Visham & Parani - [2022] FedCFamC2F 826

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Visham & Parani [2022] FedCFamC2F 826

File number(s): MLC 3840 of 2020

Judgment of: JUDGE HARLAND

Date of judgment: 19 May 2022

Catchwords: FAMILY LAW – undefended parenting hearing – family violence – father using proceedings to continue family violence

Legislation: Family Law Act (1975) Cth pt VII, ss 60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA, 67Z

Cases cited:
Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

MRR v GR [2010] 240 CLR 461

Waterford & Waterford [2013] FamCA 33

Division: Division 2 Family Law

Number of paragraphs: 41

Date of hearing: 19 May 2022

Place: Melbourne

Counsel for the Applicant: In person

Counsel for the Respondent: No appearance

Counsel for the Independent Children's Lawyer: Ms Bonney

Solicitor for the Independent Children's Lawyer: Ebejer and Associates
ORDERS

MLC 3840 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS VISHAM

Applicant

AND:
MR PARANI

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

19 MAY 2022

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The mother have sole parental responsibility for the child X born in 2011 (“X”) with no obligation to keep the Respondent father informed of any matters relevant to X’s welfare and development.
3.X live with the Applicant mother.
4.X spend no time with the Respondent father.
5.The Applicant mother facilitate communication with the Respondent father at X’s request only.
6.The Applicant mother is authorised to apply for and receive an Australian passport for X without first obtaining the written consent of the Respondent father.
7.The Applicant mother be authorised to apply for and receive an Overseas Citizenship of India (OCI) for X without first obtaining the written consent of the Respondent father, and is authorised to provide a copy of these Orders to any Australian and Indian authority or government body for the purposes of obtaining the OCI.
8.X be permitted to leave the Commonwealth of Australia, notwithstanding that the consent of the father has not been obtained.
9.The Australian Federal Police remove the name of the child X born in 2011 from the airport watch list at all points of international arrival and departure in Australia.
10.The Respondent Father be hereby restrained by way of an injunction from making further application to place X on the airport watch list.
11.The Applicant mother is authorised to provide a copy of these orders to X’s school.
12.The Independent Children’s Lawyer is hereby discharged.

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 and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.
B.Section 121 of the Family Law Act 1975 provides that it is an…

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 Visham & Parani

Details

AGLC: Visham & Parani [2022] FedCFamC2F 826
Case: [2022] FedCFamC2F 826
Decision Date

CaseChat Overview and Summary

The matter of Visham & Parani before Judge Harland in the Federal Circuit and Family Court of Australia concerned a parenting application initiated by the mother seeking to vary parenting orders made by consent in 2018. The court had to determine whether the existing orders should be maintained, or if new orders were required to protect the child from harm and to ensure her best interests were met.

The legal issues involved interpreting the Family Law Act 1975 and determining whether the existing parenting orders, which provided for equal shared parental responsibility and regular time for the father, were in the best interests of the child. The court also needed to consider the impact of family violence and the father's conduct during and outside the proceedings.

Judge Harland found that the father's conduct had continued to be coercive and controlling, both before and during the proceedings. The father had not complied with various orders, had failed to meaningfully engage in the proceedings, and had used the proceedings as a means to exert control over the mother and child. The child had expressed a clear wish not to see her father due to his unsafe behaviour. Based on the evidence, the court concluded that it was not in the child's best interests for the parents to have equal shared parental responsibility or for the father to spend time with the child. The mother was awarded sole parental responsibility and the father was prohibited from spending time with the child.

The court made various orders to protect the child from further harm, including removing the child from the airport watch list, prohibiting the father from applying to place her on the list again, and authorising the mother to obtain passports and an Overseas Citizenship of India without the father's consent. The mother was directed to facilitate contact with the father if and when the child wished, provided it was safe to do so.

Orders