FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRETON & BRETON | [2020] FCCA 2608 |
| Catchwords: FAMILY LAW – Parenting – interim application by the mother for change of residence for two of three children – high conflict family – father made a threat to kill the mother – alleged that the father has been alienating the children from the mother – concerns for the emotional and psychological being of the children in the care of the father – orders made for the two youngest children to live with the mother and the oldest child to remain living with the father – two youngest children to spend supervised time with the father. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60CA, 60CC, 60CC(2A), 67Z, 69ZW |
| Cases cited: Eaby v Speelman [2015] FamCAFC 104 |
| Applicant: | MS BRETON |
| Respondent: | MR BRETON |
| File Number: | MLC 7028 of 2019 |
| Judgment of: | Judge Blake |
| Hearing date: | 2 September 2020 |
| Date of Last Submission: | 2 September 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 8 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Damon |
| Solicitors for the Applicant: | V M Family Lawyers |
| Counsel for the Respondent: | Mr Howe |
| Solicitors for the Respondent: | RRR Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Jenkinson |
| Solicitors for the Independent Children's Lawyer: | Altavilla Family Law |
ORDERS
Orders 2 to 12 of the orders made on 30 August 2019 be discharged.
Orders 3 to 4 of the consent orders made on 29 January 2020 be discharged.
Orders 2 to 9 of the consent orders made on 28 May 2020 be discharged.
The children X born in 2008 (‘X’) and Y born in 2014 (‘Y’) live with the Mother.
The child Z born in 2005 (‘Z’) live with the Father.
The Father deliver X and Y to the child minding service on level 5, Commonwealth Law Courts, 305 William Street, Melbourne at 2pm today.
The Father be restrained from bringing or allowing Z to attend the child minding service at 2pm today.
The Father and anyone accompanying him immediately leave the Commonwealth Law Courts and its surrounds after delivering X and Y to the child minding service.
The Mother attend the child minding service on level 5, Commonwealth Law Courts, 305 William Street, Melbourne at 2.45pm today to collect X and Y.
In the event the Father does not attend the child minding service on level 5, Commonwealth Law Courts, 305 William Street, Melbourne at 2pm today with X and Y, a recovery order shall be issued for the return of them to the Mother.
The Mother’s solicitor have liberty to apply by contacting Chambers by email in the event the Father does not comply with order 6 herein.
The Father and Z spend time with X and Y for 2 hours each week supervised by the Family Contact Service, at the Father’s sole cost, at such times and places as are nominated by the Family Contact Service, and the parties…
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- Breton & Breton [2020] FCCA 2608
- Case
- [2020] FCCA 2608
- Decision Date
CaseChat Overview and Summary
The court was required to determine the interim living arrangements for the three children, considering the allegations of threats, parental alienation, and the children's welfare. Specifically, the court had to decide which parent the children would live with and the nature of any contact the father would have with the children, particularly those who would reside with the mother.
Blake J ordered that two of the children, X (born 2008) and Y (born 2014), live with the mother, while the eldest child, Z (born 2005), would live with the father. The father was ordered to deliver X and Y to a child-minding service for supervised time with them, with the father to bear the sole cost of this supervised contact. Injunctions were also put in place to prevent the removal of any of the children from Australia, and the father was restrained from attending within 200 metres of the mother, X, or Y, except for the supervised contact. The parties were also directed to engage in therapeutic counselling and other recommended services.
Orders
Orders of the court
1.
Orders 2 to 12 of the orders made on 30 August 2019 be discharged.
2.
Orders 3 to 4 of the consent orders made on 29 January 2020 be discharged.
3.
Orders 2 to 9 of the consent orders made on 28 May 2020 be discharged.
4.
The children X born in 2008 (‘X’) and Y born in 2014 (‘Y’) live with the Mother.
5.
The child Z born in 2005 (‘Z’) live with the Father.
6.
The Father deliver X and Y to the child minding service on level 5, Commonwealth Law Courts, 305 William Street, Melbourne at 2pm today.
7.
The Father be restrained from bringing or allowing Z to attend the child minding service at 2pm today.
8.
The Father and anyone accompanying him immediately leave the Commonwealth Law Courts and its surrounds after delivering X and Y to the child minding service.
9.
The Mother attend the child minding service on level 5, Commonwealth Law Courts, 305 William Street, Melbourne at 2.45pm today to collect X and Y.
10.
In the event the Father does not attend the child minding service on level 5, Commonwealth Law Courts, 305 William Street, Melbourne at 2pm today with X and Y, a recovery order shall be issued for the return of them to the Mother.
11.
The Mother’s solicitor have liberty to apply by contacting Chambers by email in the event the Father does not comply with order 6 herein.
12.
The Father and Z spend time with X and Y for 2 hours each week supervised by the Family Contact Service, at the Father’s sole cost, at such times and places as are nominated by the Family Contact Service, and the parties do all acts and things and sign all such documents to engage with Family Contact Service.
13.
The parties are to follow all reasonable directions of the professional supervisor.
14.
The Father is to obtain a report from the supervisor of any time spent with X and Y pursuant to the orders herein, and file and serve a copy of this report by 26 January 2021, the costs of such report to be met by the Father.
15.
The time between the Father and Z, and X and Y pursuant to order 12 commence four weeks from the date of these orders.
16.
Both parties, their servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the children:
Z born in 2005;
X born in 2008; and
Y born in 2014
from the Commonwealth of Australia. This Order ceases to have effect 2 years after the date on which it is made.
17.
The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders.
18.
The Court requests that the Australian Federal Police place the names of the children on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the children from Australia in breach of these orders. This Order ceases to have effect 2 years after the date on which it is made.
19.
The Mother, and the children, including Z, engage in therapeutic family counselling with an organisation or professional as nominated by the Independent Children’s Lawyer.
20.
The Mother engage with services for herself and the children as recommended by the Department of Health and Human Services (‘DHHS’).
21.
The Independent Children’s Lawyer be at liberty to, liaise with DHHS as to services they have recommended to the Mother and/or the children, and to provide a copy of these orders to DHHS.
22.
The Mother do all things necessary to obtain an appointment for X with CAHMS (Child and Adolescent Mental Health Services) for an assessment, and further engagement with CAHMS in the event that they assess their services are appropriate
23.
The parties attend upon a suitably qualified professional for the purpose of receiving Cognitive Behavioural Therapy as recommended in the psychological report prepared by Mr C, Psychologist, filed on 20 May 2020, or such other treatment as may be recommended by such professional, and produce evidence of attendance and treatment to the solicitors for the other party and the Independent Children’s Lawyer.
24.
The Father, his servants and agents, be restrained by injunction from going to or remaining within 200m of the Mother and/or X or Y or any place where they attend school, live, work and/or study, save for time spent in accordance with order 12 hereof.
25.
Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
NOTATION:
A. The Father is not to attend the child minding service today on level 5, Commonwealth Law Courts, 305 William Street, Melbourne with any other person save for X and Y.
B. The Mother is to attend the child minding service today on level 5, Commonwealth Law Courts, 305 William Street, Melbourne with a support person.
C. Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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