TOTHILL & CROWTHER - [2019] FamCA 191

FAMILY COURT OF AUSTRALIA

TOTHILL & CROWTHER

[2019] FamCA 191

FAMILY LAW – CHILDREN – Recovery Order – Child to be returned to the care of the father.

APPLICANT:

Mr Tothill

RESPONDENT:

Ms Crowther

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:

ADC

4475

2013

DATE DELIVERED:

29 March 2019

PLACE DELIVERED:

Adelaide/Parramatta

PLACE HEARD:

Adelaide/Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

27, 28 & 29 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Anderson

SOLICITOR FOR THE APPLICANT:

Bartel & Hall

COUNSEL FOR THE RESPONDENT:

Ms Pyke

SOLICITOR FOR THE RESPONDENT:

Clelands Lawyers Adelaide Pty Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER.

Legal Services Commission of South Australia

Orders

By consent, the following documents be provided by the independent children's lawyer to the Magistrates Court of South Australian sitting at D Town, marked to the attention of the presiding magistrate in the criminal proceedings against the father:
(i)Judgment delivered in the final parenting proceedings on 30 June 2017;
(ii)Judgment delivered today as soon as that is settled and published;
(iii)Copies of the affidavits filed in these proceedings subsequent to and including 14 February 2019;
(iv)
Copies of the section 11F Memorandum in relation to the

child-inclusive conference of 27 March 2019;
(v)In the event that the parties both agree, the documents returned by the Department of Child Protection pursuant to section 69ZW.
All of the above named documents are to be placed in a confidential envelope and provided to the magistrate on the basis that that magistrate will entertain argument in that jurisdiction to the use which may be made of the documents.
Each of the parties and the Independent Children’s Lawyer is to exchange with one another and provide directly to chambers proposed Minute of Order with respect to the mother’s time with the child and an Outline of Case within seven days.
A date for hearing will be allocated as soon as practicable thereafter by arrangements between my associate and the legal representatives.

Pending further order, pursuant to section 68B of the Family Law Act 1975 (Cth) the mother, shall be and is hereby restrained from:
a.contacting or approaching or attempting to contact or approach the child in anyway including though a third party.
b.attending the child’s school.

Order 5 is an order for personal protection to which a power of arrest without warrant attaches pursuant to the provisions of section 68C of the Family Law Act 1975 (Cth).
I also suspend on an interim basis orders 12 and 13 of orders made 30 June 2017.

THE COURT NOTES

A. Pursuant to s16 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) an intervention order is invalid to the extent that it is inconsistent with a family law order of the kind referred to in s68R of the Family Law Act 1975. The family law orders in operation with respect to the child B born … 2011 and the parents Mr Tothill and Ms Crowther are parenting orders of 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 TOTHILL & CROWTHER

Details

AGLC: TOTHILL & CROWTHER [2019] FamCA 191
Case: [2019] FamCA 191
Decision Date: 29 March 2019

CaseChat Overview and Summary

In this matter before Hannam J, the proceedings concerned a dispute between Mr Tothill and Ms Crowther regarding their child. The core of the dispute involved the recovery of the child to the father's care, particularly in light of existing intervention orders.

The court was required to determine the legal issues arising from the interaction between family law parenting orders and a state-based intervention order. Specifically, the court had to consider the validity and effect of an intervention order that restrained the father from having contact with the child, when this conflicted with existing family law orders that provided for the child to spend time with the father. The court also needed to address how any such inconsistencies should be managed and explained.

Hannam J applied principles from the *Family Law Act 1975* (Cth), particularly sections 68R and 68P, which address the relationship between family law orders and family violence orders, including intervention orders. The court reasoned that a state intervention order is invalid to the extent that it is inconsistent with a family law order of the kind referred to in section 68R. In this instance, the intervention order restraining the father from contact was found to be inconsistent with the family law parenting orders and was therefore invalid to that extent. The court also noted that where a parenting order is inconsistent with an existing family violence order, the court must specify the inconsistency and provide a detailed explanation of how contact is to occur, which was addressed in the detailed judgment.

The court made several orders by consent, including the provision of specific documents to the Magistrates Court of South Australia for use in criminal proceedings against the father. These documents were to be placed in a confidential envelope and presented to the magistrate for argument regarding their use. Pending further order, the mother was restrained from contacting or approaching the child and from attending the child's school, with this order carrying a power of arrest. The court also suspended interim orders 12 and 13 of the final parenting orders made on 30 June 2017. Further directions were given for the exchange of proposed minutes of order regarding the mother's time with the child and outlines of case, with a hearing date to be allocated thereafter.

Orders

Orders of the court

By consent, the following documents be provided by the independent children's lawyer to the Magistrates Court of South Australian sitting at D Town, marked to the attention of the presiding magistrate in the criminal proceedings against the father:

(i) Judgment delivered in the final parenting proceedings on 30 June 2017;

(ii) Judgment delivered today as soon as that is settled and published;

(iii) Copies of the affidavits filed in these proceedings subsequent to and including 14 February 2019;

(iv)

Copies of the section 11F Memorandum in relation to the

child-inclusive conference of 27 March 2019;

(v) In the event that the parties both agree, the documents returned by the Department of Child Protection pursuant to section 69ZW.

All of the above named documents are to be placed in a confidential envelope and provided to the magistrate on the basis that that magistrate will entertain argument in that jurisdiction to the use which may be made of the documents.

Each of the parties and the Independent Children’s Lawyer is to exchange with one another and provide directly to chambers proposed Minute of Order with respect to the mother’s time with the child and an Outline of Case within seven days.

A date for hearing will be allocated as soon as practicable thereafter by arrangements between my associate and the legal representatives.

Pending further order, pursuant to section 68B of the Family Law Act 1975 (Cth) the mother, shall be and is hereby restrained from:

a. contacting or approaching or attempting to contact or approach the child in anyway including though a third party.

b. attending the child’s school.

Order 5 is an order for personal protection to which a power of arrest without warrant attaches pursuant to the provisions of section 68C of the Family Law Act 1975 (Cth).

I also suspend on an interim basis orders 12 and 13 of orders made 30 June 2017.

THE COURT NOTES

A. Pursuant to s16 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) an intervention order is invalid to the extent that it is inconsistent with a family law order of the kind referred to in s68R of the Family Law Act 1975. The family law orders in operation with respect to the child B born … 2011 and the parents Mr Tothill and Ms Crowther are parenting orders of the type referred to in s68R of the Family Law Act 1975. The Intervention Order which restrains the father from having contact with the child is inconsistent with the Family Law Orders and to the extent of that inconsistency is invalid.

B. Pursuant 68P Family Law Act 1975 if the court makes a parenting order that provides for a child to spend time with a person or a recovery order that authorises a person to spend time with a child that is inconsistent with an existing family violence order (including an intervention order made under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) then a court must specify the inconsistency and give a detailed explanation of how the contact is to take place. These matters are fully explained in the detailed judgment delivered today together with an explanation of the reasons why the parenting orders which are inconsistent with the protection order made yesterday and today are in the best interests of the child.

C. All matters imposing an obligation on this court to explain the interrelationship with between the family law orders made yesterday and the intervention order are covered in the judgment delivered today.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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