Edkins and Felice (No 2) - [2020] FamCA 725

FAMILY COURT OF AUSTRALIA

EDKINS & FELICE (NO. 2)

[2020] FamCA 725

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

SOLICITOR FOR THE APPLICANT:

Anderson Lawyers

SOLICITOR FOR THE RESPONDENT:

Rafton Family Lawyers

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 Mr 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 judgment by this Court under the pseudonym Edkins & Felice has been…

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.

Keep reading for free

Create a free CaseChat account to read Edkins and Felice (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FamCA 725
Decision Date: 11 August 2020

CaseChat Overview and Summary

In *Edkins and Felice (No 2)*, the Honourable Justice Hannam of the Family Court of Australia considered an application by the mother concerning the children's living arrangements and the father's time with them. The dispute arose from the mother's application seeking to vary existing parenting orders.

The central legal issues before the court were whether the mother's application should be dismissed, and consequently, whether the father's alternate weekend time with the children should resume as previously ordered. The court was also required to consider specific conditions to be imposed on the father's time with one of the children, X, to ensure X's safety and well-being.

Justice Hannam reasoned that the mother's application lacked sufficient grounds to warrant a variation of the existing orders. The court confirmed the father's alternate weekend time with the children, ordering its resumption. Furthermore, to safeguard the child X, the court imposed specific conditions requiring that X not sleep in the same room as Mr B and that X be adequately supervised by the father or his partner, Mr C, to prevent any form of abuse. The court's orders were subject to formal entry in the Court's records.

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 Mr 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.