Edwards and Granger & Anor - [2013] FamCA 918

FAMILY COURT OF AUSTRALIA

EDWARDS & GRANGER AND ANOR

[2013] FamCA 918

FAMILY LAW – CHILDREN – Father convicted of serious crimes of violence against mother – children at unacceptable risk of physical and psychological harm from father – mother’s psychological health at risk if the children spend time or communicate with father – mother have sole parental responsibility for children and they live with her – father restrained from any time or communication with children – application by paternal grandmother for time and communication dismissed.

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC (1),(2),(3),(4),(4A), 69ZR(1) and 69ZX(3)

MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424

APPLICANTS:

Mr Edwards

RESPONDENT:

Ms Granger

INTERVENER: Mrs Edwards

FILE NUMBER:

HBC 81

of 2011

DATE DELIVERED:

27 November 2013

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

2, 3, 4, 5 & 6 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kovacic

SOLICITOR FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Patrick Fitzgerald

SOLICITOR FOR THE RESPONDENT:	Legal Aid Commission of Tasmania
COUNSEL FOR THE INTERVENER	In Person

COUNSEL FOR THE INDEPENDENT Mrs Mooney
CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT Wallace Wilkinson & Webster

CHILDREN’S LAWYER:

Orders

All previous parenting orders in respect of the child L born January 2003 and the child S born November 2005 (‘the children’) are discharged.
Ms Granger (‘the mother’) shall have sole and exclusive parental responsibility for the children.
The children shall live with the mother.
Pursuant to s 68B of the Family Law Act 1975 (Cth) Mr Edwards (‘the father’) the father is restrained from:-
(a)living with, spending time or communicating with the children or either of them;
(b)directly or indirectly approaching and/or communicating with the mother and/or the children (included but not limited to) in person, by telephone, email, sms, facsimile and/or letter;
(c)going within 500 metres of any home or place where the mother or children are generally living or staying;
(d)going within 500 metres of any school where the children attend, visit or are enrolled;
(e)going within 500 metres of any place of employment where the mother may be working; and
(f)going within 500 metres of any place where the mother and/or the children may be present.
Pursuant to s 68C of the Family Law Act 1975 (Cth); if a police officer believes, on reasonable grounds, that the father (against whom these injunctions are directed) has breached one or other of the injunctions by;
(a)causing, or threatening to cause, bodily harm to the mother and/or children or any one of them; or
(b)harassing, molesting or stalking the mother and/or children or any one of them;
such police officer may arrest the father without warrant.
The children shall spend no time with the paternal grandmother, Mrs Edwards, (‘the Intervener’) and there shall be no communication between the children and the Intervener without the prior written approval of the mother or order of a court exercising jurisdiction under the

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 Granger & Anor

Details

AGLC: Edwards and Granger & Anor [2013] FamCA 918
Case: [2013] FamCA 918
Decision Date: 27 November 2013

CaseChat Overview and Summary

In the matter of *Edwards and Granger & Anor*, Benjamin J of the Family Court of Australia considered an application concerning the parenting of two children, L and S. The proceedings involved the father, Mr Edwards, the mother, Ms Granger, and the paternal grandmother, Mrs Edwards, who intervened in the proceedings. The core of the dispute centred on the father's conviction for serious crimes of violence against the mother, which raised significant concerns about the children's safety and well-being.

The court was required to determine the appropriate parenting orders for the children, specifically addressing the level of risk posed by the father to the children and the mother, and whether any time or communication with the father was in the children's best interests. Furthermore, the court had to consider the application by the paternal grandmother for time and communication with the children, in light of the father's conduct and the overall safety considerations.

Benjamin J found that the children were at an unacceptable risk of physical and psychological harm from the father, and that the mother's psychological health was also at risk if the children were to spend time or communicate with him. Applying the principles of the *Family Law Act 1975* (Cth), the court concluded that it was in the children's best interests to discharge all previous parenting orders. The mother was granted sole and exclusive parental responsibility, and the children were ordered to live with her. The father was restrained from any time or communication with the children and was also subject to significant restrictions regarding approaching or communicating with the mother. The court further ordered that the children spend no time with the paternal grandmother and have no communication with her without the mother's prior written approval or a further court order.

Orders

Orders of the court

All previous parenting orders in respect of the child L born January 2003 and the child S born November 2005 (‘the children’) are discharged.

Ms Granger (‘the mother’) shall have sole and exclusive parental responsibility for the children.

The children shall live with the mother.

Pursuant to s 68B of the Family Law Act 1975 (Cth) Mr Edwards (‘the father’) the father is restrained from:-

(a) living with, spending time or communicating with the children or either of them;

(b) directly or indirectly approaching and/or communicating with the mother and/or the children (included but not limited to) in person, by telephone, email, sms, facsimile and/or letter;

(d) going within 500 metres of any school where the children attend, visit or are enrolled;

(e) going within 500 metres of any place of employment where the mother may be working; and

(f) going within 500 metres of any place where the mother and/or the children may be present.

Pursuant to s 68C of the Family Law Act 1975 (Cth); if a police officer believes, on reasonable grounds, that the father (against whom these injunctions are directed) has breached one or other of the injunctions by;

(a) causing, or threatening to cause, bodily harm to the mother and/or children or any one of them; or

(b) harassing, molesting or stalking the mother and/or children or any one of them;

such police officer may arrest the father without warrant.

The children shall spend no time with the paternal grandmother, Mrs Edwards, (‘the Intervener’) and there shall be no communication between the children and the Intervener without the prior written approval of the mother or order of a court exercising jurisdiction under the Family law Act 1975.

Pursuant to s 65DA(2) and s 62B of the Family law Act 1975 (Cth) 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.

All other extant applications for orders (except costs applications) be otherwise dismissed and removed from the list of cases awaiting finalisation. Any costs application may be dealt with in accordance with the Family Law Rules 2004 (Cth).

Following the expiration of the appeal period, all subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

10.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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