Edgar and Ingles and Anor - [2015] FamCA 228

FAMILY COURT OF AUSTRALIA

EDGAR & INGLES AND ANOR

[2015] FamCA 228

FAMILY LAW – CHILDREN – Final Orders – young child previously in care of mother, father and paternal grandmother – mother seeks sole parental responsibility while father seeks only limited time spent with order – paternal grandmother seeks shared parental responsibility with the child to live primarily with her – where mother and father previously subject of significant concern and intervention by welfare authorities –where paternal grandmother previously primary carer – best interests of the child – where mother has undertaken rehabilitation and reunification process and demonstrated her ability to parent the child - relationships between the parties characterised by mistrust – orders made for mother to have sole parental responsibility and child to spend time with the paternal grandmother.

Family Law Act 1975 (Cth) s 60B, 60CC, 65DAA

AMS v AIF (1999) 199 CLR 160
Andrew & Delaine [2009] FamCAFC 182
Donnell v Dovey (2010) 42 Fam LR 559
Runcorn & Raine [2008] FamCA 837

APPLICANT:

Ms Edgar

1^st RESPONDENT:

Mr Ingles

2^nd RESPONDENT:

Ms Richards

INDEPENDENT CHILDREN’S LAWYER:

Southern Vales Legal

FILE NUMBER:

ADC

3214

2013

DATE DELIVERED:

1 April 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

24 - 27 November 2014 and 16 - 20 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Dibden

SOLICITOR FOR THE APPLICANT:

Franklin Legal

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Anderson

SOLICITOR FOR THE 1^ST RESPONDENT:

Ian Charman and Associates

COUNSEL FOR THE 2^ND RESPONDENT:

Mr Bowler

SOLICITOR FOR THE 2^ND RESPONDENT:

Douglas Hoskins Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Richards

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Southern Vales Legal

Orders

That the mother have sole parental responsibility for B born … 2009 (“the child”).
The child live with the mother.
That the child spend time with the paternal grandmother as follows:-
(a)Each alternate weekend from the conclusion of school on Friday (or 4.30pm if not a school day) to 5pm Sunday or 5pm Monday in the event that the Monday is a public holiday, commencing 10 April 2015.
(b)For a period of one week in the end of second and third term school holidays as agreed and in default of agreement for the first half thereof, commencing at 10am on the first Saturday of the holidays;
(c)For Christmas in 2015 and each alternate year thereafter:-
(i)From 3pm on 25 December 2.15pm to 5pm 26 December and with the mother from 12 noon on 24 December to 3pm on 25 December;
(d) For Christmas in 2016 and each alternate year thereafter:-
(i)from 12 noon on 24 December to 3pm on 25 December and with the mother from 3.30pm on 25 December to 8pm 26 December;
(e)For the child’s birthday for a minimum of two hours PROVIDED THAT the paternal grandmother’s time with the child be suspended for two hours to enable the mother to spend time with the child should he be in…

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

Case: [2015] FamCA 228
Decision Date: 1 April 2015

CaseChat Overview and Summary

The case of *Edgar and Ingles* involved a dispute between a mother, a father, and a paternal grandmother concerning the upbringing and time spent with a child. The matter came before Berman J.

The court was required to determine the primary caregiver of the child, the living arrangements for the child, and the specific periods of time the child would spend with the father and the paternal grandmother. Further issues included the arrangements for holidays, birthdays, and the communication and conduct between the parties regarding the child. The court also considered the need for injunctions to prevent denigration and to regulate the child's references to a third party.

Berman J ordered that the mother have sole parental responsibility for the child and that the child live with the mother. The court then detailed extensive provisions for the child to spend time with the paternal grandmother, including alternate weekends, school holiday periods, and specific arrangements for Christmas and the child's birthday. The father was also granted specific time with the child annually and on Father's Day. The court also made orders regarding handovers, notification of illness, attendance at school events, and the provision of school reports. Crucially, injunctions were granted restraining the parties from contacting each other except for child-related matters, from denigrating each other to the child, and requiring the father and paternal grandmother to ensure the child refers to the mother as "Mum" or "Mummy". The parties were also ordered to exchange contact details within seven days.

Orders

Orders of the court

That the mother have sole parental responsibility for B born … 2009 (“the child”).

The child live with the mother.

That the child spend time with the paternal grandmother as follows:-

(a) Each alternate weekend from the conclusion of school on Friday (or 4.30pm if not a school day) to 5pm Sunday or 5pm Monday in the event that the Monday is a public holiday, commencing 10 April 2015.

(b) For a period of one week in the end of second and third term school holidays as agreed and in default of agreement for the first half thereof, commencing at 10am on the first Saturday of the holidays;

(i) From 3pm on 25 December 2.15pm to 5pm 26 December and with the mother from 12 noon on 24 December to 3pm on 25 December;

(d) For Christmas in 2016 and each alternate year thereafter:-

(i) from 12 noon on 24 December to 3pm on 25 December and with the mother from 3.30pm on 25 December to 8pm 26 December;

(e) For the child’s birthday for a minimum of two hours PROVIDED THAT the paternal grandmother’s time with the child be suspended for two hours to enable the mother to spend time with the child should he be in the paternal grandmother’s care on that day;

(f) Such further and other time as may be agreed between the mother and the paternal grandmother.

That the child spend time with the father for one week in January of each year at such times and upon such conditions as may be agreed between the parties.

That the child spend time with the father on Father’s Day from 10am to 5pm PROVIDED that the paternal grandmother’s time shall be suspended to enable the child to spend time with the mother on Mother’s Day from 10am to 5pm.

That the provisions of paragraph 3 (a) be suspended during the second and third term school holidays and for one half of the Christmas school holiday periods.

That all handovers that do not occur at school shall occur in the carpark of KFC Suburb C, D Street, Suburb C SAVE as may be agreed between the mother and the paternal grandmother and father.

That each of the parties do advise the other of them as soon as possible as to any significant illness or injury sustained by the child.

The paternal grandmother and father be at liberty to attend at school sports days, award nights, parent/teacher interviews, swimming carnivals, school performances and any other sporting activity or extra-curricular activities to which parents and significant interested parties are normally invited.

10.

That the paternal grandmother and father are able to obtain school reports and school photographs at their separate expense by directly contacting the child’s school AND the mother will provide written authority to the school to enable the provision of such material.

11.

That an injunction be granted restraining the parties from contacting each other for any circumstances save as is necessary to discuss issues relating to the child.

12.

That the parties be restrained and an injunction granted restraining each of them from denigrating each other to the child or in his presence or from allowing anyone else to do so.

13.

That the father and paternal grandmother be restrained and an injunction granted restraining each of them from encouraging, prompting or promoting the child to refer to Ms F as “Mum” or “Mummy” or “Mummy F” or permitting anyone else to do so AND shall use their best endeavours to cause the child to only refer to the mother as “Mum” or “Mummy”.

14.

That within seven (7) days of this order the parties disclose to each other their separate address and contact details.

15.

That the order appointing the Independent Children’s Lawyer be discharged.

16.

That all matters be removed from the pending List of Cases.

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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