FAMILY COURT OF AUSTRALIA
| SAWYER & SAWYER | [2015] FamCA 982 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application – Dismissal – Where final parenting Orders were made by consent in 2012 – Where the father has brought multiple contravention applications against the mother since the final Orders were made – Where the mother filed an Initiating Application seeking to vary the final Orders – Where the father brings an application to have the mother’s Initiating Application summarily dismissed – Whether there has been a change in circumstances such that the mother’s application should be permitted to proceed – application for summary dismissal dismissed. FAMILY LAW – CHILDREN – Orders – Variation – Interim – Where the mother seeks to vary the final parenting Orders – Whether it is in the best interests of the children for the Orders to be varied at an interim hearing – application dismissed. FAMILY LAW – LEGAL PRACTITIONERS – Discharge – Where the father seeks an order that the ICL be discharged – Whether the ICL has been negligent and has demonstrated bias towards the mother – application dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – Where the father seeks an order that the family report writer be discharged and the report not be relied upon – Where a different report writer had been engaged in the matter and had prepared the three family reports prior to the final consent orders in 2012 – Where the ICL engaged a new family report writer when the matter came back before the Court – Whether the family report writer was negligent – application dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of Proceedings – Where a Judge of the Federal Circuit Court found that the mother contravened final parenting Orders without reasonable excuse – Where the matter was adjourned and subsequently transferred to the Family Court before the consequences of the contravention had been determined – Matter transferred back to the Federal Circuit Court. |
| Family Law Act 1975 (Cth) |
| Bondai v Bretton [2012] FamCA 429 Bondai & Bretton (No. 2) [2010] FamCA 1237 Dean & Susskind [2012] FamCA 897 Kingley & Arndale (No 2) (2010) 255 FLR 326 Lloyd and Lloyd and the Child Representative (2000) FLC 93-045 |
| APPLICANT: | Mr Sawyer |
| RESPONDENT: | Ms Sawyer |
| INDEPENDENT CHILDREN’S LAWYER: | Tracy-Lynne Geysen |
| FILE NUMBER: | BRC | 7102 | of | 2010 |
| DATE DELIVERED: | 10 November 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 26 October 2015 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McGregor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Couper Geysen Family & Animal Law |
Orders
Noting that the father withdrew his Application in a Case filed 21 October 2015, the father’s application for the mother’s Initiating Application filed…
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- AGLC
- Sawyer & Sawyer [2015] FamCA 982
- Case
- [2015] FamCA 982
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether there had been a sufficient change in circumstances to permit the mother's application to vary the final parenting orders to proceed, and whether it was in the best interests of the children for the orders to be varied at an interim hearing. Additionally, the court had to determine if the ICL had been negligent or biased, and if the family report writer was negligent. The court also considered the appropriate venue for the proceedings, given a prior finding of contravention by the mother.
Forrest J dismissed the father's application for summary dismissal of the mother's initiating application, finding that the matter should be permitted to proceed. The applications for the discharge of the ICL and the family report writer were also dismissed. The court noted that a judge of the Federal Circuit Court had previously found the mother to have contravened the final parenting orders without reasonable excuse, and that the matter had been adjourned and transferred before the consequences of that contravention were determined.
Consequently, the court ordered that the father's application for summary dismissal of the mother's initiating application be dismissed, along with all other interim applications. The proceedings were transferred back to the Federal Circuit Court for Judge Purdon-Sully to finalise the contravention proceedings and determine the appropriate court for further hearings.
Orders
Orders of the court
1.
Noting that the father withdrew his Application in a Case filed 21 October 2015, the father’s application for the mother’s Initiating Application filed 8 October 2014 to be summarily dismissed is dismissed and all other interim applications of the mother and the father are dismissed.
2.
The matter is transferred back to the Federal Circuit for the purposes of Judge Purdon-Sully finalising the Contravention Proceedings that she remains part-heard in and to give further consideration to whether the matter needs to be heard in the Federal Circuit Court or this 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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