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Barret & Barret

Barret & Barret

Case [2021] FedCFamC2F 14 24 September 2021

Family Violence

Parental Responsibility

Child Protection

Therapeutic Intervention

Injunctions

Jurisdiction

Best Interests of the Child

Family Conflict

Impartiality

Family Law

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Federal Circuit and family Court of Australia
(dIVISION 2)
Barret & Barret [2021] FedCFamC2F 14

File number(s): ADC 4496 of 2018

Judgment of: JUDGE BROWN

Date of judgment: 24 September 2021

Catchwords: FAMILY LAW – children – parenting – parenting arrangements of three children – relationship of approximately 12 years – where the parties respective positions are polarised – where co-parenting relationship is fractured – where there is parental conflict – where both parties positions are diametrically opposed – complex family dynamic – where the parties communicate poorly – where each party proposes a change to the current care arrangements – allegations of family violence perpetrated by the father – where children have been exposed to family violence – coercive and controlling behaviour – whether the father has not been upfront in making disclosures regarding anger management and family violence – where father denies the allegations of family violence – where the eldest child is refusing to spend time with the father – best interests considerations – how the court determines a child’s best interests – where the children have learning difficulties – where both parties assert the other parent is compromised – where there is no evidence to support the mother is a compromised parent – where there is a finding of family violence perpetrated by the father – where the mother is allocated sole parental responsibility – where the children are very protective of their mother – where there is a need to prevent the children from being subject to further litigation.

Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Div 12A, Pt VII, ss 4, 4AB, 60B, 68LA, 60CA, 60CC, 61B, 61DA, 64B, 65C, 65D, 65DAA, 65DAE, 68B

Cases cited: Amador & Amador [2009] FamCAFC 196
B v B: Family Law Reform Act 1995 (1997) 21 Fam LR 676
Bartel & Schmucker (No. 3) [2012] FamCA 1094
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
Garrod & Davenort [2018] FamCA 825
Goode & Goode (2006) 206 FLR 212
In the Marriage of Blanch (1998) Fam LR 325
In the Marriage of H v W (1995) 126 Fam LR 788
In the Marriageof Patsalou (1994) 18 Fam LR 426
JG & BG (1994) 18 Fam LR 255
Jurchenko & Foster (2014) 51 Fam LR 588
Mazorski v Albright (2007) 37 Fam LR 518
MRR v GR (2010) 240 CLR 461
R & R: Children’s Wishes (2000) 25 Fam LR 712
Russell & Russell and Anor [2009] FamCA 28
Slater & Light [2013] FamCAFC 4
T & N (2003) 31 Fam LR 257

Division: Division 2 Family Law

Number of paragraphs: 454

Date of last submission/s: 28 May 2021

Date of hearing: 28-30 October 2020 / 24-28 May 2021

Place: Adelaide

Solicitor for the Applicant: Norman Waterhouse

Counsel for the Applicant: Ms Lewis

Solicitor for the Respondent: Martin Robinson Solicitors

Counsel for the Respondent: Mr Bowler

Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia

Counsel for…

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 Barret & Barret

Details

AGLC: Barret & Barret [2021] FedCFamC2F 14
Case: [2021] FedCFamC2F 14
Decision Date

CaseChat Overview and Summary

The case of Barret v Barret, heard in the Family Court of Australia, concerned the parenting arrangements for three children, X, Y, and Z, following the separation of their parents, Ms Barret and Mr Barret. The parents had been married for approximately 12 years before separating in highly contentious circumstances in 2018. The mother alleged that the father had been physically violent and controlling towards her during their marriage, and that the children had been exposed to this conduct. The father denied these allegations and sought to increase his time with the children. The Court was required to determine the nature of the coercive and controlling behaviour to which the mother and children had been subject by the father, whether any of the children had experienced the effects of family violence, and the implications for the children if they had. The Court also needed to determine what benefits, if any, would accrue to the children of having a meaningful level of relationship with their father in the future, and the potential negative consequences for them of not being able to interact extensively with their father and wider paternal family. The Court further needed to consider the factors influencing X's apparently strong negative views about his father, and whether the mother was open to criticism in this regard. It was also necessary to assess whether the father had demonstrated that he had modified his behaviour or was capable of so doing in the future, and whether it was appropriate for the Court to make the wide-ranging injunctive orders sought by the mother. The Court also needed to consider the best mechanism to ensure that the children were not the subject of unnecessary litigation, and how parental authority and responsibility for making major long-term decisions concerning the children should be allocated between the parties. Ultimately, the Court had to determine what was the best outcome for the children, given the issues raised in the case and the polarised nature of their family. The Court found that the father had exposed the mother to coercive and controlling family violence and that the children had been exposed to this behaviour. The Court found that this exposure had caused the children to suffer some form of physical or psychological harm, and that there was a risk of further harm if they were not protected from further exposure. The Court found that it was in the children's best interests to have a meaningful level of relationship with their father in the future, but that this needed to occur in a safe manner and with some form of therapeutic intervention. The Court found that the mother was not open to criticism in respect of her role in shaping the children's views of their father, and that the father had not demonstrated that he had modified his behaviour or was capable of so doing in the future. The Court found that it was appropriate for the Court to make the wide-ranging injunctive orders sought by the mother, and that the best mechanism to ensure that the children were not the subject of unnecessary litigation was to maintain the appointment of the Independent Children's Lawyer for a period of twelve months. The Court found that the best outcome for the children was to confer sole parental responsibility on the mother, but to allow the father to have some time with the children, subject to certain conditions and safeguards.

Orders