Barry & Letton - [2025] FedCFamC2F 222

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Barry & Letton [2025] FedCFamC2F 222

File number(s): SYC 4238 of 2024

Judgment of: JUDGE TAGLIERI

Date of judgment: 21 February 2025

Catchwords: FAMILY LAW – review application – interim parenting proceedings – where the father alleges that the mother’s new partner is a risk to the children – assessment of risk in interim parenting proceedings – cautious approach – order restraining the mother from leaving the children alone in the presence of her new partner

Legislation:
Evidence Act 1995 (Cth) s 138

Family Law Act 1975 (Cth) ss 4AB, 60CC(2), 60CC(2)(a), 60CC(2A), 60CC(2A)(a)

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 254

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), part 14.3, sch 4 cl 2, rr 14.05(2), 14.07

Surveillance Devices Act 2007 (NSW)

Cases cited:
Goode & Goode [2006] FamCA 1346

Isles & Nelissen [2022] FedCFamC1A 97

Lavigne & Gavin [2021] FamCA 612

Marvel & Marvel [2010] FamCAFC 101

MRR & GR [2010] HCA 4

Bennett Moses, Lyria et al, AI Decision-Making and the Courts: a guide for Judges, Tribunal Members and Court Administrators (2023 Update, December 2023)

Douglas, Heather, National Domestic and Family Violence Bench Book (July 2024)

Division: Division 2 Family Law

Number of paragraphs: 40

Date of hearing: 5 February 2025

Place: Hobart

Counsel for the Applicant: Mr Stapleton

Solicitor for the Applicant: Browns the Family Lawyers

Counsel for the Respondent: Mr Todd

Solicitor for the Respondent: Ali Lawyers
ORDERS

SYC 4238 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BARRY

Applicant

AND:
MS LETTON

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

21 FEBRUARY 2025

THE COURT ORDERS THAT:
1.Until further order, the Respondent Mother MS LETTON is restrained from leaving the children Y born 2011 and X born 2009 alone in the presence of MR B.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri

On 19 November 2024, a Senior Judicial Registrar dismissed an Application in a Proceeding filed by the father Mr Barry (“the father”) on 4 June 2024. In that Application the father sought an order restraining each party from causing the children…

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 Barry & Letton

Details

AGLC: Barry & Letton [2025] FedCFamC2F 222
Case: [2025] FedCFamC2F 222
Decision Date: 21 February 2025

CaseChat Overview and Summary

This case involved an application by Mr Barry, the father, seeking an order to prevent Ms Letton, the mother, from leaving their two children, Y and X, alone in the presence of her new partner, MR B. The matter was heard and determined in the Federal Circuit and Family Court of Australia, Division 2. The primary legal issue for the court was whether there was sufficient evidence to warrant an interim order restraining the mother from leaving the children alone with the new partner, based on the father’s allegations of risk.

The court considered the evidence presented by the father, which included concerns about the new partner’s background and potential risk to the children. The court adopted a cautious approach in interim parenting matters, recognising the importance of protecting children from potential harm. The judge concluded that while the evidence did not support a permanent order, there was a sufficient basis to issue an interim order to protect the children during the period of the new partner's presence in their lives. The court’s decision was premised on the need to balance the rights of the parents with the paramount need to ensure the safety and welfare of the children.

In light of the above, the court issued an order restraining Ms Letton from leaving the children alone in the presence of MR B until further order. This decision underscores the court's duty to act promptly in interim parenting proceedings to safeguard children from potential risks while ensuring that the orders are proportionate and subject to review.

Orders

Orders of the court

SYC 4238 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR BARRY

Applicant

AND:

MS LETTON

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

21 FEBRUARY 2025

THE COURT ORDERS THAT:

1. Until further order, the Respondent Mother MS LETTON is restrained from leaving the children Y born 2011 and X born 2009 alone in the presence of MR B.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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.

File number(s):	SYC 4238 of 2024
Judgment of:	JUDGE TAGLIERI
Date of judgment:	21 February 2025
Catchwords:	FAMILY LAW – review application – interim parenting proceedings – where the father alleges that the mother’s new partner is a risk to the children – assessment of risk in interim parenting proceedings – cautious approach – order restraining the mother from leaving the children alone in the presence of her new partner
Legislation:	Evidence Act 1995 (Cth) s 138 Family Law Act 1975 (Cth) ss 4AB, 60CC(2), 60CC(2)(a), 60CC(2A), 60CC(2A)(a) Federal Circuit and Family Court of Australia Act 2021 (Cth) s 254 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), part 14.3, sch 4 cl 2, rr 14.05(2), 14.07 Surveillance Devices Act 2007 (NSW)
Cases cited:	Goode & Goode [2006] FamCA 1346 Isles & Nelissen [2022] FedCFamC1A 97 Lavigne & Gavin [2021] FamCA 612 Marvel & Marvel [2010] FamCAFC 101 MRR & GR [2010] HCA 4 Bennett Moses, Lyria et al, AI Decision-Making and the Courts: a guide for Judges, Tribunal Members and Court Administrators (2023 Update, December 2023) Douglas, Heather, National Domestic and Family Violence Bench Book (July 2024)
Division:	Division 2 Family Law
Number of paragraphs:	40
Date of hearing:	5 February 2025
Place:	Hobart
Counsel for the Applicant:	Mr Stapleton
Solicitor for the Applicant:	Browns the Family Lawyers
Counsel for the Respondent:	Mr Todd
Solicitor for the Respondent:	Ali Lawyers

SYC 4238 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR BARRY Applicant
AND:	MS LETTON Respondent

ORDER MADE BY:	JUDGE TAGLIERI
DATE OF ORDER:	21 FEBRUARY 2025