995 (Cth) s 140.
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 65DAC, 69ZN.
Family Law Rules 2004 (Cth) r 16.07

Deiter & Deiter [2011] FamCAFC 82.
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Johnson & Page [2007] FamCA 1235.
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
Nashi & Shona [2014] FamCA 706
Orwell & Watson [2008] FamCAFC 62
Oscar & Delaware;Oscar & Austen [2014] FamCAFC 32
Ruth & Hutton [2011] FamCAFC 99

APPLICANT:

Ms Nashi

RESPONDENT:

Mr Shona

INDEPENDENT CHILDREN’S LAWYER:

Mr Reeve

FILE NUMBER:

PAC

3419

2013

DATE DELIVERED:

28 April 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

15 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Weaver

SOLICITOR FOR THE APPLICANT:

Mahony Family Lawyers

SOLICITOR FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Marsdens Law Group

Orders

(1)That the mother shall have sole parental responsibility for the child the child B born … 2007 (“the child”).
(2)That the child shall live with his mother.

(3)That the child shall not spend any time or communicate with his father.

(4)That pursuant to s 68B of the Family Law Act 1975 (Cth), and for the personal protection of the mother and the child B, the father shall:

(a)Be restrained and prohibited from removing or attempting to remove the child from the mother’s care, and
(b)Be restrained from approaching the mother or the child, attending at or being within 100 metres of the mother’s residence or place of employment or attending at or being within 100 metres of the child’s school.

(5)The injunctions referred to in Order (4) are orders to which the power of arrest under s 68C of the Family Law Act 1975 (Cth) applies.
(6)IT IS FURTHER NOTED that Order 1 vests in the mother sole parental responsibility for the purposes of the Australian Passports Act 2005 (Cth) such that the mother is accordingly authorised to obtain any passport or travel document required to facilitate the child travelling overseas without first notifying or obtaining the consent of the father.

(7)Pursuant…

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 NASHI & SHONA

Details

AGLC: NASHI & SHONA [2016] FamCA 291
Case: [2016] FamCA 291
Decision Date: 28 April 2016

CaseChat Overview and Summary

In the matter of NASHI & SHONA, heard by Hannam J, the dispute concerned the living arrangements and parental responsibility for a child, B, born in 2007. The father did not participate in the proceedings, which proceeded as an undefended final hearing.

The court was required to determine the best interests of the child, specifically with whom the child should live, with whom the child should spend time, and the nature of parental responsibility. Key issues before the court included allegations of family violence, the father's mental health, and whether there was an unacceptable risk of harm to the child. The court also considered the child's relationship with each parent, each parent's capacity to meet the child's needs, and their respective attitudes towards the child and their parental responsibilities, including issues of travel.

Hannam J applied the principles of the *Family Law Act 1975* (Cth), focusing on the paramount consideration of the child's best interests and the need to protect the child from harm. The court found that there was an unacceptable risk of harm to the child arising from the father's conduct and mental health. Consequently, the court determined that it was in the child's best interests for the mother to have sole parental responsibility and for the child to live with her. The court also ordered that the child should not spend any time or communicate with the father, and made significant injunctions to protect the mother and child from the father, including prohibitions on approaching them or their residences and places of employment or education, with the power of arrest attached.

The court further ordered that the mother have sole parental responsibility for the purposes of the *Australian Passports Act 2005* (Cth), authorising her to obtain a passport for the child without the father's consent. Finally, pursuant to s 65Y of the *Family Law Act 1975* (Cth), the mother was authorised to remove the child from the Commonwealth of Australia for travel at her discretion.

Orders

Orders of the court

(1) That the mother shall have sole parental responsibility for the child the child B born … 2007 (“the child”).

(2) That the child shall live with his mother.

(3) That the child shall not spend any time or communicate with his father.

(4) That pursuant to s 68B of the Family Law Act 1975 (Cth), and for the personal protection of the mother and the child B, the father shall:

(a) Be restrained and prohibited from removing or attempting to remove the child from the mother’s care, and

(b) Be restrained from approaching the mother or the child, attending at or being within 100 metres of the mother’s residence or place of employment or attending at or being within 100 metres of the child’s school.

(5) The injunctions referred to in Order (4) are orders to which the power of arrest under s 68C of the Family Law Act 1975 (Cth) applies.

(6) IT IS FURTHER NOTED that Order 1 vests in the mother sole parental responsibility for the purposes of the Australian Passports Act 2005 (Cth) such that the mother is accordingly authorised to obtain any passport or travel document required to facilitate the child travelling overseas without first notifying or obtaining the consent of the father.

(7) Pursuant to s 65Y of the Family Law Act 1975 (Cth) the mother shall be authorised and entitled to remove the child from the Commonwealth of Australia for the purpose of travel at her discretion.

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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