Edhouse & Edhouse (No 4)

Case [2024] FedCFamC1F 647

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Edhouse & Edhouse (No 4) [2024] FedCFamC1F 647

File number(s): SYC 4161 of 2021
Judgment of: KARI J
Date of judgment: 25 September 2024
Catchwords: FAMILY LAW – CHILDREN - Where the father presses an interim application to change the primary care of the child – Where the mother has fabricated a medical diagnosis, treatment and medical records - Where there has been an independent psychiatric evaluation of the mother undertaken by the single expert –Where the single expert considers the mother has an undiagnosed personality disorder – Where the single expert considers that the mother presents a risk of psychological and physical harm to the child - Where the mother makes recent allegations that the father has caused bruises to the child – Nature of interim hearing and fact finding - Where the mother’s evidence filed in these proceedings is not consistent with the reports she made to the child’s General Practitioner and school –– Assessment of whether the risk posed by the mother is chronic and underlying as against acute and immediate–– Where the Court cannot rule out that the mother has involved the child in her “deceptive behaviours” and incorporated the child into her “lies” – Where the Court considers the risk of harm posed by the mother is acute and immediate – Orders for the father to have sole parental responsibility for the child – The child is to live with the father – Where it would be detrimental to the child’s emotional wellbeing to separate her from either parent – Orders for the mother to spend supervised time with the child twice per week pending the testing of all of the evidence at trial   
Legislation:

Evidence Act 1995 (Cth) s128

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 64B, 67ZBD
Cases cited:

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman [2015] FamCAFC 104

Edhouse & Edhouse (No 2) [2024] FedCFamC1F 102

Edhouse & Edhouse (No 2) [2024] FedCFamC1A 111

Goode & Goode (2006) FLC 93-286

Hall & Hall (1979) FLC 90-713

Marvel & Marvel [2010] FamCAFC 101
Division: Division 1 First Instance
Number of paragraphs: 92
Date of hearing: 9 and 13 September 2024
Place: Adelaide
Counsel for the Applicant: Mr Grew
Solicitor for the Applicant: Coleman Greig Lawyers
Solicitor for the Respondent: Mr Lowry of Matt Lowry Criminal Law
Solicitor for the Independent Children's Lawyer: Mr Holmes of Holmes Donnelly & Co Solicitors

ORDERS

SYC 4161 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR EDHOUSE

Applicant
AND:

MS EDHOUSE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

KARI J

DATE OF ORDER:

25 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.That all previous parenting orders be discharged.

2.That until further order:

(a)the child X (born 2019) (“the child”), shall live with the father;

(b)the father shall have sole decision making responsibility for the child in relation to all major long term issues;

(c)the child shall spend time with the mother…

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AGLC
Edhouse & Edhouse (No 4) [2024] FedCFamC1F 647
Case
[2024] FedCFamC1F 647
Decision Date

CaseChat Overview and Summary

In Edhouse & Edhouse (No 4), the Federal Circuit and Family Court of Australia (Division 1) addressed an interim application filed by the father, seeking to alter the primary care arrangements for the child, X. The mother had alleged that the father had caused bruises to X, and the father sought sole parental responsibility, arguing that the mother had fabricated a medical diagnosis and treatment records, and that she posed a risk of harm to the child. The court was tasked with determining whether the risk posed by the mother was acute and immediate, and whether the father should be granted sole parental responsibility.

The court examined the mother's allegations and found that her evidence was inconsistent with reports she had made to the child's General Practitioner and school. Additionally, the court considered an independent psychiatric evaluation of the mother, which identified an undiagnosed personality disorder and a risk of psychological and physical harm to the child. The court could not rule out that the mother had involved the child in her deceptive behaviours. Given these findings, the court concluded that the risk of harm posed by the mother was acute and immediate.

In light of these findings, the court ordered that X would live with the father, and that the mother would have supervised time with X twice per week. The court also dismissed all other interim parenting applications, and ordered that the father pay all costs associated with the supervised time. The court's reasoning was based on the evidence presented, and the need to protect the child from the immediate risk of harm posed by the mother.

The final orders made by the court provided for the child to live with the father, and for the mother to have supervised time with the child twice per week. These orders were made until further order, which is likely to be at least until the making of orders following the trial.

Orders

Orders of the court

SYC 4161 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR EDHOUSE

Applicant

AND:

MS EDHOUSE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

KARI J

DATE OF ORDER:

25 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. That all previous parenting orders be discharged.

2. That until further order:

(a) the child X (born 2019) (“the child”), shall live with the father;

(b) the father shall have sole decision making responsibility for the child in relation to all major long term issues;

(c) the child shall spend time with the mother as follows:

(i) Each Saturday from 9.00 am to 12 noon AND each Tuesday from the conclusion of school (or 3.00 pm if a non-school day) to 6.00 pm.

(ii) That all time spending be supervised by Y Family Services.

(iii) That the father pay all costs associated with Y Family Services.

3. That to facilitate the child’s time spending with the mother, each of the parents shall:

(a) Forthwith make contact with Y Family Services and abide by any directions given by Y Family Services to complete their intake assessment to facilitate the commencement of time spending at the earliest possible time; and otherwise

(b) Comply with all reasonable directions, requests, policies, obligations and appointments made by Y Family Services.

4. That all interim parenting applications be dismissed, including in particular:

(a) The extant balance of the Application in a Proceeding filed 23 August 2023 (being paragraphs 2, 3, 4 and 5); and

(b) The Response thereto filed 3 October 2023.

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 proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, orders shall be made until further order (envisaged at this stage to likely be at least until the making of orders following the trial), that provide for:(a)X to live with the father; and(b)X to spend supervised time with the mother on two occasions each week.BACKGROUND The parties to the proceedings are X’s parents. The father was born in 1968. He is 56 years of age. He is a healthcare professional. The mother was born in 1983. She is 41 years of age. She is presently engaged in home duties. She is a permanent Australian resident, and she has both Country V and Country Z citizenship. The parties married in 2015, they separated on 10 February 2021 and they divorced in 2022. The parenting proceedings were commenced by the father on 4 June 2021. When the mother filed her response in the proceedings on 28 June 2021 she also sought orders adjusting the parties’ property interests. The financial proceedings are not directly relevant to the interlocutory parenting arrangements which now fall for determination. However, some events which have taken place in the shadow of the financial proceedings are of direct relevance to the parenting issues now before the Court. In that regard:(a)The financial proceedings were resolved by agreement between the parties following a settlement conference which took place on 29 November 2022. Final orders were thereafter made in chambers by a Judicial Registrar at the mutual written request of the parties effecting a division of property on 23 December 2022.(b)On 19 September 2022 and in the context of settlement negotiations pertaining to the financial proceedings, the mother disclosed to the father (through their respective solicitors) that she had been diagnosed with a medical condition, her solicitor advising (Exhibit F11):With regard to my client’s future needs, they have increased by her recent diagnosis of [a medical condition]. My client is currently receiving treatment.My client will obtain medical documentation to provide to your client in due course which sets out her diagnosis, prognosis and treatment.(c)On 29 November 2022 and in the lead up to the financial settlement conference later that same day, the mother’s solicitor sent the father’s solicitor a document by email described as “my client’s [medical condition] Treatment Plan” (Exhibit F12). The document attached to the email bears a date on the first page of 9 May 2022, and it sets out relevant information, including the following:(i)The mother’s “Leading Specialist” was identified as Dr U, with a “Speciality” of “Surgical [Procedures]”;(ii)The mother’s “Medical [Specialist]” was identified as Dr G;(iii)The “Principal Diagnosis” is identified as “[…]”;(iv)The “Diagnosis date” is 9 May 2022;(v)The “Treatment Plan” provides:Surgery:[…][Therapies:] […](vi)The mother had “existing supports” from her Psychiatrist Dr J, with “Concerns/issues” identified as “PTSD, Anxiety”.(vii)The document is “finalised” by Dr U and Dr G on 8 May 2022, and by Dr AA, with no date specified.(d)By letter from the mother’s solicitor dated 20 December 2022 to the father’s solicitor (Exhibit F13), sent three days prior to the making of the orders resolving financial proceedings, an update of the mother’s health was conveyed in the following terms:My client was diagnosed with [a medical condition] in May 2022. She has had [surgery]. My client has finished her treatment, which included [medical intervention].(e)On 22 December 2022, and in support of the parties’ mutual request that a Judicial Registrar make final orders adjusting property between the parties, a jointly signed communication was sent to the Judicial Registrar (Exhibit F14) which of significance identified:2.4The Wife’s ability to work has been impeded by her caring commitments for the child of the relationship who is currently 3 years of age and her current [medical] diagnosis for which she is receiving treatment.(Emphasis added)(f)The letter identifies that the adjustment of property between the parties in the proposed orders amounted to a 55/45 division in favour of the father, with the mother retaining assets totalling approximately $1,567,314. In addition, the father agreed to make payments of spousal maintenance to the mother for a period of 24 months, together with the parties entering into a Binding Child Support Agreement for the support of X.

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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