ELLERSHAW & SURVANT - [2013] FamCA 510

FAMILY COURT OF AUSTRALIA

ELLERSHAW & SURVANT

[2013] FamCA 510

FAMILY LAW – CHILDREN – With whom a child spends time – Where the Mother chose not to participate in the final trial of the parenting proceedings – Where the Mother had instituted the current proceedings but had filed a Notice of Discontinuance of her application – Where the child has lived with the Father since consent orders were made in October 2009 – Where the parents’ animosity and conflict is such that it is in the best interests of the child to live with one parent and spend no or limited time with the other parent – Where the child has been at the centre of the parents’ dispute since she was three years old – Where the Mother retained the child after the June/July 2012 school holidays – Where the Mother has persisted in attempting to manipulate and influence the child and undermine the Father – Where there is a need to protect the child from the risk of psychological harm – Where any benefits of the child having a meaningful relationship with the Mother would come at the cost of the child being subjected to the Mother’s attitude and views of the Father – Where the child has expressed clear views of wanting to live with the Father and not spend time with or communicate with the Mother – Where it is clear that the Mother is unlikely to change.

FAMILY LAW – INJUNCTIONS – Where the Mother has repeatedly made unwarranted reports to a variety of agencies – Where this has resulted in the police attending the Father’s home to conduct “welfare checks” – Where the Mother’s conduct is such as to constitute a pattern of harassment of the Father – Where the Mother’s conduct is disruptive to the child’s stability – Mother restrained from contacting various agencies.

Family Law Act 1975 (Cth)
Allesch v Maunz (2000) 26 FamLR 237 Gibb and Gibb (1978) FLC 90-405 Re Schwartzkopff (1993) FLC 92-381 Re South Australian Telecasters Ltd (1998) FLC 92-825 Xuarez and Vitela [2012] FamCA 574

APPLICANT:

Ms Ellershaw

RESPONDENT:

Mr Survant

INDEPENDENT CHILDREN’S LAWYER:

Mr Williams

FILE NUMBER:

BRC

294

2008

DATE DELIVERED:

9 July 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

21 and 29 January 2013

REPRESENTATION

FOR THE APPLICANT:

In person on 21 January 2013; no appearance on 29 January 2013

SOLICITOR FOR THE RESPONDENT:

Noel Woodall & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Williams Lawyers

Orders

IT IS ORDERED THAT

It is declared that the presumption of equal shared parental responsibility is rebutted in the best interests of the child S Allen born … 2002 (“the child”) and that the Father have sole parental responsibility for the child.
The child live with the Father.
The Mother not be permitted to know the residential address of the child or the Father.
The Mother be restrained from entering the town and its environs where the child and…

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.

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Details

AGLC: ELLERSHAW & SURVANT [2013] FamCA 510
Case: [2013] FamCA 510
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered parenting proceedings between Ms Ellershaw (the Mother) and Mr Survant (the Father) concerning their child, S Allen. The Mother had filed a Notice of Discontinuance for her applications, and the Father sought final parenting and injunctive orders. The child had been living with the Father since consent orders were made in October 2009, with subsequent variations in April 2012 that maintained the child's residence with the Father and his sole parental responsibility.

The court was required to determine whether the presumption of equal shared parental responsibility should be rebutted in favour of the Father having sole parental responsibility, and to make final orders regarding the child's residence and time spent with each parent. Additionally, the court needed to consider the Father's application for injunctive relief against the Mother, particularly in light of her repeated reports to various agencies and her alleged pattern of harassment. The court also had to address the child's expressed views and the need to protect her from psychological harm.

Justice Kent found that the presumption of equal shared parental responsibility was rebutted due to the significant animosity and conflict between the parents, which was detrimental to the child's best interests. The court noted the Mother's persistent attempts to manipulate and undermine the Father, and the risk of psychological harm to the child. The child's clear expressed views of wanting to live with the Father and not spend time with or communicate with the Mother were significant factors. The court also found that the Mother's conduct, including unwarranted reports to agencies, constituted harassment and disruption to the child's stability.

The court ordered that the Father have sole parental responsibility for the child, and that the child live with the Father. The Mother was restrained from knowing the child's residential address and from entering the town and its environs where the child and Father lived or frequented. Furthermore, the Mother was restrained from contacting various agencies, including police, welfare agencies, and the child's school, without the Father's written consent or court permission. The child was permitted to initiate communication with the Mother via telephone, but the Mother was prohibited from initiating any communication with the child. The child's surname was ordered to be changed to Survant, and the Father was to be recorded on the child's birth certificate. The court also ordered that the Mother's relevant conduct be brought to the attention of the appropriate authorities regarding alleged breaches of section 121 of the Family Law Act 1975.

Orders