Sawer & Anor and Hugh - [2010] FamCA 344

FAMILY COURT OF AUSTRALIA

SAWER AND ANOR & HUGH

[2010] FamCA 344

FAMILY LAW – CHILDREN – interim parenting application – whether in best interests of children to spend time with paternal grandparents and paternal family – application dismissed

Family Law Act 1975 (Cth) ss 60CC2, 60CC3

Goode & Goode (2006) FLC 93-286

FIRST APPLICANT:

Mr Sawer Snr

SECOND APPLICANT:

Mrs Sawer Snr

RESPONDENT:

Ms Hugh

INDEPENDENT CHILDREN’S LAWYER:

Mr D. Walker

FILE NUMBER:

LNC

511

2008

DATE DELIVERED:

2 March 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

2 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Zeeman Kable & Page

COUNSEL FOR THE RESPONDENT:

Mr D. Lewis

SOLICITOR FOR THE RESPONDENT:

Temple Smith Partners

INDEPENDENT CHILDREN’S LAWYER

David Walker & Co

Orders

That until a Notice of Address is filed to the contrary the address for service of documents for Mr and Mrs Sawer Snr be noted in the records of the court as Zeeman Kable & Page, solicitors with the solicitor concerned being Ms C Gibson.
That the oral application of the paternal grandparents to spend time with the twins E born … January 1999 and H born … January 1999 prior to the final hearing be and is hereby dismissed.
That the reasons for judgment this day be transcribed and when transcribed copies be made available to the parties.
That paragraph 5 of the Order One made on 22 February 2010 be extended so that the paternal grandparents file and serve any further evidence upon which they propose to rely in relation to parenting matters by Wednesday 3 March 2010 at 4.00 pm NOTING THAT they can avail themselves of filing by facsimile or filing electronically.
That leave is granted to the independent children’s lawyer to file such evidence as he proposes to rely upon at the final determination of parenting matters but reserve to the trial any issue of the independent children’s lawyer’s reliance on such evidence.
That leave is granted to the parties generally to cause subpoenae to issue to produce documents or to give evidence and IT IS DIRECTED that any such subpoenae be referred to my Associate.

IT IS NOTED that publication of this judgment under the pseudonym Sawer & Hugh 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 SAWER SNR

First Applicant

MRS SAWER SNR

Second Applicant

And

MS HUGH

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

(ex tempore)

This matter comes before me today on an oral application by the paternal grandparents, Mr and Mrs Sawer Snr (‘the grandparents’), to spend time with the twins, E and H, born in January 1999, on the weekend commencing 5 March 2010. One feature of the time is that it would allow the twins an opportunity to celebrate the birthday of their sister C in March 2010. C is the child of the relationship formed…

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 Sawer & Anor and Hugh

Details

AGLC: Sawer & Anor and Hugh [2010] FamCA 344
Case: [2010] FamCA 344
Decision Date: 2 March 2010

CaseChat Overview and Summary

In the matter of *Sawer & Anor and Hugh*, Bennett J of the Family Court of Australia considered an application by the paternal grandparents for orders to spend time with the twins, E and H, prior to a final hearing. The proceedings concerned parenting matters.

The primary legal issue before the court was whether to grant the paternal grandparents leave to spend time with the twins before the final determination of parenting issues. The court also considered applications regarding the filing of evidence and the issuance of subpoenas.

Bennett J dismissed the oral application of the paternal grandparents for interim time with the twins. The court extended the time for the paternal grandparents to file and serve further evidence in relation to parenting matters, allowing for filing by facsimile or electronically. Leave was granted to the independent children’s lawyer to file evidence, with any issues regarding its reliance reserved for trial. The court also granted general leave to the parties to issue subpoenas for documents or evidence, directing that any such subpoenas be referred to the Associate. The address for service of documents for Mr and Mrs Sawer Snr was noted as Zeeman Kable & Page, solicitors.

Orders

Orders of the court

That until a Notice of Address is filed to the contrary the address for service of documents for Mr and Mrs Sawer Snr be noted in the records of the court as Zeeman Kable & Page, solicitors with the solicitor concerned being Ms C Gibson.

That the oral application of the paternal grandparents to spend time with the twins E born … January 1999 and H born … January 1999 prior to the final hearing be and is hereby dismissed.

That the reasons for judgment this day be transcribed and when transcribed copies be made available to the parties.

That paragraph 5 of the Order One made on 22 February 2010 be extended so that the paternal grandparents file and serve any further evidence upon which they propose to rely in relation to parenting matters by Wednesday 3 March 2010 at 4.00 pm NOTING THAT they can avail themselves of filing by facsimile or filing electronically.

That leave is granted to the independent children’s lawyer to file such evidence as he proposes to rely upon at the final determination of parenting matters but reserve to the trial any issue of the independent children’s lawyer’s reliance on such evidence.

That leave is granted to the parties generally to cause subpoenae to issue to produce documents or to give evidence and IT IS DIRECTED that any such subpoenae be referred to my Associate.

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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