Hugh and Sawer & Anor

[2011] FamCA 48

FAMILY COURT OF AUSTRALIA

HUGH & SAWER AND ANOR [2011] FamCA 48

FAMILY LAW – CHILDREN – Where siblings have left the care of the mother contrary to an order of the Court to spend time with their father – Where the mother initially brought proceedings for a Recovery Order

FAMILY LAW – STATUTORY INTERPRETATION – Whether a Recovery Order is a Parenting Order for the purposes of s 64 B and s 65D of the Family Law Act 1975 (Cth) – Where the children have expressed clear and mature views about spending time with their father – Where the father is diagnosed with a personality disorder – What time to be spent by the children with their father which will enable meaningful relationships with both parents as well as ensuring their safety – Whether an injunction should be granted against the father pursuant to s 118 of the Family Law Act 1975 (Cth)

FAMILY LAW – COSTS – Mother’s application for costs dismissed

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(1), 60CC(2), 60CC(3), 61C, 61DA(1), 61DA(4), 64B, 65D(1), 65D(2), 65DAA, 67Q, 67U, 67V, 68B, 70NAA(2), 70NBA, 118

Marvel & Marvel (No.2) [2010] FamCAFC 101
Oscar & Traynor [2008] FamCAFC 158
Rice & Asplund (1979) FLC 90-725
U v U (2002) 211 CLR 238

APPLICANT: Ms Hugh

RESPONDENT: Mr Sawer

SECOND RESPONDENT: Ms B

INDEPENDENT CHILDREN’S LAWYER: Mr D. Walker, David Walker & Co

FILE NUMBER: LNC 511 of 2008

DATE DELIVERED: 10 February 2011

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks ACJ

HEARING DATE: 17 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D. Lewis

SOLICITOR FOR THE APPLICANT:  Levis Stace & Cooper Lawyers

COUNSEL FOR THE RESPONDENT: No appearance by or on behalf of the respondent

COUNSEL FOR THE SECOND 

RESPONDENT:

No appearance by or on behalf of the second respondent

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr D. Walker

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER David Walker & Co

Orders

IT IS ORDERED THAT:

Parental responsibility

1. Pursuant to s 61C of the Family Law Act 1975 (Cth), each of the parties has parental responsibility for the children, E, born …January 1999, and H, born … January 1999 subject to order (2) below.

2. The mother have sole parental responsibility with respect to decisions concerning the referral of the children for psychological or psychiatric counselling or treatment.

Living Arrangements and time spent

1. The children spend time and communicate with the mother as follows:

   a.   Each alternate weekend from after school on Thursday (or from 3.00pm if Thursday is not a school day) to before school on Tuesday (or until 9.00am if Tuesday is not a school day).

   b.   Such additional time, including but not limited to time during the school holidays, that the children or either of them express or expresses a desire to have, and the parties agree.

   c.   For one half of Christmas Day incorporating the night of 24 December in 2011 and each alternate year thereafter and the night of 25 December in 2012 and each alternate year thereafter.

   d.   For one week of each Christmas and term School Holiday period.

   i.Such week in term school holidays being the first week in years ending in an odd number and the second week in other years.

   ii.During the Christmas holidays as agreed but in default of agreement for the first week in January commencing on 1 January at 9.00am and concluding at 5.00pm on 8 January.

   iii.Unless the parties otherwise agree the commencement of the first week time the children spend with their mother will be 9.00am on the first day after the last day of school.

   iv.Unless the parties otherwise agree the commencement of the second week will be 9.00am on the second Saturday in the holidays.

   v.In each case the children will return to them on 5.00pm on the following Friday.

   e.   By telephone at all reasonable times.

2. The children will otherwise live with their father. 

Specific Issues

1. The mother do all such acts and things necessary to arrange the attendance of herself and the children for therapeutic counselling with Dr Y (Clinical Psychologist) for such period and on such occasions as the said Dr Y considers it in the best interest of the children.

2. The father be and is hereby restrained from doing any acts or things which prevent, discourage or hinder the children from attending the counselling referred to in the preceding Order.

3. Neither parent change the children’s enrolment at school from L School without the consent in writing of the other parent or Order of the Court.

4. The Independent Children’s Lawyer together with a Family Consultant of this Court attend the children to explain the effect of these Orders.  The Independent Children’s Lawyer is discharged thereafter. 

5. Existing restraining orders for the protection of the mother pursuant to the orders of 24 May 2010 and 11 October 2010 of the Honourable Justice Bennett continue.

6. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.  Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.

7. The mother’s application pursuant to s 118 of the Family Law Act 1975 (Cth) is dismissed.

8. The mother’s application for costs is dismissed.

9. Otherwise all extant applications are dismissed.

10. The matter is removed from the Pending Cases Inventory.

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 CANBERRA

FILE NUMBER: LNC 511 of 2008

MS HUGH

Applicant

And

MR SAWER

Respondent

And

MS B

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court were nominally for a Recovery Order pursuant to s 67U of the Family Law Act 1975 (Cth) (“the Act”). The application is set out in Annexure 1. I use the term “nominally” because in the written submissions of counsel for the mother, the orders sought effectively abandoned the application for a Recovery Order and sought other orders relating to the two children who were the subject of the proceedings.

2. The applicant mother is Ms Hugh (“the mother”).  The respondent father is Mr Sawer (“the father”).  The father’s partner is Ms B.  Mr Walker is the Independent Children’s Lawyer (ICL).

3. The children are H, born in January 1999, and E, born in January 1999.  I shall refer to the children as “H” and “E” throughout these Reasons for Judgment, and as “the children” collectively (but without reference to the elder child, a son, [J], who is not the subject of these proceedings).  

4. The children had been living with the mother by virtue of orders made by Bennett J on 24 May 2010.  The children have now run away and are primarily residing with their father. 

Background

1. Proceedings between the parents of the children have been protracted, bitter and voluminous.  They began in the Federal Magistrates Court of Australia in May 2001.  While I might hope that my orders may bring an end to further litigation between the parties, I have no expectation that this will be so.

2. A chronology of (principally) Court events appears at Annexure 2.  This is a chronology prepared by the ICL.  The chronology is not necessarily adopted by me as findings of fact but is generally expressed in neutral terms and provides an indicative representation of the history of the proceedings between the parties. 

3. As a matter of practice, and where necessary though my Reasons for Judgment, I have replicated quotations from reports and submissions without correction.

4. The father, with whom the children have now been primarily living for some time, did not appear on the date of the hearing of the application.  I am satisfied that there was nothing which necessarily prevented his participating by telephone or otherwise if he wished to do so.  So far as I am aware, no explanation has been offered for his non-attendance either before or after the hearing.  There has been no application on behalf of the father to re-open the proceedings or to make further submissions about the orders that should be made by the Court.

5. The hearing took place by way of video-link between the Canberra and Hobart Registries on 17 November 2010.  Mr Lewis and Ms Turner appeared on behalf of the mother, and Mr Walker as the ICL also appeared.  As I previously indicated, there was no appearance by or on behalf of the father and there was no appearance by or on behalf of the second respondent, Ms B, who is the father’s partner. 

6. The circumstances leading up to the proceedings might be briefly summarised as follows and these facts are not seriously in contention. 

7. Final parenting orders were made by Bennett J on 24 May 2010 (Annexure 3).

8. The children ran away from the mother on 5 September 2010, and were subsequently returned by dint of a Recovery Order made by Bennett J on 6 September 2010 issued to the Marshal of the Family Court of Australia.  They were subsequently returned to the mother pursuant to that Recovery Order on 8 September 2010.  

9. On 9 September 2010, Bennett J made orders pursuant to s 11F of the Act requiring the children, the mother, the father and Ms B to attend “an appointment/series of appoints” with Ms N at the Launceston Registry on 13 September 2010.

10. Those interviews took place on 15 September 2010 with Ms N.  Upon completion of the interviews, and as the mother and the children were leaving the Court premises, the girls ran away yet again and went to their father’s home.  They have essentially remained with him since. 

11. On 6 October 2010, Bennett J suspended the operation of orders 3, 4 and 5 of the orders of 24 May 2010 (Annexure 4). Further orders were made on 11 October 2010 (Annexure 5) reinstating certain orders in relation to injunctions pursuant to s 68B of the Act.

12. The father participated in some of the preliminary proceedings before the hearing of this matter but did not file any material on his own behalf for the final hearing.  An affidavit was filed by his partner, Ms B, on 5 October 2010.  That affidavit has been before me. 

13. I have also had the benefit of a very thoughtful and insightful report from Ms K who is a very experienced Family Consultant attached to the Family Court of Australia in Melbourne Registry.  I have had the as well benefit of reading a memorandum of Child Inclusive Conference which was conducted by Ms N, a Family Consultant, on in September 2010.

14. Upon completion of the hearing on 17 November 2010, at the request of counsel for the mother and the ICL, the matter was adjourned for written submissions.  These were provided in early December 2010.  The delay after that time in the delivery of my Reasons for Judgment is entirely of my making.  I apologise to the parties and indirectly to the children for that delay. 

The submissions of the mother

1. At one level, what began as an application for a Recovery Order was, in the written submissions on behalf of the mother, abandoned de facto.  Those submissions included the following:[1]

   [1] Submissions of the mother, dated 8 December 2010, [15].

   15(d) [The mother] says that she will not pursue recovery orders. She did not do so for [J],[2] and she has no intention of doing so for the girls. She made substantial efforts to restore communication with [J] by entering into consent orders with the paternal grandparents, rather than pursuing any application against the father.

   [2] The children’s elder brother who had also run away to live with his father in 2009.

   …

   15(i) It is submitted that the following orders should be made –

1.The suspended orders of 24 May 2010 are revived.

2.That during the school term the father spend time with and communicate with [H] and [E] in each alternate week from the commencement of school on Monday to the commencement of school the following Monday.

3.That during any school holiday period the said girls spend such time with their father as they wish, provided the father ensures that that in any holiday period they remain for at least one week with their mother.

4.That the said girls spend such time with their mother and father at Christmas as they desire provided the father ensures they remain with their mother for at least sufficient time to have either Christmas lunch or Christmas dinner with her.

5.That during any time the father spends time with the said girls pursuant to this order, the injunctions in orders 4, 5b, 5d, and 5e of the orders of 24 May 2010 be suspended but shall remain operative at all other times when the girls are with their mother.

6.That the mother arrange for herself [H] and [E] to attend upon Dr [Y] for continued counselling and therapy at such time or times as Dr [Y] directs.

7.That the mother invite [J] to participate in those sessions with Dr [Y] should he wish to participate.

8.That the father be restrained from doing any act or thing which might interfere with or discourage the said girls or [J] from attending upon Dr [Y].

9.That the court notes the mother desires [J] to visit her and stay with her at all times he wishes, and that he has an open invitation to spend time with her at any time whether the girls are with her at that time or not.

10.During any school holiday period or non-school day, the mother shall deliver or collect the girls from the father’s residence, as the case may be, at the commencement of his time and return or collect the girls from the father’s residence at the conclusion of time.

11.That the father be and is hereby restrained from instituting any application for any parenting orders relating to the children [J], [H], and [E] without leave of the court.

1. The mother’s counsel, Mr Lewis, also sought an order for costs and an order pursuant to s 118 of the Act that “the father be restrained from making any further parenting applications without leave of the court”.

Discussion

1. In one sense, it would be enough simply to dismiss the application because no Recovery Order is now sought.  However, that would leave an untenable situation for the children.  It is common ground that the children are living primarily with their father and his partner.  Communications between the father and his partner and the mother are difficult.  The complexity of the family dynamics are eloquently and effectively set out in the memorandum from Ms N of 15 September 2010. The report from the Family Consultant dated 12 November 2010 also deals with this issue.

2. In the course of the litigation between the parties, various professional opinions have been offered about the father’s mental health.  It appears that at least in 2004 a diagnosis was before the Court (which seemed to have been accepted) that the father suffers from a significant personality disorder.  Further, it is unlikely that the father will be amenable to treatment. 

The evidence of the Family Consultant – Report of 12 November 2010

1. In her report dated 12 November 2010, it was noted by the Family Consultant that the mother’s parenting style “appears to be more authoritative and controlling while [the father] appears to be more permissive”.[3] The Family Consultant also expressed the opinion that:[4]

   …it is the recommendation of the family consultant that [the mother] and the girls attend a therapeutic counsellor who will seem them as a family unit, in order to assist them to address issues, enhance their relationship and improve communications between them.  [J] might also be involved in such sessions, albeit it is recommend that the primary sessions begin between [the mother] and the twins, as [J’s] issues with his mother are different to those of his sisters.

   [3] Family report of Ms K, 12 November 2010, 2.

   [4] Ibid, 6.

2. The Family Consultant also observed and recommended the following:[5]

   The children are responding well to the current arrangement to see their mother one night each week.  A week night with school the next day is a rather restrictive arrangement however and it is recommended that weekend time is also built into any future arrangement.  Given the stressors in this family, it is also recommended that time is clustered so that the number of occasions that the children move between the two households is limited.  Finally, it is highly recommended that the children go directly from school to their mother’s home and return to school after spending time with her to avoid the potential problems associated with the parents coming into contact with each other.

   [5] Ibid, 5.

3. The Family Consultant also relevantly stated:[6]

   [The father’s] proposal involves a flexible arrangement, whereby [the mother] would be required to approach the children and invite them to spend time with her, a positive outcome dependent on the proposal being convenient to them.  Based on the history of this family and [the mother’s] presentation, it is highly unlikely that this arrangement could work satisfactorily.  It is acknowledged that [the mother] would benefit from including some flexibility into the plans, however she will require greater predictability and structure to ensure that her time with the children does proceed regularly.

   [6] Ibid. 

4. The Family Consultant also noted that:[7]

   [The mother] has proposed a week about arrangement.  This proposal was rejected by [the father] and all three children.  It is likely that the children will react strongly against being with their mother each alternate week at this point in time and that a shorter period of time each fortnight is considered.

   [7] Ibid.

The evidence of Dr T – 26 August 2010

1. Part of the evidence before me by way of an affidavit of the ICL filed 7 September 2010 was a report by Dr Y (Clinical Psychologist) addressed to Dr NH. That report included, inter alia, the following comments:[8]

   The information provided to me indicates that [the father] has been diagnosed with a personality disorder with narcissistic traits.  It would appear that [the father] can be unpredictable and impulsive in his behaviour and that he is unlikely to consider the needs of others (including his children’s needs) above his own needs.  It has been suggested that counselling with [E] and [H] should adopt a “psycho-educational” approach in order to prepare them for spending time with their father.  Considering [the father’s] psychological profile and his unpredictable and impulsive nature, it would be an extremely difficult task to prepare [E] and [H] for potential situations that may arise with their father.  Furthermore, at present, [E] and [H] both have an idealised image of their father and this would make it difficult for them to accept any potential risk of difficult situations that might arise as a result of spending time with their father.  Therefore, in the event that [E] and [H] are legally required to have contact with their father, I recommend they have counselling during this time so that their behaviour and emotional wellbeing can be monitored.

   [8] Affidavit of Mr David Walker, filed 7 September 2010, Annexure A, 7.

2. It appears from the report that Dr Y has never had any consultation with the father.  I note further that no cross-examination of Dr Y was sought during the proceedings before me. It would appear, to some extent, that her recommendation was not adopted by the ICL who sought orders that the children live primarily with their father.

3. I have taken account of the matters that Dr Y has set out in her report in the overall matrix of considerations under s 60CC(3) of the Act.

Whether the parenting orders of Bennett J (24 May 2010) should be altered

1. If the children remain with their father, the existing orders do not reflect the reality of the situation and will not do so.  If an application were to be made by the father to change those orders, it would be necessary for him to establish a change sufficient to justify further orders affecting the lives of the children.  The principles relevant in this context where enunciated by Evatt CJ in Rice & Asplund:[9] 

   [The Court] should not lightly entertain an application to reverse an earlier custody order.  To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.

   [9] Rice & Asplund (1979) FLC 90-725, 78,905.

1. The changes in the children’s lives, since the orders of 24 May 2010 were made, are so dramatic that it is difficult to contemplate that some formal consideration of what would be in the children’s best interests should not occur.  These changes override any broader objective of limiting litigation – an objective in this matter with these parents seemingly unattainable. 

2. Equally, if the mother faced with dismissal of her application for a Recovery Order (or its discontinuance perhaps more accurately) were to seek to have the orders as they presently exist enforced through Contravention proceedings under Division 13A of Part VII of the Act, she could logically be met with the provisions of s 70NAA(2) of the Act which provide that the Court always has the power to vary an order under Subdivision B, Division 13A of Part VII of the Act.[10]  

   [10] Family Law Act 1975 (Cth) s 70NBA refers.

3. It would seem, therefore, in either case, it is likely there would need to be a review of the arrangements for the children.  There would also have to be a determination in the circumstances as they now apply of what would be in the best interests of the children. 

4. It is to be noted in this regard that the proposals put forward by the mother, although the subject of comment in the Family Consultant’s report, were not formally before the Court in the proceedings as originally constituted.  To that extent, the father has not had precise notice of the orders sought or indeed, the opportunity to address the issues raised by those orders sought or to file additional evidence. 

5. Nevertheless, accepting for a moment the proposition that I am able to make orders varying the orders about the children, it would seem in the interests of finalising future litigation between the parties[11] that I could make orders, based on the evidence before me at this point, in relation to the children.  I could allow the father an opportunity to apply to set aside or vary those orders provided such application is made within a short and determined period and is accompanied by an explanation (on affidavit) about his absence from the Court on 17 November 2010.

   [11] Which is a consideration I must take into account in determining the best interests of the child:  Family Law Act 1975 (Cth) s 60CC(3)(l).

6. In this regard, I note that a Recovery Order for the children would have necessarily involved, pursuant to s 67V of the Act, a determination that the making of the Recovery Order would be in the best interests of the children and that such interest should be the paramount consideration. Accordingly, as the father was aware of the proceedings and should at least be deemed to be aware of the provisions of s 67V of the Act by virtue of the filing of that application, it was incumbent upon him prior to 17 November 2010 to put before the Court such evidence as he considered to be appropriate to enable the Court to better determine what would be in the children’s best interests. He did not do so.

7. I have indicated and I do take account of, the material contained in the affidavit of Ms B.  But as she failed to attend that affidavit is untested.  No opportunity presented for her to be cross-examined. 

8. If, as is the case, I propose to make orders which are different from those sought by the mother, in the ordinary course of events it would have been appropriate that the mother have some opportunity to respond through her counsel to those proposals (see U v U (2002) 211 CLR 238).

9. However, it would not be reasonable to say that the mother did not have notice prior to instructing her counsel in relation to his written submissions about other possibilities – one of which might be that the children would remain living primarily with their father.     

10. Accordingly, in my opinion, it is unnecessary for the mother to have additional time in which to respond to the orders that I propose to make or to make submissions contrary to them. 

Jurisdiction

1. There are some further preliminary jurisdictional questions which, in my opinion, are obviated by the way I propose to treat the orders sought by the mother as being, in effect, an application to vary the existing parenting orders. (This I am empowered to do pursuant to s 65D(2) of the Act). These jurisdictional issues are set out in the written submissions on the mother’s behalf. For the sake of completeness, although, in my opinion, the issue is now obiter dicta, I make the following comments.   

2. In paragraph 14 of his submissions, Mr Lewis stated:[12]

   14(f) It is unclear under which legislative power [Bennett J] suspended orders 3 & 4 [of 24 May 2010]. The orders were final orders, and there was no application for the variation or discharge of that order before the court. There was, for example, no power to vary a primary order as contemplated by section 70NBA.

   [12] Submissions of the mother, dated 8 December 2010, [14].

3. The proceedings before me were not (nor could they be) an appeal against her Honour’s orders.  To the extent that no appeal has been instituted in respect of those orders, the doctrine of stare decisis applies. The orders are unchallengeable in proceedings before me at first instance. 

4. In further submissions, in paragraph 14, Mr Lewis argued it seems, that it is not permissible to make orders varying primary parenting orders in an application for a Recovery Order. It is unnecessary for me to resolve this issue. However, the careful consideration by Mr Lewis of the interaction of ss 64B, 65D, 67Q and 70NBA of the Act may at some time in the future require consideration and precise determination. In essence, the question is whether an application for a Recovery Order is within the terms of the Act a “parenting order” for the purposes of s 64B of the Act?

5. “Parenting orders” and “recovery orders” are separately (and unhelpfully) defined in s 4 of the Act by separate reference to s 64B and s 67Q of the Act. Section 67V also separately provides that in determining whether to make a Recovery Order, the Court must have regard to the best interests of the child as a paramount consideration. Whether the discrete separate reference in s 67V to the “best interests of a child as a paramount consideration” supports or negates the proposition that a Recovery Order is, or is not, a parenting order, or an example of over‑drafting is difficult to discern.

6. It does seem to me, however, that it is consistent with the Objects and Principles of the Act[13] that a Recovery Order may be a subset of a parenting order. I draw some comfort in reaching that conclusion from a consideration of the matters which might be dealt with by a parenting order as set out in s 64B(2)(i) – “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child”. In my opinion, a Recovery Order deals with an aspect of the “care, welfare and development of the child”. The consequence of a Recovery Order being a parenting order, however, is that in making a parenting order under s 65D the Court must consider, and therefore determine, whether the presumption of equal shared parental responsibility is applicable. That may then in turn require the consequential consideration of the mandatory considerations outlined in s 65DAA of the Act.

   [13] Family Law Act 1975 (Cth) s 60B refers.

7. On balance, notwithstanding that s 67Q of the Act is “prescriptive” (as Mr Lewis described it) if it were necessary to do so, I would reject his submissions on jurisdiction and determine that this Court has the power to make orders varying the parenting orders for these children in proceedings for a Recovery Order.

8. In this regard, I note that the ICL has not sought to press or pursue the jurisdictional question and offers proposals as to what would be the best arrangements for the care, welfare and development of the children in the future which necessitate the making of further parenting orders.  

Parenting Orders

Proposals

1. The submissions of the ICL, Mr Walker, of 1 December 2010 proposed that there should be no order for equal shared parental responsibility and that s 61C of the Act should apply in the circumstances. This was qualified in that the mother should have sole parental responsibility with “respect to decisions concerning the referral of the Children for Psychological or Psychiatric counselling or treatment”.[14]  

   [14] Submissions of the ICL, dated 1 December 2010, [2.2.1].

2. The ICL submitted that the living arrangements should be as follows:[15]

   That the Children spend time and communicate with the Mother as follows:

   (a)Each alternate weekend from after school on Thursday (or from 3:00 pm if Thursday is not a school day) to before school on Tuesday (or until 9:00 am if Tuesday is not a school day.

   (b)Such additional time, including but not limited to time during the school holidays, that the Children or either of them express a desire to have and the parties agree.

   (c)For one half of Christmas day incorporating the night of 24 December in 2011 and each alternate year thereafter and the night of 25 December in 2010 and each alternate year thereafter.

   (d)For one week of each Christmas and term School Holiday period.

   (e)By telephone at all reasonable times.

   [15] Ibid, [2.2.2]. 

3. The ICL also suggested that there should be some orders about specific issues.  The suggested orders were as follows:[16]

   (a)That the Mother do all such acts and things necessary to arrange the attendance of herself and the children for therapeutic counselling with Dr [Y] Psychologist for such period and on such occasions as the said Dr [Y] considers it in the best interest of the Children.

   (b)That the Father…be and is hereby restrained from doing any acts or things which prevent, discourage or hinder the Children from attending the counselling referred to in the preceding order.

   (c)That neither parent change the Children’s enrolment at school from [L School] without the consent in writing of the other parent or Order of the Court.

   [16] Ibid, [2.2.3].

4. Mr Walker also sought further directions and orders that he, in conjunction with a family consultant of the Court, meet the children and explain the effect of the Court’s orders, and that all “[e]xisting Restraint Orders for the protection of the Mother should be continued”.[17]

   [17] Ibid, [2.2.4(b)].

5. The orders sought on behalf of the mother are outlined above in paragraph 15(i) of Mr Lewis’s submissions of 8 December 2010.   I have previously noted that it appears from the report from the Family Consultant that the father proposed a “flexible” arrangement.  I have also reported her comments about both that arrangement and the mother’s week-about arrangement. 

6. It was not intended by the Family Consultant that her recommendations should have the precision or comprehensiveness of orders of this Court. 

Summary

1. The proposals of the ICL, the father and the Family Consultant are that the children should live primarily with the father.

2. The mother proposes that the children live between the parties in a week‑about arrangement.  Only the mother seems to think this could work satisfactorily in a practical sense.  It also does not appear to be what the children want.

3. The time that the children spend with their mother is not the subject of particular agreement, although the proposals of the ICL fit most closely with the recommendations of the Family Consultant.  In this context, only the father seems to think that the flexible arrangement he proposes for this time would work. 

Parental responsibility

1. The issue of parental responsibility was considered by Mr Lewis, Mr Walker and by the Family Consultant. 

2. It seems clear that this is not a matter in which the presumption of equal shared parental responsibility[18] should reasonably apply as between the parties.  The reasons for that determination include the history of the litigation between the parties.  Further, without a proper commitment to cooperative parenting by both parties, sharing equally parental responsibility would, in clichéd terms, be a “recipe for disaster” or an invitation for perpetual conflict (see Marvel & Marvel (No.2) [2010] FamCAFC 101).

   [18] Family Law Act 1975 (Cth) s 61DA(1) refers.

3. The presumption is therefore rebutted pursuant to s 61DA(4) of the Act because of the history of their relationship and their conduct. To the extent that support for this proposition is required, the reports of the two professional Family Consultants indicate the different, and to some extent, contradictory parenting styles and catalogue the high level of conflict between the parties.

4. It is unnecessary, as a result of the rebuttal of the presumption, to consider whether an equal time, or substantial and significant time, is in the children’s best interests and/or reasonably practicable within the terms of s 65DAA of the Act.

5. That does not prevent me from considering, and in appropriate cases, applying such arrangements.  I have, however, indicated my view about the mother’s proposal. 

6. In my opinion, the orders proposed by the ICL about the allocation of parental responsibility are appropriate.  Each of the parents should have the ability to make decisions about the best interests and welfare of the children when they are in either her or his care.  Realistically, to require the consultation and consent of the other parent to some form of medical treatment (perhaps save the therapeutic counselling proposed by the ICL) may prevent the children from getting the care they require.  This is because the parents basically do not agree about anything. 

7. I accept the appropriateness of the mother’s having both responsibility for, and the ability to implement, therapeutic counselling for the children (and [J] hopefully] and herself as recommended by the Family Consultant.  That would also indicate that I should impose injunctions restraining the father from interfering in that process.

8. I will make orders accordingly.

With whom the children should primarily reside

1. The history of this litigation and the attitude of the father, his failure to participate in these proceedings and, to some extent, his disregard for the orders of the Court, coupled with his diagnosed mental condition would possibly suggest that the time the children spend with him should be minimised rather than expanded as the ICL and the Family Consultant suggest. However, such considerations must inevitably give way to what would be in the children’s best interests. (Section 60CA of the Act requires that I regard this as the paramount consideration).

2. It is clear from the reports of the two Family Consultants and from the behaviour of the children that the children prefer, at this point, to live with their father.  This is notwithstanding the fact that they did not have any physical contact with him for quite a long period.  It is perhaps tempting to see this as a case of “the grass being greener”, particularly when the mother’s parenting style is characterised as more restrictive than the father’s.  Nevertheless, the carefully considered reports of the Family Consultants lead me to conclude that the children’s determination in this regard, while not as clearly thought out as an adult’s might be, is a considered and thoughtful one.  At their age, their views should be respected but not necessarily determinative.

3. The children’s best interests should be determined in accordance with s 60CC of the Act. In determining what is in the best interests of the child, I must consider both primary and additional considerations,[19] which are outlined in ss 60CC(2) and 60CC(3) of the Act.

   [19] Family Law Act 1975 (Cth) s 60CC(1).

4. The two primary considerations 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 subject to, or exposed to, abuse, neglect or family violence”.[20]

   [20] Family Law Act 1975 (Cth) s 60CC(2).

5. There has been no suggestion at any point in recent times that the children’s safety would be endangered by their spending time with their father. 

6. The proceedings between the parents and their conflict between them have obviously put at risk the children’s emotional safety.  Each of the parents maintains and believes that the other parent will manipulate the children’s psychological well-being to suit his or her own purposes.  It would be difficult in the circumstances of this application to conclude whether the children are at risk in this way with one parent rather than the other.

7. I am satisfied, among other reasons from having read the affidavit of Ms B, that the children will receive appropriate and adequate physical care if they are to live primarily with their father.  I am satisfied from the material on behalf of the mother, and from the history of the matter, and from the reports of the two Family Consultants, that when the children are with their mother they would be properly and adequately cared for.

8. It is important, nevertheless, to take account of the second primary consideration. If the children are to live primarily with their father, the proposition for which he contends may mean that they should make their own decisions about the time they spend with their mother would not, in my opinion, properly fulfil the requirements of the Act. It is difficult for me in the course of these proceedings, particularly in the absence of the father, to reach any conclusion about whether he has manipulated the children’s minds and behaviour. Nevertheless, any consideration of the history of the matter and a review of the observations of the two Family Consultants would leave anyone without doubt that without firm arrangements for the children to spend time with their mother, any minimum time that they spend with her is unlikely to be achieved.  This may not be so as a result of any intentional act on behalf of the father.  But intentional or not, his ability to encourage the children after all they had been through to spend time with their mother without the assistance of Court orders is, in my opinion, likely to be severely limited.

9. In my opinion, the proposals of the ICL on a practical level represent a sensible and effective way of continuing the relationship between the children and their mother.  This is because it provides certainty, neutrality of changeover and a proper mix of time that the children spend with their mother so that she is able to experience school time, holiday time, weekend time and some special days. 

10. Nothing in such a proposal, however, should inhibit either a flexible additional arrangement for the children (to some extent, in conformity with the father’s proposal but at a higher level).  It would be a serious mistake on the part of either parent to assume that these young women, as they now are, are likely to find any arrangements presently in place to be satisfactory for the rest of their adolescent lives.  This should not be taken as an encouragement to either parent to either stimulate or, if it occurs, encourage the children to seek any formal change to the basic orders about the time they spend with each of their parents.  It should be taken as an encouragement for the parents to ensure that the children are able to achieve a flexible approach to the time they spend with each of their parents as the children wish to do – not as the parents wish to do. 

11. The additional considerations (s 60CC(3) of the Act refers) that I am required to take into account, have in large measure been adequately covered by the submissions of counsel for the ICL and the mother (in the absence of the father) and in the Family Consultants’ reports. It is obvious from what I have set out above that I regard the wishes of the children and their views about the time they spend with either parent and the arrangements relating to them as being effectively summarised by Ms K’s report. At their age, I am prepared to give those wishes quite significant weight, particularly in the light of the assessment of the Family Consultant that these are children who were both clear in their views and, consistent with their age, mature in their expression of them.

1. I feel uncomfortable about the extent of the ability of either parent to accept adequately or comprehensively, responsibilities for the emotional and psychological well-being of the children.  I am, however, to some extent, encouraged by the terms of the Family Consultant’s report about these matters.  I accept that goodwill is not an issue for either parent and that the children are now of an age where their requirements, while becoming increasingly sophisticated as they get older, may well be less dependent upon their parents’ ability to contribute than they might have been in the past. 

2. The problems associated with changeover and collection will remain.  It would be nice to think that the parents could enter into a new era of business-like, if not affectionate, cooperation about what would be best for the future.  I have no such expectation.  What the ICL proposes in this regard is sensible and will minimise that conflict.  It will also provide an opportunity for the parents to work towards some level of cooperation if that is possible.  I have no particular expectation that it will be so.

3. I do not accept that either parent is willing, or even able, to encourage the children to have a close and continuing relationship with the other parent. 

4. I accept that the involvement of the paternal grandparents is an important part of the children’s lives and I note that orders have been made to facilitate this. 

5. No submissions were made in relation to the matters listed in s 60CC(3)(g) of the Act and I am unaware of any particular material factors in this regard.

6. The issue of family violence has been a factor in the past over the course of the parties’ relationship.  I would not want it to be thought that I, in any way, minimise the consequences of such family violence upon the well-being of the children.  In relation to the issue of the need to protect the children, the ICL submitted as follows:[21]

   …there is little present risk of physical abuse of the Children by either the Mother or the Father.  See Report of Department of Health and Human Services annexed to Affidavit of D. F. Walker filed 16 October 2009.  Although it should be noted that that Report was prepared without access to the Family Court file or Dr. [S’s] evidence and Report.

   There is a risk in the future because of the Father’s propensity for violence (see his Police Record, also the Affidavit of [Mr W] filed 8 January 2010), and because of his propensity to react disproportionally to situations and how he would behave if the Children develop their own views and disagree with him (Report of Dr. [S] 27 September 2004 and his evidence).

   There is also risk of ongoing alienation from the Mother and ongoing emotional or psychological abuse.

   These risks need to be weighed against the risks associated with ignoring the Children’s wishes, and seeking to impose a regime that they and their Father will not live with. 

   [21] Submissions of the ICL, dated 1 December 2010, [3.3.1(b)].

7. I find that there is considerable force to those submissions on that discrete point and I place considerable weight in relation thereto. 

8. I make no specific findings about family violence, however, nor do I make any particular allowance for it in the orders I make other than those that are necessarily implicit in the restraints I have made at the instigation of the ICL.  

9. I have already indicated that I would prefer there would be no further litigation and I am not the slightest bit confident that that would be the case.

Conclusion

1. Accordingly, for those reasons, and in accordance with the provisions of the Act so far as I have been able adequately to consider them, and after careful considering the submissions of the mother and the ICL, I make orders in accordance with my Reasons for Judgment.

Injunction pursuant to s 118 of the Act

1. In his written submissions on behalf of the mother, Mr Lewis stated in paragraph 8:[22]

   It is further submitted that in light of the father’s relentless actions against the mother, and the impact of those actions on the children, both she and the children need some respite and protection from further applications by the father. The peripheral applications he has brought have been misconceived, vexatious, and frivolous. Apart from any other orders sought, the mother seeks an order under section 118 that the father be restrained from making any further parenting applications without leave of the court.

   [22] Submissions of the mother, dated 8 December 2010, [8].

2. In paragraph 15 of his submissions of the orders sought by the mother, order 11 was:

   11. That the father be and is hereby restrained from instituting any application for any parenting orders relating to the children [J], [A], and [E] without leave of the court.

3. Section 118 of the Act relevantly provides:

   Frivolous or vexatious proceedings

   1.   The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:

   a.dismiss the proceedings;

   b.make such order as to costs as the court considers just; and

   c.if the court considers appropriate, on the application of a party to the proceedings—order that the person who instituted the proceedings shall not, without leave of the court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;

   and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.

   2.   A court may discharge or vary an order made by that court under paragraph (1)(c).

4. The Full Court of the Family Court of Australia (May, Thackray & Benjamin JJ) in Oscar & Traynor,[23] considered the requirements of s 118 as follows:

   [23] Oscar & Traynor [2008] FamCAFC 158, [93] – [96].

   93.Section 118 of the Act together with r 11.04 of the Family Law Rules 2004 grants the court power to dismiss an application of a party and restrict further applications being filed, unless with the court’s permission.

   94.Although the court has the power to make such an order, it is a power that the authorities indicate must be used sparingly. As Kirby J said in Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29 at 31-32:

   First, it is always important for every judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not been previously seen and which may have merit. Vigilance, and not impatience, are specially required where that person is not legally represented.

   Secondly, it is regarded as a serious thing in this country to keep a person out of the courts. The rule of law requires that, ordinarily, a person should have access to the courts in order to invoke their jurisdiction. It is a rare thing to declare a person a vexatious litigant. It is extremely rare in this court to use the power, whether under the inherent power or under O 63, to require leave before a person may commence proceedings invoking the court’s jurisdiction. 

   95.The requirements for the exercise of the power contained in s 118 of the Act were recognised in DJC v SJS and Another (2005) 34 Fam LR 329 at 338:

   It can be seen that, as a necessary condition precedent to making any order under s 118 or r 11.04 restraining a party from filing or continuing an application, it is necessary for the court first to determine that there are proceedings before it which are frivolous or vexatious, and to dismiss those proceedings before then making the order restraining the commencement of further proceedings.

5. In these proceedings, it is not the case that the proceedings currently before the Court were instituted by the father. So far as the mother is concerned, these proceedings are certainly not frivolous or vexatious. In the exercise of the Court’s power pursuant to s 118 the condition precedent for the making of any order has not been established. Accordingly, the application to the extent that it is contained in the submissions of the mother’s counsel, must be dismissed.

6. Even if the proceedings had been brought by the father, it is not the case that a multiplicity of proceedings must necessarily invoke an injunction pursuant to s 118. In my opinion, the comments of his Honour, Kirby J, in Re Attorney‑General (Cth); Ex parte Skyring (above) provide wise guidance.  While any further application by the father would in the history of a large number of applications need to be carefully considered, they should be considered in the light of Kirby J’s comments, not simply on the basis that there has been a multiplicity of applications.

7. The mother’s application pursuant to s 118 of the Act is dismissed.

Costs

1. The mother sought costs for her application and details those costs in paragraph 16 of the submissions of her counsel. 

2. Section 117(1) of the Act relevantly provides:

   Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

3. Section 117(2) of the Act relevantly provides:

   If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory orders or otherwise, as the court considers just.

4. Section 117(2A) of the Act relevantly provides:

   (2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a) the financial circumstances of each of the parties to the proceedings;

   (b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g) such other matters as the court considers relevant.

5. It is true that the mother was brought to Court initially by the father’s failure to comply with Bennett J’s orders.  However, that application, in effect, was abandoned in Mr Lewis’s submissions.  While it may be said that the application was originally instigated as a result of a failure to comply with those orders, it could also be said at one level that the mother was wholly unsuccessful in her application. 

6. The orders that I have made in this matter do not coincide with those sought by the mother and while I might reasonably infer that the mother’s financial situation would be affected by the payment of the amount that she has apparently incurred in legal fees, it does not follow that I have enough information before me to make a determination based on the respective financial circumstances of each of the parties. All in all, it seems to me that the primary prescription of s 117(1) should apply. In this matter, each party should pay his or her own costs. I note that in doing so, the father has presumably accumulated no costs in relation to these proceedings.

7. The mother’s application for costs is dismissed. 

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Acting Chief Justice Faulks.

Senior Legal Associate:

Date:  10 February 2011

Annexure 1 – Application in a Case – filed 6 September 2010

Orders sought

(1)THAT this Application be heard as a matter of urgency and that the time permitted by the Court be abridged.

(2)THAT if the Court deems it necessary this then Application be heard exparte.

(3)THAT forthwith the Respondents, [MR SAWER] and [MS B], return the children [H] and [E], to the mother, [MS HUGH].

(4)THAT pursuant to s.67U of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, Deputy Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia to find and recover the children [E] and [H] both born […] January 199 herein referred to as “the children” and to deliver the said children to the mother [MS HUGH].

(5)That this Honourable Court issue a Recovery Order requiring the return of the children [E] and [H] both born […] January 1999.

(6)That the Respondents pay the costs of and incidental to this Application.

1.    Annexure 2 – Chronology prepared by the Independent Children’s Lawyer – Submissions dated 1 December 2010

Date	Event
Unknown	Paternal Grandparents, [Mr and Mrs Sawer Senior], born (“the Grandparents”)
[…]/1964	The Mother [Ms Hugh] is born.
[…]/1967	The Father [Mr Sawer] is born.
September 1995	The parties commence cohabitation.
[…]/06/1996	Child [J] is born.
[…]/1998	The Parties marry.
[…]/01/1999	The twins [E] and [H] are born.
08/05/2001	The Mother commences proceedings in Federal Magistrates Court claiming separation under the one roof and seeking residence of all three children. Proceeding ZH 2433/2001.
October 2001	Father gaoled for 28 days for Breach of Restraint Order.
19/12/2001	Parties enter Consent Orders in proceedings ZH 2433/2001 for the Children to reside with the Mother and have contact with the Father.
2002	Father commences contravention proceedings in Family Court No. 586/2002.
13/06/2002	Interim Orders made by Justice Mushin varying the Father’s contact.
09/09/2002	Father gaoled for 2 months for Breach of Restraint Orders.
31/03/2003	Father files Amended Application.
April 2003	Mr. Walker appointed Childrens Representative.
2003 – 2004	There are various Interim Applications and contravention Applications between the parties in proceedings 586/2002.
February 2004	Father wounded when self-harmed with shotgun.
April 2004	Father taken from Family Court Hobart to Royal Hobart Hospital after taking tablets following a Court Hearing.
27/09/04	Report by Dr. [S] released.
November 2004	Trial before Justice Bell in Hobart result in Orders for Children to reside with Mother and alternate weekends and Wednesday evenings of the off week contract with the Father.
2005	Father Appeals to the Full Court which varies the contact Order.
April 2007	Mother and Father enter into contact Orders varying arrangements so that [J] lives week about with the Parties and [E] and [H] have alternate weekend and Wednesday nights on the off week with the Father.
04/09/08	Father files Application for Final Orders (LNC 511/2008) that the Children live with him for nine days per fortnight.
12/09/08	Mother commences proceedings, LNC 511/2008 including an urgent Application for a Recovery Order when the Father retains the girls [E] and [H] after contact.
November 2008	Children and Parents issues assessment by [Ms N].
18/02/2009	Justice Benjamin Orders appointment of Independent Childrens Lawyer and adjourns proceedings to 12/3/09 ordering that the parties attend Court in Hobart at that time.
05/03/2009	Independent Childrens Lawyer files Application for the Parties to be assessed by Dr [S].
12/03/2009	Restraint Orders made and Order reserving the Father’s time with the Children.
21/04/2009	The Grandparents file a Response seeking time with the Children.
24/04/2009	Orders of the Family Court for the Children to spend time with the Grandparents on 26th April and for Ms [N] to carry out an assessment of the Grandparents.
May 2009	Ms [N] issues Memorandum of meeting with Grandparents
07/05/2009	orders of the Family Court for the Children to spend time with the Grandparents and for there to be an assessment of the Child [J] by Dr. [A] Psychiatrist.
04/06/2009	[J] runs away from the Mother’s home.
09/06/2009	Mother makes oral Application for a Recovery Order for [J] and Grandparents make oral Application for [J] to live with them.
10/06/2009	Order made for Grandparents to Return [J] to the Mother.
18/06/2009	Order made for Independent Childrens Lawyer to provide [J’s] school with information and to file a Notice of Abuse pursuant to Section 67 Z A.
09/07/2009	Notice of Child Abuse filed by Independent Childrens Lawyer.
Early November 2009	The Grandmother vists [E] and [H] at [L] School.
27/11/2009	Grandparents file Application for spending of time with [E] and [H].
10/12/2009	[Ms B] attends [L] School with her child “[C]” and speaks to the children [E] and [H].
11/12/2009	[The father] and [Ms B] and their Child “[C]” attend the school concert at [a concert venue].
18/12/09	Court Orders for trial directions and for a Family Report and for Restraint on Grandparents, the Father, and [Ms B] from approaching or attending [L] School.
19/02/2010	Family Report by [Ms N] is released.
20/01/2010	The Mother files Contravention Proceedings against the Father.
22/02/2010	The Interim Application by the Grandparents for spending of time with the Children is dismissed.
17/03/10	Father sentenced on Pleas of guilty to 11 counts of Contravention of the Orders of 12/03/09
17/03/10	Orders made on Contravention Proceedings varying previous parenting orders.
14/04/10	Father files appeal against orders of 17/03/10.
16/04/10	Father files application for stay of orders of 17/03/10.
23/04/10	Stay granted with respect to penalty orders and decision reserved regarding parenting orders.
29/04/10	Father files Application for dismissal of Justice Bennett.
05/05/10	Father files Application for dismissal of D Walker as Independent Children’s Lawyer.
11/05/10	Orders and reasons dismissing application for stay of Parenting orders.
12/05/10	Orders and reasons dismissing application to disqualify Justice Bennett.
19/05/10	Orders dismissing application for dismissal of ICL.
21/05/10	Reasons for orders of 19/05/10 published.
24/05/10	Orders made vacating all previous parenting orders and making new parenting orders including restraints on the Father and [Ms B].
25/05/10	Orders made by consent for spending of time by children [E] and [H] with Grandparents and [J] with Mother.
25/08/10	Hearing of application by Father to reinstate his appeal which had been deemed abandoned. Decision reserved.
September 2010	[E] and [H] run away to father twice and recovery orders sought by mother.

Annexure 3 – Orders of Bennett J – 24 May 2010
Sawer & Hugh (Injunctions) [2010] FamCA 448

1.   That all previous parenting orders in relation to [J] born […] June 1996, [E] born […] January 1999 and [H] born […] January 1999 be and are hereby discharged.

2.   That the mother have sole parental responsibility for the children [E] born […] January 1999 and [H] born […] January 1999 (“the children”).

3.   That the children live with the mother.

4.   That the father be prohibited by himself his servants and agents from communicating with the children or by placing any call or message to a mobile telephone service in the possession of the children or either of them.

5. 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;

b)      contacting the children [E] born […] January 1999 and [H] born […] January 1999 or either of them 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;

d)      approaching at or within 200 metres of the children’s school, being [L School]; and

e)      from attending at or approaching within 100 metres of any venue at which [L] School or the [V] Basketball Club or any other extra curricular activity in which the girls (or either of them) are involved and participate, are having a function or participatory activity; and

This order is made for the personal protection of the mother and the children and has attached to it a power of arrest pursuant to Section 68C of the Family Law Act 1975 so that if a police officer believes, on reasonable grounds, that the father and/or [Ms B] has breached the injunction by:-

i)   causing or threatening to cause bodily harm to a protected person; or

ii)    harassing, molesting or stalking that person;

the police officer may arrest that person without warrant.

6.Until further order, and for the purpose of the father and Ms [B] being appraised at what events they are precluded from attending, the mother do all acts and things necessary from time to time to provide the father and Ms [B] with a roster of basketball activities for the children and any other similar extra-curricular activity in which the girls (or either of them) participate promptly upon publication of such roster, by sending same by pre-paid post or electronic means to addressed to Ms [B] at Ms [B’s] professional address.

7.That the independent children’s lawyer be responsible for service of this Order on the proper officer of:-

a)[L School];

b)[S School];

c)The [V] Basketball Club;

d)Any other activity which the mother notifies to him is an activity in which the girls participate;

8.That the independent children’s lawyer provide a copy of my reasons for judgment to the proper officer of:

a)[L School];

b)[S School];

c)Any other person who the independent children’s lawyer considers ought to be aware of the reasons for the injunctions provided herein. 

9.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

AND IT IS NOTED BY THE COURT:-

a)   There are no parenting orders in relation to the child [J] born […] June 1996;

b)     Ms [B] informed the other parties and the court on the Friday 21 May 2010 preceding the hearing that neither she nor the father would attend court today and that neither sought to be heard in relation to the continuation of injunctions;

c)     The father attended court as a spectator but left in the course of the morning and did not return.

d)     There was no appearance by or on behalf of Ms [B].

Annexure 4 – Orders of Bennett J – 6 October 2010
Hugh & Sawer & Anor (Suspension of Parenting Orders) [2010] FamCA 949

IT IS ORDERED THAT:

1.Until 17 November 2010 the operation of paragraphs 3, 4 and 5 of the Orders made on 24 May 2010 be suspended (but the mother’s sole parental responsibility for the children [E] born […] January 1999 and [H] born […] January 1999 remain in full force and effect).

2.The children [E] born […] January 1999 and [H] born […] January 1999 spend time with the mother:-

a)      from the conclusion of school at school on Wednesday to the commencement of school at school on Thursday commencing on Wednesday 20 October 2010; and

b)      such other time as is agreed between the parents and evidenced in writing.

3.The independent children’s lawyer explain these orders and the operation of these orders to the children.

4.The further hearing of this matter be adjourned to 17 November 2010 at 10.00 am (“the adjourned date”) when it will be conducted at the Hobart Registry of the Family Court of Australia and by video link between Hobart and Melbourne if necessary.  Each party to the proceedings is required to attend Court if they seek to be heard.

5.That pursuant to section 11F of the Family Law Act 1975 the Child Dispute Section of the Court provide formal mediation services to the parties, to be arranged and notified to the parties by Ms […], Manager of Child Dispute Services in Hobart as soon as practicable and allowing sufficient time for two or more mediation sessions before the adjourned date.

6.The parties do all acts and things necessary to attend personally and with the children as directed by Ms […] for the purpose of mediation.

7.For the avoidance of doubt, the mediation is not privileged and I DIRECT that it be the subject of a memorandum by the mediator, or such other person as Ms […] directs, which should be published and available to the parties and the independent children’s lawyer by not later than 12.00 noon on Friday 12 November 2010. The writer of the memorandum be available for cross examination on the adjourned date.

8.The reasons for judgment this day be transcribed and, when settled, copies be published to the parties.

9.The Director of Child Dispute Services invite the paternal grandparents, [Mr and Mrs Sawer Senior], to participate in the mediation process.

10.IT IS REQUESTED that the independent children’s lawyer correspond with the paternal grandparents with a view to vacating or adjourning the directions hearing in their proceedings on 4 November 2010 and, if there is agreement to adjourn that date, such adjournment be effected administratively prior to 29 October 2010 by correspondence from the independent children’s lawyer to my Associate.

AND THE COURT NOTES that the father opposed any orders for the girls to spend any time with the mother prior to 20 October 2010 and would not agree to orders which provided for more extensive time.

Annexure 5 – Orders of Bennett J – 11 October 2010

Hugh & Sawer & Anor (Reinstate certain parenting orders) [2010] FamCA 958

IT IS ORDERED THAT:

1. 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.

2. 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.

3. 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.

4. My reasons for decision be transcribed and, when settled, a copy be placed on the Court file and provided to each of the parties.

5. 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.