Thanh & Thanh - [2022] FedCFamC2F 226

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Thanh & Thanh [2022] FedCFamC2F 226

File number(s): MLC1350 of 2022

Judgment of: JUDGE MCNAB

Date of judgment: 21 February 2022

Catchwords: FAMILY LAW – urgent application – father previously had care of child whilst the mother resided in Country B – no proper arrangements in place to care for the child – orders made for the child to live with the mother and her family in Country B.

Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(3).

Division: Division 2 General Federal Law

Number of paragraphs: 36

Date of last submission/s: 16 February 2022

Date of hearing: 21 February 2022

Place: Melbourne

Counsel for the Applicant: Ms P Villella

Solicitor for the Applicant: Lanham Lawyers Pty Ltd

Solicitor for the Respondent: TQH Lawyers & Consultants
ORDERS

MLC1350 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS THANH

Applicant

AND:
MS THANH

Respondent

ORDER MADE BY:

JUDGE MCNAB

DATE OF ORDER:

21 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The Mother have sole parental responsibility for the child X born in 2011 (‘the child’).
2.The child live with the Mother.
3.The child spend time with the Father as agreed between the Mother and the Father in writing.
4.The child communicate with the Father via video conferencing platforms and telephone at times as agreed between the Mother and the Father in writing.
5.The Father be permitted to send the child cards, letters and presents and the Mother to facilitate giving these to the child.
6.Both parties are to keep the other informed of their current residential address, mobile telephone number and email address and notify the other in writing within a reasonable period to any change of residential address and within 48 hours of any change of their mobile telephone number or email address.
7.The Mother to keep the Father informed of any serious injury suffered by the child requiring a hospital admission.
8.The Mother to keep the Father informed of the child’s education including where the child attends school, and the Father is at liberty to contact the child’s school to obtain all information ordinarily provided to parents including in relation to the child’s progress, at the Father’s expense, and the parties or either of them shall provide a copy of this Order to the school as authorisation for same.
9.The Mother is authorised and permitted to relocate the child to Country B on a permanent basis.

THE COURT DECLARES THAT:
10.Pursuant to ss.7 and 11 of the Australian Passports Act 2005 (Cth) and the court being satisfied that it is not practicable to obtain the consent of the respondent father to enable the child of the relationship X born in 2011 to obtain an Australian Passport to travel internationally, the Court makes the following orders:

THE COURT ORDERS THAT:
11.The Mother of the child X born in 2011 be permitted to apply for an Australian Passport to enable the child to travel internationally notwithstanding that the…

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 Thanh & Thanh

Details

AGLC: Thanh & Thanh [2022] FedCFamC2F 226
Case: [2022] FedCFamC2F 226
Decision Date

CaseChat Overview and Summary

The case involves an urgent application concerning the child X born in 2011. The Applicant, Ms Thanh, and the Respondent, also Ms Thanh, were previously married but separated in May 2013 and divorced in May 2014. The Applicant filed an urgent application on 14 February 2022 to determine the parenting arrangements for the child. The matter was heard on 21 February 2022. The Applicant seeks sole parental responsibility for the child and for the child to live with her in Country B. The Respondent opposes the application. The primary legal issues before the Court were whether the orders sought by the Applicant were in the best interests of the child and whether the Court should grant sole parental responsibility to the Applicant. The Court found that the orders sought by the Applicant were in the best interests of the child, taking into consideration the primary and secondary considerations set out in s60CC of the Family Law Act 1975 (Cth). The Court gave greater weight to the consideration of protecting the child from physical or psychological harm or being exposed to abuse, neglect or family violence. The Court found that the child was in a situation where he was, effectively, in the care of a non-family member whilst his Father was incarcerated. The Applicant was not in a position to remain in Australia indefinitely to look after the child, and arrangements must be made to protect the child. The Respondent did not have the capacity to care for the child due to his incarceration and there were no formal arrangements in place to look after the child in the absence of the Applicant. The Court made orders for the Applicant to have sole parental responsibility for the child, for the child to live with the Applicant, and for the child to spend time with the Respondent as agreed between the Applicant and Respondent in writing. The Court also made orders for the Respondent to sign the document to enable the child to obtain a visa and for the Applicant to apply for an Australian Passport for the child to travel internationally without the permission of the Respondent. The Court made these orders in the best interests of the child.

Orders