Sheenan and Sheenan - [2012] FamCA 383

FAMILY COURT OF AUSTRALIA

SHEENAN & SHEENAN

[2012] FamCA 383

FAMILY LAW – CHILDREN – Extreme violence culminating in imprisonment – Relevance and importance of sentencing remarks – Absence of cogent evidence by violent party to justify making contact orders – Contact refused except for cards and letters.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

KMB and PRL and Child Representative [2005] FamCA 1202
Marsden and Winch (No 3) [2007] FamCA 1364

APPLICANT:

Ms Sheenan

RESPONDENT:

Mr Sheenan

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

10568

2007

DATE DELIVERED:

24 May 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

8 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Goddard

SOLICITOR FOR THE APPLICANT:

Hughes Watson Marks Kennedy

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Combes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Agricola Wunderlich & Associates

Orders

That the wife have sole parental responsibility for the children L born … February 2000, M born … September 2001 and S born … September 2004.
That the children live with the wife.
That the husband be restrained from communicating with the children or coming into their presence except with the written agreement of the wife.
That the husband be at liberty to send to the children cards, letters and presents provided they are age-appropriate and relate to what he and his family are doing in their respective lives but the responsibility for the delivery of those communications to the children shall be that of the wife who shall satisfy herself that such communications fulfil the criteria in this order.
For the purposes of paragraph 4, the wife is required within 30 days of the day of these orders to set up a postal box address at a post office of her choice but at the expense of the husband.
That for the purposes of the foregoing two paragraphs, upon setting up the postal box address, the wife shall send the details to the husband in a letter requesting that he provide a refund of the costs of that setting up and initial rental of the post office box and if the wife does not receive a payment from the husband at the post office address no later than one month after she has sent to the husband that address and cost detail, she may cancel the post office box.
That annually, the wife use the same operation as referred to above for the purposes of any renewal and if the husband fails to make the payment within the month, she may cancel the post office box.
For the purposes of s 60CG of the Family Law Act 1975 (Cth), this order is consistent with the existing family violence order and does not expose the affected persons under that order to an unacceptable risk of family violence but for the sake of clarity, the husband is not to attend at any post office referred to in these orders and approach the…

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 Sheenan and Sheenan

Details

AGLC: Sheenan and Sheenan [2012] FamCA 383
Case: [2012] FamCA 383
Decision Date: 24 May 2012

CaseChat Overview and Summary

In the matter of Sheenan and Sheenan, Cronin J made orders concerning the parental responsibility and living arrangements for three children. The dispute involved applications by the wife and a response from the husband, which were otherwise dismissed by the court.

The court was required to determine the appropriate orders for the children's residence, parental responsibility, and the extent of the husband's contact with them, particularly in light of an existing family violence order. A key issue was how to balance the children's best interests with the need to protect them from family violence, and to manage communication between the husband and children.

Cronin J ordered that the wife have sole parental responsibility for the children and that they live with her. The husband was restrained from communicating with or coming into the presence of the children, except with the wife's written agreement. The court permitted the husband to send age-appropriate cards, letters, and presents, provided they related to his and his family's lives. However, the responsibility for delivering these communications to the children was vested in the wife, who was to ensure they met the specified criteria. To facilitate this, the wife was to establish a postal box at the husband's expense, and the husband was to refund the costs. The wife was to provide the postal box details to the husband, and if payment was not received within a month, she could cancel the box. The court also clarified that these orders were consistent with the existing family violence order and did not expose the affected persons to an unacceptable risk of family violence. The husband was specifically prohibited from attending at any post office mentioned in the orders or approaching the wife while she collected communications.

Orders

Orders of the court

That the wife have sole parental responsibility for the children L born … February 2000, M born … September 2001 and S born … September 2004.

That the children live with the wife.

That the husband be restrained from communicating with the children or coming into their presence except with the written agreement of the wife.

That the husband be at liberty to send to the children cards, letters and presents provided they are age-appropriate and relate to what he and his family are doing in their respective lives but the responsibility for the delivery of those communications to the children shall be that of the wife who shall satisfy herself that such communications fulfil the criteria in this order.

For the purposes of paragraph 4, the wife is required within 30 days of the day of these orders to set up a postal box address at a post office of her choice but at the expense of the husband.

That for the purposes of the foregoing two paragraphs, upon setting up the postal box address, the wife shall send the details to the husband in a letter requesting that he provide a refund of the costs of that setting up and initial rental of the post office box and if the wife does not receive a payment from the husband at the post office address no later than one month after she has sent to the husband that address and cost detail, she may cancel the post office box.

That annually, the wife use the same operation as referred to above for the purposes of any renewal and if the husband fails to make the payment within the month, she may cancel the post office box.

For the purposes of s 60CG of the Family Law Act 1975 (Cth), this order is consistent with the existing family violence order and does not expose the affected persons under that order to an unacceptable risk of family violence but for the sake of clarity, the husband is not to attend at any post office referred to in these orders and approach the wife whilst she is collecting any communications from him nor is it expected that Australia Post would provide the details of the wife’s address for the purposes of the details concerning the postal box referred to in the orders.

That the application filed 2 March 2012 by the wife and the response of the husband thereto filed 10 December 2007 be otherwise dismissed.

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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