Zanda and Zanda - [2016] FamCA 625

FAMILY COURT OF AUSTRALIA

ZANDA & ZANDA

[2016] FamCA 625

FAMILY LAW – CHILDREN – Final parenting – Where there are seven children of the relationship – Where the father and the three eldest children remain in Lebanon – Where the father has failed to return the children to Australia – Where the father has disengaged from the proceedings –Appropriate to make orders as to the four children in Australia in the absence of the father – Undefended hearing – Family violence perpetrated by the father – Father’s aberrant conduct – Best interests of the children – Children to remain living with the mother—Mother to have sole parental responsibility.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode[2006] FamCA 1346
Mazorski & Albright[2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4
Zanda & Zanda [2014] FamCAFC 173

APPLICANT:

Ms Zanda

RESPONDENT:

Mr Zanda

INDEPENDENT CHILDREN’S LAWYER:

Shedden & Associates

FILE NUMBER:

PAC

1889

2014

DATE DELIVERED:

5 August 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

15 June 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Legal Aid NSW Bankstown Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Shedden & Associates

Orders

That all previous orders be discharged.
That mother have sole parental responsibility for the children W born … 2006, X born … 2008, Y born … 2010 and Z born … 2012 ("the children").
That the children live with the mother.
That the Court requests the appropriate officer of the Department of Immigration and Border Protection and the appropriate officer of the Australian Federal Police notify the Mother in the event of the re-entry of the Father Mr Zanda born … 1975 in Australia and or any of the children T born … 2001, U born … 2003 and V born … 2005.
That the respondent father Mr Zanda born …1975 be restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the respondent’s name on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the respondent’s name on the Watch List until the Court orders its removal.
That until further order the respondent father, Mr Zanda born … 1975, his servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of the children T born … 2001, U born … 2003, V born … 2005, W (W) born … 2006, X born … 2008, Y born … 2010 and Z born … 2012 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said respondent father and the said children on…

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 Zanda and Zanda

Details

AGLC: Zanda and Zanda [2016] FamCA 625
Case: [2016] FamCA 625
Decision Date: 5 August 2016

CaseChat Overview and Summary

In the matter of *Zanda and Zanda*, Foster J of the Federal Circuit and Family Court of Australia considered an application concerning the parental responsibility and location of several children. The dispute involved the mother and the father, Mr Zanda, regarding the welfare and movement of their children.

The court was required to determine issues of sole parental responsibility, the children's living arrangements, and the father's ability to travel internationally with the children. Crucially, the court also had to consider measures to prevent the removal of the children from Australia and to facilitate the mother's international travel with them.

Foster J ordered that the mother have sole parental responsibility for the children and that they live with her. The court also issued injunctions restraining the father from leaving Australia and from removing or attempting to remove any of the children from the Commonwealth. To enforce these orders, the father's and children's names were to be placed on the Family Law Watchlist. The mother was permitted to travel internationally with the children and to apply for their passports without the father's consent. All previous orders were discharged, and other applications before the court were dismissed.

Orders

Orders of the court

That all previous orders be discharged.

That mother have sole parental responsibility for the children W born … 2006, X born … 2008, Y born … 2010 and Z born … 2012 ("the children").

That the children live with the mother.

That the Court requests the appropriate officer of the Department of Immigration and Border Protection and the appropriate officer of the Australian Federal Police notify the Mother in the event of the re-entry of the Father Mr Zanda born … 1975 in Australia and or any of the children T born … 2001, U born … 2003 and V born … 2005.

That the respondent father Mr Zanda born …1975 be restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the respondent’s name on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the respondent’s name on the Watch List until the Court orders its removal.

That until further order the respondent father, Mr Zanda born … 1975, his servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of the children T born … 2001, U born … 2003, V born … 2005, W (W) born … 2006, X born … 2008, Y born … 2010 and Z born … 2012 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said respondent father and the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the father’s name and the children’s names on the Watchlist until the Court orders its removal.

That notwithstanding the previous orders the mother is permitted to travel internationally with the children.

The mother may apply for an Australian travel document (passport) for the children T born … 2001, U born … 2003, V born … 2005, W (W) born … 2006, X born … 2008, Y born … 2010 and Z born … 2012 without first obtaining the consent of the father.

Liberty to apply as to the operation and effect of Orders (5) and (6).

10.

That otherwise all applications before the Court be dismissed and proceedings removed from the pending cases list.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.