Saxon & Saxon - [2023] FedCFamC1F 229

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Saxon & Saxon [2023] FedCFamC1F 229

File number: SYC 4279 of 2019

Judgment of: HENDERSON J

Date of judgment: 12 April 2023

Catchwords:
FAMILY LAW – CHILDREN – Interim – Where there are two children of the marriage – Where the mother seeks a recovery order for the return of the older child – Where there are risks to the older child living with either parent and currently an unacceptable risk of him returning to his mother’s care – Where the older child is expressing that he would kill the mother and then himself if returned to her care – Recovery order dismissed – Orders made for a further interim hearing after therapeutic intervention has occurred.

FAMILY LAW – INJUNCTIONS – Where the children are aware of various court proceedings – Injunctions ordered restraining discussion of and showing documents from court proceedings.

Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC(1), 60CC(2), 60CC(2A), 60CC(3), 68B.

Cases cited:
A v A (1998) FLC 92-800; [1998] FamCA 25.

Fitzwater & Fitzwater [2019] FamCAFC 251.

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346.

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97.

M v M (1988) 166 CLR 69; [1988] HCA 68.

Division: Division 1 First Instance

Number of paragraphs: 115

Date of hearing: 28 March 2023

Place: Sydney

Counsel for the Applicant: Mr Blackah

Solicitor for the Applicant: Marsdens Law Group

The Respondent: Litigant in person

Solicitor Advocate for the Independent Children’s Lawyer: Ms Smith

Solicitor for the Independent Children’s Lawyer: Legal Aid NSW
ORDERS

SYC 4279 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS SAXON

Applicant

AND:
MR SAXON

Respondent

order made by:

HENDERSON J

DATE OF ORDER:

12 APRIL 2023

THE COURT ORDERS THAT:
1.The mother’s application for a return of the child X, born 2009, to her care, is dismissed.
2.Orders 2-15, 26-31 of the orders made on 22 May 2022 are suspended.
3.Pending further order:
(a)X, born 2009, is to live with the father;
(b)Y, born 2012, is to live with the mother; and
(c)The father spend supervised time with Y, as supervised by O Supervision Service, each alternate weekend, commencing on the first weekend after these orders are issued, for a period of up to four hours, with the costs of supervision to be paid equally between the parties.

4.When spending time with Y pursuant to Order 3(c), the father is to ensure that X attends with him, should X choose to do so.
5.The father is to do all acts and things necessary:
(a)To direct Mr C of B Counselling to provide the mother with all information concerning X as requested by her; and
(b)To have X attend upon Mr C at such frequency and on such occasions as is recommended by Mr C to address the following issues:
(i)X’s attitude towards the mother, including threats of harm to her and himself;
(ii)Restoring the relationship…

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 Saxon & Saxon

Details

AGLC: Saxon & Saxon [2023] FedCFamC1F 229
Case: [2023] FedCFamC1F 229
Decision Date

CaseChat Overview and Summary

Saxon and Saxon were involved in a legal dispute, with the primary focus being on the welfare of their children. The matter was heard in the Family Court of Australia. The parents were engaged in a contentious dispute that involved various court proceedings, and there was concern that the children were exposed to these proceedings, potentially impacting their well-being and their relationship with their parents.

The legal issues before the court included whether the children’s exposure to the court proceedings was detrimental to their welfare and whether any measures should be taken to protect the children from this exposure. The court also had to consider the appropriate orders to ensure the children’s best interests were safeguarded.

The court found that the children’s exposure to the court proceedings was indeed detrimental to their welfare. It was determined that such exposure could harm the children's relationship with their parents and impede their emotional and psychological development. The court therefore considered it necessary to impose restrictions on the parents to prevent further exposure of the children to the proceedings. Based on the Family Law Act 1975, the court made an order restraining the parties from discussing any court proceedings or showing any documents filed in court to the children. This order aimed to protect the children and help them repair their relationship with their parents.

The court concluded by making the orders as outlined in the forefront of the reasons for judgment, ensuring that the measures were in place to safeguard the children's best interests.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am concerned about the children having knowledge of various court proceedings, and I will make an order restraining the parties from discussing any court proceedings or showing any documents filed to the children.[15] Such an order will assist the children repairing the relationship with the parents.[15] Family Law Act 1975 (Cth) s 68B.CONCLUSION For the above reasons, I make the orders as set out in the forefront of these Reasons for Judgment.

Ratio Decidendi

Legal Principle Established

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File number:	SYC 4279 of 2019
Judgment of:	HENDERSON J
Date of judgment:	12 April 2023
Catchwords:	FAMILY LAW – CHILDREN – Interim – Where there are two children of the marriage – Where the mother seeks a recovery order for the return of the older child – Where there are risks to the older child living with either parent and currently an unacceptable risk of him returning to his mother’s care – Where the older child is expressing that he would kill the mother and then himself if returned to her care – Recovery order dismissed – Orders made for a further interim hearing after therapeutic intervention has occurred. FAMILY LAW – INJUNCTIONS – Where the children are aware of various court proceedings – Injunctions ordered restraining discussion of and showing documents from court proceedings.
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC(1), 60CC(2), 60CC(2A), 60CC(3), 68B.
Cases cited:	A v A (1998) FLC 92-800; [1998] FamCA 25. Fitzwater & Fitzwater [2019] FamCAFC 251. Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346. Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97. M v M (1988) 166 CLR 69; [1988] HCA 68.
Division:	Division 1 First Instance
Number of paragraphs:	115
Date of hearing:	28 March 2023
Place:	Sydney
Counsel for the Applicant:	Mr Blackah
Solicitor for the Applicant:	Marsdens Law Group
The Respondent:	Litigant in person
Solicitor Advocate for the Independent Children’s Lawyer:	Ms Smith
Solicitor for the Independent Children’s Lawyer:	Legal Aid NSW

SYC 4279 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS SAXON Applicant
AND:	MR SAXON Respondent

order made by:	HENDERSON J
DATE OF ORDER:	12 APRIL 2023