Peddar and Vina (No. 2) - [2008] FamCA 893

FAMILY COURT OF AUSTRALIA

PEDDAR & VINA (NO. 2)

[2008] FamCA 893

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Facilitating rights of access of requesting parent in Sweden to children in Australia pursuant to reg 24 of the Family Law (Child Abduction Convention) Regulations 1986 – application by father to discharge previous order in light of new evidence - relevant principles

Family Law Act 1975 (Cth) s 60CA

State Central Authority & Peddar [2008] FamCA 519

APPLICANT:

Mr Peddar

RESPONDENT:

Ms Vina

FILE NUMBER:

MLC

8853

2007

DATE DELIVERED:

9 September 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Ms A. Carter

SOLICITOR FOR THE RESPONDENT:

Victoria Legal Aid

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr A. Skerlj

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Donald S Lampe

Orders

That as conditions precedent to the time which the mother is entitled to spend with the children F born … April 1997 and E born … April 1999, pursuant to paragraph 4 of the Order made on 30 June 2008, the mother her servants and or agents be and are hereby restrained from causing permitting or suffering the:-
(i)making of any reports or notifications to the police, any child protection agency or any child welfare agency or like authority or body, whether in Australia or Sweden or elsewhere, in relation to allegations pre-dating the making of this order that the children have been abused or are at risk of being abused by the father an/or any member of his family; and
(ii)taking of the children to any medical or allied health professional, the police or any body charged with the protection of children in relation to any allegations of sexual abuse of the children by the father and/or any member of his family, that pre-date the making of these Orders.
That for the purpose of implementing paragraph 9 of the Order made 30 June 2008 the father shall deliver the children to the mother at …, Tullamarine Airport, International Departures, at 11.00 am on 10 September 2008.
That the mother be entitled forthwith to collect the children’s passports from this Registry of the Family Court and she be responsible for returning the passports to the father with the children at the conclusion of their time with her.
That the father’s application filed 28 July 2008 (as amended) and the mother’s response thereto be otherwise dismissed.
That the order requesting the appointment of the independent children’s lawyer be and is hereby discharged.

IT IS NOTED that publication of this judgment under the pseudonym Peddar & Vina is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8853 of 2007

MR PEDDAR

Applicant

And

MS VINA

Respondent

REASONS FOR JUDGMENT

ex tempore

The father, Mr Peddar, makes an application to discharge permanently orders that I made on 30 June 2008, pursuant to…

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 Peddar and Vina (No. 2)

Details

AGLC: Peddar and Vina (No. 2) [2008] FamCA 893
Case: [2008] FamCA 893
Decision Date: 9 September 2008

CaseChat Overview and Summary

In the matter of *Peddar and Vina (No. 2)*, Bennett J of the Family Court of Australia considered an application concerning the welfare and contact arrangements for two children. The dispute involved allegations of child abuse and the conditions under which the mother was entitled to spend time with the children, as well as the father's application regarding these matters.

The court was required to determine whether to grant injunctive relief restraining the mother from making certain reports or notifications to authorities regarding alleged abuse of the children by the father or his family, and from taking the children to specific professionals in relation to such allegations that pre-dated the court's order. Additionally, the court had to consider the father's application and the mother's response thereto, and the appropriateness of continuing the appointment of an independent children's lawyer.

Bennett J reasoned that the conditions precedent to the mother's entitlement to spend time with the children, as stipulated in a prior order of 30 June 2008, required clarification and enforcement through specific restraints. The court applied principles relating to the protection of children and the need to prevent the misuse of reporting mechanisms for purposes other than genuine child protection concerns, particularly where allegations pre-dated the current proceedings. The court also considered the practical arrangements for the children's passports and their handover between parents.

The court ordered that the mother, her servants, and agents be restrained from making reports or notifications to police or child protection agencies concerning allegations of abuse by the father or his family that pre-dated the order, and from taking the children to medical or allied health professionals, police, or child protection bodies in relation to such allegations. The father was ordered to deliver the children to the mother at Tullamarine Airport on 10 September 2008 for their time with her. The mother was entitled to collect the children's passports from the court registry and was responsible for their return to the father with the children. The father's application and the mother's response were otherwise dismissed, and the appointment of the independent children's lawyer was discharged.

Orders

Orders of the court

That as conditions precedent to the time which the mother is entitled to spend with the children F born … April 1997 and E born … April 1999, pursuant to paragraph 4 of the Order made on 30 June 2008, the mother her servants and or agents be and are hereby restrained from causing permitting or suffering the:-

(i) making of any reports or notifications to the police, any child protection agency or any child welfare agency or like authority or body, whether in Australia or Sweden or elsewhere, in relation to allegations pre-dating the making of this order that the children have been abused or are at risk of being abused by the father an/or any member of his family; and

(ii) taking of the children to any medical or allied health professional, the police or any body charged with the protection of children in relation to any allegations of sexual abuse of the children by the father and/or any member of his family, that pre-date the making of these Orders.

That for the purpose of implementing paragraph 9 of the Order made 30 June 2008 the father shall deliver the children to the mother at …, Tullamarine Airport, International Departures, at 11.00 am on 10 September 2008.

That the mother be entitled forthwith to collect the children’s passports from this Registry of the Family Court and she be responsible for returning the passports to the father with the children at the conclusion of their time with her.

That the father’s application filed 28 July 2008 (as amended) and the mother’s response thereto be otherwise dismissed.

That the order requesting the appointment of the independent children’s lawyer be and is hereby discharged.

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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