FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Breton & Breton (No 2) [2023] FedCFamC2F 1157
File number: MLC 7028 of 2019 Judgment of: JUDGE BLAKE Date of judgment: 6 September 2023 Catchwords: FAMILY LAW – Parenting – split siblings – where two older children live with father – where youngest child lives with mother – where both parties have committed family violence during the relationship – where the father has made threats to kill the mother post relationship – where father has denigrated the mother openly post relationship including to the two older children such that they have no relationship with her – where there is evidence the older children have adopted the father’s views – where there is evidence the older children seek to persuade the younger child to the father’s views – where the father purports to seek orders that the youngest child live with him and spend time with the mother unsupervised but the evidence shows he is not supportive of the child’s relationship with the mother – where the mother says the youngest child should spend no time with his father and brothers – where the youngest child is settled after years of upheaval – where father’s proposed orders will lead to more conflict – HELD orders made for the youngest child to spend no time with father and brother. Legislation: Evidence Act 1995 (Cth) ss 140, 140(1), 140(2)
Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(2A), 60CC(3), 60CG, 61DA, 65DAA(1), 68B, 68C, 69ZW
Cases cited: A v A (1998) FLC 92-800
Briginshaw v Briginshaw (1938) 60 CLR 336
Fitzwater v Fitzwater (2019) 60 Fam LR 212
Breton & Breton [2020] FCCA 2608
Isles & Nelissen [2022] FedCFamC1A 97
Keane & Keane [2020] FamCA 99
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Re W(Sex Abuse: Standard of Proof) (2004) FLC 93-192
Division: Division 2 Family Law Number of paragraphs: 171 Date of hearing: 6, 7 & 8 June 2023 Place: Melbourne Counsel for the Applicant: Ms Damon Solicitor for the Applicant: V M Family Lawyers Counsel for the Respondent: Mr Burns Solicitor for the Respondent: Creative Family Law Solutions Counsel for the Independent Children's Lawyer: Ms Theoharopoulou Solicitor for the Independent Children's Lawyer: Trapski Family Law ORDERS
MLC 7028 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BRETON
Applicant
AND: MR BRETON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
6 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the child Y born in 2014 (‘Y’).
2.The father have sole parental responsibility for the child X born in 2008 (‘X’).
3.X live with the father and spend time with the mother in accordance with his wishes.
4.Y live with the mother.
5.Y spend no time and have no communication with the father.
6.In the event X wishes to…
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- AGLC
- Breton & Breton (No 2) [2023] FedCFamC2F 1157
- Case
- [2023] FedCFamC2F 1157
- Decision Date
CaseChat Overview and Summary
The court considered several key issues, including the impact of the father's conduct on the children, particularly Y, and the potential for further conflict if the father's proposed orders were implemented. Evidence showed that the father had not been supportive of Y's relationship with the mother, and that the older child, X, had adopted the father's negative views towards the mother. The court found that the father's proposed arrangements would increase conflict and harm Y, who was settled and thriving under the mother's care. Given the history of family violence and the father's ongoing antagonism towards the mother, the court concluded that unsupervised contact between Y and the father was not in the child's best interest.
The court ruled in favour of the mother, awarding her sole parental responsibility for Y and prohibiting any contact between Y and the father. X was to live with the father but spend time with the mother under supervision at the local police station. The court also imposed various restraints on the father to protect the mother and Y, including prohibiting the father from approaching or communicating with Y and restricting his ability to remove Y from Australia. The mother was granted permission to remove Y from Australia without the father's consent, and both parents were enjoined from exposing the children to family violence or discussing the proceedings with them. The court's decision aimed to protect the children and promote their well-being by minimizing exposure to conflict and ensuring their safety.
Orders
Orders of the court
MLC 7028 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS BRETON
Applicant
AND:
MR BRETON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
6 SEPTEMBER 2023
THE COURT ORDERS THAT:
1. The mother have sole parental responsibility for the child Y born in 2014 (‘Y’).
2. The father have sole parental responsibility for the child X born in 2008 (‘X’).
3. X live with the father and spend time with the mother in accordance with his wishes.
4. Y live with the mother.
5. Y spend no time and have no communication with the father.
6. In the event X wishes to spend time with the mother, all changeovers which do not occur at X’s school take place in the foyer of the Suburb H Police station.
7. The mother and the father each be permitted to liaise directly with the children’s school(s) to obtain any necessary information about the children’s progress and copies of all reports, notices, information, newsletters, photographs, invitations for parent teacher interviews, and these orders act as an authority for same.
8. The parties shall inform each other of any serious medical injury or illness sustained by the children whilst in their respective care as soon as reasonably practicable.
9. Pursuant to section 68B of the Family Law Act 1975 (Cth) (‘the Act’) the father, his servants and/or agents, be and are hereby restrained from approaching, contacting or communicating with the child Y or coming within 200 metres of Y’s home, school or extra-curricular activity.
10. Pursuant to section 68B of the Act the father, his servants and/or agents, be and are hereby restrained from approaching, contacting or communicating with the mother or coming within 200 metres of the mother’s home or place of employment or Y’s school and from harassing, molesting, stalking or physically harming or threatening to harm the mother, and it is noted that this order is an order made for the personal protection of the mother to which section 68C of the Act applies and any police officer made aware of these orders and who on reasonable grounds believe that such orders and injunctions have been breached by the father by either harassing, molesting, stalking or physically harming or threatening the mother may arrest the father without warrant.
11. The father, his servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal or attempted removal of the child Y born in 2014 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing Y on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child Y’s place on the Airport Watch List until 2032.
12. The mother be and is hereby permitted to remove the child Y born in 2014 from the Commonwealth of Australia notwithstanding that the consent of the father has not been obtained and the consent of the father be dispensed with unconditionally.
13. Order 11 of these Orders applies only to the child Y born in 2014 and his departure from the Commonwealth of Australia with the father, his servants and/or agents, and pursuant to Order 12 of these Orders, Order 11 shall not apply to the child Y born in 2014 and his departure from the Commonwealth of Australia with the mother, her servants and/or agents.
14. For the purposes of section 11 of the Australian Passports Act 2005 (Cth) (‘Passports Act’) this order expressly permits the issue of a passport or travel documents (within the meaning of the Passports Act) for the child Y born in 2014 upon application by the mother and without requiring the consent of the father to the child Y born in 2014 travelling outside the Commonwealth of Australia or his signing passport or passport renewal application.
15. The mother be permitted to provide a copy of these Orders to:
(a) Any school, after school care provider or extracurricular activity provider that Y attends from time to time;
(b) Any medical or allied health professional upon whom Y attends from time to time;
(c) Any government or non-government agency in relation to any matters concerning:
(i) Parental responsibility;
(ii) The care of Y;
(iii) The personal protection of Y and/or the mother;
(iv) Applying for and obtaining passports for Y; and
(v) Y travelling outside the Commonwealth of Australia.
16. The parties, their servants and/or agents be and are hereby restrained by injunction from:
(a) Denigrating each other or their family to or in the presence and/or hearing of the children and from permitting anybody else to do so;
(b) Discussing these proceedings with the children in their presence and/or hearing and from permitting anybody else to do so;
(c) Exposing the children or either of them to any form of family violence; and
(d) Permitting the children or any of them to read or be exposed to any documents filed or produced in these proceedings.
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).
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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