Lazzari & Lazzari

Case [2023] FedCFamC1F 286

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Lazzari & Lazzari [2023] FedCFamC1F 286

File number(s): PAC 3217 of 2019
Judgment of: HANNAM J
Date of judgment: 18 April 2023
Catchwords: FAMILY LAW – FINAL PARENTING – Where the mother contends that the father poses a significant risk of harm to the children arising from his drug use and associated sexual activity – Where the ICL agrees with the contentions of the mother – Where the father’s conduct was deceptive and dishonest – Where the father falsified his drug test results  – Where it is contended that the father’s capacity to meet the children’s needs is compromised  – Where the father asserts that there is no risk – Whether emotional abuse amounts to family violence – Where orders are made for the children to live with the mother – Where orders are made for no contact with the father – Orders made as sought by the mother – Where leave is granted to the father to apply to vary the parenting arrangements if certain conditions are met
Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CC(2), 60CC(3)
Cases cited:

Isles & Nelissen [2022] FedFamC1A 97

Mazorski & Albright (2007)  37 Fam LR 518

McCall & Clark(2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
Division: Division 1 First Instance
Number of paragraphs: 293
Date of last submission/s: 20 December 2022
Date of hearing: 5 – 7 September 2022; 28 October 2022
Place: Parramatta
Counsel for the Applicant: Mr Zmood
Solicitor for the Applicant: Ark Law Lawyers
Counsel for the Respondent: Mr Roberts
Solicitor for the Respondent: Barkus Doolan Winning
Counsel for the Independent Children's Lawyer: Mr Maddox
Solicitor for the Independent Children's Lawyer: Legal Aid NSW Parramatta Family Law

ORDERS

PAC 3217 of 2019

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

MR LAZZARI

Applicant
AND:

MS LAZZARI

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HANNAM J

DATE OF ORDER:

18 April 2023

THE COURT NOTES:

A.On 22 August 2022 orders were made with the consent of the parties that the mother Ms Lazzari have sole parental responsibility for each of the children X born 2015 and Y born 2017 and Z born 2017 ("the children") and that the children live with the mother.

THE COURT ORDERS THAT:

1.The children are to have no contact with the father except as provided for in these orders.

2.The father is permitted to send cards and/or letters and/or gifts to the mother's residence on the children's birthdays and Christmas. The mother is to read the cards and/or letters and open the presents in the first instance to ensure that they are appropriate prior to providing them to the children, and the mother alone is to determine whether they are appropriate.

3.Leave is granted to the father to make an application to vary the orders in respect to the children's time with the father, subject to the father meeting the following pre-conditions:

(a)The father is restrained from making an…

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AGLC
Lazzari & Lazzari [2023] FedCFamC1F 286
Case
[2023] FedCFamC1F 286
Decision Date

CaseChat Overview and Summary

In the case of Lazzari & Lazzari, the Family Court of Australia was tasked with determining the appropriate parenting orders for three children born to a married couple, now separated. The parents, who had been in a relationship since 2012 and married in 2013, had three children together: an older son and twin daughters. The father, who had a history of drug use and extramarital sexual activities, had been involved in drug-related sexual activities even during the infancy of the children. The mother alleged emotional abuse and family violence by the father. The court was required to decide whether the proposed parenting orders by the mother and Independent Children's Lawyer (ICL) were in the best interests of the children, considering factors such as the benefit of a meaningful relationship with both parents and the need to protect the children from harm.

The court found that the father's drug use, extramarital activities, and potential for family violence posed significant risks to the children's well-being. Although the court recognised the importance of the children having a meaningful relationship with both parents, it gave greater weight to the need to protect the children from harm. The court noted that the orders proposed by the mother and ICL did not provide for the father's ongoing involvement in the children's lives, but this was deemed necessary to protect the children from potential harm. The court concluded that the orders proposed by the mother were the most consistent with the children's best interests.

The court's decision was based on the principle that the best interests of the child must be the paramount consideration when making parenting orders. The court considered the primary considerations set out in section 60CC(2) of the Family Law Act, which include the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from harm. The court also took into account the Objects of Part VII of the Act, which emphasise the importance of ensuring that children have the benefit of both parents' meaningful involvement in their lives to the maximum extent consistent with the best interests of the child.

In conclusion, the Family Court of Australia determined that the parenting orders proposed by the mother were in the best interests of the children. The court found that the father's past conduct and potential for harm outweighed the benefit of a meaningful relationship with him. The court ordered that the children would have limited contact with the father, supervised by paternal family members, while the mother and ICL's proposed orders would be implemented to protect the children from harm.

Orders

Orders of the court

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Background

Background to the litigation

The question for me to determine is whether it is proper for orders to be made as sought by the mother, the father or the ICL having regard to the children’s best interests as the paramount consideration.BACKGROUND The father aged 42 and the mother aged 39 began living together in 2012. At that time the father had a child who was aged almost three (“the father’s other son”) from a previous relationship who was living with that child’s mother (“the father’s former partner”). Although the mother was not always aware of the extent of the father’s drug use, it came to light in the proceedings that he has been a user of illicit drugs since the age of 17. On one occasion very early in their relationship the parents used an illicit substance together but the mother has not otherwise used any substances. The parties married in 2013. A few months later the mother read a message on the father’s phone from an unknown number that suggested to her that he may have been having an extramarital affair. The parties sought relationship counselling as a result of this issue. It is common ground that throughout the parties’ marriage the father engaged in sexual activities with people other than the mother. It is also not in dispute that the father’s sexual activity with other adults was associated with his misuse of a range of substances. The father’s substance use has also included the misuse of prescription drugs and at times, alcohol. Although the father admits to substance misuse throughout the relationship and up until a few months prior to the final hearing, the extent of his drug use and the significance of this matter for the parenting of the children is one of the central issues in dispute between the parties to which I will return. The mother also contends that the father behaved in an emotionally abusive manner towards her throughout the relationship and to some extent after separation and that this conduct amounts to family violence. While the father agrees with the mother in relation to some of his conduct I understand that he contends that none of his actions could be considered to constitute family violence. For this reason, it is a matter to which I will return. The parties’ oldest child, a son (“the older child”) was born in 2015. The parties’ twin daughters (“the younger children”) were born two years later. Although it was not known by the mother at the time, during the period that the children were infants (in 2016-2017) the father continued to misuse illicit substances. His substance misuse at that time occurred particularly in the context of engaging in sexual activity generally with people whose only relationship with him was through online sites and platforms that he frequented. On occasions the father engaged in extramarital sexual activity at the parents’ home while caring for the children when the mother was out. In late 2018 the mother discovered illicit and prescription drugs in the father’s work bag that he had left on the bedroom floor and confronted him about the matter. The father’s response and his drug taking behaviour generally will be dealt with in greater depth later in these Reasons.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The best outcome for these children would be an arrangement in which they could receive the benefit of a meaningful relationship with both parents while being protected from harm. The only way that such an arrangement will be achieved is through orders as proposed by the mother and ICL. If the father has the willingness and capacity to address the significant matters which give rise to the risks to the children in his care he may then avail himself of leave in orders proposed by the mother and ICL to return to Court to revisit the children’s time. Such action by him will by definition lead to the institution of further proceedings in relation to the children. It is central to the expert’s opinion, my findings and views overall that the children should not be deprived of the opportunity for their father to demonstrate that he has the capacity to have a relationship with them in the future which is both beneficial and safe.CONCLUSION As indicated, the only matter I am required to determine is whether it is in the best interests of the children for any orders to be made to foster their relationships with the father and in particular whether orders should be made as he seeks. For all of the forgoing reasons and attaching particular weight to the need to protect the children from harm, the capacity of each parent to meet the needs of the children, matters related to the father’s lifestyle and attitude to the responsibilities of parenthood and the evidence of the expert as a whole, I am satisfied that the orders that are most consistent with the children’s best interests are those proposed by the mother. The orders sought by the ICL are in very similar terms and in my view there are no additional benefit to the children if I were to make orders in terms of the ICL’s proposal rather than the proposal of the mother.

Ratio Decidendi

Legal Principle Established

The Court is to make such parenting orders that are considered proper (section 65D). According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration. Best Interests Considerations 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. 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; and(b)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. Although the meaning of the phrase “meaningful relationship” is not defined in the Act, the Full Court in McCall & Clark[8] approved the interpretation of the phrase by Brown J in Mazorski & Albright[9] that it is a relationship that is “important” or “of consequence”. [8] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92.[9] (2007) 37 Fam LR 518. The authorities have not interpreted this subsection as creating a presumption that children do receive a benefit from having a meaningful relationship with both parents. Further, in accordance with the Objects of Part VII of the Act the best interests of children are met by ensuring they have the benefit of both of their parents having meaningful involvement in their lives to the maximum extent consistent with the best interests of the child (emphasis added). The Full Court said in McCall & Clark (supra) 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. It is correctly observed on behalf of the father that the orders proposed by both the mother and the ICL do not provide for the father’s ongoing involvement in the children’s lives and in this way do not promote “meaningful relationships” between the father and the children. It is the father’s contention that such proposals are draconian and not required in the circumstances of this case and that any risk of harm that may be found by the Court to be posed by him may be ameliorated by making the orders that he proposes for quite limited daytime contact only with the children which would be initially supervised by paternal family members. It is submitted on behalf of the father that there is a positive benefit to the children maintaining their relationships with him given his parenting role since the birth of each of the children, the absence of any child protection or family violence concerns during the course of the marriage prior to separation and the steps the father has taken to address the matters of concern about his conduct that he contends are now in the past.