Lamarre & Lamarre

Case [2024] FedCFamC1F 705

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Lamarre & Lamarre [2024] FedCFamC1F 705

File number: PAC 6726 of 2023
Judgment of: AUSTIN J
Date of judgment: 21 October 2024
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Parenting – Where the paternal grandparents review interim parenting orders made by a Senior Judicial Registrar (“the registrar”), which provide for the children to spend supervised time with them – Where the paternal grandparents seek orders for the children to live with them and spend supervised time with the mother – Where the paternal grandparents assert the mother poses a risk of physical and psychological harm to the children – Where the mother has passed the psychological assessments given by the single expert – Where the younger child made allegations of his sexual abuse by the paternal grandfather – Where the allegations were not substantiated by the authorities but the risk of harm is not eradicated – Where the trial is the time and place to settle factual controversies – Where the father lives overseas and is not a residential option for the children – Orders made to vary the length of supervised time the children spend with the paternal grandparents.  
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61B, 61C, 61D, 64B, 65D, 65AA, 69ZL
Cases cited:

Banks v Banks (2015) FLC 93-637; [2015] FamCAFC 36

Bustillo & Bustillo [2024] FedCFamC1F 556

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Division: Division 1 First Instance
Number of paragraphs: 76
Date of hearing: 21 October 2024
Place: Newcastle (via Microsoft Teams)
Counsel for the Applicants: Mr Apelbaum
Solicitor for the Applicants: T & S Law Firm
The First Respondent: Litigant in person
The Second Respondent: Litigant in person
Solicitor Advocate for the Independent Children's Lawyer: Mr Gonzalez
Solicitor for the Independent Children's Lawyer: Gonzalez and Co

ORDERS

PAC 6726 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR B LAMARRE

First Applicant

MS C LAMARRE

Second Applicant
AND:

MS LAMARRE

First Respondent

MR LAMARRE

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

22 OCTOBER 2024

THE COURT ORDERS THAT:

1.Order 3 made on 5 January 2024 is discharged.

2.Orders 4, 5, 8, 11, 14, 16 and 18 made on 8 July 2024 (as amended under the slip rule on 24 July 2024) are discharged.

3.The parties shall take all reasonable steps to ensure the children spend supervised time with the paternal grandparents from 10.00 am until 5.00 pm each Saturday (or Sunday in the alternative), upon the following conditions:

(a)the supervisor shall be the supervisor agreed between the parties or, in default, appointed by the Independent Children’s Lawyer (“the ICL”);

(b)the mother and the paternal grandparents shall forthwith contact and satisfactorily complete any intake procedures required by the supervisor;

(c)the venue at which the children spend time with the paternal grandparents shall be designated by the supervisor;

(d)the paternal grandparents shall pay the…

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AGLC
Lamarre & Lamarre [2024] FedCFamC1F 705
Case
[2024] FedCFamC1F 705
Decision Date

CaseChat Overview and Summary

The paternal grandparents, Mr B Lamarre and Ms C Lamarre, sought a review of the interim parenting orders made by the Senior Judicial Registrar on 8 July 2024, which were subsequently amended on 24 July 2024, in relation to two children under Part VII of the Family Law Act 1975 (Cth). The grandparents sought to have the children live with them and spend supervised time with the mother, while the mother argued against these changes, asserting that the grandparents posed a risk of harm to the children. Notably, the younger child had made allegations of sexual abuse against the paternal grandfather, which were not substantiated by the authorities but raised concerns about the risk of harm. The father, who lives overseas, was not considered a viable residential option for the children.

The court was required to decide several legal issues, including whether the paternal grandparents could be considered suitable caregivers for the children and whether the children should continue to live with their mother. The court also needed to assess the risk of harm posed by the paternal grandparents and whether the children should have supervised contact with them. The court considered the children's best interests as the paramount consideration, taking into account the objects of the legislation and the criteria specified by s 60CC of the Act.

The court determined that the trial was the appropriate time to resolve factual controversies and disputes between the parties. It noted that the interim hearing should not be used to settle factual disputes unless circumstances were urgent and there was no alternative. The court also highlighted that the children's best interests should be the primary consideration in making parenting orders. Given the untested evidence and factual disputes, the court decided that the paternal grandparents' application for the children to live with them and spend supervised time with the mother could not be resolved at this stage. However, the court did grant the paternal grandparents the right for the children to spend supervised time with them under specific conditions, including the appointment of a supervisor, completion of intake procedures, and compliance with the supervisor's directions. The court dismissed all other outstanding applications for interim parenting orders.

In summary, the court granted the paternal grandparents supervised visitation rights with the children but did not allow them to have residential care. The children were to continue living with their mother, and the father, who lives overseas, was not considered a viable residential option. The court's decision was based on the principle that the trial was the appropriate time to resolve factual controversies and that the children's best interests should be the primary consideration in making parenting orders.

Orders

Orders of the court

PAC 6726 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR B LAMARRE

First Applicant

MS C LAMARRE

Second Applicant

AND:

MS LAMARRE

First Respondent

MR LAMARRE

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

22 OCTOBER 2024

THE COURT ORDERS THAT:

1. Order 3 made on 5 January 2024 is discharged.

2. Orders 4, 5, 8, 11, 14, 16 and 18 made on 8 July 2024 (as amended under the slip rule on 24 July 2024) are discharged.

3. The parties shall take all reasonable steps to ensure the children spend supervised time with the paternal grandparents from 10.00 am until 5.00 pm each Saturday (or Sunday in the alternative), upon the following conditions:

(a) the supervisor shall be the supervisor agreed between the parties or, in default, appointed by the Independent Children’s Lawyer (“the ICL”);

(b) the mother and the paternal grandparents shall forthwith contact and satisfactorily complete any intake procedures required by the supervisor;

(c) the venue at which the children spend time with the paternal grandparents shall be designated by the supervisor;

(d) the paternal grandparents shall pay the costs of the supervisor;

(e) the parties shall comply with all reasonable requests and directions of the supervisor; and

(f) leave is granted to the parties to provide a copy of these orders to the supervisor.

4. Any and all other outstanding applications for interim parenting orders are dismissed.

NOTATION

A. The undischarged orders made on 5 January 2024 and 8 July 2024 (as amended on 24 July 2024) continue in force.

party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the superviso

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

These reasons explain the determination of the paternal grandparents’ application to review the interim parenting orders made by a senior judicial registrar (“the registrar”) on 8 July 2024 (amended on 24 July 2024) in respect of two children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).BACKGROUND The proceedings were brought by the paternal grandparents, to which the children’s parents are the respondents. The mother is the first respondent. The father is the second respondent. The parents married in 2009. The children were born in 2015 and 2018. They are now aged eight and six years. The father contends he and the mother separated in 2019 but that they remained living under the same roof until May 2021. The mother contends she and the father did not separate until May 2021, when the family returned to Australia from living overseas. In any event, there is no doubt the parents remained living in the same household until May 2021. Three months afterwards, in August 2021, the father returned to live in Country D, where he has lived ever since. There is a curious factual dispute about with whom the children have lived since their return to Australia in May 2021. The mother says she was forced out of the family home in May 2021 and it was several months before the children’s residence with her was restored in August 2021. The paternal grandparents and the father all allege the children lived with the paternal grandparents until December 2023, when the mother abducted them. She denies their abduction, but admits police were involved to ensure the children’s return to her when they were withheld. Given this is an interlocutory hearing and the evidence is untested, despite the apparent contrary expectations of the paternal grandparents, those factual disputes cannot be resolved. The paternal grandparents started the proceedings in December 2023. The mother responded to their application in January 2024. Based on representations made by the younger child, the mother reported the younger child’s sexual abuse by the paternal grandfather in December 2023. The allegations were investigated by the authorities and were not substantiated. The investigation concluded in late January 2024. On 5 January 2024, interim orders were made providing for the mother to have sole parental responsibility for the children, for the children to live with her, and for there to be no interaction between the children and the paternal grandparents. In addition, the father was joined to the proceedings and an Independent Children’s Lawyer (“the ICL”) was appointed. Not long afterwards, the proceedings were transferred to the Federal Circuit and Family Court of Australia (Division 1) on account of the sexual abuse allegations. Notwithstanding the interim orders made in early January 2024, the father and the paternal grandparents both filed applications in April 2024 to vary them, applying for the children to instead live with the paternal grandparents. The father filed an Application in a Proceeding on 4 April 2024, to which the paternal grandparents responded on 24 April 2024 and the mother responded on 30 April 2024.

Evidence

Evidence Before The Court

The ICL sought to maintain the orders made by the registrar.EVIDENCE The paternal grandparents relied upon their respective affidavits filed on 20 June 2024 and various documents tendered as exhibits, some of which were never mentioned again. The father relied upon his affidavit filed on 30 May 2024. The mother relied upon her affidavit filed on 30 April 2024. The ICL did not separately adduce evidence. The parties and the ICL all relied upon:(a)the Magellan Report dated 22 January 2024, furnished to the Court by the State child welfare agency; and(b)two reports prepared by the single expert psychologist on 15 October 2024 – the family report and a mental health report in respect of the mother.LEGAL PRINCIPLES Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation (s 60B). When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA) and the Act specifies the criteria which must be considered when determining the form of orders which meets and promotes the child’s best interests (s 60CC). Parental responsibility for children is vested in their parents (s 61C(1)), whether they live together or are separated (s 61C(2)), but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). Since legislative amendments took effect on 6 May 2024, parental responsibility orders no longer have any bearing upon determinations about with whom a child should live or spend time. This is a review hearing, which entails the de novo hearing of the parties’ interim dispute. The principles to which I have just adverted apply equally to interim parenting orders. Being an interim hearing in respect of parenting orders, the procedure is that established by the Full Court in Goode & Goode (2006) FLC 93-286, where it was said (at [68]):…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future. In Banks v Banks (2015) FLC 93-637 at [47]–[50], the Full Court observed how a paucity of uncontested evidence means only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim disputes should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at trial. The trial is the time and place to settle factual controversies. Interim hearings ought not be used for that purpose unless circumstances are urgent and there is no alternative.CHILDREN’S BEST INTERESTSSection 60CC(2)(a)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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