FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELBURN & ELBURN | [2020] FCCA 2386 |
| Catchwords: FAMILY LAW – Parenting Proceedings – interim care arrangements for two young persons – circumstances where parties take dramatically different positions on parenting – accusations by each parent that the other has actively engaged in seeking to align the children with them – best interests of the children – children suggested to be estranged from mother – where it is proposed that there be limited communication between children and their mother - right to know and be cared for by both parents – right to communicate and spend time with both parents – substantive change in care arrangements – children’s right to have their voice heard in the proceedings – consideration of weight to be placed upon children’s views where it is suggested that views are not genuine, not strongly held and not free of influence – property orders sought for restraint upon husband disposing of matrimonial assets. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CC(2A), 61DA, 65DAA(5), 68LA, 69ZL, 114 |
| Cases cited: Goode & Goode (2006) FLC 93-286; Other sources |
| Applicant: | MS ELBURN |
| Respondent: | MR ELBURN |
| File Number: | PAC 6308 of 2019 |
| Judgment of: | Judge Harman |
| Hearing date: | 5 May 2020 |
| Date of Last Submission: | 5 May 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 5 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms De Vere |
| Solicitors for the Applicant: | GenLaw Pty Ltd |
| Counsel for the Respondent: | Mr Givney |
| Solicitors for the Respondent: | Anthony Ziade & Associates |
ORDERS
Pending further Order, the parents Ms Elburn and Mr Elburn shall have equal shared parental responsibility their children X born in 2004 and Y born in 2006.
Pending further Order, X and Y shall spend time with their mother:
(a)Each Sunday from 9.00am until 5.00pm;
(b)Each Tuesday from 4.00pm until 8.00pm
(c)Such further or other periods as agreed between the parents from time to time.
Pending further Order, X and Y shall live with their father.
That the children attend Family therapy with the Mother at appointed times by Dr B or such other therapist as the parties may agree or the ICL might nominate and for the purposes of such Order:
(a)the mother shall within 7 days of the making of this Order contact Dr B and arrange the initial appointment; and
(b)the mother and the children shall thereafter attend all such appointments as nominated by Dr B; and
(c)the parties shall ensure that the children attend all such appointments as nominated by Dr B; and
(d)the mother and father shall bear equally the costs of such therapy.
That the Mother and Father…
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- AGLC
- Elburn and Elburn [2020] FCCA 2386
- Case
- [2020] FCCA 2386
- Decision Date
CaseChat Overview and Summary
The court was required to determine several key legal issues. These included the best interests of the children, particularly in circumstances where they were suggested to be estranged from their mother and where limited communication with her was proposed. The court also considered the children's right to know and be cared for by both parents, and their right to communicate and spend time with them. A further issue was whether a substantive change in care arrangements was warranted, and how to weigh the children's views when their genuineness, strength, and freedom from influence were questioned.
Judge Harman applied the paramountcy principle of the children's best interests. The court acknowledged the children's right to have their voices heard, but carefully considered the weight to be given to their views, especially when there were concerns about undue influence. The orders made reflect a balancing of the parents' rights and responsibilities with the children's welfare. Equal shared parental responsibility was ordered, with the children to live with their father but spend significant time with their mother. The court also mandated family therapy, directed full financial disclosure from both parties, and imposed an interim restraint on the husband disposing of specified matrimonial assets. An Independent Children's Lawyer was appointed, and the parties were directed to attend a Child Inclusive Dispute Conference.
Orders
Orders of the court
1.
Pending further Order, the parents Ms Elburn and Mr Elburn shall have equal shared parental responsibility their children X born in 2004 and Y born in 2006.
2.
Pending further Order, X and Y shall spend time with their mother:
(a) Each Sunday from 9.00am until 5.00pm;
(b) Each Tuesday from 4.00pm until 8.00pm
(c) Such further or other periods as agreed between the parents from time to time.
3.
Pending further Order, X and Y shall live with their father.
4.
That the children attend Family therapy with the Mother at appointed times by Dr B or such other therapist as the parties may agree or the ICL might nominate and for the purposes of such Order:
(a) the mother shall within 7 days of the making of this Order contact Dr B and arrange the initial appointment; and
(b) the mother and the children shall thereafter attend all such appointments as nominated by Dr B; and
(c) the parties shall ensure that the children attend all such appointments as nominated by Dr B; and
(d) the mother and father shall bear equally the costs of such therapy.
5.
That the Mother and Father will do all things and sign all documents necessary to enable and authorise the other Parent to obtain directly from any school or other place of education which the Children attends copies of school reports, newsletters, and any other information and/or document normally provided to Parents.
6.
That the Mother and Father are to do all things necessary to enable the Children’s treating medical practitioners or medical facilities to provide the Children’s medical records and information to the other Parent upon the other Parent’s request, and to allow the other Parent to attend any medical consultations concerning the Children.
7.
That in the event that either of the Children suffers from a significant medical problem, or either Child is prescribed medication, the Parent spending time with that Child is to notify the other Parent as soon as is reasonably possible of the medical problem suffered by the Child, and/or medication that has been prescribed for the Child.
8.
That in the event that either Child suffers a medical emergency, then:
(a) The Parent spending time with that Child is to notify the other Parent as soon as is reasonably possible of the medical emergency; and
(b) The Parent spending time with that Child is to provide the other Parent with details of the medical practitioner or medical facility treating the Child, including the name, contact number and address as soon as is reasonable possible.
9.
That the Mother and Father are to keep each other informed of any social, school, or religious function which the Children are to attend, and any other matter relevant to the Children.
10.
That neither Parent is to denigrate, belittle, and/or insult the other Parent, persons the other Parent is in a domestic relationship with, or members of the other Parent’s family, in the presence or hearing of the Children, and each Parent must use their best endeavours to ensure that no other person does so in the presence or hearing of the Children.
11.
That the Mother and Father are to keep each other informed of their contact mobile phone number, and landline number if available, and email address and are to keep each other notified of any change to their mobile phone number, and landline number if available, and email address forty eight (48) hours in advance of any change
12.
That pursuant to Rule 13.04 (1) of the Family Law Rules, each party shall provide, to the extent that they have not already done so, full and frank disclosure of their financial position within 14 days (the onus being upon the party obliged to give disclosure to prove that disclosure has been given).
13.
That within 7 days the Husband deliver to the Wife her gold jewellery including her engagement necklace, engagement bracelet and necklace;
14.
That the Wife have leave to file an amended Initiating Application subsequent to her receiving the Husband’s financial disclosure as required by Order 1 above.
15.
That, until further order of the Court, the Husband be restrained from disposing of any matrimonial assets including boat, motorbike, tools, real property located at C Street, Suburb D and E Street, Suburb F, burial plot.
16.
Pursuant to s.68L an Independent Children’s Lawyer is appointed for the reasons and with ancillary orders as set out in the usual form of order Exhibit A hereto.
17.
Pursuant to s.11F of the Family Law Act 1975, the parties are directed to attend with a Family Consultant for the purpose of a Child Inclusive Child Dispute Conference at 9am on 22 May 2020 for the Applicant and at 9.45am on 22 May 2020 for the Respondent, and:
(a) The parties shall continue to attend at such times, dates and places as the consultant may advise;
(b) The parties and each of them shall do all things necessary to ensure the attendance of their child/ren the subject of these proceedings to attend at the conference and to be available to meet with the Family Consultant;
(c) The Family Consultant is requested to provide to the Court (and if, in the Consultant’s view it is appropriate to do so, the parties) a memo outlining and reporting on:
(i) Any agreement reached between the parties;
(ii) The issues raised by the parties and which will require determination by the Court;
(iii) Any views or opinions expressed by the child/ren interviewed and any comment regarding the factors perceived to influence or impact upon those views and opinions or otherwise relevant to same;
(iv) Any recommendations by the Consultant including as to Case Management, referral to external (community based or private) services and/or programs and resources to be allocated to the matter including but not limited to expedition, Independent Children’s Lawyer and/or full Family Report or Part 15 experts report.
18.
Note: In event that either party seeks to have a safety plan in place regarding their above appointments they are to contact the Registry Manager as soon as practicable and not less than 14 days prior to the Child Inclusive Conference so that arrangements can be made to suitably address any concern raised.
19.
The matter is adjourned for further interim hearing to 19 June 2020 at 9:30am.
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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