Lawrence and Abel - [2013] FMCAfam 73

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LAWRENCE & ABEL

[2013] FMCAfam 73

FAMILY LAW – Children – family violence – breaches of Intervention Orders – imprisonment of father – whether it is in children’s best interests to spend time with father – parental responsibility.

Evidence Act 1995 (Cth) s.128
Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61DA, 65DAA
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) Sch.1, Pt 2
Federal Magistrates Act 1999 (Cth) Pt 6, Div 5
Sentencing Act 1991 (Vic) s.27

Aldridge & Keaton (2009) FLC 93-421
Blanch v Blanch and Crawford (1999) FLC 92-837
KB & TC (2005) FLC 93-224
Carpenter and Lunn (2008) FLC 93-382
Champness & Hanson (2009) FLC 93-407
Chappell and Chappell (2008) FLC 93-377
Godfrey & Sanders [2007] FamCA 102
Mazorski and Albright (2007) 37 Fam LR 518
Mills & Watson [2008] FMCAfam 2
Mulvaney & Lane (2009) FLC 93-404
Patsalou and Patsalou (1995) FLC 92-580

Applicant:

MR LAWRENCE

Respondent:

MS ABEL

File Number:

MLC 9595 of 2010

Judgment of:

Roberts FM

Hearing dates:

6, 7 & 8 June and 27 & 28 August 2012

Date of Last Submission:

28 August 2012

Delivered at:

Launceston

Delivered on:

1 February 2013

REPRESENTATION

Counsel for the Applicant:

Ms Jenkins

Solicitors for the Applicant:

Kennedy Guy

Counsel for the Respondent:

Ms Dunlop

Solicitors for the Respondent:

Trapski Family Law

Counsel for the Independent Child’s Lawyer:

Ms Glaister

Solicitors for the Independent Child’s Lawyer:

Septimus Jones & Lee

ORDERS

That all previous parenting orders in relation to [X] born [in] 2004 and [Y] born [in] 2007 (“the children”) are discharged.
That MS ABEL (“the mother”) have sole parental responsibility for the children.
That MR LAWRENCE (“the father”) is hereby restrained from:
(a)spending any time or having any communication with the children;
(b)contacting the mother or the children by any means whatsoever; or
(c)attempting to locate any of them.

IT IS NOTED that publication of this judgment under the pseudonym Lawrence & Abel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
LAUNCESTON

MLC 9595 of 2010

MR LAWRENCE

Applicant

And

MS ABEL

Respondent

REASONS FOR JUDGMENT

The proceedings

The applicant is MR LAWRENCE (“the father”) and the respondent is MS ABEL (“the mother”). The dispute between them is essentially about whether the father should be permitted to spend time with the parties’ children, [X] born [in] 2004 and [Y] born [in] 2007 (“the children”) and, if so, on what terms.
The proceedings were started in October 2010 when the father filed an Initiating Application seeking final orders:
·That the parties have equal shared parental responsibility for the children;
·That the children live with the mother; and
·That he spend time with the children “at such times as the Court deems appropriate”.
The mother filed a Response in November 2010 seeking orders;
·That she have sole parental responsibility for the children;
·That the children live her; and
·That the father’s time with the…

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 Lawrence and Abel

Details

AGLC: Lawrence and Abel [2013] FMCAfam 73
Case: [2013] FMCAfam 73
Decision Date

CaseChat Overview and Summary

In this case, the Federal Magistrates Court was tasked with determining the issue of whether the father, MR LAWRENCE, should be permitted to spend time with his children, [X] born 2004 and [Y] born 2007. The father sought supervised contact with the children, while the mother, MS ABEL, was opposed to any contact. The court was required to weigh the primary considerations under section 60CC of the Family Law Act 1975, which includes the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

After considering the evidence and submissions, the court found that the need to protect the children from the father's violent and anti-social behaviour outweighed the benefit of maintaining a relationship with him. The court was particularly concerned by the father's lack of insight into his anger management issues, his history of disregarding Intervention Orders, and the significant negative impact on the children from witnessing family violence.

The court concluded that it was in the children's best interests to make final orders that the father have no contact with them or their mother in any way. The mother was to have sole parental responsibility for the children, and they were to live with her. The father was restrained from attempting to locate the children or their mother. The court's decision was based on the overwhelming evidence of the father's violent behaviour, his lack of remorse, and the detrimental effects it had on the children.

In summary, the court found that the need to protect the children from their father's violent and anti-social behaviour outweighed the benefit of maintaining a relationship with him. The court made final orders that the father have no contact with the children or their mother, and the mother was to have sole parental responsibility for the children.

Orders