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FLAST CASE BRIEF: Cannon & Wescott [2019] FamCA 148 (12 March 2019)

Shocking Case, “the father” is restrained from spending any time or communicating with the children!

"There are times when the constant parade of misery in this Court threatens to take its toll on those charged with dispensing justice for children within the confines of applying the law pursuant to the Family Law Act 1975 (Cth) (“the Act”)."

This judgment came after the father was a no show at the hearing and just after the father abused the ICL and the Court in an Email.

The Court Orders

The mother shall have sole parental responsibility for the children.

Mr Cannon (“the father”) is restrained and an injunction hereby issues restraining him from spending any time or communicating with the children.

The father is restrained and an injunction hereby issues restraining him from initiating any communication with the mother.

In the current case, the applicant, did not bother to turn up to the hearing of his application for a parenting order.

A recent communication from the father to the independent children’s lawyer (“ICL”) was in these terms: (as per original) [ex 7]

I will when I am ready
The dumb c#$t could of fixed it himself, but he wouldn’t have the brains to reading all his mistakes in his family reports.
I’M TOTALLY THINKING OF PULLING THE PIN ON ALL THIS COURT SHIT!!!!
**YA ALL OVER PAID ACTORS**


His history as a "father" has a long criminal record that included pedophilia.

"It was during this time that it appears highly likely that the two female children were sexually abused by their father. Hardly surprising one might have thought."


The judgment is scathing of the "system", it is a short judgement and well worth reading, some quotes from the judge include:

"The Department of Child Safety, Youth and Women should not conclude that this order is intended to be an endorsement of the mother’s capacity to provide a safe and stable environment for the children in the long term"

"There are times when the constant parade of misery in this Court threatens to take its toll on those charged with dispensing justice for children within the confines of applying the law pursuant to the Family Law Act 1975 (Cth) (“the Act”). "

"The children have had a dreadful life to date but they, like so many children seen in this Court and various other courts in Australia, are what I consider can aptly be described as ‘the forgotten ones’.

"I say this because, for some people, it seems easier to turn away than to confront some harsh realities about a society that not only permits but encourages children to be born into households where their parents are incapable of providing safe, stable and loving homes and where the children are frequently subjected to the most horrific abuse."

A truly shocking case for all involved.

This case can be found on FLAST Channels on .  Case : Cannon & Wescott [2019] FamCA 148 (12 March 2019)

  • Reading section 10 of the judge's comments I am reminded of the adage 'an ounce of prevention is worth a pound of cure'  .......children from functioning two parent families are, I'd suggest, "our country's most important asset" - those children whom make good (break the cycle) from single parent households are the fortunate minority.  Good law, thoughtful law gives due consideration to process, cost, equity, time and creates natural disincentives that would do violence to civil society.  (As an aside I am not convinced that the ALRC's Family Law System 2019 recommendations to the Attorney General give due consideration to 'prevention' but rather favour 'cure'.)

     

    10. The millions of dollars routinely wasted by governments of all persuasions on endless enquiries and royal commissions into child safety could actually make a real difference if redirected to the lives of these forgotten children. Children are this country’s most important asset yet the courts and front line services such as the variously named Departments of Child Safety and Police, charged with trying to protect them, are simply starved of sufficient funds to make a difference. Foster carers are few and far between and time and time again parents are afforded second chances at the expense of their children

    Hadir & Fells and Ors [2018] FamCA 968 (21 November 2018)

    Can you contravene parenting orders by posting information about proceedings, the children, or the other party on social media?

    Yes, you can!

    However, what may happen when it’s the child instead of the parents who posts particular content during proceedings?

    In this case a mother became aware of a Facebook post, allegedly made by her teenage child who resides with the father. The post makes various criticisms of the mother, an advocate for domestic violence reform, in the context of the mother’s own conduct and behaviour within the household and in her relationship with her estranged partner and her children.

    The mother was subsequently contacted by an associated producer of a program and asked if the statements in the post were true and if she would go on public record on the issue. The mother was told the concerns raised by the Facebook post were due to air.

    B Ltd ultimately published the issue raised by the Facebook post by broadcast, the mother sought to stop it from being published however, there was a mis-timing with communication between the mother’s solicitor and company employee, by just a few minutes.

    It was established the Court is not in a position to restrain the child, however it is appropriate in the best interests of the child to enable orders for the directors, employees and agents of and for B Ltd, C Pty Ltd and such other media outlets as determined appropriate by the mother to not broadcast or to further publish any posts or further information by the child regarding the ongoing family law dispute between the father and mother involved in the proceedings. 

    Here at FLAST we understand that ANYTHING you say or post on social media whether intentional, implied, and mistaken, may be used as evidence in Court.

    This is why at FLAST we are managing it quite strictly in terms of member privacy.

    FACTS SUMMARY:

    • The mother’s teenage child who resides with father made a post that seeks to engage in public debate about domestic violence, it makes various criticisms of the mother, an advocate for domestic violence reform, in the context of the mother’s own conduct and behaviour within the household and in her relationship with her estranged partner and her children.
    • The post does not indicate any court proceedings or make any mention likely to identify any party or related party to the court proceedings.
    • The mother was then contacted by an associate producer of a program and asked if the statements in the post were true and if she would go on public record on the issue. The mother was told the concerns raised by the Facebook post were due to air.
    • The mother sought an undertaking from B Ltd that it would cease-and-desist publication of any material or information regarding the children or the mother in her capacity as a mother.
    • 4.56 pm, that day the mother’s solicitors received an email from B Ltd stating “your response is noted, and I confirm that at this stage, without any admission, [B Ltd] does not intend to proceed with publication of these allegations tomorrow”
    • 5.28 pm another broadcaster employed by a wholly-owned entity of B Ltd, C Pty Ltd broadcast the contents of the alleged Facebook postwith the broadcast also being available for listening or viewing through the Internet.
    •  5.30 pm the mother’s solicitor contacted B Ltd and was informed that a direction had been issued not to publish. It appears that subsequently the availability of the broadcast has been removed from the Internet.
    • 20 November 2018, the mother files an application for injunctions to restrain asserted breach or likely breach of s 121 of the Act against the respondent B Ltd to restrain the broadcasting of any broadcast or publication of Facebook posts by the child who is subject of ongoing parenting proceedings.
    • The Independent Children’s Lawyer supports the injunction in the best interest of the child.

    ISSUE:

    Has a breach of s 121 of the Act occurred?

    Can relief be found for an injunction to restrain asserted breach or likely breach of s 121 of the Act?

    HELD:

    Injunctive orders are made.

    It was established that the Court can not restrain the child, however it is appropriate in the best interests of the child to enable orders for the directors, employees and agents of and for B Ltd, C Pty Ltd and such other media outlets as determined appropriate by the mother to not broadcast or to further publish any posts or further information by the child regarding the ongoing family law dispute between the father and mother involved in the proceeding.

    Furthermore, it was determined the alleged Facebook post by the child does not violate section 121.Additionally, the broadcast did not breach section 121either, however the court stated at [24], the reality is that the engagement of a child in a public debate about domestic violence by involving her parents and, in particular, the mother in scandalous and untested allegations is inappropriate where there are ongoing proceedings in this Court where such allegations are to be tested.

    It was established that Section 121 does not of itself have any injunctive power to restrain any asserted or ongoing breach of its terms: Gibb & Gibb (1978) FamCA 8. The solution is found in the Court’s injunctive powers in ss 68B and 114 of the Act: Xuarez & Vitela [2012] FamCA 574 (Forrest J).

    Section 68B of the Act relevantly provides:

    (2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

     

     

    Barr & Barr [2018] FCCA 3069 (30 October 2018)


    This is an interim proceeding in Family law concerning .  Where the wife sought interim payments to cover legal expenses and finance her start-up business as well as and additionally an preventing the husband selling off assets of his business.

    Issues

    Whether the wife ought to receive a part property settlement of $94,560 to pay for legal fees and for further development of her business

    Whether the husband ought to be restrained from dealing with the marital assets other than in the normal course of business.

    Whether the husband should pay the wife $750 or $1157 per week in interim spousal maintenance.

    Held : 

    (1) Within 7 days of the date of these orders the husband in his capacity as Director of Business 1 Pty Ltd as trustee for the Barr Family Trust shall pay, or cause to be paid to the wife, by way of partial property settlement:|

    (a) the sum of $35,000 to the bank account of the wife’s company Business 2 Pty Ltd, Bank 1 account; and
    (b) the sum of $16,930 to the wife’s bank account.

    UNTIL FURTHER ORDER

    (2) The husband shall pay to the wife by way of interim spousal maintenance:

    (a) the sum of $750 per week with such sum to be paid to the wife’s bank account held at Bank 1 BSB;
    (b) i. rent of $970.00 in relation to the property at Property A (“the rented property”)

    all utilities relating to the rented property
    the wife’s mobile telephone account
    the repayments for the wife’s motor vehicle; and
    day care and school fees for the parties’ children

    as and when they fall due.

    (3) The husband otherwise be and is hereby restrained from dealing with the assets of Business 1 Pty Ltd or any other assets which might properly be the subject of these proceedings other than in the normal course of business.

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