FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Barlow & Sellers [2021] FedCFamC1F 327
File number(s): ADC 3611 of 2012 Judgment of: MEAD J Date of judgment: 20 December 2021 Catchwords: FAMILY LAW – PARENTING – With whom the children live and spend time – Best interests of the children – Where both parents seek sole parental responsibility and that the children live with them – Where litigation commenced in 2012 – Where the children are now aged 11 and 9 – Where there was a previous trial in 2018 – Where the mother at that time was consistently not facilitating the children’s previously ordered time with their father – Where both children are diagnosed with Autism – Where the children remained in the primary care of the mother – Where the father was found to be lacking in knowledge of the children’s medical and therapeutic needs – Where the mother continued to frustrate orders for time spending – Where the children were moved to the care of the father by interim order – Where the children progressed well in the father’s care – Where the father is capable of providing for the children’s special needs – Where the mother’s opposition to the children having any relationship with the father is unabating – Where there is no evidence to support the mother’s long-held views of risk to the children from the father of physical and/or sexual abuse – Where allegations of abuse over several years were found unsubstantiated by the Department for Child Protection – Where the Department were concerned as to the children being coached by the mother – Where the children are at risk of psychological harm from exposure to abuse by the mother of the father – Where the mother lacks insight into her behaviour – Where the children are to live with the father – Where there is no order for the children to spend time with the mother – Where orders made for regular Skype communication. Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA, 65DAA, 91B Cases cited: Barlow & Sellers [2018] FamCA 207 Division: Division 1 First Instance Number of paragraphs: 456 Date of hearing: 21-24 September 2020, 9-12 November 2020 and 1, 3 and 4 March 2021 Place: Adelaide Counsel for the Applicant: Mr Roberts Solicitor for the Applicant: Thomson and Associates Solicitor for the Respondent: Litigant in Person Solicitor for the Independent Children's Lawyer: Ms Olsson Solicitor for the Independent Children's Lawyer: Silkwoods ORDERS
ADC 3611 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SELLERS
Applicant
AND: MS BARLOW
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MEAD J
DATE OF ORDER:
20 DECEMBER 2021
THE COURT ORDERS THAT:
1.That all previous parenting orders made herein be discharged.
2.That the father have sole parental responsibility for B born 2010 and C born 2012.
3.That the said children live with the father.
4.
That the said children communicate with the mother by…
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- [2021] FedCFamC1F 327
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CaseChat Overview and Summary
In the Family Court of Australia, the case of Barlow & Sellers involved protracted litigation over eight years, focusing on the care and custody of two children, B and C. The mother, Barlow, argued that the father, Sellers, posed a risk to the children due to alleged inappropriate sexual behaviour, physical risk, and family violence. The father denied these claims and argued that the mother was obstructing their relationship. The legal issues before the court included whether it was in the children's best interests to live with the father and whether any contact with the mother would be feasible without causing distress or leading to further litigation.
The court considered the previous history of the litigation and the mother's efforts to prevent the children from spending time with the father. The judge found that the mother had deliberately misled the court and had not facilitated the children's relationship with their father as required by previous orders. The court concluded that the children's best interests were served by remaining in the father's care and that any contact with the mother would likely result in distress and further legal proceedings. The court also noted the father's genuine concerns about the mother's conduct and the impact of her conversations with the children. The decision emphasised the importance of both parents being involved in the children's lives but acknowledged the mother's failure to comply with court orders and facilitate a positive relationship.
The court ruled that it was not in the children's best interests for them to live with the mother or to have any contact with her, either supervised or unsupervised. The judge hoped that the mother would seek therapeutic assistance to better understand the children's needs and facilitate a healthy relationship with their father. The father was found to have genuine concerns about the mother's conduct and the impact on the children, but he was not opposed to the children having a relationship with their mother, provided it did not lead to further litigation. The court's decision aimed to protect the children's welfare by ensuring stability and minimising further conflict between the parents.
The court considered the previous history of the litigation and the mother's efforts to prevent the children from spending time with the father. The judge found that the mother had deliberately misled the court and had not facilitated the children's relationship with their father as required by previous orders. The court concluded that the children's best interests were served by remaining in the father's care and that any contact with the mother would likely result in distress and further legal proceedings. The court also noted the father's genuine concerns about the mother's conduct and the impact of her conversations with the children. The decision emphasised the importance of both parents being involved in the children's lives but acknowledged the mother's failure to comply with court orders and facilitate a positive relationship.
The court ruled that it was not in the children's best interests for them to live with the mother or to have any contact with her, either supervised or unsupervised. The judge hoped that the mother would seek therapeutic assistance to better understand the children's needs and facilitate a healthy relationship with their father. The father was found to have genuine concerns about the mother's conduct and the impact on the children, but he was not opposed to the children having a relationship with their mother, provided it did not lead to further litigation. The court's decision aimed to protect the children's welfare by ensuring stability and minimising further conflict between the parents.
Orders
Orders of the court
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Background
Background to the litigation
The parties had to the time of trial been engaged in almost continuous litigation for a period of eight years.Background The matters canvassed at trial before me were, to a significant degree, the same as canvassed by the parties before Justice Berman in the earlier trial. In [4] and [5] of his Honour’s Reasons for Judgment he said:4.The history of the litigation would suggest that the mother considers that the father presents as a risk to the children by assertion that he has behaved in a sexually inappropriate manner to the children, that he presents as a physical risk and during the period of the relationship he was the perpetrator of family violence towards both the mother and the children.5.The mother did not press that the father presented as an unacceptable risk at trial, but rather focussed on her assessment of the very detailed needs of the children and an assertion that the father was either not prepared or not able to provide for their necessary care. He went on to say in [7] and [8]:7.The mother contends that whilst she remains fiercely protective of the children, she recognises that it is important for them to maintain a meaningful relationship with the father. She acknowledges that the children have not spent time with him for now more than one year but that is not to be seen as an indication of her resistance but rather, a consequence of a breakdown in communication between the parties.8.The father does not accept the mother’s proposition and her explanation for the non-compliance with the current interim order and argues that she has no intention of complying with any order that the children would spend time with him. He considers that the mother is set on fundamentally disrupting his relationship with the children. These were the same issues that were at large at the trial before me which commenced on 21 September 2020. An essential difference however at the time of the trial before me was that the mother was pressing that the father presented as an unacceptable risk to the children and was unable to acknowledge any benefit to the children in having a meaningful relationship with their father. At the time of Berman J’s judgment on 5 April 2018 B and C had not spent time with their father for over twelve months. His Honour said in [268] to [271] inclusive:268.The children have spent no time with the father for now more than a year. I do not accept the mother’s evidence that there has been a breakdown in communication and therefore a misunderstanding as to the time that the children should spend with the father and the necessary handover arrangements. The mother has been deliberately misleading in her evidence and disingenuous in respect of her assertion that she recognises the importance of the children’s relationship with their father.269.An order should be made that whilst the children remain in her primary care, they spend significant and substantial time with the father. It is also necessary that the orders reflect the need for the children to forthwith re-establish a relationship with the father and I consider that can be achieved by any order made for the children to live with the mother to be suspended for a period of twenty eight days during which time the children will live with the father.270.The suspension of the children’s time with the mother accords with the evidence of the family consultant. She considered that the children should reside with the father and spend limited time with the mother. There was obviously confidence in his ability to care for the children. A period of twenty eight days will also enable him to acquaint himself with the children’s needs and to contact various health professionals.271.It should not be assumed that the mother will inevitably refuse or fail to comply with Court orders. She should be given the benefit of the doubt and the orders that I make are predicated upon the reasonable assumption that the children’s needs require support and involvement from each of the parties.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
I am satisfied for these reasons the presumption is rebutted.CONCLUSION I find for the reasons set out herein that it is not in the best interests of the children for an order to be made providing for them to live with the mother. It is unfortunate and with great regret from the point of view of the children that I also find any order for the children to spend time with their mother, either supervised or unsupervised, would cause unmanageable distress for the mother. This would inevitably be reflected in distress on the part of the children and almost certainly result, in the case of unsupervised time, the mother failing to return the children to the care of the father thereby necessitating further proceedings. Such an order is not in the best interests of the children. In those circumstances and with significant reluctance I find that the children’s best interests are met not only by remaining in the care of the father but also, and more concerningly there should be no order for the children to spend time with their mother. The mother did not take the opportunity given to her by Berman J when he ordered the children remain in her primary care following upon his judgment of 5 April 2018. She did not promote the children’s relationship with the father thereafter at any level, and to the contrary determined by her actions that there would be no such relationship. His Honour was clearly of the view that it was best for B and C to have the involvement of both parents in their lives. He was concerned about the attitude of the mother. The expert at that time recommended that the children go into the care of the father. His Honour was mindful of all those attitudes and views but carefully considered the children’s needs and the mother’s expertise in that regard. His Honour said at [271] of his judgment:271.It should not be assumed that the mother will inevitably refuse or fail to comply with Court orders. She should be given the benefit of the doubt and the orders that I make are predicated upon the reasonable assumption that the children’s needs require support and involvement from each of the parties. It is to be hoped that upon receiving this judgment and carefully considering the reasons, the mother will take the opportunity to seek therapeutic assistance to assist her to approach the issue of the children’s relationship with their father from their perspective rather than hers, and thereby facilitate the children having the opportunity of a close, loving and meaningful relationship with both parents. I find that the father is not opposed to the children having a loving relationship with their mother save for what I find to be his genuine and well-held concern that facilitating physical time spending between the children and their mother will inevitably result in the children yet again being the subject of ongoing litigation due to the mother’s inability to comply with orders of the Court. I am satisfied that the father also has genuine concerns about the conduct of the mother and the tenor of her conversations with the children during Skype communication.
Ratio Decidendi
Legal Principle Established
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