Zanda and Zanda - [2014] FCCA 1333

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZANDA & ZANDA

[2014] FCCA 1333

Catchwords:
FAMILY LAW – Parenting – proceedings dealt with on an ex parte basis – risk of party and children departing Commonwealth of Australia if notified of proceedings – where the departure of a party and children would render relief sought nugatory – Airport Watchlist order – allegations of family violence – separation from caregiver potentially psychologically harmful to children.

Legislation:

Family Law Act 1975, ss.4, 4AB, 60B, 60CA, 60CC(2), 61DA, 61F, 65DAA(5), 67ZBB, 68B, 114

Federal Circuit Court Rules 2001, r.5.03

Applicant:

MS ZANDA

Respondent:

MR ZANDA

File Number:

PAC 1889 of 2014

Judgment of:

Judge Harman

Hearing date:

28 April 2014

Date of Last Submission:

28 April 2014

Delivered at:

Parramatta

Delivered on:

28 April 2014

REPRESENTATION

Solicitors for the Applicant:

Legal Aid New South Wales

Solicitors for the Respondent:

N/A ex parte application

ORDERS

By reference to Part 5 of the Federal Circuit Court Rules 2001, declare that I am satisfied that it is appropriate for the Application in a Case filed 28 April 2014 to be dealt with by the Court on an ex parte basis.
That until further Order the respondent father Mr Zanda, born (omitted) 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 each party, Ms Zanda, born (omitted) 1981, and Mr Zanda, born (omitted) 1975 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children T (born (omitted) 2001); U (born (omitted) 2003); V (born (omitted) 2005); W (born (omitted) 2006); X (born (omitted) 2008); Y (born (omitted) 2010); and Z (born (omitted) 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 child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watch List until the Court orders its removal.
Pursuant to section 68B and pending further Order, the Respondent Father Mr Zanda shall be is hereby restrained and injuncted from:
(a)Entering upon or approaching within 100 metres of the place of residence of the mother and the children W, X, Y and Z or any school or educational institution attended by those children or any of them;
(b)Taking or attempting to take the children W, X, Y and or Z into his care whether personally or through any other person or agent.
Vacate the return date of the Initiating Application namely, 3 June 2014.
Adjourn all extant Applications for further mention…

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 [2014] FCCA 1333
Case: [2014] FCCA 1333
Decision Date: 28 April 2014

CaseChat Overview and Summary

In *Zanda and Zanda*, the Federal Circuit Court of Australia considered an application made by Ms Zanda against Mr Zanda concerning their seven children. The application was heard on an ex parte basis, meaning only one party was present.

The primary legal issues before the Court were whether it was appropriate to proceed ex parte, and what interim orders were necessary to protect the children and ensure their welfare. Specifically, the Court had to determine whether to restrain the respondent father from leaving Australia, whether to restrain both parties from removing the children from Australia, and whether to impose further restrictions on the father's contact with some of the children.

Judge Harman found it appropriate to proceed ex parte, noting the applicant's efforts to serve the respondent. The Court then made several orders pursuant to its family law jurisdiction. These included restraining the respondent father from leaving the Commonwealth of Australia and placing his name on the Family Law Watchlist. Both parties were restrained from removing the children from Australia, with the children's names also to be placed on the Family Law Watchlist. Furthermore, the respondent father was restrained from approaching within 100 metres of the mother's residence or the children's schools, and from taking or attempting to take the children into his care. The Court also vacated the return date of the initiating application, adjourned other applications for further directions, and granted leave to amend service documents. The applicant was directed to serve the respondent with the applications, orders, and reasons for judgment as soon as practicable.

Orders

Orders of the court

By reference to Part 5 of the Federal Circuit Court Rules 2001, declare that I am satisfied that it is appropriate for the Application in a Case filed 28 April 2014 to be dealt with by the Court on an ex parte basis.

That until further Order the respondent father Mr Zanda, born (omitted) 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 each party, Ms Zanda, born (omitted) 1981, and Mr Zanda, born (omitted) 1975 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children T (born (omitted) 2001); U (born (omitted) 2003); V (born (omitted) 2005); W (born (omitted) 2006); X (born (omitted) 2008); Y (born (omitted) 2010); and Z (born (omitted) 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 child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watch List until the Court orders its removal.

Pursuant to section 68B and pending further Order, the Respondent Father Mr Zanda shall be is hereby restrained and injuncted from:

(a) Entering upon or approaching within 100 metres of the place of residence of the mother and the children W, X, Y and Z or any school or educational institution attended by those children or any of them;

(b) Taking or attempting to take the children W, X, Y and or Z into his care whether personally or through any other person or agent.

Vacate the return date of the Initiating Application namely, 3 June 2014.

Adjourn all extant Applications for further mention and directions to 9.30am on 19 May 2014.

Grant leave to the solicitor for the Applicant to amend the return date of the service copies of documents filed to date and to do so prior to service upon the Respondent.

The Applicant shall do all things within her power to cause the Application in a Case and Initiating Application and supporting Affidavit’s to be served upon the Respondent or otherwise brought to his attention as soon as practicable and shall in addition, cause a copy of these Orders and if available, reasons for Judgment to be served upon the Respondent.

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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