FAMILY COURT OF AUSTRALIA
| HUGH & SAWER | [2010] FamCA 290 |
| FAMILY LAW – CHILDREN – Contravention application – application of Division 13A Part VII Subdivision F – serious disregard – penalty FAMILY LAW – CHILDREN – Contravention application – variation of parenting orders |
| Family Law Act 1975 (Cth) ss 70NEA, 70NEB, 70NFB, 117(2A). |
| B and B [1988] FamCA 115 Croser v Atrill (1990) FLC 92-100 Cummings v Cummings (1976) FLC 90-100 Fauna Holdings Pty Ltd and McGillivray & Ors v Mitchell (No 2) (2000) FLC 93-053) G v G (1981) FLC 91-042 LAC and TRF and LKL [2005] FamCA 158 McClintock v Levier [2009] FamCAFC 62 |
| APPLICANT: | Ms Hugh |
| RESPONDENT: | Mr Sawer |
| INDEPENDENT CHILDREN’S LAWYER: | David Walker & Co |
| FILE NUMBER: | LNC | 511 | of | 2008 |
| DATE DELIVERED: | 17 March 2010 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 15, 16 and 17 March 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lewis |
| SOLICITOR FOR THE APPLICANT: | Temple-Smith Partners |
| COUNSEL FOR THE RESPONDENT: | Mr Dixon CSC appeared on 15 and 16 March 2010. Mr Sawer appeared in person on 17 March. |
| SOLICITOR FOR THE RESPONDENT: | 15 and 16 March – Legal Solutions |
| INDEPENDENT CHILDREN’S LAWYER | David Walker & Co |
Orders
That the respondent husband pay the applicant wife’s costs of and incidental to the contravention of parenting orders proceedings fixed in the sum of $6,276.00.
That the reservation of costs in favour of the father in relation to the financial contravention application of the wife filed 20 January 2010 be and is hereby discharged.
That in relation to Counts 4, 5, 6, 7, 8, 9, 10, 11, 13, 15 and 16 of the Contravention Application filed by the mother in relation to parenting orders filed on 20 January 2009 I impose a fine on the respondent husband in the sum of $3,000.00 to be paid on or before 17 May 2010.
IT IS FURTHER ORDERED UNTIL FURTHER ORDER:
That all previous parenting orders be and are hereby discharged.
That the mother have sole parental responsibility for the children E born … January 1999 and H born … January 1999 (“the children”).
That the children live with the mother.
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.
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;
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- Hugh & Sawer [2010] FamCA 290
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- [2010] FamCA 290
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CaseChat Overview and Summary
The court's reasoning focused on the husband's conduct in relation to specific counts of the contravention application. Having found that the husband had seriously disregarded certain parenting orders, the court imposed a fine of $3,000.00. Beyond the penalty for contravention, the court made significant further orders, discharging all previous parenting orders.
The court then made new orders granting the mother sole parental responsibility for the children, E and H, and ordering that the children live with her. The father was prohibited from communicating with the children, including via mobile telephone. Furthermore, the father and Ms B were prohibited from contacting the mother or the children, approaching the mother's residence or the children's school, or attending venues where the children participated in sporting activities. These protective orders were made with a power of arrest attached. The court also reserved costs in favour of the wife for the contravention proceedings and discharged a reservation of costs in favour of the husband regarding a financial contravention application. The matter was adjourned for further consideration of variation of parenting orders and related issues.
Orders
Orders of the court
1.
That the respondent husband pay the applicant wife’s costs of and incidental to the contravention of parenting orders proceedings fixed in the sum of $6,276.00.
2.
That the reservation of costs in favour of the father in relation to the financial contravention application of the wife filed 20 January 2010 be and is hereby discharged.
3.
That in relation to Counts 4, 5, 6, 7, 8, 9, 10, 11, 13, 15 and 16 of the Contravention Application filed by the mother in relation to parenting orders filed on 20 January 2009 I impose a fine on the respondent husband in the sum of $3,000.00 to be paid on or before 17 May 2010.
IT IS FURTHER ORDERED UNTIL FURTHER ORDER:
4.
That all previous parenting orders be and are hereby discharged.
5.
That the mother have sole parental responsibility for the children E born … January 1999 and H born … January 1999 (“the children”).
6.
That the children live with the mother.
7.
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.
8.
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, at which the children H or E (or either of them) play, have a function or conduct or participate in a sporting 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.
IT IS REQUESTED:
9.
That the independent children’s lawyer explain the outcome of the contravention proceedings to the children and the operation of this order to the children and to J in terms likely to be understood by all of them.
IT IS DIRECTED:
10.
That the independent children’s lawyer make such enquiries as is necessary to furnish to the mother and the father and to Ms B details of the opportunities and availabilities for the children J, H, E and C to spend time together in a contact centre between now and the adjourned date.
IT IS FURTHER ORDERED:
11.
That liberty is reserved to the parties to apply to me for any orders sought by consent to be made in Chambers which will regularise and formalise any arrangement that they may be able to agree to in relation to the four children spending time with each other between now and the adjourned date.
12.
That the issue of variation of parenting orders as sought by the mother and as sought by the father be adjourned to the same date and time as the proceedings between the paternal grandparents and the mother in relation to the children E and H.
13.
That any application for the appointment of a next friend for the husband be made on notice to each other party and so that in sufficient time it can be dealt with prior to the resumption of the parenting proceedings at the end of May 2010.
14.
That the reasons for judgment this day be transcribed and when transcribed copies be made available to the parties and to the Director of Child Dispute Services for this region of the court for distribution to Ms N.
15.
That the independent children’s lawyer be responsible for service of this Order on the Proper Officer of:-
a) L School;
b) The V Basketball Club; and
c) Any contact centre in which the parents apply to participate.
16.
That the independent children’s lawyer do all acts and things necessary to inform the father and Ms B of the roster for the girls participation in V Basketball Club activities.
17.
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.
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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