LOMU & YATES - [2018] FamCA 142

FAMILY COURT OF AUSTRALIA

LOMU & YATES

[2018] FamCA 142

FAMILY LAW – CHILDREN – Undefended final parenting hearing – Where the father has disengaged from the proceedings – Where it is appropriate to proceed with the matter on an undefended basis – Where the father’s mental health and behaviour and drug use are of concern – Where there are allegations of family violence – Where the father poses an unacceptable risk of harm to the children on these bases – Where there are allegations the father poses a risk of sexual harm to the children – Where these allegations were not pressed at final hearing – Where the mother’s parenting capacity has improved over time – Orders made by consent for the children to live with the mother and have no contact with the father.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 69ZN

G & C [2006] FamCA 994 Jarrah & Fadel [2014] FamCAFC 14 Mazorski & Albright (2007) Fam LR 518 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
APPLICANT:	Mr Lomu

RESPONDENT:

Ms Yates

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta Family Law

FILE NUMBER:

HBC

2017

DATE DELIVERED:

6 March 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

17 October 2017 & 11 December 2017

REPRESENTATION

THE APPLICANT:	Self-Represented, no appearance
SOLICITOR FOR THE RESPONDENT:	Gonzalez & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta Family Law

Orders

All prior parenting orders are discharged.
The mother shall have sole parental responsibility for the children B born on … 2010, C born on … 2013 and D born … 2014 (“the children”).
The children shall live with the mother.
The children shall not spend time with the father Mr Lomu.
The mother shall do all such things that are necessary to continue to engage with her General Practitioner and any other medical practitioner or therapist or counsellor as recommended by her General Practitioner and shall be compliant with all treatment and directions.

The Court Notes

The final orders are made with the consent of the Independent Children’s Lawyer and the 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 Lomu & Yates 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: HBC 16 of 2017

Mr Lomu

Applicant

And

Ms Yates

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

In January 2017 the father commenced proceedings in the Federal Circuit Court in another…

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 LOMU & YATES

Details

AGLC: LOMU & YATES [2018] FamCA 142
Case: [2018] FamCA 142
Decision Date: 6 March 2018

CaseChat Overview and Summary

In the matter of *Lomu & Yates*, heard before Hannam J, the dispute concerned parenting orders for three children. The mother sought sole parental responsibility and orders for the children to live with her, with no time spent with the father.

The court was required to determine whether to make final parenting orders reflecting the mother's application, considering the best interests of the children. A key issue was the father's involvement with the children, given the proposed orders that he should not spend time with them.

Hannam J made final orders discharging all prior parenting orders. The mother was granted sole parental responsibility for the children, who were ordered to live with her. Crucially, the children were not to spend any time with the father. The mother was also ordered to continue engaging with her General Practitioner and any other recommended medical practitioners or therapists, and to comply with all treatment and directions. These final orders were made with the consent of the Independent Children’s Lawyer and the mother.

Orders

Orders of the court

All prior parenting orders are discharged.

The mother shall have sole parental responsibility for the children B born on … 2010, C born on … 2013 and D born … 2014 (“the children”).

The children shall live with the mother.

The children shall not spend time with the father Mr Lomu.

The mother shall do all such things that are necessary to continue to engage with her General Practitioner and any other medical practitioner or therapist or counsellor as recommended by her General Practitioner and shall be compliant with all treatment and directions.

The Court Notes

The final orders are made with the consent of the Independent Children’s Lawyer and the 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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