Barker & Hudson

Case [2022] FedCFamC1F 864

Federal Circuit and Family Court of Australia

(DIVISION 1)

Barker & Hudson [2022] FedCFamC1F 864

File number: BRC 14246 of 2019
Judgment of: GILL J
Date of judgment: 9 November 2022
Catchwords: FAMILY LAW – CHILDREN – Where both parents agree for equal shared parental responsibility and for the children to live with the mother – Where the remaining issues in dispute were significantly narrowed to the frequency and duration of time spent with the father and ancillary orders – Previous history of child refusal – Recent improvement – Where the best interest of the children is the continuation of current arrangements.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA
Cases cited:

Jollie & Dysart [2014] FamCAFC 149

Marsden & Winch (No 3) [2007] FamCA 1364

Mazorski v Albright (2007) 37 Fam LR 518

Phillips & Hansford(No 2) (2019) 60 Fam LR 160

Division: Division 1 First Instance
Number of paragraphs: 176
Date of hearing: 1–3 November 2022
Place: Canberra
Counsel for the Applicant: Mr Nehmy
Solicitor for the Applicant: Stuart Family Lawyers
Counsel for the Respondent: Mr Drysdale, KC
Solicitor for the Respondent: Hopgood Ganim Lawyers

ORDERS

BRC 14246 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR BARKER

Applicant
AND:

MS HUDSON

Respondent

order made by:

GILL J

DATE OF ORDER:

9 NOVEMBER 2022

THE COURT ORDERS THAT:

1.The parties shall have equal shared parental responsibility for the children of the marriage, X, born 2008 (“X”) and Y, born 2010 (“Y”) (“the children”).

2.The children shall live with Ms Hudson, (“the respondent mother”).

3.During school term the children shall spend time with Mr Barker, (“the applicant father”) each alternate week from the conclusion of school (or 3.30 pm Friday) (in Week One) until the commencement of school (or 8.00 am Monday) (in Week Two).

4.The children’s time with the applicant father pursuant to Order 3 herein shall:

(a)Be extended to the commencement of school/8.00 am on Tuesday (in Week Two) in the event the Monday is a non-school day;

(b)Commence from the conclusion of school or 3.30 pm on Thursday (in Week One) in the event Friday is a non-school day.

5.For the purposes of Order 3 herein, the first week of each school term shall be Week One.

6.The children shall spend time with each parent during school holidays for one half of each school holiday period as agreed between the parties in writing, and failing agreement as follows:

(a)During the first half with the applicant father in even numbered years and with the respondent mother in odd numbered years;

(b)During the second half with the respondent mother in even numbered years and with the applicant father in odd numbered years;

(c)With each school holiday period to be defined as from midday on the day after the last day of school term until midday on the day two days before the start of the next school term, with half of the school holiday period to be determined as…

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AGLC
Barker & Hudson [2022] FedCFamC1F 864
Case
[2022] FedCFamC1F 864
Decision Date

CaseChat Overview and Summary

Barker & Hudson was a matter heard in the Family Court of Australia concerning the care and arrangements for two children, X and Y, following the separation of their parents. The father, Barker, had frequently been away from the home due to work, resulting in the mother, Hudson, being the primary carer for the children. The parents had lived and travelled overseas together until their separation in 2019, after which the mother relocated with the children to Brisbane, while the father remained in Country C. The court was required to decide on the arrangements for the children's time with their father, taking into account the significant travel restrictions caused by the COVID-19 pandemic and the children's reluctance or refusal to spend time with their father.

The legal issues the court had to address included determining the best interests of the children in terms of their living arrangements and contact with their father. The court had to consider the children's preferences, the impact of the pandemic on their ability to spend time with their father, and the parents' ability to cooperate and communicate. The court also had to decide on the appropriate division of parental responsibility and the implementation of ancillary orders that both parties agreed were beneficial.

In reaching its decision, the court considered the evidence provided by both parties, including the mother's affidavits and the further amended response. The court found that while the children's time with their father generally went well before the pandemic, the restrictions and difficulties with travel, along with the children's reluctance to spend time with their father, had created challenges. The court also noted that the children had messaged their mother saying that they wanted to come home early from time spent with their father. Based on the evidence, the court determined that it was in the best interests of the children to live primarily with their mother but to spend alternate weekends with their father and share school holidays with both parents. The court also ordered equal sharing of parental responsibility and implemented the ancillary orders agreed upon by the parties.

The final orders made by the court provided for the equal sharing of parental responsibility, for X and Y to live primarily with the mother while spending alternate weekends from Friday to Monday with the father, and sharing the school holidays with both parents. The court also implemented the agreed ancillary orders that both parties considered beneficial.

Orders

Orders of the court

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Background

Background to the litigation

The respondent mother relied upon the following:(1)Mother’s Affidavit of Evidence in Chief affirmed and filed 4 October 2022;(2)Mother’s Affidavit in Reply affirmed and filed 18 October 2022; and(3)Further Amended Response of Ms Hudson filed 25 October 2022.General background During the relationship, the mother was the primary carer for the children, the father having work that saw him frequently away from the home. The father’s work also saw the family living and travelling overseas, as follows:(a)late 2006 the parties relocated to City D, Country C;(b)mid-2013 the parties and children relocated from City D to Country E;(c)late 2014 the parties and children relocated from Country E to Country F; and(d)mid-2017 the parties relocated from Country F to Country C. Following the parties’ separation in 2019, they disagreed as to the arrangements for the children, but after a short period agreed by early 2019 that the mother would relocate with the children to Brisbane, the father remaining working in Country C. Shortly thereafter, the father made arrangements to return to Australia, with his then primary place of residence being a home near City H that the parties had previously acquired. At that stage, his work still required significant amounts of overseas travel. The arrangements for the children to spend time with him were at that stage heavily reliant on the children and father being able to travel. Unfortunately, it was at about this time that the COVID-19 pandemic resulted in significant travel restrictions, making overseas and interstate travel both difficult and unpredictable. The arrangements to spend time with the children laboured under these difficulties and uncertainties. Importantly, difficulties also emerged in the parties’ inability to communicate or to cooperate, rendering the children’s time with the father an even more difficult prospect. It also appears that the children struggled to some degree with the various arrangements. However, the mother accepted that the children’s time with the father, incorporating holiday and weekend time, prior to the orders of November 2021, generally went well. In November 2021, a time when the restrictions and difficulties with travel were significantly easing, the parties entered into interim consent terms in relation to the children, in the context where the father had also retained work in, and partially relocated to Brisbane. The father is generally in Brisbane eight days per fortnight. The consent orders provided for the children to spend alternate weekends during term time from Friday after school until Monday at school with the father, and to maintain arrangements for half school holiday time with each parent. Arrangements were also made for the children to spend time with the father without their sibling on alternate Thursday evenings, although such has only occurred once with Y and not at all with X, the parties abandoning it as impracticable. Whilst it may have been anticipated, with the easing both of the need to travel and of the easing of travel restrictions, that the time for the children with the father would then be plain sailing, a number of difficulties emerged that have formed the focus of this trial, primarily related to reluctance or refusal on the part of the children to the arrangements to spend time with the father. Further, the mother says that on almost every occasion since then the children have messaged her saying that they want to come home early.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The parties were otherwise in agreement about the significant number of ancillary orders that they considered were of benefit in this matter.Conclusion Orders will be made as indicated above, providing for the equal sharing of parental responsibility, for X and Y to live primarily with the mother while spending alternate weekends from Friday to Monday with the father, and sharing the school holidays with both parents.

Ratio Decidendi

Legal Principle Established

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