Barker and Ferris - [2008] FamCA 1112

FAMILY COURT OF AUSTRALIA

BARKER & FERRIS

[2008] FamCA 1112

FAMILY LAW – CHILDREN – Parenting proceedings – agreement between parents on all issues except for children’s surname usage and whether the father to be restrained from permitting contact between the children and the paternal grandfather by reason of allegations of abuse by the grandfather – finding of unacceptable risk of abuse – contact between children and grandfather prohibited

Family Law Act 1975 (Cth)

APPLICANT:

Mr Barker

RESPONDENT:

Ms Ferris

FILE NUMBER:

PAF

3045

2004

DATE DELIVERED:

19 December 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Moore J

HEARING DATE:

25, 26 & 27 November 2008

REPRESENTATION

THE APPLICANT:

Mr Barker appeared on his own behalf

COUNSEL FOR THE RESPONDENT:

Mr Moss

SOLICITOR FOR THE RESPONDENT:

Marriott Oliver

Orders

The mother is permitted to have the children whose birth is registered as
(a) B Barker; and
(b)L Barker, pursuant to order 6 of orders made 28 November 2008
known as and use the surname of ‘[Ferris].
The father is restrained and an injunction is granted restraining him from permitting his father, the paternal grandfather, to have any contact with the children referred to in order 1 hereof.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAF 3045 of 2004

MR BARKER

Applicant

And

MS FERRIS

Respondent

REASONS FOR JUDGMENT

Proceedings

These proceedings are about two children, aged almost 8 and 4 years respectively. Their parents have agreed about most of their future arrangements, including parental responsibility and related obligations as well as the time the children will spend with each of them. The terms of their agreement is set out in a Schedule to these Reasons. They are unable to agree about two issues which remain for the Court to decide. The first is about the children’s surname usage. The second is whether or not the children may have contact with their paternal grandfather and that, in turn, centres around allegations that he hit and sexually abused the child B (a daughter) on occasions of contact between November 2005 and March 2006.

Approach

In making those decisions, the best interests of the children are the paramount consideration [s 60CA]. The factors the Court is obliged to consider in determining best interests are set out in the Act as ‘primary considerations’ and ‘additional considerations’ [s60CC] and the evaluation is guided by specified objects and underlying principles [s 60B]. That said, there is a body of case law revolving around these two remaining issues, some of which precedes the 2006 amendments to the Act but it remains apposite nonetheless. The cases do not replace the obligations the Act imposes, but they are guidelines to the approach to those decisions.
As for the name issue, a convenient summary of the cases was given in the majority judgment of Kay and Holden JJ in

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 Barker and Ferris

Details

AGLC: Barker and Ferris [2008] FamCA 1112
Case: [2008] FamCA 1112
Decision Date: 19 December 2008

CaseChat Overview and Summary

The case of *Barker and Ferris* concerned an application before Moore J regarding the surname of two children, B Barker and L Barker, and contact between the children and their paternal grandfather. The dispute centred on the mother's request to change the children's surname to Ferris, and the father's opposition to this, as well as the father's desire for his own father to have contact with the children.

The primary legal issues before the court were whether the mother should be permitted to register the children with the surname Ferris, and whether the father should be restrained from allowing his father, the paternal grandfather, to have contact with the children. These issues arose in the context of existing orders made on 28 November 2008.

Moore J ordered that the mother be permitted to have the children, B Barker and L Barker, use the surname Ferris. Furthermore, the court granted an injunction restraining the father from permitting his father, the paternal grandfather, to have any contact with the children.

Orders

Orders of the court

The mother is permitted to have the children whose birth is registered as

(a) B Barker; and

(b) L Barker, pursuant to order 6 of orders made 28 November 2008

known as and use the surname of ‘[Ferris].

The father is restrained and an injunction is granted restraining him from permitting his father, the paternal grandfather, to have any contact with the children referred to in order 1 hereof.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.