Earle & Earle (No 2) - [2020] FamCA 1148

FAMILY COURT OF AUSTRALIA

EARLE & EARLE (NO. 2)

[2020] FamCA 1148

FAMILY LAW – CHILDREN – Interim parenting – Where updated report of court appointed expert released to the parties in Court –Where the court appointed expert expresses serious concerns as to risk of harm posed to the children in the mother’s care while the mother’s mental illness is untreated – Where the father then made an oral application to vary previous interim orders which provided, amongst other things, that the children live with the mother –Where the father contends that the mother’s mental condition causes such impairments in her parenting capacity that the children are exposed to an unacceptable risk of harm in her primary care – Orders made largely as sought by the father and supported by the Independent Children’s Lawyer.

Family Law Act 1975 (Cth)

Deiter & Deiter [2011] FamCAFC 82
Earle & Earle [2020] FamCA 272
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286
SS & AH [2010] FamCAFC 13

APPLICANT:

Mr Earle

RESPONDENT:

Ms Earle

INDEPENDENT CHILDREN’S LAWYER:

Mr Samuels

FILE NUMBER:

PAC

2016

2018

DATE DELIVERED:

14 October 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

14 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Raltson

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Mr Ardino

SOLICITOR FOR THE RESPONDENT:

Ex tempore Orders

All earlier orders in relation to parental responsibility, where the children are to live and spending time with the father are discharged.
That the Father have sole parental responsibility for medical and education decisions for the children (namely Y born 7 … 2016 ("Y") and X born … 2017 ("X")).
That the children live with the Father.
That the children spend supervised time with the Mother for a minimum of 2 hours each week (and a maximum of 2 occasions of 2 hours each week), on a day subject to the availability of the contact service appointed pursuant to Orders 5(a) below.
The for the purpose of Order 4 above;
(a)       Time will be supervised by an agency agreed to between the parties in writing and in absence of agreement by D Contact Service;
(b)
(c)       Time will occur at a public location in the E Region in NSW in accordance with the recommendations of the contact service nominated pursuant to Order 5(a) above;
(d)       That costs of supervision be borne by the parties equally.
That in addition to Order 4 above the father facilitate video/phone contact between the mother and the children on each day they are otherwise not spending time with the mother. On one occasion between 6pm and 8pm for no more than a half hour or at a time otherwise as agreed between the mother and the father in writing.
That for the purpose of Orders 4 to 6 above, the Mother be restrained from bringing the children into contact with Mr B or Mr C, and allowing Mr B or Mr C from speaking…

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 Earle & Earle (No 2)

Details

AGLC: Earle & Earle (No 2) [2020] FamCA 1148
Case: [2020] FamCA 1148
Decision Date

CaseChat Overview and Summary

The case of *Earle & Earle (No 2)* [2020] FamCA 1148 involved an oral application by the father to vary previous interim parenting orders. The dispute arose after an updated report from a court-appointed expert expressed serious concerns about the risk of harm to the children while in the mother's care, particularly if her mental illness remained untreated. The father contended that the mother's mental condition significantly impaired her parenting capacity, exposing the children to an unacceptable risk. The Independent Children's Lawyer supported the father's application.

The central legal issue before the Family Court of Australia was whether the interim parenting orders, which previously stipulated that the children live with the mother, should be varied to reflect the father's concerns about the mother's mental health and its impact on her parenting capacity. This required the court to assess the risk of harm to the children and determine the most appropriate interim living arrangements and contact schedule to safeguard their welfare.

The court's reasoning was heavily influenced by the expert's updated report, which indicated a deterioration in the mother's mental state and raised significant concerns about her capacity to care for the children. Applying the paramountcy principle of the children's best interests, the court considered the expert's opinion to be weighty, particularly in light of the mother's apparent unshakeable conviction regarding certain beliefs and the potential for shared delusional disorder with her maternal uncle, who had been involved in the children's care. The court also noted the mother's history of withholding children from the father and making unsubstantiated allegations.

Consequently, the court made orders largely as sought by the father. All earlier orders regarding parental responsibility, living arrangements, and time spent with the father were discharged. The father was granted sole parental responsibility for medical and educational decisions, and the children were ordered to live with him. The mother was to have supervised time with the children for a minimum of two hours per week, with additional provisions for video or phone contact. The court also made orders concerning the children's medical and educational assessments and the father's communication with the mother regarding their wellbeing.

Orders