Edwards and Edwards - [2016] FamCA 241

FAMILY COURT OF AUSTRALIA

EDWARDS & EDWARDS

[2016] FamCA 241

FAMILY LAW – CHILDREN – where parents have poor communication despite extant orders of some years standing – where application is made to vary both parental responsibility and time – where father seeks a change of residence to him and substantially reduced time to mother based on mother and daughter conflict – where expert opines that the problem is the parental conflict – where father exacerbates that conflict – where father found to have inappropriately manipulated daughter – reduced time by father ordered.

Family Law Act 1975 (Cth)

AIF v AMS (1999) 199 CLR 160
E (Children) (FC) [2011] UKSC 27
Goode & Goode (2006) FLC 93-286
Minister for Immigration and Ethnic Affairs v Teoh 91995) 183 CLR 273
MW v Director-General, Department of Community Services [2008] HCA 12
Runcorn & Raine (unreported [2008] FamCA 837
U v U (2002) 211 CLR 238

APPLICANT:

Ms Edwards

RESPONDENT:

Mr Edwards

FILE NUMBER:

CAC

1510

2008

DATE DELIVERED:

15 April 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

21, 22, 23 and 24 March 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Westminster Lawyers

COUNSEL FOR THE APPLICANT:

THE RESPONDENT

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Trim

In person

Ms Mansfield

Victoria Legal Aid

Orders

All existing parenting orders are forthwith discharged save those made by consent of the parties on 24 March 2016.
That the mother has sole parental responsibility for B (the child) born … 2003.
That the child live with the mother.
Before any major long-term decision is made in relation to the child, the mother communicate with the father by email:
(a) the nature of the decision to be made; and
(b) her views as to what should be done; and
(c)requesting that he provide an answer within seven (7) days thereafter.
That if the father provides any information pursuant to the mother’s request as set out in the foregoing order, the mother shall consider it and, upon making any determination as to that decision, notify the father accordingly.
That should the father fail to provide any information to the mother within the seven (7) day period as provided in the foregoing order, the mother shall be entitled to make the decision without further consultation with the father.
That (failing agreement otherwise and save as otherwise provided in the court orders made on 24 March 2016,) the child spend time with the father as follows:
(a)during each alternate weekend from the conclusion of school on the Friday until the commencement of school on the following Monday morning (or Tuesday morning if the Monday is a public holiday) commencing Friday 22 April 2016;
(b)During the long Summer Holidays for a period of 2 weeks commencing at 3 pm on 26 December 2016 and for a similar period in each year thereafter;
(c)For one half of each school term holiday period and in default of agreement, the first…

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 Edwards and Edwards

Details

AGLC: Edwards and Edwards [2016] FamCA 241
Case: [2016] FamCA 241
Decision Date: 15 April 2016

CaseChat Overview and Summary

In the matter of *Edwards and Edwards*, Cronin J considered parenting orders concerning the child B. The dispute involved the allocation of parental responsibility, the child's living arrangements, and the extent of each parent's involvement in the child's life.

The court was required to determine the appropriate parenting arrangements for the child, including who would have sole parental responsibility, where the child would live, and the specific time the child would spend with each parent. Further issues included the process for making major long-term decisions concerning the child, the father's communication with the child, and the parents' ability to attend school events.

Cronin J discharged all existing parenting orders, save for those made by consent on 24 March 2016. The court ordered that the mother have sole parental responsibility for the child and that the child live with the mother. The father was granted specific time with the child, including alternate weekends and periods during school holidays, with detailed provisions for communication and decision-making regarding major long-term issues. The court also stipulated that both parents could attend school events and receive information about the child's education, unless the principal determined otherwise. The Independent Children's Lawyer was discharged after explaining the orders to the child. All other applications were dismissed.

Orders

Orders of the court

All existing parenting orders are forthwith discharged save those made by consent of the parties on 24 March 2016.

That the mother has sole parental responsibility for B (the child) born … 2003.

That the child live with the mother.

Before any major long-term decision is made in relation to the child, the mother communicate with the father by email:

(a) the nature of the decision to be made; and

(b) her views as to what should be done; and

That if the father provides any information pursuant to the mother’s request as set out in the foregoing order, the mother shall consider it and, upon making any determination as to that decision, notify the father accordingly.

That should the father fail to provide any information to the mother within the seven (7) day period as provided in the foregoing order, the mother shall be entitled to make the decision without further consultation with the father.

That (failing agreement otherwise and save as otherwise provided in the court orders made on 24 March 2016,) the child spend time with the father as follows:

(a) during each alternate weekend from the conclusion of school on the Friday until the commencement of school on the following Monday morning (or Tuesday morning if the Monday is a public holiday) commencing Friday 22 April 2016;

(b) During the long Summer Holidays for a period of 2 weeks commencing at 3 pm on 26 December 2016 and for a similar period in each year thereafter;

(d) From 3 pm on 25 December 2016 until 3 pm on 26 December 2016 and for a similar period in each alternate year thereafter;

(e) From 3 pm on 24 December 2017 until 3 pm on 25 December 2017 and for a similar period in each alternate year thereafter.

That (failing agreement otherwise) the child remain with the mother at all times other than those set out in paragraph (7).

Paragraph (7)(a) does not apply to the period during any school term or long summer holidays and is suspended accordingly but shall resume in the next school term as if it had not been interrupted by holidays.

10.

For the purposes of changeovers which do not occur at school, the provisions of paragraph (3) of the minutes annexed to the orders made on 24 March 2017 shall apply.

11.

That the father be at liberty to communicate with the child by telephone only, on one night per week, on an agreed day, and failing agreement, at 5.00pm on Wednesdays.

12.

That despite the mother having sole parental responsibility, both parents are at liberty to attend all school events and functions at which a parent would normally be entitled to attend UNLESS THE PRINCIPAL determines otherwise and at all times, both parents are entitled to all relevant information about the child and her educational progress.

13.

The Independent Children’s Lawyer is entitled to provide a copy of this order to psychologist Ms C.

14.

The Independent Children’s Lawyer is requested to explain the orders this day in age-appropriate language to the child and is otherwise thereafter discharged.

15.

That all applications are otherwise dismissed.

16.

That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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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