Legal Research
Cases
Elliott & Montague

Elliott & Montague

Case [2022] FedCFamC2F 1684 9 December 2022

Parental Responsibility

Relocation

Family Violence

Mental Health

Child's Best Interests

Family Law Act 1975 (Cth)

Family Law

No judgment structure available for this case.

Type to search within this case.

Federal Circuit and Family Court of Australia
(DIVISION 2)
Elliott & Montague [2022] FedCFamC2F 1684

File number(s): ADC 623 of 2020

Judgment of: JUDGE JENKINS

Date of judgment: 9 December 2022

Catchwords: FAMILY LAW – parenting – final hearing – relocation dispute – sole parental responsibility – family violence – allegations of sexual abuse – where the mother has significant mental health concerns – evidence of treating psychiatrist and independent psychiatric assessment – where each party makes serious allegations against the other and yet ultimately proposes significant unsupervised time – where court does not agree with recommendations of the family report writer – where the mother’s mental health is well-managed such that significant time spending can occur – where children remain in primary care of the father – relocation not permitted – court not bound by any proposal – orders made on court’s own proposal

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CC, 65D, 65DAA, 69ZT

Cases cited:
A & A: Relocation Approach [2000] FamCA 751

Adamson & Adamson [2014] FamCAFC 232

AMS v AIF [1999] HCA 26

Carlson & Fluvium[2012] FamCA 32

Godfrey v Sanders [2007] FamCA 102

Grella & Jamieson [2017] FamCAFC 21

Heath v Hemming (No 2) [2011] FamCA 749

In the Marriage of Hall [1979] FamCA 73

KB & TC [2005] FamCA 458

Khalil & Tahir-Ahmadi [2012] FamCAFC 68

Mazorski v Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Morgan & Miles [2007] FamCA 1230

Taylor v Barker [2007] FamCA 1246

U v U [2002] HCA 36

Division: Division 2 Family Law

Number of paragraphs: 183

Date of last submission/s: 24 November 2022

Date of hearing: 15-17, 23 & 24 March 2022, 23 August 2022, 19-21 September 2022 & 24 November 2022

Place: Adelaide

Counsel for the Applicant: Ms James

Solicitor for the Applicant: Scammell & Co

Counsel for the Respondent: Mr Bowler

Solicitor for the Respondent: SE Lawyers

Counsel for the Independent Children's Lawyer: Mr Frazer

Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia
ORDERS

ADC 623 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ELLIOTT

Applicant

AND:
MR MONTAGUE

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE JENKINS

DATE OF ORDER:

9 DECEMBER 2022

THE COURT ORDERS THAT:
1.That the father have sole parental responsibility for the children X born in 2016 and Y born in 2018 (“the children”).
2.That the father shall advise the mother in relation to all major long term issues regarding the children including but not limited to:
(a)The children's education (including religious education);
(b)The children's health and major medical treatments.

3.That the children live with the father.
4.That the children spend time with the mother as follows:
(a)In week one from 9.00am (or the conclusion of school) Thursday until 9.00am or the commencement of school Monday (or the commencement of school Tuesday if Monday is a non-school day);
(b)In week two from 9.00am (or the conclusion of school) Thursday until…

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 Elliott & Montague

Details

AGLC: Elliott & Montague [2022] FedCFamC2F 1684
Case: [2022] FedCFamC2F 1684
Decision Date

CaseChat Overview and Summary

This is a parenting matter concerning the two children X and Y, born in 2016 and 2018 respectively. The parents, Ms Elliott and Mr Montague, were in a relationship from about mid 2014 until 16 January 2020. The mother was hospitalised in March 2020 following a suicide attempt and was diagnosed with a period of psychosis. The father has had sole care of the children since separation. The mother seeks sole parental responsibility and relocation to City C with the children. The father opposes this and proposes that the children remain in his care and that the mother spend time with them. The Independent Children’s Lawyer proposed an eight nights to six nights split in favour of the mother. The court heard extensive evidence from both parents, their witnesses and the Independent Children’s Lawyer. The court found the mother’s allegations of family violence were not without foundation. The court also found the mother’s allegations of sexual abuse of X by the father were concerning but could not be determined on the evidence before it. The court was also concerned that the mother’s allegations of sexual abuse and family violence were not raised to authorities and were not raised until late in these proceedings. The court found that the father had facilitated the children to spend time with the mother. The court also found that the father had tried to maintain a relationship between the children and the mother. The court found the children had a strong relationship with the father. The court found that the children would suffer emotional harm if they were to be removed from the father’s primary care. The court also found that the mother’s ability to care for the children was untested and that she may suffer a relapse in her mental health if she remained in Adelaide. The court found that it was in the children’s best interests to remain in Adelaide in the father’s primary care and to spend time with the mother. The court ordered that the father have sole parental responsibility for the children, that the children live with the father and that the children spend five nights per fortnight with the mother. The court also made detailed orders in relation to the parents’ communication, the children’s education, their health, and their holidays.

Orders