Sawer & Hugh (No. 3) - [2009] FamCA 516

FAMILY COURT OF AUSTRALIA

SAWER & HUGH (NO. 3)

[2009] FamCA 516

FAMILY LAW – ORDERS – recovery order – best interests of the child – where child has run away from court ordered residence to the home of the paternal grandparents

FAMILY LAW – CHILDREN – With whom a child should live and spend time with – best interests of child – emotional abuse of a child by the father – where father is not a party to the proceedings but the paternal grandparents who are aligned with the father are party to the proceedings

FAMILY LAW – EVIDENCE – non application of Evidence Act 1995 (Cth)

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CC, 60CC(1), 60CC(2), 60CC(3), 60CC(4), 69ZT

Family Law Rules 2004 (Cth) r 6.10

Cowling v Cowling (1998) FLC 92-801
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 FamLR 422.
R & R: Children's Wishes (2000) FLC 93-000.

APPLICANT:

Mr and Mrs Sawer (Snr)

RESPONDENT:

Ms Hugh

INDEPENDENT CHILDREN’S LAWYER:

Verney Walker & Co

FILE NUMBER:

LNC

511

2008

DATE DELIVERED:

10 June 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

10 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

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:

That the paternal grandparents return the child J born … June 1996 to the mother, she being the person with whom J is to live pursuant to paragraph 3 of the Order made on 12 March 2009.
That for the purpose of implementing paragraph 1 of this order, the grandparents deliver J to the mother at Unit 1, C Club, by 8.00 p.m. this evening.
That the paternal grandparents be and are hereby restrained from causing, permitting or suffering the child’s father, Mr Sawer, and/or the father’s partner, Miss B, to play any part in the transport of the child back to the care of the mother or to accompany the child for any part of that journey.
That the oral application of the mother for a recovery order and the oral application of the grandparents for J to live with them are otherwise dismissed.
My reasons be transcribed and, when transcribed, each party be provided with a copy.
IT IS DIRECTED:
That my associate send a copy of my reasons for decision to Ms N, family consultant.
IT IS FURTHER ORDERED:
That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

AND IT IS NOTED for case…

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 516
Decision Date: 10 June 2009

CaseChat Overview and Summary

In *Sawer & Hugh (No. 3)*, Bennett J of the Family Court of Australia considered an application by a mother for the return of her child, J, who had run away from her care to reside with the paternal grandparents. The dispute centred on the child's residence and the role of the father, who was not a party to the proceedings but was aligned with the paternal grandparents. The mother sought a recovery order for J, while the grandparents sought orders for J to live with them.

The primary legal issues before the court were whether to grant the mother's application for a recovery order and the grandparents' application for J to live with them, both within the overarching framework of the child's best interests. The court also had to consider the implications of the father's alleged emotional abuse of the child, despite his non-party status, and the alignment of the paternal grandparents with him. The applicability of the *Evidence Act 1995* (Cth) was also a consideration.

Bennett J reasoned that the child's best interests, as mandated by family law legislation, required J to be returned to the mother's care, as per a prior court order. The court found that the paternal grandparents' alignment with the father, coupled with the father's alleged emotional abuse, created an environment detrimental to J's well-being if J were to reside with them. The court ordered the paternal grandparents to return J to the mother by a specified time that evening, and further restrained the father and his partner from participating in the child's transport. The mother's application for a recovery order and the grandparents' application for J to live with them were otherwise dismissed.

Orders

Orders of the court

IT IS ORDERED:

That the paternal grandparents return the child J born … June 1996 to the mother, she being the person with whom J is to live pursuant to paragraph 3 of the Order made on 12 March 2009.

That for the purpose of implementing paragraph 1 of this order, the grandparents deliver J to the mother at Unit 1, C Club, by 8.00 p.m. this evening.

That the paternal grandparents be and are hereby restrained from causing, permitting or suffering the child’s father, Mr Sawer, and/or the father’s partner, Miss B, to play any part in the transport of the child back to the care of the mother or to accompany the child for any part of that journey.

That the oral application of the mother for a recovery order and the oral application of the grandparents for J to live with them are otherwise dismissed.

My reasons be transcribed and, when transcribed, each party be provided with a copy.

IT IS DIRECTED:

That my associate send a copy of my reasons for decision to Ms N, family consultant.

IT IS FURTHER ORDERED:

That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

AND IT IS NOTED for case management purposes that this matter is listed for 13 October 2009 at 9.00 am for directions as to a final hearing, such mention to be by video link between the Melbourne Registry of the Court and the Launceston Registry of the Court.

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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