Caceres & Barrett (No 2) - [2025] FedCFamC2F 130

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Caceres & Barrett (No 2) [2025] FedCFamC2F 130

File number(s): CSC 1004 of 2022

Judgment of: JUDGE COPE

Date of judgment: 6 February 2025

Catchwords:
FAMILY LAW – Parenting – Final Order made on 31 May 2021 – father’s application pursuant to s 65DAAA to re-open parenting matters – decision made under the rule Rice v Asplund in 2023 on same evidence – opposed by the mother – father required to undertake hair follicle drug testing - no evidence that the medicinal cannabis does or does not impact his capacity to parent – no independent expert evidence to differentiate between prescribed cannabis and illicit drug use – father’s Application dismissed

FAMILY LAW – Harmful Proceedings Order – the mother seeks that father be restrained from filing further proceedings without the leave of the court – second attempt to re-open child matters - the father has also filed Contravention proceedings and multiple Applications in a proceedings since the final order was made, the father has also filed proceedings in the State jurisdiction and a Human Rights claim alleging discrimination by the mother and the court –mother gives evidence of mental distress and financial harm - application granted

Legislation:
Commonwealth of Australia Constitution Act (The Constitution) 1977 (Cth)

Disability Discrimination Act 1992 (Cth) ss 3, 47

Fair Work Act 2009 (Cth)

Family Law Act 1975 (Cth) ss 60CC, 65DAAA, 102QAC

Narcotic Drugs Amendment Act 2016 (Cth) s 2A

Cases cited:
Carlyon & Graham [2024] FedCFamC1F 443

Caston & Caston [2020] FCCA 2162

In the Marriage of McEnearney [1980] FamCA 43

In the Marriage of Rice v Asplund (1979) FLC 90-725

Searson & Searson [2017] FamCAFC 119

Whitehill v Talaska [2024] FedCFamC2F 768

Division: Division 2 Family Law

Number of paragraphs: 117

Date of last submission/s: 31 January 2025

Date of hearing: 31 January 2025

Place: Cairns

Solicitor for the Applicant: Self-Represented

Counsel for the Respondent: Mrs R Bassano

Solicitor for the Respondent: MK Family Law

ORDERS

CSC 1004 of 2002

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CACERES

Applicant

AND:
MS BARRETT

Respondent

ORDER MADE BY:

JUDGE COPE

DATE OF ORDER:

6 FEBRUARY 2025

THE COURT ORDERS THAT:
1.The Initiating Application filed on 26 August 2024 be dismissed.
2.Pursuant to s 102QAC, the Applicant father is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) against the Respondent mother without the leave of the Court.
3.That all outstanding applications be dismissed and removed from the pending cases list.

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…

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 Caceres & Barrett (No 2)

Details

AGLC: Caceres & Barrett (No 2) [2025] FedCFamC2F 130
Case: [2025] FedCFamC2F 130
Decision Date: 6 February 2025

CaseChat Overview and Summary

The father, Mr Caceres, sought to reopen parenting matters under section 65DAAA of the Family Law Act 1975 (Cth) against the mother, Ms Barrett. The dispute involved the father's use of medicinal cannabis and its potential impact on his parenting capacity. The matter was heard by Judge Cope in the Federal Circuit and Family Court of Australia, Division 2. Ms Barrett opposed the father's application, arguing it was an abuse of process. She also sought a Harmful Proceedings Order to prevent the father from initiating further proceedings without leave of the court.

The court needed to determine whether the father's application to reopen parenting matters should proceed and whether the father should be restrained from filing further proceedings without leave. The court considered the father's requirement to undergo hair follicle drug testing and the lack of evidence about how medicinal cannabis impacts his capacity to parent. Additionally, the court examined the father's conduct, including multiple filings in state and federal courts and a human rights claim. Ms Barrett testified to her mental distress and financial harm due to the father's proceedings.

The court dismissed the father's application to reopen parenting matters, as the decision under Rice v Asplund was made on the same evidence. The court found the father's conduct warranted a Harmful Proceedings Order to protect Ms Barrett from further proceedings without leave. The court prohibited the father from instituting proceedings under the Family Law Act without leave and dismissed all outstanding applications.

Orders

Orders of the court

CSC 1004 of 2002

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR CACERES

Applicant

AND:

MS BARRETT

Respondent

ORDER MADE BY:

JUDGE COPE

DATE OF ORDER:

6 FEBRUARY 2025

THE COURT ORDERS THAT:

1. The Initiating Application filed on 26 August 2024 be dismissed.

2. Pursuant to s 102QAC, the Applicant father is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) against the Respondent mother without the leave of the Court.

3. That all outstanding applications be dismissed and removed from the pending cases list.

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):	CSC 1004 of 2022
Judgment of:	JUDGE COPE
Date of judgment:	6 February 2025
Catchwords:	FAMILY LAW – Parenting – Final Order made on 31 May 2021 – father’s application pursuant to s 65DAAA to re-open parenting matters – decision made under the rule Rice v Asplund in 2023 on same evidence – opposed by the mother – father required to undertake hair follicle drug testing - no evidence that the medicinal cannabis does or does not impact his capacity to parent – no independent expert evidence to differentiate between prescribed cannabis and illicit drug use – father’s Application dismissed FAMILY LAW – Harmful Proceedings Order – the mother seeks that father be restrained from filing further proceedings without the leave of the court – second attempt to re-open child matters - the father has also filed Contravention proceedings and multiple Applications in a proceedings since the final order was made, the father has also filed proceedings in the State jurisdiction and a Human Rights claim alleging discrimination by the mother and the court –mother gives evidence of mental distress and financial harm - application granted
Legislation:	Commonwealth of Australia Constitution Act (The Constitution) 1977 (Cth) Disability Discrimination Act 1992 (Cth) ss 3, 47 Fair Work Act 2009 (Cth) Family Law Act 1975 (Cth) ss 60CC, 65DAAA, 102QAC Narcotic Drugs Amendment Act 2016 (Cth) s 2A
Cases cited:	Carlyon & Graham [2024] FedCFamC1F 443 Caston & Caston [2020] FCCA 2162 In the Marriage of McEnearney [1980] FamCA 43 In the Marriage of Rice v Asplund (1979) FLC 90-725 Searson & Searson [2017] FamCAFC 119 Whitehill v Talaska [2024] FedCFamC2F 768
Division:	Division 2 Family Law
Number of paragraphs:	117
Date of last submission/s:	31 January 2025
Date of hearing:	31 January 2025
Place:	Cairns
Solicitor for the Applicant:	Self-Represented
Counsel for the Respondent:	Mrs R Bassano
Solicitor for the Respondent:	MK Family Law

CSC 1004 of 2002
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR CACERES Applicant
AND:	MS BARRETT Respondent

ORDER MADE BY:	JUDGE COPE
DATE OF ORDER:	6 FEBRUARY 2025