Lamine & Lamine

Case [2021] FamCA 252

FAMILY COURT OF AUSTRALIA

Lamine & Lamine [2021] FamCA 252

File number(s): PAC 1800 of 2017
Judgment of: HANNAM J
Date of judgment: 10 May 2021
Catchwords: FAMILY LAW – CHILDREN – Undefended parenting – Where the father did not follow trial directions and made an oral application for an adjournment on the date listed for undefended hearing – Where there are allegations of significant family violence – Where there has been no contact between the children and the father since 2015 – Where the mother seeks orders that she have sole parental responsibility, that the children live with her, that the children spend no time with the father – Where the ICL supports orders sought by the mother – Where it is in the best interests of the children to make orders as sought by the mother.
Legislation:  Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61B, 61C, 61DA
Cases cited:

G & C [2006] FamCA 994

Mazorski & Albright (2007) Fam LR518

McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

Number of paragraphs: 117
Date of hearing: 16 December 2020
Place: Parramatta

ORDERS

PAC 1800 of 2017
BETWEEN:

MR LAMINE
Applicant
AND:

MS LAMINE
Respondent

SHEDDEN & ASSOCIATES

Independent Children’s Lawyer

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

10 MAY 2021

THE COURT ORDERS THAT:

1.All prior parenting orders are discharged.

2.The mother has sole parental responsibility for X born … 2011 and Y born … 2013 (“the children”).

3.The children live with the mother.

4.The children spend no time with the father.

5.Until further order each party, and 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, X a female born … 2011 and Y a male born … 2013, from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch list until the Court orders their removal.

6.The marshal and all officers of the Australian Federal Police and the police forces of the States and territories are requested and authorised to give effect to these orders.

7.At any time the mother is permitted to relocate the residence of the children to any place in the Commonwealth of Australia. The number of such relocations and place of such re-location may be solely determined by the mother and without notice to or permission from Mr Lamine (“the father”).

8.Pursuant to Section 68B of the Family Law Act1975 (Cth) the father shall be and is hereby restrained from:

(a)living with, spending time with or communicating with X born … 2011 and Y born … 2013 (“the children”) or either of them;

(b)directly or indirectly approaching and/or communicating with Ms Lamine born…

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Lamine & Lamine [2021] FamCA 252
Case
[2021] FamCA 252
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CaseChat Overview and Summary

In the matter of Lamine & Lamine, heard before Hannam J, the dispute concerned final parenting orders. The applicant father had failed to follow trial directions and made an oral application for an adjournment on the day of the undefended hearing. The respondent mother sought orders for sole parental responsibility, that the children live with her, and that they spend no time with the father, with the Independent Children's Lawyer supporting these orders. Allegations of significant family violence were present, and there had been no contact between the children and the father since 2015.

The court was required to determine whether to grant the mother's application for sole parental responsibility and no contact between the children and the father, despite the general presumption of equal shared parental responsibility. This involved considering the primary considerations under section 60CC of the *Family Law Act 1975* (Cth), specifically the benefit of a meaningful relationship with both parents versus the need to protect the child from harm, abuse, neglect, or family violence. The court also had to consider the father's failure to engage with the proceedings and the impact of his alleged family violence on the children's best interests.

Hannam J reasoned that the presumption of equal shared parental responsibility did not apply due to reasonable grounds to believe the father had engaged in family violence. The court gave greater weight to the need to protect the children from harm, noting the mother's extensive account of family violence, corroborated by support workers, and the family consultant's opinion that the mother's fear and mistrust would make facilitating a relationship with the father difficult. The court found that the children did not have a meaningful relationship with the father, that there was no positive benefit in attempting to foster one, and that any contact would negatively impact the children and the mother's parenting capacity. The father's disengagement from the proceedings and the lack of prospect for a co-parenting relationship further supported the mother's application.

Consequently, the court ordered that all prior parenting orders be discharged, that the mother have sole parental responsibility for the children, that the children live with the mother, and that they spend no time with the father. Further orders were made restraining the father from living with, spending time with, or communicating with the children, and from approaching or communicating with the mother and children. These protective orders carried a power of arrest without warrant. The mother was also permitted to relocate the children's residence within the Commonwealth of Australia at her sole discretion.

Orders

Orders of the court

PAC 1800 of 2017

BETWEEN:

MR LAMINE

Applicant

AND:

MS LAMINE

Respondent

SHEDDEN & ASSOCIATES

Independent Children’s Lawyer

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

10 MAY 2021

THE COURT ORDERS THAT:

1. All prior parenting orders are discharged.

2. The mother has sole parental responsibility for X born … 2011 and Y born … 2013 (“the children”).

3. The children live with the mother.

4. The children spend no time with the father.

5. Until further order each party, and 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, X a female born … 2011 and Y a male born … 2013, from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch list until the Court orders their removal.

6. The marshal and all officers of the Australian Federal Police and the police forces of the States and territories are requested and authorised to give effect to these orders.

7. At any time the mother is permitted to relocate the residence of the children to any place in the Commonwealth of Australia. The number of such relocations and place of such re-location may be solely determined by the mother and without notice to or permission from Mr Lamine (“the father”).

8. Pursuant to Section 68B of the Family Law Act 1975 (Cth) the father shall be and is hereby restrained from:

(a) living with, spending time with or communicating with X born … 2011 and Y born … 2013 (“the children”) or either of them;

(b) directly or indirectly approaching and/or communicating with Ms Lamine born … 1983 (“the mother”) and/or the children (including but not limited to) in person, by telephone, email, SMS, social media, internet, facsimile and/or letter;

9. Order 8 is an order for personal protection of the children and the mother to which a power of arrest without warrant attaches pursuant to the provisions of section 68C of the Family Law Act 1975 (Cth).

10. Leave is granted to the mother to provide to any school staff and/or school authority and/or State Welfare authority a copy of these orders.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The father attended the final hearing in December 2020 and made an oral application for an adjournment on the basis he had not sought legal advice despite being encouraged to do so by a Registrar at a court event in July 2020. The application for an adjournment was dismissed for reasons given at the time and the mother’s application for final parenting orders proceeded on an undefended basis as against the father. BACKGROUND The mother who was born and raised in Australia is 37. She and the father, who is 36 and was born in an African country, were married in 2009 and began living together shortly after. The mother has two daughters from a previous relationship, now aged 18 and 15 (collectively “the mother’s older children”), who also lived in the former family home. The older child, a daughter, was born in 2011 and is now aged nine. The younger child, a son, was born in 2013 and is now aged eight. Throughout the parties’ marriage the mother deposes that the father was violent towards her and the children and that his abusive and violent behaviour led to their separation in August 2015. The mother provides a substantial account of the family violence experienced both during and after separation and this is an issue to which I will return. Following separation the mother relocated with the children and there has been no contact between the father and the children since this time. In September 2016 an Apprehended Domestic Violence Order (“ADVO”) was made against the father for the protection of the mother and the children. In April 2017 the father filed an Initiating Application in the Federal Circuit Court seeking orders that the parties have equal shared parental responsibility for the children and that the children live with the mother and spend time with him after school for a few hours each week and for two days during each school holidays. In November 2017 the mother filed a Response seeking orders that she have sole parental responsibility for the children, that the children live with her, have no contact with the father and be placed on the Family Law Airport Watch list. The proceedings were transferred to this Court in November 2017. In April 2018 the father’s lawyer filed a Notice of Ceasing to Act and the father thereafter has represented himself. In June 2018 the parties met with a family consultant for the purposes of the Child Responsive Program. The contents of the family consultant’s Memorandum to the Court (“the Memorandum”) dated 6 July 2018 is a matter to which I will return later in these Reasons. It suffices to say that when interviewed by the family consultant the mother recounted a significant history of family violence perpetrated by the father. For this reason the family consultant opined that it was unlikely that the mother would be able to facilitate a relationship between the children and the father. Due to the seriousness of the allegations and the issues raised by the mother the family consultant recommended the Court would be likely to benefit from appointing a single expert to conduct a comprehensive child and family psychiatric assessment.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is clear to me that any contact between the children and the father would have a negative impact on the children’s relationship with the mother and her parenting capacity. In the Child Responsive Program Memorandum the family consultant opined that due to the mother’s extreme fear and mistrust of the father it would be difficult to imagine that she would be able to facilitate a relationship between the children and the father. This position is consistent with the information deposed to by the mother and corroborated by numerous letters from various domestic, family violence counsellors and support workers which outline the fear and trauma suffered by the mother due to the father’s abuse. CONCLUSION Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child. Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to the child”. Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)). In this case there are reasonable grounds to believe that the father has engaged in family violence and for this reason the presumption does not apply. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother must mean that she would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the father would have none of the duties, powers, responsibilities and authority with respect to the children. As the father has disengaged from the proceedings, and in circumstances where there no prospect of a co-parenting relationship, I am easily satisfied that it would be in the children’s best interest for the mother to have sole parental responsibility for them. Having regard to all of the foregoing matters and attaching particular weight to the need to protect the children from harm arising from being subjected to abuse and exposed to family violence and the father’s effective disengagement in the children’s lives I am also satisfied that it is in the children’s best interests for most of the orders to be made as sought by the mother and supported by the ICL.

Ratio Decidendi

Legal Principle Established

Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.Primary considerations: s 60CC(2) The primary considerations (under s 60CC(2)) are:a)The benefit to the child of having a meaningful relationship with both of the child’s parents; andb)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents. The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark (2009) FLC 93-405; 41 Fam LR 483 has approved the interpretation of the phrase by Brown J in Mazorski & Albright (2007) Fam LR 518 and has also agreed with the reasoning of Bennett J in G & C [2006] FamCA 994. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”: What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. The Full Court said in McCall & Clark (supra) at [117]:Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic). The phrase has not been interpreted as creating a presumption that children receive a benefit from having a meaningful or significant relationship with both parents. As the Full Court in McCall & Clark (supra) explained at [122]:No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests. The family consultant assessed the children as having an established relationship with the mother and a very tenuous one with the father, opining that the older child holds very negative views of the father and that the younger child appeared to have no memory of him. In circumstances where the children have not spent any time with the father for over five years I am satisfied that the children do not currently have a meaningful relationship with the father and consider that for all of the reasons given in this judgment there is no positive benefit to the children in attempting to craft orders to foster their relationship with him. There can be no doubt that the need to protect the children from physical and psychological harm, from being subjected to or exposed to abuse, neglect or family violence, is of great significance in these proceedings having regard to the very serious allegations made by the mother about the father’s conduct.