FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Aitchison & Elkers [2023] FedCFamC2F 1476
File number(s): ADC 1613 of 2011 Judgment of: JUDGE McGINN Date of judgment: 16 November 2023 Catchwords: FAMILY LAW - CHILDREN – Previous orders made – Third application – Child 11 years at trial – Child withheld then compliance with order – Parents not lived together since child’s birth – Co-parenting relationship – Support for other parent’s relationship – Lack of support in the past – Lack of support affecting school attendance – Risk of repetition – Sibling relationships – Risk of future disruption of parental relationship Legislation: Evidence Act 1995 (Cth) s140
Family Law Act 1975 (Cth) ss60B, 60CA, 60CC, 65DAA
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021
Cases cited: Andrew & Delaine [2009] FamCA FC 182
Australian Securities and Investments Commission (ASIC) v Hellicar; ASIC v Brown; ASIC v Gillfillan; ASIC v Koffel; ASIC v Terry; ASIC v O’Brien; ASIC v Willcox; ASIC v Shafron [2012] HCA 17; 247 CLR 345
Bielen v Kozma [2022] FedCFamC1A 221; 6 Fam LR 59.
Carriel v Lendrum [2015] FamCAFC 43
D & P [2006] FamCA 170
DL & W [2012] FamCAFC 5; (2012) FLC 93–496
Dodd & Dodd v Stuart (1976) 1 FamLR 111, 540
Fairfield & Hoffman [2021] FamCAFC 151
Friscioni & Friscioni [2010] FamCAFC 108
Goode & Goode 92006) FLC 93-286
Hall and Hall [1979] FamCA 73; (1979) FLC 90 – 713
Hannigan & Sorraw [2010] FamCAFC 257
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Muldoon & Carlyle [2012] FamCAFC 135; (2012] FLC 93 – 513
Oakley & Cooper [2009] FamCAFC 133
Rader & Haines [2022] FedCFamC1A 156
Rice v Asplund ([1978] FamCA 87; (1979) FLC 90 – 725; 6 FamLR 570
Division: Division 2 Family Law Number of paragraphs: 643 Date of last submission/s: 12 February 2023 Date of hearing: 11 – 15 July 2022; 29 August 2022; 21 November 2022 Place: Adelaide Counsel for the Applicant: Ms Lewis Solicitor for the Applicant: Douglas Hoskins Legal Counsel for the Respondent: Mr McQuade Solicitor for the Respondent: Ryder Family Law ORDERS
ADC 1613 of 2011 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR AITCHISON
Applicant
AND: MS ELKERS
Respondent
ORDER MADE BY:
JUDGE McGINN
DATE OF ORDER:
16 NOVEMBER 2023
IT IS ORDERED:
1.That all previous parenting orders in relation to the child X born in 2021 be hereby discharged.
2.That the parties have equal shared parental responsibility for X.
3.That X live with the mother other than those times when X shall live with the father as provided for in these orders.
4.That X live with the father during school terms, each alternate week from the conclusion of school Thursday (or 3:00pm if a non-school day) to the commencement of school Wednesday (or 9:00am if a non-school…
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CaseChat Overview and Summary
The legal issues before the court included determining the appropriate parenting arrangements that would promote X's welfare and stability, ensuring equal shared parental responsibility, and preventing any form of interference or disruption in the co-parenting relationship. The court examined the history of the parents' relationship, their ability to cooperate, and the impact of their actions on X. The court also considered the importance of maintaining consistent routines and the potential harm of further disruptions to X's life.
The court found that equal shared parental responsibility was in the best interests of X, with a primary residence with the mother but with the father having a detailed and structured schedule for time with X. The court set out specific arrangements for school terms, holidays, and special occasions to ensure stability and continuity in X's life. The orders also included provisions to protect X's schooling and social life, as well as to prevent any form of abuse or interference in the co-parenting relationship. The court emphasised the importance of the parents keeping each other informed about X's health and schooling and ensuring X's attendance at school and extracurricular activities.
The court made detailed orders regarding the living arrangements for X, providing a structured and consistent schedule to minimise disruption. The court also included provisions to prevent the parents from interfering with each other's parenting time and to ensure that X could maintain relationships with both parents and extended family members. The court imposed restrictions on the parents' behaviour and interactions to protect X from any potential harm and to foster a healthy co-parenting environment.
Orders
Orders of the court
ADC 1613 of 2011
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR AITCHISON
Applicant
AND:
MS ELKERS
Respondent
ORDER MADE BY:
JUDGE McGINN
DATE OF ORDER:
16 NOVEMBER 2023
IT IS ORDERED:
1. That all previous parenting orders in relation to the child X born in 2021 be hereby discharged.
2. That the parties have equal shared parental responsibility for X.
3. That X live with the mother other than those times when X shall live with the father as provided for in these orders.
4. That X live with the father during school terms, each alternate week from the conclusion of school Thursday (or 3:00pm if a non-school day) to the commencement of school Wednesday (or 9:00am if a non-school day) consistently with the rotation established in the orders of the court of 30 June 2021.
5. That unless the parties otherwise agree in writing, during all short school holiday periods X shall live for one half of each such period with the father from 3:00pm on Wednesday until 3:00pm the following Wednesday in accordance with the alternate week cycle pursuant to paragraph 4 herein.
6. That unless the parties otherwise agree in writing, during the long school holiday period X live for one half of each such period with the father from 3:00pm on Wednesday until 3:00pm the following Wednesday in accordance with the alternate week cycle pursuant to paragraph 4 herein and every alternate week thereafter.
7. That notwithstanding paragraph 7 hereof and unless otherwise agreed in writing, X live with the parties for Christmas as follows:
in 2023 and each alternate year thereafter with the father from 3.00pm on Christmas Eve to 3.00pm Christmas Day noting X will be in the care of the mother from 3:00pm Christmas Day to 3pm Boxing Day;
in 2024 and each alternate year thereafter with the mother from 3.00pm Christmas Eve to 3.00pm Christmas Day noting X will be in the care of the father from 3:00pm Christmas Day to 3pm Boxing Day.
8. X live with the parties for Easter as follows (unless otherwise agreed in writing):
in 2024 and every alternate year thereafter with the father from 5:00pm Easter Thursday to 5:00pm Easter Saturday provided that X live with the mother from 5:00pm Easter Saturday to 5:00pm Easter Monday;
in 2023 and every alternate year thereafter with the mother from 5:00pm Easter Thursday to 5:00pm Easter Saturday provided that X live with the father from 5:00pm Easter Saturday to 5:00pm Easter Monday.
9. That should Father’s Day fall on a weekend when X is otherwise in the mother’s care then X shall live with the father on that day from 6:00pm on the evening preceding Father’s Day to 5:00pm on Father’s Day.
10. That should Mother’s Day fall on a weekend when X is otherwise in the father’s care the mother shall live with X from 6:00pm on the evening preceding Mother’s Day to 5:00pm on mother’s Day.
11. That X live with each of the parties on the occasion of X’s birthday and the respective parent’s birthday or the birthday of any sibling as may be agreed between the parties or in default of agreement as follows:
if the birthday falls on a school day with the non-resident parent from the conclusion of school to 6:30pm;
if the birthday falls on a non-school day with the non-resident parent for a period of three (3) hours as agreed and in default of agreement from 4:00pm to 7:00pm.
12. That the parties be at liberty to travel interstate during their time with X provided that he/she gives the other party thirty (30) days’ notice in writing of his/her intention to do so provided that the parties when notifying provide an itinerary and emergency contact details.
13. That unless otherwise agreed in writing between the parties prior to a handover, handover not otherwise occurring at school shall be effected between the parents as follows:
with the mother to take X to the father’s home at the commencement of X’s time with the father;
with the father to take X to the mother’s home at the conclusion of X’s time with the father; and
with both parents to remain in their vehicle for the purposes of such handover.
14. That the paternal grandparents be at liberty to conduct any handovers on behalf of the father if the father is unable to attend.
15. That both parties be at liberty to attend all school functions and sporting events to which parents are normally invited to attend that occur in that time when X is to live with the other party only ON THE CONDITION THAT:
written consent is first had and obtained from the other party for the requesting party to attend; and
neither party approach the other at such function or event.
16. That the parties be at liberty to obtain copies of X’s school reports, newsletters and school photographs direct from X’s school provided that if there is any cost associated with same parties cover their own cost.
17. That both parties keep the other parent informed via SMS text message as to all medical issues concerning X and any illness suffered by X as well as any specialist appointments which may be arranged for her and be at liberty by operation of this Order to consult with and obtain advice from X’s medical or other treating practitioners.
18. That forthwith the parties advise the other parent by text message in the event of any illness or accident (including emergency visits) suffered by X requiring hospitalisation or other medical treatment and permit the other parent to attend at any hospital or other facility to which X has been admitted or treated.
19. That the parties do all things necessary wherever practicable to ensure X’s attendance at all extra-curricular activities they are enrolled as well as X’s attendance at all friends’ birthday parties and social events to which she is invited.
20. That the parties be restrained and an injunction be granted restraining each of them from:
abusing, denigrating or insulting the other party to or in the presence of X or allowing any third party to do so; and
discussing these proceedings or the allegations made in these proceedings with or in the presence of X or allowing any third party to do so;
21. The parties be restrained and an injunction granted restraining each of them from attending upon the other party’s residential property save and except as provided for in these orders.
22. That the mother be restrained and an injunction is granted restraining the mother from attending at X’s school during any period of time that X is scheduled to live with the father SAVE AND EXCEPT as to:
taking X to school on the Thursday coinciding with the commencement of the father’s time with X; and/or
collecting X from school on the Wednesday at the conclusion of the father’s time with X; and/or
attending at the request of either the school or the father.
23. That the parties otherwise be restrained and an injunction is granted restraining each of them from keeping X home from school on any scheduled school day, SAVE AND EXCEPT:
in the case of an emergency; and/or
in circumstances where they have obtained and provided to the other parent and X’s school a medical certificate which details X’s presenting illness and/or health concern, which in the opinion of her treating health practitioner renders X incapable of attending school.
24. That all outstanding parenting applications do otherwise stand.
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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