FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ellis & Hawkins [2024] FedCFamC2F 1617
File number(s): HBC 893 of 2022 Judgment of: JUDGE TAGLIERI Date of judgment: 15 November 2024 Catchwords: FAMILY LAW – Parenting – whether the child lives with the mother or father – 13 year old child with entrenched negative views of the father largely influenced by the mother – balancing of risks of harm – consideration of 60CC factors prior to amendment of Family Law Act – child to remain living with mother – child to spend time with father in accordance with her wishes Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 65DAA Cases cited: Aldridge & Keaton [2009] FamCAFC 229
Danton & Lancaster [2024] FedCFamC2F 1045
Goode & Goode [2006] FamCA 1346
Harrison & Woollard (1995) 18 Fam LR 788
Isles & Nelissen [2021] FedCFamC1F 295
Isles & Nelissen [2022] FedCFamC1A 97.
MRR & GR [2010] HCA 4
R & R Children's Wishes [2000] FamCA 43
Slater & Light [2011] FamCAFC 1
Walstrom & Dupont [2024] FedCFamC2F 274
Division: Division 2 Family Law Number of paragraphs: 83 Date of hearing: 24 & 26 April 2024 and 12 & 13 November 2024 Place: Hobart Counsel for the Applicant: Mr Verney SC Solicitor for the Applicant: Tasmanian Aboriginal Legal Service Counsel for the Respondent: Mr Trezise Solicitor for the Respondent: Murdoch Clarke Counsel for the Independent Children's Lawyer: Ms Ryan The Independent Children's Lawyer: Ms Behrens, Wallace, Wilkinson & Webster ORDERS
HBC 893 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ELLIS
Applicant
AND: MS HAWKINS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
15 NOVEMBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders in respect to X born in 2011 be and are hereby discharged.
2.The Applicant MR ELLIS ("the Father") and the Respondent MS HAWKINS ("the Mother") (collectively, “the parties”) have equal shared parental responsibility for X AND FOR THIS PURPOSE:
(a)“Major long-term issues” has the meaning provided in s 4 of the Family Law Act 1975 (Cth) and includes X’s education, health, extra-curricular and recreational activities, and changes to her living arrangements;
(b)If the Mother intends to make a major long-term decision in relation to X she must provide the Father 28 days written notice of the intended decision (“the Notice”);
(c)The Father on receiving the Notice will consider it and provide their views about to the Mother about the intended decision within 14 days of receiving the Notice;
(d)Upon receipt of the Father’s views, the Mother will consider same and inform the Father of what they consider to be in the best interests of X and the decision that ought be made;
(e)If the parties are in agreement about the intended decision they will implement that agreement; and
(f)If the parties are in disagreement about the intended decision they will participate in family dispute resolution unless exempted from doing so.
3.X live with the Mother.
4.X is at liberty…
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- Ellis & Hawkins [2024] FedCFamC2F 1617
- Case
- [2024] FedCFamC2F 1617
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CaseChat Overview and Summary
The legal issues for the court to resolve included determining the primary residence of the child and establishing a framework for shared parental responsibility, particularly concerning major long-term issues such as education, health, and cultural activities. The court had to consider the child's entrenched negative views towards the father, largely influenced by the mother, and weigh these against the risks of harm. The court applied the factors outlined in section 60CC of the Family Law Act 1975 (Cth) before its amendment, focusing on the child's best interests.
The court concluded that it was in X’s best interest for her to continue living with her mother while allowing the father to have regular contact in accordance with X’s wishes. The orders provided detailed provisions for communication, special occasions, cultural engagement, and access to school and medical information. The court also implemented protective measures to ensure the child's safety and well-being, prohibiting the mother and others from discussing the court's orders with the child or speaking negatively about the father. Furthermore, the court mandated the use of a specific app for communication between the parties and required the mother to facilitate the child's attendance at psychological appointments. Lastly, the court ordered the mother to complete the necessary documentation for an Australian passport for X and outlined the procedures for international travel arrangements.
Orders
Orders of the court
HBC 893 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR ELLIS
Applicant
AND:
MS HAWKINS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
15 NOVEMBER 2024
THE COURT ORDERS THAT:
1. All previous parenting orders in respect to X born in 2011 be and are hereby discharged.
2. The Applicant MR ELLIS ("the Father") and the Respondent MS HAWKINS ("the Mother") (collectively, “the parties”) have equal shared parental responsibility for X AND FOR THIS PURPOSE:
(a) “Major long-term issues” has the meaning provided in s 4 of the Family Law Act 1975 (Cth) and includes X’s education, health, extra-curricular and recreational activities, and changes to her living arrangements;
(b) If the Mother intends to make a major long-term decision in relation to X she must provide the Father 28 days written notice of the intended decision (“the Notice”);
(c) The Father on receiving the Notice will consider it and provide their views about to the Mother about the intended decision within 14 days of receiving the Notice;
(d) Upon receipt of the Father’s views, the Mother will consider same and inform the Father of what they consider to be in the best interests of X and the decision that ought be made;
(e) If the parties are in agreement about the intended decision they will implement that agreement; and
(f) If the parties are in disagreement about the intended decision they will participate in family dispute resolution unless exempted from doing so.
3. X live with the Mother.
4. X is at liberty to communicate by phone or other electronic means with the Father at reasonable times of the day and with reasonable frequency on condition that the communication is initiated by X and ends at X's request.
5. On X's birthday and for Christmas, Easter and Father's Day, the Father may send a card and/or modest gift for X and the following will apply in respect of this:
(a) Four (4) weeks from the date of this Order, the Mother will notify the Father in writing of her postal address.
(b) The Father may send the card/gift to the Mother's postal address and within seven (7) days of its arrival at her postal address, the Mother will ensure the card and/or gift is passed onto X.
(c) The Mother will facilitate a reply from X in accordance with X's wishes.
(d) Within fourteen (14) days of the card/gift arriving at the Mother's postal address, the Mother will notify the Father in writing that she has passed on his card/gift to X.
(e) The parties will notify each other in writing of any change to their postal address within seven (7) days of any such change.
6. X will spend time with the Father and/or the extended paternal family in accordance with her express wishes, and the Mother must facilitate this whether X’s wish is communicated to her by X, her school counsellor or psychologist.
7. In the event that X expresses an interest in or has opportunity to engage in community activities associated with her Aboriginal culture outside of her school, the Mother must facilitate such engagement including if the paternal family is involved.
8. The Father is entitled to receive information from X’s school and the Mother must within seven (7) days of these Orders if required by the school provide an authority to X’s school, to forward such information to the Father at his cost, including the following:
(a) X's school reports;
(b) Examples of X's school work, such as written work;
(c) Details regarding X's school achievements and copies of certificates;
(d) A copy of X's annual school photograph.
9. Within 7 days of these Orders, the Mother must provide any authority required to enable the Father to access at his cost information from X's medical, psychological and allied health services.
10. In the event of a change in medical, psychological and allied health services accessed by X, the Mother must within a reasonable time of change:
(a) Notify the Father in writing of the change; and
(b) Authorise them to provide at the Father's cost any information requested by him.
11. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X, the Mother and Mr B are restrained by injunction from discussing with X the Court’s Orders, Reasons for Judgment or matters arising from these proceedings.
12. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X, the Mother and Mr B are restrained by injunction from speaking negatively of the Father or Ms E to or in the presence of X or being critical, belittling or derogatory of them.
13. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X, unless expressly invited by the Mother or X in writing to do so, the Father will not approach X, at her school or her home.
14. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X, the parties will use civil and respectful language when communicating with each other and they are each restrained from making any harassing, abusive, negative, critical, belittling or derogatory comments to each other or in relation to the other party or any member of their family to X or in the presence or hearing range of X, and the parties will remove X from the presence of any third party doing so.
15. All notices and communication between the parties will be via the "App Close" parenting app and will be strictly limited to:
(a) Matters touching on parental responsibility;
(b) The health, welfare or development of X;
(c) Arrangements for the Father in the event X has expressed a wish to spend time or communicate with him; and
(d) Keeping each other informed of their telephone numbers and addresses.
16. The Mother will facilitate X's prompt attendance at appointments with her treating psychologist with such frequency and for such future period of time as recommended by X's psychologist.
17. The parties are hereby at liberty to provide a copy of these Orders to the school at which X is enrolled, X's treating doctors, psychologists and allied health providers.
18. Within thirty (30) days of these Orders, the Mother will complete and sign all relevant documents for an Australian Passport for X to be issued and pay the associated fees and for this purpose the Mother will obtain the necessary forms, complete them and then forward them to the Father for his completion and signature.
19. Within thirty (30) days of receiving the documents referred to in Order 18, the Father is to complete his part, sign the forms and return them to the Mother. Should the Father refuse or neglect to complete, sign and return documents pertaining to the Child's passport application, then a Registrar of the Hobart Registry of the Federal Circuit and Family Court of Australia is hereby appointed under s 106A of the Family Law Act 1975 (Cth), to sign or execute such a document on behalf of the Father upon lodgement of such document and the filing of an affidavit of the Mother as to the said neglect or refusal.
20. Upon obtaining a valid passport for X, the Mother will hold the passport and the following will apply:
(a) Should X wish to travel overseas with him in the future, the Mother must provide the passport to the Father at least 30 days prior to the date of international travel; and
(b) The Father must return the passport to the Mother within 14 days of return to Australia.
21. Dr C, the Single Expert, assist the Court in informing X of the Court Orders and answering any questions X may have.
22. All extant applications are otherwise dismissed.
THE COURT NOTES THAT:
A. Pursuant to s 68C of the Family Law Act 1975 (Cth), a police officer may arrest without warrant if that officer holds reasonable belief that the Orders for personal protection in Orders 11, 12, 13 and 14 have been breached.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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