Vannak & Dara (No 2)

Case [2024] FedCFamC2F 1762


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Vannak & Dara (No 2) [2024] FedCFamC2F 1762

File number: MLC 6592 of 2022
Judgment of: JUDGE BROWN
Date of judgment: 11 December 2024
Catchwords: FAMILY LAW – PARENTING – Final hearing – Child aged 4 – Where the child is of a mixed cultural background – Relationship of 6 years – Where the mother and child relocated to Adelaide with the consent of the father in 2022 – Where the father relocated to Adelaide during the trial and without notice to the mother – Where the father seeks an equal shared care arrangement – Where the mother and the ICL seek the child spend no time with the father – Where the parties have no capacity to co-parent – Considerations of family violence – Overseas travel – Matters to be considered
Legislation:

Evidence Act1995 (Cth) ss 69, 140

Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60CA, 60CC, 61DA, 64B 65DAA, 68LA, 102NA

Family Law Amendment Act 2023 (Cth)

Cases cited:

B & B: Family Law Reform Act 1995 (1997) 21 Fam LR 676

Bright v Bright (1995) FLC 92-570

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman [2015] FamCAFC 104

Fox v Percy (2003) 214 CLR 118

Gin & Hing [2010] FamCA 617

Goode & Goode [2006] FamCA 1346

In The Marriageof Patsalou (1994) 18 Fam LR 426

JG & BG (1994) 18 Fam LR 255

Johnson and Page (2007) FLC 93-344

Kuebler & Kuebler (1978) FLC 90-434

Line & Line (1997) FLC 92-729

Marvel & Marvel (No 2) [2010] FamCAFC 101

Moose & Moose (2008) FLC 93-375

Russell & Russell & Anor [2009] FamCA 28

Slater & Light [2013] FamCAFC 4

Vannak & Dara [2022] FedCFamC2F 1585

Division: Division 2 Family Law
Number of paragraphs: 427
Date of last submissions: 1 October 2024
Date of hearing: 12, 13 & 14 February 2024, 13 & 14 May 2024, 24 September 2024 & 1 October 2024
Place: Adelaide
Counsel for the Applicant: Mr Britton (12, 13 & 14 February 2024, 13 & 14 May 2024), self-represented litigant (24 September 2024, 1 October 2024)
Solicitor for the Applicant: Daniel John Lawyers (12, 13 & 14 February 2024, 13 & 14 May 2024), self-represented litigant (24 September 2024, 1 October 2024)
Counsel for the Respondent: Mr McQuade
Solicitor for the Respondent: Dixon Gallasch Pty Ltd
Counsel for the Independent Children's Lawyer: Ms Horvat
Solicitor for the Independent Children's Lawyer: Lee Kelly Legal

ORDERS

MLC 6592 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR VANNAK

Applicant

AND:

MS DARA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

11 DECEMBER 2024

THE COURT ORDERS THAT:

1.All previous parenting orders be discharged.

2.The Respondent Ms Dara (“the mother”) have sole parental responsibility in relation to decisions concerning the long-term care, welfare and development of the child X born in 2020 (“the child”).

3.The child live with the mother.

4.The Applicant Mr Vannak…

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Details
AGLC
Vannak & Dara (No 2) [2024] FedCFamC2F 1762
Case
[2024] FedCFamC2F 1762
Decision Date

CaseChat Overview and Summary

The matter before the Court was an application for parenting orders in relation to a child named X. The Applicant, Mr Vannak, and the Respondent, Ms Dara, were in a relationship for six years and have a four-year-old child together. The child has a mixed cultural background. The parties had agreed for the child to relocate to Adelaide with the mother, Ms Dara, in 2022. During the trial, the father relocated to Adelaide without notice to the mother. The father sought an equal shared care arrangement, while the mother and the Independent Children’s Lawyer sought for the child to have no contact with the father. The Court was required to consider the best interests of the child, the capacity of the parties to co-parent, and the potential for family violence. The Court also had to consider the child’s overseas travel arrangements.

The Court found that the parties did not have the capacity to co-parent and that there was a risk of family violence. The Court noted that the father had a history of violence towards the mother and had breached existing restraining orders. The Court also found that the father had placed the child on the Airport Watch List, which was a breach of the child’s rights. The Court held that it was in the best interests of the child to have sole parental responsibility with the mother, with the father having limited contact. The Court also ordered that the father be restrained from contacting the mother or the child, and that the child’s passport be issued in the name of the mother only.

The Court ordered that all previous parenting orders be discharged, and that the mother have sole parental responsibility in relation to decisions concerning the long-term care, welfare and development of the child. The child was to live with the mother, and the father was to have limited contact via letters, cards and/or gifts. The father was also restrained from contacting the mother or the child, and from attending or removing the child from any childcare or educational institution. The Court further ordered that the Australian Passport Office issue a passport in the name of the child, and that the passport be retained by the mother. The Court dismissed all other applications.

This case highlights the importance of considering the best interests of the child in parenting disputes, and the need for the Court to ensure that the child’s rights are protected. The Court also emphasised the need for the parties to have the capacity to co-parent, and the potential consequences of family violence on the child. The Court’s orders reflect the need for the mother to have sole responsibility for the child, and the need to protect the child from the father’s potential harm.

Orders

Orders of the court

MLC 6592 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR VANNAK

Applicant

AND:

MS DARA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

11 DECEMBER 2024

THE COURT ORDERS THAT:

1. All previous parenting orders be discharged.

2. The Respondent Ms Dara (“the mother”) have sole parental responsibility in relation to decisions concerning the long-term care, welfare and development of the child X born in 2020 (“the child”).

3. The child live with the mother.

4. The Applicant Mr Vannak (“the father”) is at liberty to communicate with the child by way of letters, cards and/or gifts, with the father to forward all said letters, cards and/or gifts to the PO Box address provided to him by the mother.

5. To facilitate compliance with Order 4 herein, within seven (7) days the mother do provide the father with the details of a PO Box in her name.

6. The mother is at liberty to review the appropriateness of the content of any letters, cards and/or gifts forwarded by the father to the child prior to passing on any of these items to the child.

7. Pursuant to section 68B of the Family Law Act 1975 (Cth) the father is restrained, and injunctions are hereby granted restraining him from:

(a) abusing, rebuking, assaulting or harassing the mother at any time or instructing any other person to do so on his behalf;

(b) using or threatening to use violence against the mother and/or instructing any other person to do so on his behalf;

(c) telephoning, texting, emailing, messaging the mother (including via social networking websites or other form of electronic messaging), save and except in compliance with parenting arrangements pursuant to these Orders;

(d) posting photos and/or videos of the mother on the internet (including on any social media sites or any electronic messaging platform);

(e) damaging, attempting to damage or threatening to damage any property owned (whether solely or jointly with another), via, or in the possession or control of, the mother or in any way instructing any other person to do so on his behalf; and

(f) entering or attempting to enter any property or place where he knows or believes the mother to be attending at any given time.

8. The father is restrained, and injunctions are hereby granted restraining him from:

(a) attending and/or removing the child from any childcare centre and/or pre-school or kindergarten or school that the child attends; and

(b) placing or causing to be placed in travel alerts on the Australia Federal Police’s Airport Watch List against the child’s name.

9. The parties each keep the other informed of their current email address and mobile telephone number and advise any change to same within seven (7) days of such change taking place.

10. The mother shall provide a copy of this Order to the child’s school/s, medical and/or allied health providers.

11. Within seven (7) days of the making of these Orders the Court requests that the Australian Federal Police remove the name of the child from the Airport Watch List at all points of international arrivals and departures in Australia and shall not be reinstated thereon save and except by further order of this Court.

12. Pursuant to section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) the Australian Passport Office of the Department of Foreign Affairs and Trade issue a passport in the name of the said child upon the filing of the appropriately completed application form exhibiting the permission of the mother NOTING all costs associated are to be paid solely by the mother.

13. The requirement for the permission and/or consent of the father to the issue of the said passport be dispensed with.

14. The child’s passport be retained by the mother.

15. All extant applications be dismissed.

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) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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