Edkins and Felice - [2020] FamCA 659

FAMILY COURT OF AUSTRALIA

EDKINS & FELICE

[2020] FamCA 659

FAMILY LAW – CHILDREN – Interim parenting – Where the mother did not press her contentions in relation to the father’s alleged violence towards herself, his mental health difficulties or substance misuse at interim hearing – Where the mother contends that the parties’ son has been sexually abused by two of the father’s step children – Where the mother asserts ongoing risk in the father’s care as he does not believe that the sexual abuse occurred and is failing to act protectively – Where the mother also maintained that the father has been physically aggressive towards the children in the past and poses some risk in this regard – Where the mother seeks the continuation of the short term interim orders made by consent at the interim hearing providing for limited unsupervised time with the father and also seeks a restraint on the father allowing the children to come into contact with his step-children – Where the father seeks a dismissal of the mother’s interim application such that the former interim orders that provide the children live with the mother and spend alternate weekends with him continue and proposes an additional order that he be required to ensure that the son not sleep in the same room as his stepson and that he or his partner “properly supervise” the son to ensure that he not be exposed to any form of abuse – Orders made as sought by the father.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 65D

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT:

Mr Edkins

RESPONDENT:

Ms Felice

INDEPENDENT CHILDREN’S LAWYER:

Shedden & Associates

FILE NUMBER:

PAC

1627

2018

DATE DELIVERED:

11 August 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

29 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Anderson Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Rafton Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Shedden & Associates

Orders

The mother’s Application in a Case filed 17 April 2020 is dismissed.

Pending further order

The orders of 6 March 2019 are confirmed such that the father’s alternate weekend time with the children is to resume this Friday, 14 August 2020.
The father shall ensure that:
(a) The child X does not sleep in the same room as Mr B; and
(b) X is properly supervised by himself or his partner Ms C so as to ensure that X is not exposed to any form of abuse.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this…

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 Edkins and Felice

Details

AGLC: Edkins and Felice [2020] FamCA 659
Case: [2020] FamCA 659
Decision Date: 11 August 2020

CaseChat Overview and Summary

In the matter of *Edkins and Felice*, heard by Hannam J, the dispute concerned parenting orders for two children, X and Y. The mother sought to vary existing orders, but her application was ultimately dismissed. The father's alternate weekend time with the children was confirmed to resume, with specific conditions imposed on the father regarding the supervision and sleeping arrangements of child X.

The central legal issues before the court were whether the mother's application to vary the existing parenting orders should be granted, and if not, what orders were appropriate to ensure the children's welfare and best interests, particularly concerning child X's safety and supervision.

Hannam J confirmed the father's existing alternate weekend time with the children, finding that the mother's application to vary these orders was not successful. The court's reasoning led to orders designed to protect child X, requiring the father to ensure that child X did not sleep in the same room as Mr B and that child X was properly supervised by either the father or his partner, Ms C, to prevent exposure to any form of abuse. These orders were made pending further order from the court.

Orders

Orders of the court

The mother’s Application in a Case filed 17 April 2020 is dismissed.

Pending further order

The orders of 6 March 2019 are confirmed such that the father’s alternate weekend time with the children is to resume this Friday, 14 August 2020.

The father shall ensure that:

(a) The child X does not sleep in the same room as Mr B; and

(b) X is properly supervised by himself or his partner Ms C so as to ensure that X is not exposed to any form of abuse.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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