Sawer and Hugh (No. 2) - [2009] FamCA 496

FAMILY COURT OF AUSTRALIA

SAWER & HUGH (NO. 2)

[2009] FamCA 496

FAMILY LAW – CHILDREN – Less adversarial proceedings – Children and Parents Issues Assessment to the effect that pressure placed on children by father constitutes emotional abuse – father ceased to participate in proceedings and his applications are withdrawn – interim orders suspending the children’s time with the father – injunction against father coming into contact with the children and power of arrest in the event of an alleged breach – relevant considerations

APPLICANT:

Mr Sawer

RESPONDENT:

Ms Hugh

INDEPENDENT CHILDREN’S LAWYER:

Verney Walker & Co Lawyers

FILE NUMBER:

LNC

511

2008

DATE DELIVERED:

12 March 2009

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Bennett J

HEARING DATE:

12 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Gibson, solicitor, who subsequently sought and obtained leave to withdraw.

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Mr Lewis

SOLICITOR FOR THE RESPONDENT:

Temple-Smith Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Walker

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Verney Walker & Co Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER:

That until further order all parenting orders be and are hereby suspended.
That until further order the mother have sole parental responsibility for the children J born … June 1996, E and H both born … January 1999 (“the children”).
That until further order the children live with the mother.
That until further order the parties do all acts and things necessary to ensure that no person other than the mother or Mrs Hugh Snr (“the maternal grandmother”) or someone acting under and able to produce the written authority of the mother be permitted to remove the children from their respective schools, being S School at S and L School in L and/or from communicating with the children whilst they are at school.
That until further order the entitlement of the father to communicate or spend time with the children or any of them or to have the children or any of them live with him be reserved with the effect that there is no enforceable entitlement of the father to communicate or spend time with the children or have the children live with him.
That until further order the father be prohibited from communicating with the children by placing any call to a mobile telephone service in the possession of the children or any of them.
That until further order, pursuant to s68B of the Family Law Act, the father be prohibited from contacting the mother and the children or any of them or from approaching at or within two hundred (200) metres of the mother’s residence at

R or the children’s schools AND IT IS NOTED 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 s68C of the Act.
That a Recovery Order issue in accordance with Form 34 of the Family Law Rules with the following particulars:

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: [2009] FamCA 496
Decision Date: 12 March 2009

CaseChat Overview and Summary

This matter came before Bennett J concerning parenting orders for the children J, E, and H. The father, Mr Sawer, had withdrawn his application for parenting orders and subsequently withdrew from further participation in the proceedings. The mother sought orders for the sole parental responsibility and residence of the children with her, along with protective measures.

The court was required to determine the appropriate parenting orders in the absence of the father's participation and in light of concerns for the children's welfare and the mother's personal protection. Key issues included the suspension of existing parenting orders, the grant of sole parental responsibility and residence to the mother, and the implementation of measures to prevent the father from removing the children from school or communicating with them, as well as prohibiting him from approaching the mother's residence or the children's schools. The court also considered the issuance of a recovery order for the children and the assessment of their mental health.

Bennett J made extensive orders, suspending all prior parenting orders and granting the mother sole parental responsibility and residence for the children. The father was prohibited from removing the children from school or communicating with them, and was also prohibited from approaching the mother's residence or the children's schools, with a power of arrest attached to this order for the personal protection of the mother and children. A recovery order was issued authorising law enforcement to find and recover the children and deliver them to the mother, prohibiting the father from retaking possession of them. The court also ordered that the children's mental health be assessed by a psychologist or psychiatrist nominated by the Independent Children's Lawyer, with initial costs to be borne by the Independent Children's Lawyer, and liberty was reserved for the father to apply to vary or set aside the orders. The Independent Children's Lawyer was directed to explain the outcome of the proceedings to the children in terms they could understand.

Orders

Orders of the court

IT IS ORDERED UNTIL FURTHER ORDER:

That until further order all parenting orders be and are hereby suspended.

That until further order the mother have sole parental responsibility for the children J born … June 1996, E and H both born … January 1999 (“the children”).

That until further order the children live with the mother.

That until further order the parties do all acts and things necessary to ensure that no person other than the mother or Mrs Hugh Snr (“the maternal grandmother”) or someone acting under and able to produce the written authority of the mother be permitted to remove the children from their respective schools, being S School at S and L School in L and/or from communicating with the children whilst they are at school.

That until further order the entitlement of the father to communicate or spend time with the children or any of them or to have the children or any of them live with him be reserved with the effect that there is no enforceable entitlement of the father to communicate or spend time with the children or have the children live with him.

That until further order the father be prohibited from communicating with the children by placing any call to a mobile telephone service in the possession of the children or any of them.

That until further order, pursuant to s68B of the Family Law Act, the father be prohibited from contacting the mother and the children or any of them or from approaching at or within two hundred (200) metres of the mother’s residence at

R or the children’s schools AND IT IS NOTED 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 s68C of the Act.

That a Recovery Order issue in accordance with Form 34 of the Family Law Rules with the following particulars:

(a) The Recovery Order is to be addressed to the Marshal, all officers of the Australian Federal Police, all officers of the State and Territory police forces;

(b) Such persons are authorised and directed to find and recover the children J born … June 1996, E and H both born … January 1999and for that purpose, with such assistance as they require to stop and search any vehicle vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the children may be found; to enter and search the premises or place situated at and known as.

(d) Mr Sawer is prohibited from again removing or taking possession of the children;

(e) If Mr Sawer again removes or takes possession of the child, he may be arrested without a warrant;

That until the father files and serves a Notice of Address for Service to the contrary the Court record his address for service as …, L, facsimile no. … and telephone no. ….

10.

That liberty be reserved to the father to apply on seven days notice to vary or set aside or discharge this order or as he may be advised such application to be listed as soon as practicable before myself or if I am not reasonably available before Justice Cronin at the Melbourne Registry of this Court or as he may direct.

11.

That subject to any further order of the Court the mother and the father do all acts and things necessary to have the mental health of the children assessed by psychologist or psychiatrist nominated by the Independent Children’s Lawyer providing that the interviews for any such assessment not be conducted prior to this matter being mentioned before me in April 2009.

12.

That subject to any further order of the Court the Independent Children’s Lawyer be initially responsible for the reasonable cost of the psychological or psychiatric assessment of the children and be at liberty to make application subsequently that either or both of the parties make a contribution to those costs.

13.

That this matter be listed before me for mention at 9.00am on Friday 24 April 2009 by telephone link-up for directions for final hearing AND IT IS DIRECTED that the Family Consultant Ms N be available to give evidence on that day.

14.

That the Independent Children’s Lawyer explain the outcome of today’s proceedings including the fact that the father withdrew his application for parenting orders and then withdrew from any participation of the proceedings, such explanation to be given in terms likely to be understood by the children.

15.

That a Registrar of this Registry of the Court contact the principal or proper officer of the schools at which the children attend being S School, S (tel. …) L School, L Ph: … and advise him/her of the effect of paragraph 4 above to them.

16.

That a copy of this order be sent to the father by facsimile.

17.

Pursuant to s.65DA(2) and s.62B, the particulars of 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 these particulars are included in these orders.

IT IS CERTIFIED

18.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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