ENGLISH & EKLUND - [2021] FamCA 89

FAMILY COURT OF AUSTRALIA

ENGLISH & EKLUND

[2021] FamCA 89

FAMILY LAW – CHILDREN – Interim parenting – Where at this interim stage the parties agree that the child should continue living with the mother and only dispute the time the child is to spend with the father and whether an order should be made for parental responsibility – Where the mother contends that the father sexually abused the child in the past, and thus a risk of sexual abuse arises in the future – Where the mother also contends that there is a risk to the child’s physical and psychological wellbeing arising from the father’s alleged neglect of the child’s diet in his care – Where father denies that he poses a risk of harm to the child on any basis – Where expert report is yet to be prepared in the proceedings – Where mother seeks interim orders that the child spend no time with the father pending the expert becoming available and that there be a further interim hearing following its release – Where father seeks interim orders to re-establish a relationship between he and the child – Where the ICL supports the mother’s position but contends that if the Court finds that it is in the child’s best interests for her to spend time with the father, that such time be supervised by a private supervision agency until a place becomes available at a contact centre –Where upon weighing the probabilities it is unlikely that a finding of sexual abuse by the father will be made by a court at final hearing– Where the Court considers that the child receives a benefit from having a meaningful relationship with both parents and that any risk the father may be found to pose may be properly mitigated by orders that the child’s time with him be supervised – Orders made as proposed by the father as to the time he is to spend with the child and communicate with her and as proposed by the ICL in relation to other matters.

FAMILY LAW – Restraints – Where concerns were raised about the child’s medical care and in particular the sheer number of health professionals involved over the years – Where restraints on certain health practitioners are also appropriate in order to have a fresh lens through which the child’s health needs and any required treatment can be assessed.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, s 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 English

RESPONDENT:

Ms Eklund

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

3379

2019

DATE DELIVERED:

26 February 2021

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

15 October…

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.

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Details

AGLC: ENGLISH & EKLUND [2021] FamCA 89
Case: [2021] FamCA 89
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered interim parenting orders concerning a child born in 2012, with the applicant father, Mr English, and the respondent mother, Ms Eklund. The primary dispute centred on the extent of time the child would spend with the father and whether an order for parental responsibility should be made. While both parties agreed the child should continue living with the mother, the mother alleged past sexual abuse by the father and ongoing risks to the child's physical and psychological wellbeing due to alleged dietary neglect. The father denied posing any risk. An Independent Children's Lawyer (ICL) supported the mother's position but proposed supervised contact if the court deemed it in the child's best interests.

The court was required to determine whether the child should spend any time with the father pending the release of an expert report and a further interim hearing, and whether an interim order for parental responsibility should be made. Additionally, the court made orders restraining both parties from continuing treatment with the child's paediatrician, with short reasons to be provided in the judgment. The central legal issue revolved around balancing the child's best interests, including the benefit of a meaningful relationship with both parents, against the mother's serious allegations of abuse and neglect.

In its reasoning, the court weighed the probabilities and found it unlikely that a finding of sexual abuse by the father would be made at a final hearing. It considered that the child benefits from a meaningful relationship with both parents and that any identified risks posed by the father could be adequately mitigated through supervised contact. Consequently, the court made orders largely as proposed by the father regarding the child's time with him and communication, and as proposed by the ICL concerning other matters, including supervised contact by a private agency. The court also made orders restraining the mother from causing the child to be examined or interviewed regarding alleged sexual abuse unless consented to by the father or directed by authorities, and restrained her from interfering with the father's phone calls with the child.

The court ordered that the child live with her mother and spend supervised time with her father on alternate Sundays and on Father's Day if it fell on a weekend the child was not scheduled to see him. The father was to pay for the supervision costs and facilitate the commencement of contact as soon as practicable. Changeovers were to occur at an agreed location, and the mother was restrained from remaining at the contact venue. The father was also granted specific communication rights with the child via phone and authorised to receive school information, with certain restrictions on his attendance at school events. The court also made orders regarding the notification of medical emergencies and limited gift-giving.

Orders