ELBERS & ELBERS - [2019] FCCA 3748

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELBERS & ELBERS

[2019] FCCA 3748

Catchwords:
FAMILY LAW – Parenting – discrete issue regarding regime of graduated increase in child’s time with the Father – historical allegations of violence – history of poor communication between parents – no relevant risk in either household – orders made for gradual increase in child’s time with the Father.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(3)(a) & (b), (c) – (d), (f) and (i); 65DAA

Cases cited:

AMS v AIF (1999) 199 CLR 160

Collu & Rinaldo [2010] FamCAFC 53
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) 41 Fam LR 483
Moose & Moose (2008) FLC ¶93-375
Vontek & Vontek [2017] FamCAFC 28

Applicant:

MR ELBERS

Respondent:

MS ELBERS

File Number:

CAC 2139 of 2016

Judgment of:

Judge Neville

Hearing dates:

11 & 12 June 2019

Date of Last Submission:

7 August 2019

Delivered at:

Canberra

Delivered on:

20 December 2019

REPRESENTATION

Counsel for the Applicant:

Mr R Maurice

Solicitors for the Applicant:

Strong Law Pty Ltd

Counsel for the Respondent:

Mr G Howard

Solicitors for the Respondent:

Farrar Gesini Dunn

Solicitors for the Independent Children’s Lawyer:

Legal Aid ACT

ORDERS

ON A FINAL BASIS, THE COURT ORDERS BY CONSENT THAT:

The parents have equal shared parental responsibility for the child, X (born: 2012) (“the child”).

ON A FINAL BASIS, THE COURT FURTHER ORDERS THAT:

From the date of these Orders until the child’s 8th birthday (on 2020), unless otherwise agreed between the parties, the child is to:
(a)Live with the Respondent Mother; and
(b)Spend time with the Applicant Father each Wednesday from the conclusion of school or 3:00pm until the start of school or 9:00am the following Monday.
From the child’s 8th birthday until the child’s 9th birthday (on 2021), unless otherwise agreed between the parties, the child is to:
(a)Live with the Respondent Mother; and
(b)Spend time with the Applicant Father each Tuesday from the conclusion of school or 3:00pm until the start of school or 9:00am the following Monday.
From the child’s 9th birthday (on 2021) onwards, the child is to live in a shared-care arrangement, with changeovers to occur as agreed between the parties and in the absence of agreement, after school or 3:00pm each Monday.
Neither party, their agents nor their servants shall discuss these proceedings with the child, in front of the child or within the child’s hearing.
Neither party, their agents nor their servants shall denigrate the other party, the other party’s partner or family to the child, in front of the child or within the child’s hearing.
All extant applications be dismissed, the matter finalised and removed immediately from the docket.

IT IS NOTED that publication of this judgment under the pseudonym Elbers & Elbers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 2139 of 2016

MR ELBERS

Applicant

And

MS ELBERS

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns parenting Orders that…

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 ELBERS & ELBERS

Details

AGLC: ELBERS & ELBERS [2019] FCCA 3748
Case: [2019] FCCA 3748
Decision Date: 20 December 2019

CaseChat Overview and Summary

In the matter of ELBERS & ELBERS, heard before Judge Neville, the dispute concerned parenting arrangements for the child, X, born in 2012. The application involved a proposed graduated increase in the child's time spent with the Applicant Father, against a backdrop of historical allegations of violence and a history of poor communication between the parents.

The court was required to determine appropriate parenting orders that would facilitate a gradual increase in the child's time with the Father, while ensuring the child's best interests and safety. This involved assessing the current circumstances, including the absence of any relevant risk in either household, and considering the parents' capacity for communication and co-operation.

The court's reasoning led to consent orders being made on a final basis. These orders established equal shared parental responsibility for the child. A regime for the gradual increase in the child's time with the Father was implemented, commencing with the child living with the Respondent Mother and spending time with the Father on weekends and then transitioning to a shared-care arrangement from the child's ninth birthday. The orders also included specific provisions prohibiting discussion of the proceedings or denigration of either parent to the child.

Orders

Orders of the court

ON A FINAL BASIS, THE COURT ORDERS BY CONSENT THAT:

The parents have equal shared parental responsibility for the child, X (born: 2012) (“the child”).

ON A FINAL BASIS, THE COURT FURTHER ORDERS THAT:

From the date of these Orders until the child’s 8th birthday (on 2020), unless otherwise agreed between the parties, the child is to:

(a) Live with the Respondent Mother; and

(b) Spend time with the Applicant Father each Wednesday from the conclusion of school or 3:00pm until the start of school or 9:00am the following Monday.

From the child’s 8th birthday until the child’s 9th birthday (on 2021), unless otherwise agreed between the parties, the child is to:

(a) Live with the Respondent Mother; and

(b) Spend time with the Applicant Father each Tuesday from the conclusion of school or 3:00pm until the start of school or 9:00am the following Monday.

From the child’s 9th birthday (on 2021) onwards, the child is to live in a shared-care arrangement, with changeovers to occur as agreed between the parties and in the absence of agreement, after school or 3:00pm each Monday.

Neither party, their agents nor their servants shall discuss these proceedings with the child, in front of the child or within the child’s hearing.

Neither party, their agents nor their servants shall denigrate the other party, the other party’s partner or family to the child, in front of the child or within the child’s hearing.

All extant applications be dismissed, the matter finalised and removed immediately from the docket.

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.