BAINS & MERVIN - [2020] FamCA 569

FAMILY COURT OF AUSTRALIA

BAINS & MERVIN

[2020] FamCA 569

FAMILY LAW – CHILDREN – Undefended parenting – Where the mother has not properly engaged in the proceedings – Where the father seeks orders that he have sole parental responsibility for the children and that they spend no time with the mother – Where the mother poses serious risks of harm to the children – Where the mother’s partner poses significant risks of harm to the children – Harm posed to the children by parental drug use – Orders made as sought by the father.

Family Law Act 1975 (Cth) ss 60B, 61B, 60CA, 60CC, 61C, 61DA, 65D, 69ZN
Family Law Rules 2004 (Cth) rr 1.12, 11.02, 16.07

Abboud & Adjani [2019] FamCA 525
G & C [2006] FamCA 994
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT:

Mr Bains

RESPONDENT:

Ms Mervin

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid

FILE NUMBER:

PAC

4922

2019

DATE DELIVERED:

15 July 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

25 March 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Mansour

SOLICITOR FOR THE RESPONDENT:

Self represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid

Orders

The applicant father have sole parental responsibility for the children X born … 2010, Y born … 2011, Z born … 2012 and W born … 2013 (“the children”).
The children spend no time with the respondent mother.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bains & Mervin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4922 of 2019

Mr Bains

Applicant

And

Ms Mervin

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern the long term parenting arrangements for four children, aged between seven and 10 (“the children”).
The father commenced these proceedings in October 2019 after he unilaterally retained the children from the mother due to concerns that they were at risk in her care. He alleges that the mother has physically abused the children and exposed them to risks posed by her partner, a registered sex offender, with whom she and children lived. The father sought orders that the children live with him, that he hold sole responsibility for them, that the children spend no time with the mother, that she be restrained from removing the children from his care and that the mother be restrained from allowing the children to have any contact with her…

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 BAINS & MERVIN

Details

AGLC: BAINS & MERVIN [2020] FamCA 569
Case: [2020] FamCA 569
Decision Date: 15 July 2020

CaseChat Overview and Summary

In the matter of *Bains & Mervin*, the applicant father sought sole parental responsibility for the four children of the marriage, and that the children spend no time with the respondent mother. The decision was made by Hannam J.

The central legal issue before the court was whether it was in the best interests of the children for the father to have sole parental responsibility and for the mother to have no contact. This required the court to consider the relevant provisions of the *Family Law Act 1975* (Cth) concerning the welfare of children and the factors to be taken into account when determining parenting arrangements.

Hannam J's reasoning, though not detailed in the provided text, led to the conclusion that the children's best interests were served by the orders made. The court applied the principles of the *Family Law Act 1975* (Cth) to the facts before it, which necessitated a determination that sole parental responsibility for the father and no time with the mother was the appropriate outcome.

The court ordered that the applicant father have sole parental responsibility for the children, and that the children spend no time with the respondent mother.

Orders

Orders of the court

The applicant father have sole parental responsibility for the children X born … 2010, Y born … 2011, Z born … 2012 and W born … 2013 (“the children”).

The children spend no time with the respondent mother.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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