Sawer and Hugh (No. 4)
[2009] FamCA 521
•18 June 2009
FAMILY COURT OF AUSTRALIA
| SAWER & HUGH (NO. 4) | [2009] FamCA 521 |
| FAMILY LAW – CHILDREN – Order for publication of reasons to children’s schools |
| APPLICANT: | Mr and Mrs Sawer (Snr) |
| RESPONDENT: | Ms Hugh |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | LNC | 511 | of | 2009 |
| DATE DELIVERED: | 18 June 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 18 June 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Mr Lewis |
| SOLICITOR FOR THE RESPONDENT: | Temple-Smith and Partners |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Verney Walker & Co |
Orders
IT IS DIRECTED:
That the independent children’s lawyer provide a copy of the reasons for judgment on 10 June 2009 and 12 March 2009 and this day and this Order to the proper officers of S School attended by the child J born … June 1996 and L School attended by the children E born … January 1999 and H born … January 1999.
AND THE COURT NOTES that the independent children’s lawyer has stated that pursuant to s67ZA he will make a notification to the Department of Health and Human Services (Tasmania) that the child J is exposed or subjected or is at risk of being exposed or subjected to behaviour which psychologically harms him.
IT IS NOTED that publication of this judgment under the pseudonym Hugh & Sawer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: LNC 511 of 2008
| MR AND MRS SAWER (SNR) |
Applicant
And
| MS HUGH |
Respondent
REASONS FOR JUDGMENT
ex tempore
This matter has been brought on for mention at the request of the independent children’s lawyer and consequent upon the child, J born … June 1996, having run away from home for the second time in the last fortnight.
The parties are the mother for whom Mr Lewis, of counsel, appears and the independent children’s lawyer, Mr Walker. The mention is ex parte and the other parties to the proceedings are J’s paternal grandparents, who, as far as everyone is aware, are en route to Queensland for a holiday of three months duration. I accept that it is impracticable to provide the paternal grandparents with notice of the mention.
The child’s father, Mr Sawer, is not a participant in the proceedings. The circumstances of that and the relevant background to the case are rehearsed in my reasons for decisions in earlier hearings on 12 March 2009[1] and 10 June 2009.[2]
[1] [2009] FamCA 496.
[2] [2009] FamCA 516.
I have before me two affidavits filed on behalf of the mother and sworn by her solicitor today. Both affidavits annex documents from either the father or the mother. I have read them and have regard to the contents.
Also participating in this mention, is the family consultant designated to this matter, Ms N.
The mention is being conducted by telephone link up between the Melbourne Registry (where I am located), Devonport where the mother’s counsel and the independent children’s lawyer are located and Hobart where Ms N is located.
J ran away from the mother’s home on Saturday 13 June 2009 only a matter of days after he had been returned there, under compulsion of an order to do so, by the paternal grandparents after an earlier occasion of having run away. Since Saturday, J has been in the care of his father and, presumably, his father’s partner. That is contrary to the Orders made on 12 March 2009 including an injunction directed to the father not taking possession or assuming care of J. A power of arrest attaches to the injunction but neither the independent children’s lawyer nor the mother consider that it would be productive or in J’s best interests for the power of arrest to be exercised or sought to be exercised at this point.
Counsel for the mother stated that the mother was considering making an oral application for a recovery order to issue in respect of J. I indicated a preliminary view that an oral application did not seem to be justified as there had been more than sufficient time to make an application in proper form. I will, of course, determine an application in the appropriate form if or when it is filed. There was general discussion, including the valuable input of Ms N. The court and, I expect, the parties were assisted by Ms N’s opinions.
Whilst there were no formal applications, the submissions and discussions were within the child focussed parameters or the principles for conducting child-relating proceedings set out in s 69ZN of the Act.
I will accede to the oral application of the independent children’s lawyer for the reasons for judgment in the earlier hearings to be provided now to the proper officer of the school at which J attends, S School, and the school attended by J’s sisters, L School. That is supported by the mother. On balance, and particularly having regard to J having left the mother’s home, I am satisfied that it is in the best interests of all of the children for the educational institutions which they attend to be aware of the family dynamics and, in particular, the damaging and destructive behaviour of the father. I will leave it to the independent children’s lawyer to discuss with the school authorities the extent to which the reasons should be distributed within the school in the context of the safety and pastoral care of the three children in this family and of other children with whom the father may come into contact.
Apropos of the father’s household, as no application has been made for a recovery order, I assume that J will remain there for the time being. It is a most unsatisfactory place for him to be. I accept that the opinion of the family consultant that J’s emotional and psychological well being is at risk by virtue of the father’s manipulative and divisive behaviour. J is in need of therapeutic treatment but there seems no practical way of that treatment being delivered whilst he is in the father’s household.
Finally I note that the independent children’s lawyer has stated that he will make a notification to the Department of Health and Human Services Tasmania in respect of emotional harm to J in the father’s household. I note that Ms N is considering making a notification as well. That is a matter for her professional judgment. However, given the assurance of Mr Walker that he will make a notification, I accept that at least one notification will be made as soon as it is practicable to do so.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 19 June 2009
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