Elliot and Day - [2017] FCCA 44

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELLIOT & DAY

[2017] FCCA 44

Catchwords:
FAMILY LAW – Parenting – where serious allegations of family violence – where family violence established.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

MRR v GR [2010] HCA 4

Applicant:

MR ELLIOT

Respondent:

MS DAY

File Number:

AYC 457 of 2013

Judgment of:

Judge Altobelli

Hearing dates:

29 November – 1 December 2016

Date of Last Submission:

1 December 2016

Delivered at:

Wollongong

Delivered on:

30 January 2017

REPRESENTATION

Counsel for the Applicant:

Mr Wilson

Solicitors for the Applicant:

Friedlieb Byrne

Counsel for the Respondent:

Mr Alexander

Solicitors for the Respondent:

Lees Luke Family Law

Solicitor Advocate for the Independent Children's Lawyer:

Ms Karagiannis

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW

ORDERS

That the Mother have sole parental responsibility for the Children X (born (omitted) 2012) and Y (born (omitted) 2013).
That the Children live with the Mother.
That the Children spend supervised time with the Father at the (omitted) Children's Contact Centre, or other appropriate contact service as agreed by the parties in writing at such in times and with such frequency as the service can accommodate, no more frequently than each alternate month, with the Mother to deliver and collect the Children from this service for the purpose of them spending time with the Father.
That the Father is to be responsible for the payment of all fees associated with the supervision the Children's time with him in accordance with these Orders.
That the Mother have sole responsibility for giving consent to and making arrangements for the issue of the Children's passports.
That subject to any other requirements of the Department of Foreign Affairs and Trade passports be issued to the Children X (born (omitted) 2012) and Y (born (omitted) 2013) to enable them to leave Australia and its territories notwithstanding that the consent of the Father has not been obtained.
That each party refrain from making critical or derogatory remarks in relation to each other or the members of each other's family in the presence or hearing of the Children and that each party do all things necessary to ensure that no third party makes critical comments about each other party or the members of each other party's family in the presence of hearing of the Children.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

AYC 457 of 2013

MR ELLIOT

Applicant

And

MS DAY

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about the long, dark shadow that is cast by previous acts of family violence. Whilst it is often the case that the passage of time heals many other wounds, the impact of family violence can often continue for extended periods. The wounds caused by family violence sometimes never heal. Even contrition and rehabilitation is sometimes not enough to…

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 Elliot and Day

Details

AGLC: Elliot and Day [2017] FCCA 44
Case: [2017] FCCA 44
Decision Date: 30 January 2017

CaseChat Overview and Summary

In the matter of Elliot and Day, heard before Judge Altobelli, the dispute concerned parenting orders for two children, X and Y. The proceedings involved applications by both the mother and the father regarding the children's living arrangements, parental responsibility, and the ability to travel internationally.

The court was required to determine the most appropriate parenting arrangements for the children, specifically addressing issues of sole parental responsibility, the children's primary residence, the nature and extent of the father's time with the children, and the arrangements for the children's passports, including whether the father's consent was necessary for their issuance. The court also considered orders to prevent disparaging remarks about either parent or their families in the children's presence.

Judge Altobelli ordered that the mother have sole parental responsibility for both children and that they live with her. The father was granted supervised time with the children at a contact centre, no more frequently than each alternate month, with the mother responsible for delivery and collection. The father was ordered to pay all associated supervision fees. The mother was given sole responsibility for passport arrangements, and passports were to be issued to enable the children to leave Australia, notwithstanding the father's lack of consent. Finally, both parties were ordered to refrain from making critical remarks about each other or their families in the children's presence and to ensure third parties did the same.

Orders

Orders of the court

That the Mother have sole parental responsibility for the Children X (born (omitted) 2012) and Y (born (omitted) 2013).

That the Children live with the Mother.

That the Children spend supervised time with the Father at the (omitted) Children's Contact Centre, or other appropriate contact service as agreed by the parties in writing at such in times and with such frequency as the service can accommodate, no more frequently than each alternate month, with the Mother to deliver and collect the Children from this service for the purpose of them spending time with the Father.

That the Father is to be responsible for the payment of all fees associated with the supervision the Children's time with him in accordance with these Orders.

That the Mother have sole responsibility for giving consent to and making arrangements for the issue of the Children's passports.

That subject to any other requirements of the Department of Foreign Affairs and Trade passports be issued to the Children X (born (omitted) 2012) and Y (born (omitted) 2013) to enable them to leave Australia and its territories notwithstanding that the consent of the Father has not been obtained.

That each party refrain from making critical or derogatory remarks in relation to each other or the members of each other's family in the presence or hearing of the Children and that each party do all things necessary to ensure that no third party makes critical comments about each other party or the members of each other party's family in the presence of hearing of the Children.

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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