Hugh and Sawer and Anor (Reinstate Certain Orders)
[2010] FamCA 958
•11 October 2010
FAMILY COURT OF AUSTRALIA
| HUGH & SAWER AND ANOR (REINSTATE CERTAIN ORDERS) | [2010] FamCA 958 |
| FAMILY LAW – INJUNCTIONS – Oral application to reinstate injunctions for the personal protection of the mother – leave granted to make oral application – father’s abusive outbursts at hearing precluded him from further participation in the hearing process – application granted – injunctions reinstated – liberty to apply reserved |
| APPLICANT: | Ms Hugh |
| THE FIRST RESPONDENT: | Mr Sawer |
| THE SECOND RESPONDENT: | Ms B |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Walker |
| FILE NUMBER: | LNC | 511 | of | 2008 |
| DATE DELIVERED: | 11 October 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 11 October 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lewis |
| SOLICITOR FOR THE APPLICANT: | Levis Stace & Cooper |
| THE RESPONDENT: | In Person |
| THE SECOND RESPONDENT | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | David Walker & Co Lawyers |
Orders
IT IS ORDERED THAT:
There be leave for the wife to make oral application for a reinstatement of paragraphs 5(a) and 5(c) of the Orders made on 24 May 2010 pursuant to which the father and Ms B are restrained from contacting or approaching the mother.
Paragraphs 5(a) and (c) of the Orders made on 24 May 2010, being:-
“That pursuant to Section 68B of the Family Law Act 1975 the father and/or [Ms B] be and are hereby prohibited from:-
a)contacting the mother save as may be provided in any subsequent parenting order of this Court; and
c)approaching at or within 200 metres of the mother’s residence at [R], Tasmania save as may be provided in any subsequent parenting order of this Court or with the mother’s prior written consent;”
are hereby reinstated.
Liberty is reserved to Ms B and the father to apply to vary or set aside this Order reinstating the operation of paragraphs 5(a) and 5(c) of the Orders made on 24 May 2010 and to do so in accordance with the Rules within 14 days of today.
My reasons for decision be transcribed and, when settled, a copy be placed on the Court file and provided to each of the parties.
IT IS DIRECTED that a sealed copy of the Order made on 6 October 2010 and this Order be transmitted by email to each party to the proceedings.
AND IT IS NOTED that the father engaged in abusive outbursts during reasons for decision being delivered which necessitated the telephone link being terminated. This Order was pronounced at the conclusion of the reasons for decision.
IT IS NOTED that publication of this judgment under the pseudonym Hugh & Sawer and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: LNC 511 of 2008
| MS HUGH |
Applicant
And
| MR SAWER |
Respondent
And
| MS B |
Second Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
ex tempore
These reasons ought to be read in conjunction with reasons for decision in relation to orders I pronounced on 6 October 2010 which are published as Hugh & Sawer and Anor (Suspension of Parenting Orders) [2010] FamCA 949.
On 8 October, my chambers received a communication from Mr David Lewis, barrister, saying that in his view, the orders made on 6 September inadvertently and erroneously discharged the provisions of paragraph 5(a) and (c). That’s subparagraphs 5(a) and (c) of the orders made on 24 May 2010. Looking at the communication, it appears to me that it was sent to Ms B, to the father, Mr Sawer, to David Walker and to Emily Turner. I take it, therefore, that those parties have notice of the communication.
I have heard a lengthy submission from the father as to his requirement that he only deal with the mother’s barrister or solicitor but not both. It was a digression.
I will permit Mr Lewis – for the mother – to make an oral application for the reinstatement of subparagraphs 5 (a) and (c) of the orders of 24 May which provide:-
That pursuant to Section 68B of the Family Law Act 1975 the father and/or [Ms B] be and are hereby prohibited from:-
a.contacting the mother save as may be provided in any subsequent parenting order of this Court;
c.approaching at or within 200 metres of the mother’s residence at [R], Tasmania save as may be provided in any subsequent parenting order of this Court or with the mother’s prior written consent;
The matter was before the court last Wednesday. An order was made suspending the operation of certain injunctive orders directed to the husband and his partner, Ms B. Those injunctions included a power of arrest in the event that Ms B or the father approached or contacted the children. Whilst those orders were justified at the time of making, they are wholly inappropriate where the girls are in the father’s household for the time being. The issue now sought to be raised by Mr Lewis is that the suspension of orders also covered an order that the father and/or Ms B be prohibited from contacting the mother save as may be provided in any parenting order of the court and (c) approaching at all within 200 metres of the residence. It is submitted that that was not what was intended and, alternatively, that he seeks to be heard on the issue.
There is no appearance by or on behalf of Ms B today. The father appears on his own behalf. Mr Lewis of counsel appears for the mother. The independent children’s lawyer appears. I have heard submissions from each party who is present. The submissions of the father were self-serving and irrelevant to the substantive matter and, ultimately, highly abusive. The father sought to interrupt my reasons for decision and the following interchange occurred:-
HER HONOUR: Mr [Sawer], do not interrupt me. I am delivering reasons for decision.
MR [SAWER]: I want to know something so fucking wait on, you moll.
[…]
MR [SAWER]: Hang on a minute. I’m asking a question because I don’t know what’s going on. Now fucking wait.
HER HONOUR: Mr [Sawer], I am delivering reasons for decision which will be followed by the decision. You will remain silent or be terminated. Terminate the telephone call please.
MR [SAWER]: No, you haven’t even give us an opportunity because we haven’t been told what the frigging application is, you ‑ ‑ ‑
HER HONOUR: Terminate the call, as far as he is concerned, not everyone else.
The telephone link to all parties was then terminated. It would have been preferable to place the father on mute but court personnel did not know how to achieve that at such short notice.
In such submissions as the father did make, he described the hearing on Wednesday as a matter in which he did not have an equivalent opportunity to other parties to be heard. I take issue with that. And he made reference to the fact that he had not received any orders made last Wednesday in writing when others had done so. I note that there is nothing to suggest in the correspondence from Mr Lewis that they have in fact received any orders or that the orders had been engrossed.
Turning to the substance of the matter, the injunctions set out in paragraph 5 of the order made on 24 May 2010 were made for the reasons which were published in the decision on that day which is the case neutral citation for which is [2010] FamCA 448. In spite of the fact that the two girls who were largely the subject of those injunctions are now in the household of the father, there is, in my view, no reason why paragraphs 5(a) and (c) of the orders should not continue for the personal safety and well‑being of the mother. Had the father made cogent submissions in that respect, I would have listened to those submissions. However, the father’s conduct at this hearing made it inappropriate to continue with the telephone link. Not only was the father’s outburst offensive to the court, it is offensive to each other party to the proceeding and to those who represent them.
In all of the circumstances of the case, I conclude that the orders affecting the mother and her household should be reinstated. It was not, in fact, my intention to suspend them last week although, if it had been raised as an issue last week, I would have heard submissions from the father and other parties. Today was the opportunity to make those submissions but the father forfeited that opportunity by his behaviour.
The father’s behaviour at today’s hearing is, in my view, further evidence that he is unable to contain himself and is prone to violent outbursts. That behaviour is similar to behaviour to which the relevant injunctions are directed. Put simply, if the father was going to submit that the injunctions were not necessary because he is now better able to control himself, his conduct today convinced me otherwise. The father’s conduct at this hearing is reminiscent of his disgraceful conduct to the process server in December last year (discussed in my reasons for decision delivered on 24 May 2010 the case neutral citation for which is [2010] FamCA 448 at paragraphs 66 and 67).
I am satisfied that the welfare of the children requires that the injunctions for the personal protection of the mother be reinstated. It is not appropriate that the girls witness poor behaviour by the father to the mother or, in all of the circumstances of this case, that the mother see the father if she does not wish to do so regardless of whether the children are present.
By virtue of Mr Lewis’ communication to all parties on 8 October and the listing of the matter by the court, I am satisfied that Ms B has notice of today’s hearing. However, she does not know that I permitted counsel for the mother to make an oral application for reinstatement of the relevant injunctions. She could reasonably expect to receive some further notice or formal application to that effect. Accordingly, I will extend to her liberty to apply within 14 days to vary or set aside this order, essentially to be heard on the issue.
Apart from being uncontrollable and abusive today, the father mentioned that he does not have a copy of the orders made last week. That in itself is irrelevant for today’s purposes and is likely to be because they have not been engrossed yet. However, lest the father be under the misapprehension that he was not required to address the matters which I asked him to address today, I will extend to him the same indulgence I extended to Ms B. That is to have liberty to apply to set aside or vary this order that I make today for a period of 14 days.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 11 October 2010.
Associate:
Date: 27 October 2010
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