BAINES & BAINES - [2020] FCCA 754

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAINES & BAINES

[2020] FCCA 754

Catchwords:
FAMILY LAW – Parenting – where there are two children of the relationship – whether the mother adopted controlling and coercive measures thereby causing the children harm – whether the father committed serious acts of family violence on an ongoing basis and involved the children in the parental dispute thereby causing the children harm – whether the children should live primarily with one parent – what time if any should be spent with the non-live with parent.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 60CG, 61DA

Cases cited:

M & M [1998] FamCA 1742

Mazorski & Albright [2007] FamCA 520

Applicant:

MR BAINES

Respondent:

MS BAINES

File Number:

BRC 5302 of 2019

Judgment of:

Judge Middleton

Hearing dates:

24 & 25 & 26 February 2020

Date of Last Submission:

6 March 2020

Delivered at:

Brisbane

Delivered on:

3 April 2020

REPRESENTATION

Counsel for the Applicant:

Ms Laylee

Solicitors for the Applicant:

Hawkes Lawyers

Counsel for the Respondent:

Ms Oakley

Solicitors for the Respondent:

Pippa Colman & Associates

ORDERS

That the mother have sole parental responsibility for the children X born … 2007 and Y born … 2009.
That the children live with their mother.
The children spend no time with their Father.
That the children be at liberty to communicate with their father in writing (email or letter).
That the father be permitted to communicate with the children in writing (email or letter) no more than once each week PROVIDED that he forward the correspondence to the mother and not the children, AND for the mother to peruse the correspondence and determine whether the correspondence should be shared with the children.
The mother is not to unreasonably deny the children access to the father’s written correspondence.
The mother is to continue the children’s attendance at their psychologist until such time as the psychologist determines it is no longer necessary.
The mother is to provide the father with copies of the children’s report cards, awards, and sporting achievements within 7 days of receipt of same.
The mother is to provide the father with a photograph of both children once each six month period.
The father is at liberty to provide the children with a photograph of himself once each six month period.

IT IS NOTED that publication of this judgment under the pseudonym Baines & Baines is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 5302 of 2019

MR BAINES

Applicant

And

MS BAINES

Respondent

REASONS FOR JUDGMENT

Background

This is a parenting application involving two children X born … 2007 and Y born … 2009.
The applicant father was born on … 1969 and is currently 50 years of age. The respondent mother was born on … 1976 and is currently 43 years of age.
The parties’ commenced cohabitation in August 2001, married on … 2005, emigrated from the United Kingdom in 2005 and…

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 BAINES & BAINES

Details

AGLC: BAINES & BAINES [2020] FCCA 754
Case: [2020] FCCA 754
Decision Date: 3 April 2020

CaseChat Overview and Summary

In the matter of *Baines & Baines*, heard by Judge Middleton, the dispute concerned the parenting arrangements for two children. The mother alleged that the father had engaged in serious acts of family violence on an ongoing basis and had involved the children in the parental dispute, causing them harm. Conversely, the mother was accused of adopting controlling and coercive measures that also caused the children harm. The proceedings sought to determine with which parent the children should primarily live and what, if any, time they should spend with the non-resident parent.

The court was required to determine whether the mother's alleged controlling and coercive behaviour had caused harm to the children, and whether the father's alleged serious acts of family violence and involvement of the children in the parental dispute had also caused them harm. Central to the determination was the question of the children's primary residence and the extent of contact with the non-resident parent.

Judge Middleton found that the mother had adopted controlling and coercive measures that caused harm to the children, and that the father had committed serious acts of family violence on an ongoing basis and involved the children in the parental dispute, thereby causing them harm. Consequently, the court ordered that the mother have sole parental responsibility for the children and that they live with her. The children were to spend no time with their father, but were at liberty to communicate with him in writing. The father was permitted to communicate with the children in writing no more than once each week, with such correspondence to be forwarded to the mother for perusal before being shared with the children, provided the mother did not unreasonably deny access. The mother was also ordered to continue the children's psychological treatment and to provide the father with copies of school reports and achievements, as well as photographs of the children periodically. The father was also permitted to provide the children with a photograph of himself.

Orders

Orders of the court

That the mother have sole parental responsibility for the children X born … 2007 and Y born … 2009.

That the children live with their mother.

The children spend no time with their Father.

That the children be at liberty to communicate with their father in writing (email or letter).

That the father be permitted to communicate with the children in writing (email or letter) no more than once each week PROVIDED that he forward the correspondence to the mother and not the children, AND for the mother to peruse the correspondence and determine whether the correspondence should be shared with the children.

The mother is not to unreasonably deny the children access to the father’s written correspondence.

The mother is to continue the children’s attendance at their psychologist until such time as the psychologist determines it is no longer necessary.

The mother is to provide the father with copies of the children’s report cards, awards, and sporting achievements within 7 days of receipt of same.

The mother is to provide the father with a photograph of both children once each six month period.

10.

The father is at liberty to provide the children with a photograph of himself once each six month period.

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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