Trinh & Trinh - [2023] FedCFamC2F 943

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Trinh & Trinh [2023] FedCFamC2F 943

File number(s): MLC 3119 of 2023

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 24 July 2023

Catchwords: FAMILY LAW – final parenting orders – no appearance by the father – whether to proceed in the absence of a party – whether to proceed in the absence of the child’s current carer – whether there is jurisdiction in this court to make parenting orders – child is present and habitually resident in a country that is not a party to the 1996 Hague Convention – whether section 111CC applies – no contradictor to the application – mother seeking to apply for a visa for the child – evidence of the father’s intention to agree with the visa application – order for sole parental responsibility and child to live with the mother.

Legislation:
Acts Interpretation Act 1901 (Cth) s 15AB

Evidence Act 1995 (Cth) s 144

Family Law Act1975 (Cth) ss 69E, 111CC, 111CD

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children

Cases cited:
Alfarsi & Elhage [2016] FamCA 428

Bunyon & Lewis (No 3) [2013] FamCA 888

Fox v Percy (2003) 214 CLR 118

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355

Yaling & Tsen [2022] FedCFamC1F 347

Division: Division 2 Family Law

Number of paragraphs: 51

Date of hearing: 24 July 2023

Place: Melbourne

Solicitor for the Applicant: Vassis & Co

Counsel for the Applicant: Mr Mort

The Respondent: No appearance
ORDERS

MLC 3119 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS TRINH

Applicant

AND:
MR TRINH

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

24 JULY 2023

THE COURT ORDERS THAT:
1.The Mother have sole parental responsibility for the child X born 2011 (“the child”).
2.The child live with the Mother.
3.The child spend time with the Father as agreed between the parents.
4.The Mother be permitted to provide the Department of Home Affairs with a true sealed copy of these orders and reasons (when available).
5.The Mother do all acts and things, to the extent that she is able, to bring a copy of these orders and the reasons (when available) to the attention of:
(a)The Maternal Grandmother; and
(b)The Father.

6.All extant applications are dismissed.

AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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)…

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 Trinh & Trinh

Details

AGLC: Trinh & Trinh [2023] FedCFamC2F 943
Case: [2023] FedCFamC2F 943
Decision Date

CaseChat Overview and Summary

The case of Trinh & Trinh involved a parenting application brought by Ms Trinh for sole parental responsibility over her daughter, X, and an order that X live with her. Mr Trinh, X’s father, did not appear in court, nor did X’s maternal grandmother, with whom X currently resides in Country B. The central legal issue was whether the court had jurisdiction to make parenting orders over X, given that she is not habitually resident in Australia and Country B is not a party to the 1996 Hague Convention. The court had to determine whether the provisions of sections 111CC and 111CD of the Family Law Act 1975 applied, which would limit its jurisdiction.

Judge O’Shannessy examined the statutory provisions and concluded that the court had jurisdiction to make the parenting orders. Section 69E of the Act provides for jurisdiction if a parent of the child is an Australian citizen or ordinarily resident in Australia, which applied to Ms Trinh. The court found that sections 111CC and 111CD did not apply because there was no dispute or issue under the Act about whether the Australian court or a competent authority in Country B had jurisdiction. All parties, including X’s father, appeared to agree that X should live in Australia with her mother.

The court was satisfied that it was in X’s best interests to live with her mother in Australia. It made orders for sole parental responsibility to Ms Trinh and for X to live with her, while allowing for X to spend time with her father as agreed by the parents. The court also noted that the orders would be provided to the Department of Home Affairs to assist Ms Trinh’s application for a visa for X.

Orders