HUGH & SAWER (INJUNCTIONS) - [2010] FamCA 448

FAMILY COURT OF AUSTRALIA

HUGH & SAWER (INJUNCTIONS)

[2010] FamCA 448

FAMILY LAW – CHILDREN – Injunctions

Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 61B, 61C, 68B, 69ZT

APPLICANT:	Ms Hugh
RESPONDENT:	Mr Sawer

INDEPENDENT CHILDREN’S LAWYER:

David Walker & Co

FILE NUMBER:

LNC

511

2008

DATE DELIVERED:

24 May 2010

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Bennett J

HEARING DATE:

24 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lewis

SOLICITOR FOR THE APPLICANT:

Levis Stace & Cooper

COUNSEL FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER

David Walker & Co

Orders

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.
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;
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.
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…

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 HUGH & SAWER (INJUNCTIONS)

Details

AGLC: HUGH & SAWER (INJUNCTIONS) [2010] FamCA 448
Case: [2010] FamCA 448
Decision Date: 24 May 2010

CaseChat Overview and Summary

Bennett J considered applications for parenting orders and injunctions concerning three children, J, E, and H. The dispute involved the father's relationship with the children and his conduct towards the mother and Ms B. The court was required to determine the appropriate parenting arrangements for E and H, and whether to grant injunctions to protect the mother and children.

The court was asked to determine the extent of the father's parental responsibility and contact with E and H, and to consider the necessity of restraining orders against the father and Ms B. Specifically, the court had to decide whether to discharge existing parenting orders and what new orders, if any, should be made regarding the children's residence, parental responsibility, and communication with the father. The court also considered the scope of injunctions to prevent contact and proximity to the mother, children, and their school and extracurricular activities.

Applying principles under the *Family Law Act 1975*, particularly sections 68B and 68C, Bennett J made orders discharging previous parenting orders. The mother was granted sole parental responsibility for E and H, with the children to live with her. Crucially, the father was prohibited from communicating with the children, and both the father and Ms B were enjoined from contacting the mother, contacting the children, and approaching specified locations including the mother's residence, the children's school, and venues for their extracurricular activities. These injunctions were made for the personal protection of the mother and children and carried a power of arrest for breaches involving causing or threatening bodily harm, or harassment, molestation, or stalking. The court also ordered the mother to provide the father and Ms B with rosters of the children's activities to inform them of precluded attendance. The independent children's lawyer was tasked with serving the orders on relevant institutions.

Orders

Orders of the court

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.

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;

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.

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.

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;

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.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.