Barrine and Vance - [2017] FCCA 581

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARRINE & VANCE

[2017] FCCA 581

Catchwords:
FAMILY LAW – Bitter parenting dispute about 3 year old child – mother asserting father violent and controlling – father largely denying mother’s allegations – mother’s version essentially correct – independent experts not regarding father as danger to the child – orders for limited time made as recommended by family report writer.

Legislation:

Family Law Act1975, s.60CC

Cases cited:
Goode & Goode [2006] FamCA 1346

Applicant:

MR BARRINE

Respondent:

MS VANCE

File Number:

MLC 3096 of 2015

Judgment of:

Judge Burchardt

Hearing dates:

8 & 9 February 2017

Date of Last Submission:

9 February 2017

Delivered at:

Dandenong

Delivered on:

31 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr Barrine, in person

Counsel for the Respondent:

Mr Howe

Solicitors for the Respondent:

Warren, Graham & Murphy

Counsel for the Independent Children’s Lawyer:

Ms Dowler

Solicitors for the Independent Children’s Lawyer:

Danielle Webb Lawyer

ORDERS

The mother have sole parental responsibility in relation to the child X born (omitted) 2013 (“X”).
X live with the mother.
X spend time with the father each alternate weekend for a period of two hours on days and times as nominated by the Anglicare Contact Centre at (omitted) (“the (omitted) Contact Centre”) with the first hour to be supervised and the second unsupervised and the father be permitted to take X outside the centre for the second hour.
The unsupervised time in order (3) be increased by one hour every four months from the date of these orders until the child spends three hours with the father unsupervised.
The father and mother communicate with each other in writing and this is limited to issues in relation to the child.
The mother keep the father informed in writing of all issues so far as practicable in relation to the child’s health and schooling.
The father be permitted to obtain information directly in relation to the child’s kindergarten or school directly from the kindergarten or school.
Both the father and mother keep each other informed of their current residential address in writing and provide the other parent with the details of any change of address within 7 days of that change in writing.
Until further order, the mother and her servants and agents be restrained from removing or attempting to remove the child X from the Commonwealth of Australia.
Until further order, the father and his servants and agents be restrained from removing or attempting to remove the child X from the Commonwealth of Australia.
Until further order, the child X be restrained from leaving the Commonwealth of Australia.
That the mother undertake counselling with a counsellor as recommended by the Independent Children’s Lawyer to assist her with her anxiety.

THE COURT REQUESTS THAT:

The Marshal and all officers of the Australian Federal Police and of the police forces of the various states and territories take all necessary steps to give effect to these orders, including all things necessary to include and retain…

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 Barrine and Vance

Details

AGLC: Barrine and Vance [2017] FCCA 581
Case: [2017] FCCA 581
Decision Date: 31 March 2017

CaseChat Overview and Summary

This matter concerned parenting orders sought by the mother and father in relation to their child, X. The proceedings were before Judge Burchardt.

The court was required to determine the appropriate parenting arrangements for X, including issues of parental responsibility, living arrangements, and time spent with each parent. Further, the court needed to consider orders relating to communication between the parents, the provision of information regarding X's health and schooling, and importantly, orders to prevent the removal of X from the Commonwealth of Australia. The court also considered the need for counselling for the mother.

Judge Burchardt made orders granting the mother sole parental responsibility and that X live with the mother. Time spent with the father was to commence with limited, supervised contact, gradually increasing to unsupervised time over a period of months. The court also made detailed orders regarding communication between the parents, the provision of information about X, and importantly, imposed mutual restraints on both parents and X from leaving the Commonwealth of Australia, with the child to be placed on an airport watch list. The mother was also ordered to undertake counselling.

Orders

Orders of the court

The mother have sole parental responsibility in relation to the child X born (omitted) 2013 (“X”).

X live with the mother.

X spend time with the father each alternate weekend for a period of two hours on days and times as nominated by the Anglicare Contact Centre at (omitted) (“the (omitted) Contact Centre”) with the first hour to be supervised and the second unsupervised and the father be permitted to take X outside the centre for the second hour.

The unsupervised time in order (3) be increased by one hour every four months from the date of these orders until the child spends three hours with the father unsupervised.

The father and mother communicate with each other in writing and this is limited to issues in relation to the child.

The mother keep the father informed in writing of all issues so far as practicable in relation to the child’s health and schooling.

The father be permitted to obtain information directly in relation to the child’s kindergarten or school directly from the kindergarten or school.

Both the father and mother keep each other informed of their current residential address in writing and provide the other parent with the details of any change of address within 7 days of that change in writing.

Until further order, the mother and her servants and agents be restrained from removing or attempting to remove the child X from the Commonwealth of Australia.

10.

Until further order, the father and his servants and agents be restrained from removing or attempting to remove the child X from the Commonwealth of Australia.

11.

Until further order, the child X be restrained from leaving the Commonwealth of Australia.

12.

That the mother undertake counselling with a counsellor as recommended by the Independent Children’s Lawyer to assist her with her anxiety.

THE COURT REQUESTS THAT:

13.

The Marshal and all officers of the Australian Federal Police and of the police forces of the various states and territories take all necessary steps to give effect to these orders, including all things necessary to include and retain the said child’s name on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the said child’s name on the airport watch list until further order of the court.

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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