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: Collu & Rinaldo [2010] FamCAFC 53 |
| 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…
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- ELBERS & ELBERS [2019] FCCA 3748
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- [2019] FCCA 3748
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CaseChat Overview and Summary
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:
1.
The parents have equal shared parental responsibility for the child, X (born: 2012) (“the child”).
ON A FINAL BASIS, THE COURT FURTHER ORDERS THAT:
2.
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.
3.
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.
4.
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.
5.
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.
6.
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.
7.
All extant applications be dismissed, the matter finalised and removed immediately from the docket.
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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