FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATKINSON & ATKINSON (No.3) | [2016] FCCA 2284 |
| Catchwords: FAMILY LAW – Final parenting – future care arrangements – determination of parental responsibility – significant history of coercive and controlling family violence perpetrated by the father upon the mother – allegation by the father that the mother, his former wife and various others have conspired with each other to manufacture allegations – where the child is exposed to family violence – substantial issues of credit – parties’ evidence irreconcilable –inability of the father to support the child’s relationship with the mother – where communication between the parents is unworkable and unsafe – need to protect child’s right to a relationship with the mother – need to protect the mother and child from harassment and violence – father’s actions regarding delaying access to subpoenaed material – use of video evidence. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CC(2A), 60I, 61C, 61DA, 65DAA, 65DAA(5), 65DAC, 68B, 69ZW, 91B, 69ZT, 69ZV Mental Health Act 2007, s.22 |
| Cases cited: Tate & Tate(No.3) (2003) FLC 93-138 Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611 Amador & Amador (2009) 43 Fam LR 268 Other Articles Cited: Evidence (Business Records), NSWLRC 17, July 1973 |
| Applicant: | MS ATKINSON |
| Respondent: | MR ATKINSON |
| File Number: | PAC 4343 of 2013 |
| Judgment of: | Judge Harman |
| Hearing dates: | 29, 30, 31 March 2016, 1 April 2016, 10, 11 August 2016 |
| Date of Last Submission: | 11 August 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 2 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hill |
| Solicitors for the Applicant: | Fay Rose Legal |
| Counsel for the Respondent: | Ms Snelling |
| Solicitors for the Respondent: | Suzanne Wyman & Associates |
| Solicitors for the Independent Children’s Lawyer: | Ms Reynolds |
ORDERS
That all prior…
Continue reading Atkinson and Atkinson (No.3)
Sign in free to access the full text
- AGLC
- Atkinson and Atkinson (No.3) [2016] FCCA 2284
- Case
- [2016] FCCA 2284
- Decision Date
CaseChat Overview and Summary
The court was asked to determine the extent of sole parental responsibility for major decisions concerning X, where X would live, and the nature and extent of time X would spend with his father. Additionally, the court considered whether to impose restrictions on Mr Atkinson regarding presenting X to counsellors, psychologists, or medical practitioners, and how parental information would be shared with X's school.
In its reasoning, the court discharged all prior parenting orders and made new orders granting Ms Atkinson sole parental responsibility for all major issues concerning X, with X to live with her. Time spent with Mr Atkinson was to be facilitated through a supervised contact service, with specific arrangements outlined for periods before and after X commenced primary school. The court also made orders pursuant to section 68B of the *Family Law Act 1975* restraining Mr Atkinson from presenting X to certain professionals without Ms Atkinson's consent, except in emergency medical situations. Further orders stipulated that both parents were to be recorded as emergency contacts at X's school, with provisions to ensure their details were not accessible to each other, and that they were to be notified of any emergency medical treatment provided to X. The Independent Children's Lawyer was discharged with thanks.
Orders
Orders of the court
1.
That all prior parenting Orders with respect to the child, X born (omitted) 2013, shall be and are hereby discharged.
2.
That X’s mother, Ms Atkinson, shall have sole parental responsibility for all major issues decisions for X.
3.
That X shall live with his mother, Ms Atkinson.
4.
That X shall spend time with his father, Mr Atkinson, as follows:
(a) Until X commences primary school the following shall apply:
(i) Each party shall forthwith do all things, sign all documents and give all consents, authorities and instructions as may be necessary to arrange and attend the first available and offered intake appointment at the (omitted) Contact Service to permit an assessment to be undertaken as to suitability for the parties to utilise that service for supervised changeovers;
(ii) Upon assessment of suitability by the (omitted) Contact Service each party shall then attend at such times, dates and places, follow all instructions and rules as are applicable with respect to the provision of supervised changeovers, pay all fees as are required and provide all consents, authorities and instructions as are necessary to permit changeovers to occur through the (omitted) Contact Service;
(iii) Upon the (omitted) Contact Service being able to facilitate X’s transition from the care of the mother to the father at the commencement of each period of time and from the father to the mother at the conclusion of each period of time, X shall then spend time with his father for a period not exceeding two consecutive days and nights per fortnight and, if possible, from 5pm Friday until 5pm Sunday each alternate weekend and provided that if the above period cannot be facilitated by the (omitted) Contact Service, then time shall be for such period not exceeding two consecutive days and nights per fortnight as can be accommodated and such period shall commence and conclude at such times and on such days as the (omitted) Contact Service can facilitate;
(b) Upon X commencing primary school, X shall spend time with his father each alternate weekend during school terms from the conclusion of school Friday until the commencement of school the following Monday (extending to Tuesday in the event of a long weekend or pupil free day) and for such period not exceeding two consecutive days and nights per fortnight as can be accommodated by the (omitted) Contact Service during school holidays and Mr Atkinson shall be responsible for collecting X from and returning X to school at the commencement and conclusion of each school term period and school holiday changeovers shall occur through and in accordance with the availability and rules of the (omitted) Contact Service.
5.
Pursuant to section 68B of the Family Law Act 1975, Mr Atkinson shall be and is hereby restrained and injuncted from presenting X to any counsellor, psychologist or medical practitioner, save with the mother’s consent first had and obtained and provided that this restraint shall not preclude a medical practitioner providing medical treatment to X in an emergency situation as defined by section 174 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (being treatment that is required urgently to save life or prevent serious damage to the health of X).
6.
Notwithstanding any Order to the contrary, each parent shall do all things, sign all documents and give all consents, authorities and instructions as may be necessary to enable the details of each parent to be recorded as both a parent and emergency contact person upon any school enrolment for X and so as to enable each parent to obtain directly from X’s school any reports or information they desire and provided, further, that each parent shall provide to the school a copy of this Order and shall make a request of the school (in writing) that the details of each parent be recorded in such a fashion as to ensure that each parent’s details are not accessible by the other and are not provided to the other.
7.
Each parent shall forthwith and contemporaneous with the event cause any medical practitioner engaged with X and providing emergency medical treatment to him to contact the other parent and advise them of that fact and so as to otherwise allow and permit each parent to be advised as to X’s treatment and diagnosis and to visit X if hospitalised.
8.
Discharge the Independent Children’s Lawyer with the Court’s thanks.
9.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
10.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
11.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
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.