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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- AGLC
- Vannak & Dara (No 2) [2024] FedCFamC2F 1762
- Case
- [2024] FedCFamC2F 1762
- Decision Date
CaseChat Overview and Summary
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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