Edlund & Sandahl - [2021] FedCFamC2F 253

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Edlund & Sandahl [2021] FedCFamC2F 253

File number(s): ADC 2226 of 2011

Judgment of: JUDGE BROWN

Date of judgment: 26 October 2021

Catchwords: FAMILY LAW – parenting – children – best interests of the child – interim hearing – where child has spent limited time with the mother since late-2020/early-2021 – where the child expresses a jaundiced view of the mother – whether these views have been influenced by the father and his conduct – where it is necessary to protect the child from harm and further trauma – where the child concerned has made reports about self-harm – competing proposals from the parties about an appropriate way forward – whether reunification therapy is appropriate.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA, 68LA.

Cases cited:
Zahawi & Rayne [2016] FamCAFC 90
Marvel & Marvel (No 2) [2010] FamCAFC 101
Goode & Goode [2006] FamCA 1346
In the Marriage of Harrison & Woollard (1995) 18 Fam LR 788
R & R: Children’s Wishes (2000) 25 Fam LR 712
Edlund & Sandahl [2011] FMCAFam 709
Stevenson & Hughes (1993) 16 Fam LR 443
Mazorski v Albright (2007) 37 Fam LR 518

Other:

Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth).

Division: Division 2 Family Law

Number of paragraphs: 167

Date of hearing: 11 October 2021

Place: Adelaide

Counsel for the Applicant: Ms Tinning

Solicitor for the Applicant: Clelands Lawyers

Counsel for the Respondent: Mr Dillon

Solicitor for the Respondent: Marciano Lawyers

Counsel for the Independent Children’s Lawyer: Mr Childs

Solicitor for the Independent Children’s Lawyer: Legal Services Commission of South Australia
ORDERS

ADC 2226 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS EDLUND

Applicant

AND:
MR SANDAHL

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

26 OCTOBER 2021

THE COURT ORDERS UNTIL FURTHER OR OTHER ORDER THAT:
1.The child, X (hereinafter referred to as “X” or “the child”) spend time with the mother Ms Edlund (hereinafter referred to as “the mother”) as follows:
(a)From 10:00 am to 5:00 pm on Saturday 30 October 2021;
(b)From 10:00 am to 5:00 pm on Saturday 6 November 2021;
(c)From 10:00 am to 5:00 pm on Saturday 13 November 2021; and
(d)From 10:00 am to 5:00 pm on Saturday 20 November 2021.

2.Commencing 27 November 2021, on an alternate weekly basis, excluding the Christmas holiday weekend, the child spend time with the mother as follows:
(a)From 10:00 am to 5:00 pm on both Saturday 27 November 2021 and Sunday 28 November 2021;
(b)From 10:00 am to 5:00 pm on both Saturday 11 December 2021 and Sunday 12 December 2021;
(c)From 10:00 am to 5:00 pm on both Saturday 1 January 2022 and Sunday 2 January 2022; and
(d)From 10:00 am to 5:00 pm on both Saturday 15 January 2022 and Sunday 16 January 2022.

3.Commencing 29 January 2022, the child spend time with the mother each alternate weekend from the conclusion…

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 Edlund & Sandahl

Details

AGLC: Edlund & Sandahl [2021] FedCFamC2F 253
Case: [2021] FedCFamC2F 253
Decision Date: 26 October 2021

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Edlund v Sandahl involved a dispute over the parenting arrangements for a child, referred to as X. The applicant, Ms Edlund, sought an increase in the time she was to spend with the child, while the respondent, Mr Sandahl, opposed this application. The Independent Children's Lawyer was also involved in the proceedings, providing input on the best interests of the child.

The court had to determine whether the current parenting arrangements were in the best interests of X, given that the child had spent limited time with the mother since late-2020/early-2021 and had expressed negative views towards her. The court also had to consider whether these views were influenced by Mr Sandahl and his conduct, and if there was a need to protect the child from harm and further trauma. Additionally, the court needed to assess the appropriateness of reunification therapy as a means of facilitating a relationship between the mother and the child.

The court found that the child's negative views towards the mother might have been influenced by Mr Sandahl, and that it was in the best interests of the child to undergo reunification therapy. The court ordered that the child spend time with the mother on specific dates and times, and that the mother and child attend reunification therapy. The court also ordered that the Independent Children's Lawyer request a report on the progress of the reunification between the mother and the child, and that the Family Report prepared by Ms D dated 15 September 2021 be released to any therapist engaged by the mother, and retrospectively released to the father's therapist. The matter was adjourned to 28 March 2022 for further review.

Orders

Orders of the court

ADC 2226 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS EDLUND

Applicant

AND:

MR SANDAHL

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

26 OCTOBER 2021

THE COURT ORDERS UNTIL FURTHER OR OTHER ORDER THAT:

1. The child, X (hereinafter referred to as “X” or “the child”) spend time with the mother Ms Edlund (hereinafter referred to as “the mother”) as follows:

(a) From 10:00 am to 5:00 pm on Saturday 30 October 2021;

(b) From 10:00 am to 5:00 pm on Saturday 6 November 2021;

(d) From 10:00 am to 5:00 pm on Saturday 20 November 2021.

2. Commencing 27 November 2021, on an alternate weekly basis, excluding the Christmas holiday weekend, the child spend time with the mother as follows:

(a) From 10:00 am to 5:00 pm on both Saturday 27 November 2021 and Sunday 28 November 2021;

(b) From 10:00 am to 5:00 pm on both Saturday 11 December 2021 and Sunday 12 December 2021;

(d) From 10:00 am to 5:00 pm on both Saturday 15 January 2022 and Sunday 16 January 2022.

3. Commencing 29 January 2022, the child spend time with the mother each alternate weekend from the conclusion of school on Friday, or 3:00 pm if a non-school day, until the commencement of school on Monday, or 9:00 am if a non-school day.

4. The child spend time with the mother for special occasions during the period of the adjournment as follows:

(a) On Christmas Day from 10:00 am to 5:00 pm; and

(b) On X’s birthday from 10:00 am to 5:00 pm.

5. Unless otherwise agreed between the parties in writing, handover is to occur at the child’s school, or at the mother or father’s residence.

6. The child continue to attend upon Dr B (at dates and times deemed suitable by Dr B and Mr Sandahl) at the joint and equal expense of the parties.

7. The mother and the child jointly attend reunification therapy (at dates and times deemed appropriate by such therapist) with a child psychologist or therapist (other than Dr B) as agreed between the parties, and failing agreement, such therapist as nominated by the Independent Children’s Lawyer, with such therapy to be at the joint and equal expense of the parties NOTING THAT such therapist is to be provided with the report prepared by Ms D dated 15 September 2021, together with a copy of these reasons for judgment.

8. Contemporaneously with the appointment of a therapist in order (7) hereof, Dr B be notified of the therapist engaged for the purposes of reunification, and the Independent Children’s Lawyer provide Dr B with a copy of the Family Report prepared by Ms D dated 15 September 2021, together with a copy of these reasons for judgment.

9. The Independent Children’s Lawyer request from the therapist a report on the progress of the reunification between the mother and the child, with the report to be at the joint and equal expense of the parties, and to be filed and served on or before 20 March 2022.

10. The Family Report prepared by Ms D dated 15 September 2021 be released to any therapist engaged by the mother, and retrospectively released to the father’s therapist.

11. From the date of these reasons for judgment, order (2) of the orders dated 25 May 2021 be discharged.

12. The matter be adjourned to 28 March 2022 at 9:30 am.

THE COURT NOTES THAT:

A. These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 28 October 2021.

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).

Section 121 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

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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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File number(s):	ADC 2226 of 2011
Judgment of:	JUDGE BROWN
Date of judgment:	26 October 2021
Catchwords:	FAMILY LAW – parenting – children – best interests of the child – interim hearing – where child has spent limited time with the mother since late-2020/early-2021 – where the child expresses a jaundiced view of the mother – whether these views have been influenced by the father and his conduct – where it is necessary to protect the child from harm and further trauma – where the child concerned has made reports about self-harm – competing proposals from the parties about an appropriate way forward – whether reunification therapy is appropriate.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA, 68LA.
Cases cited:	Zahawi & Rayne [2016] FamCAFC 90 Marvel & Marvel (No 2) [2010] FamCAFC 101 Goode & Goode [2006] FamCA 1346 In the Marriage of Harrison & Woollard (1995) 18 Fam LR 788 R & R: Children’s Wishes (2000) 25 Fam LR 712 Edlund & Sandahl [2011] FMCAFam 709 Stevenson & Hughes (1993) 16 Fam LR 443 Mazorski v Albright (2007) 37 Fam LR 518 Other: Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth).
Division:	Division 2 Family Law
Number of paragraphs:	167
Date of hearing:	11 October 2021
Place:	Adelaide
Counsel for the Applicant:	Ms Tinning
Solicitor for the Applicant:	Clelands Lawyers
Counsel for the Respondent:	Mr Dillon
Solicitor for the Respondent:	Marciano Lawyers
Counsel for the Independent Children’s Lawyer:	Mr Childs
Solicitor for the Independent Children’s Lawyer:	Legal Services Commission of South Australia

ADC 2226 of 2011
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS EDLUND Applicant
AND:	MR SANDAHL Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JUDGE BROWN
DATE OF ORDER:	26 OCTOBER 2021