Jardine and Sackville (No 2) - [2019] FamCA 1036

FAMILY COURT OF AUSTRALIA

JARDINE & SACKVILLE (NO. 2)

[2019] FamCA 1036

FAMILY LAW – CHILDREN – Interim proceedings – Where interim orders were consensually made in March 2019 for the mother to have sole parental responsibility for the children and for them to live with her – Where the father withdrew his application for the children to communicate and spend time with him and his application was then dismissed – Where the father now seeks orders requiring the children to communicate and spend time with him, the amendment of an existing apprehended violence order made by a State court, and for the mother and maternal grandparents to submit to psychological or psychiatric assessment – Where the mother and the Independent Children’s Lawyer seek dismissal of the father’s application – Where the father contends the mother is alienating the children from him – Where the mother contends the father is violent – Where factual findings in respect of those issues cannot be made until the evidence is tested at trial – Where the trial is listed in January 2020 – Where the presumption of equal shared parental responsibility does not apply – Where the father’s desire to spend time and communicate with the children is outweighed by s 60CC considerations – Where the Court does not have power to annul or amend the order of a State court – Where the Court does not have power to compel the maternal grandparents to submit to psychological or psychiatric assessment – Where there is no evidentiary basis to compel the mother to submit to psychological or psychiatric assessment – Ordered that the father’s application be dismissed

Family Law Act 1975 (Cth), ss 60CC, 61DA, 65DAC

APPLICANT:

Mr Jardine

RESPONDENT:

Ms Sackville

INDEPENDENT CHILDREN’S LAWYER:

Krstina Wooi Lawyer

FILE NUMBER:

NCC

1949

2018

DATE DELIVERED:

8 November 2019

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

8 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Ms A. Hebblewhite as agent

SOLICITOR FOR THE RESPONDENT:

McIntosh McPhillamy & Co Legal Services

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms K. Wooi

Orders

IT IS ORDERED THAT

The Application in a Case filed on 18 September 2019 is dismissed.
The respondent mother’s application for costs arising out of today’s interim hearing is reserved to the final trial on 28 January 2020.

BY CONSENT, IT IS FURTHER ORDERED THAT

Leave is granted to the Independent Children’s Lawyer to issue a subpoena to the father’s psychologist, Ms B.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jardine & Sackville (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may…

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.

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Details

Case: [2019] FamCA 1036
Decision Date: 8 November 2019

CaseChat Overview and Summary

In the matter of *Jardine and Sackville (No 2)*, Austin J of the Family Court of Australia considered an application by the father seeking orders for the children to communicate and spend time with him, the amendment of an apprehended violence order made by a State court, and for the mother and maternal grandparents to undergo psychological or psychiatric assessments. The mother and the Independent Children’s Lawyer sought the dismissal of the father's application. The father alleged parental alienation by the mother, while the mother contended the father was violent.

The court was required to determine whether to grant the father's interim orders, considering the existing interim orders from March 2019 which granted the mother sole parental responsibility and stipulated the children live with her, and the father's prior withdrawal of his application for contact. Key legal issues included the application of the presumption of equal shared parental responsibility, the weight to be given to the considerations under section 60CC of the *Family Law Act 1975* (Cth) in the context of interim proceedings, the court's power to amend or annul orders of a State court, and its power to compel psychological or psychiatric assessments of parties and third parties.

Austin J reasoned that factual findings on the allegations of parental alienation and violence could not be made at the interim stage, as evidence required testing at trial, which was listed for January 2020. The presumption of equal shared parental responsibility did not apply. The court found that the father's desire for contact was outweighed by the section 60CC considerations. Furthermore, the court determined it lacked the power to annul or amend the apprehended violence order made by a State court, and it had no power to compel the maternal grandparents to undergo assessments. There was also no evidentiary basis to compel the mother to submit to such an assessment at this interim stage.

Consequently, the father's application was dismissed. The respondent mother's application for costs arising from the interim hearing was reserved to the final trial. Leave was granted to the Independent Children’s Lawyer to issue a subpoena to the father's psychologist.

Orders

Orders of the court

IT IS ORDERED THAT

The Application in a Case filed on 18 September 2019 is dismissed.

The respondent mother’s application for costs arising out of today’s interim hearing is reserved to the final trial on 28 January 2020.

BY CONSENT, IT IS FURTHER ORDERED THAT

Leave is granted to the Independent Children’s Lawyer to issue a subpoena to the father’s psychologist, Ms B.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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