KADENS & KADENS - [2020] FCCA 3479

FEDERAL CIRCUIT COURT OF AUSTRALIA

KADENS & KADENS

[2020] FCCA 3479

Catchwords:
FAMILY LAW – Interim parenting arrangements for children aged 6, 5 & 3 – children live with mother in Adelaide – father lives in Perth – father has not spent time with children for significant period due to Covid19 crisis – children each have significant special needs – father previously has spent supervised time with children at CCC – parties previously agreed to father having unsupervised daytime periods with children – time did not occur due to travel restrictions on father – mother now seeks for time to be subject to supervision – assessment of risk –nature of interim hearing – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 68LA

Cases cited:

B & B (1993) FLC 92-357

B v B: Family Law Reform Act 1995 (1997) FLC 92-755

Deiter & Deiter [2011] FamCAFC 82

Goode & Goode (2006) FLC 92-286

Marvel & Marvel (No2) [2010] FamCAFC 101

Mazorski v Albright (2007) 37 FamLR 518

Russell & Russell & Anor [2009] FamCA 28

Slater & Light [2013] FamCAFC 4

W & W (Abuse allegations; unacceptable risk) (2005) FLC 93-289

Applicant:

MR KADENS

Respondent:

MS KADENS

File Number:

ADC 3236 of 2018

Judgment of:

Judge Brown

Hearing date:

11 December 2020

Date of Last Submission:

11 December 2020

Delivered at:

Adelaide

Delivered on:

18 December 2020

REPRESENTATION

Counsel for the Applicant:

Ms Tinning

Solicitors for the Applicant:

Camatta Lempens

Counsel for the Respondent:

Ms Lindsay

Solicitors for the Respondent:

Women’s Legal Service

Counsel for the Independent Children's Lawyer:

Ms Lee

Solicitors for the Independent Children's Lawyer:

Legal Services Commission of South Australia

IT IS ORDERED UNTIL FURTHER ORDER:

Paragraphs 5, 7, and 10 to 19 inclusive of the Orders made on 10 March 2020 continue but otherwise the orders made on that occasion be discharged.
The children X born in 2014, Y born in 2015, and Z born in 2017 (herein after referred to as “the children”) spend time with the father as agreed between the parties and in default of agreement as follows:
(a)For a period of 3 separate visits by the father to South Australia, each three weeks:
(i)On one Saturday for a period of not more than 3 hours at times to be agreed between the parties as evidenced in writing (text);
(ii)On the next day, Sunday, for a period of not more than 3 hours at times to be agreed between the parties as evidenced in writing which can be by text message;
(iii)If the father is able to be in South Australia on a Friday or Monday immediately before or after the Saturday or Sunday in paragraphs 2(c)(i) or 2(c)(ii) above herein AND the day falls in the School Holidays or is a pupil free day or is a public holiday THEN on one of those days for a period of not more than 3 hours as agreed between the parties evidenced in writing which can be by text message; and

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 KADENS & KADENS

Details

AGLC: KADENS & KADENS [2020] FCCA 3479
Case: [2020] FCCA 3479
Decision Date: 18 December 2020

CaseChat Overview and Summary

This matter concerned interim parenting arrangements for three young children, aged six, five, and three, who resided with their mother in Adelaide. The father lived in Perth and had not spent time with the children for a significant period due to COVID-19 travel restrictions. All three children have significant special needs. The father had previously engaged in supervised time with the children, and the parties had agreed to unsupervised daytime periods, which did not eventuate due to the father's travel limitations. The mother sought that any future time the father spent with the children be subject to supervision.

The court was required to determine the appropriate interim parenting orders, considering the children's best interests, the assessment of risk, and the nature of an interim hearing. Specifically, the court had to decide on the terms and conditions under which the father would spend time with the children, including the duration, frequency, location, and any necessary supervision or support.

Judge Brown reasoned that given the children's special needs and the extended period of separation, a cautious approach was warranted for interim arrangements. The court applied the paramount consideration of the children's best interests, balancing the father's desire for contact with the need for safety and stability. The court noted the previous agreement for unsupervised time but acknowledged the changed circumstances and the mother's concerns. The orders reflect a phased approach, commencing with shorter, supervised visits, with provisions for increased duration and attendance at therapy sessions. The court also mandated specific parenting courses for both parties and imposed conditions regarding communication, handover, and safety measures, such as restraints in vehicles and restrictions around bodies of water.

The court ordered that the children spend time with the father in South Australia on specific weekends and during school holidays, with defined durations and conditions. These conditions included advance notice of intention to visit, the presence of a community support worker for two of the children, confirmation of visit locations for contact tracing, and specific safety requirements for transport. The father was also restrained from taking the children near bodies of water unless accompanied by at least one adult per child. The parties were ordered to complete specified parenting courses. The court also made orders for electronic communication and for the mother to provide fortnightly updates to the father. Finally, the court directed the parties to instruct a psychologist to undertake a Family Assessment Report concerning future care arrangements.

Orders

Orders of the court

IT IS ORDERED UNTIL FURTHER ORDER:

1. Paragraphs 5, 7, and 10 to 19 inclusive of the Orders made on 10 March 2020 continue but otherwise the orders made on that occasion be discharged.

2. The children X born in 2014, Y born in 2015, and Z born in 2017 (herein after referred to as “the children”) spend time with the father as agreed between the parties and in default of agreement as follows:

2. (a) For a period of 3 separate visits by the father to South Australia, each three weeks:

2. (i) On one Saturday for a period of not more than 3 hours at times to be agreed between the parties as evidenced in writing (text);

2. (ii) On the next day, Sunday, for a period of not more than 3 hours at times to be agreed between the parties as evidenced in writing which can be by text message;

2. (iii) If the father is able to be in South Australia on a Friday or Monday immediately before or after the Saturday or Sunday in paragraphs 2(c)(i) or 2(c)(ii) above herein AND the day falls in the School Holidays or is a pupil free day or is a public holiday THEN on one of those days for a period of not more than 3 hours as agreed between the parties evidenced in writing which can be by text message; and

2. (iv) If the father is able to be in South Australia on a Friday or a Monday immediately before or after the Saturday or Sunday in paras 2(c)(i) or 2(c)(ii) and any of the children is involved in speech or occupational or other therapy of any kind then the father is at liberty to attend at such therapy with the mother and the child or children.

2. (b) Thereafter each three weeks:

2. (i) On one Saturday for a period of not more than 4 hours at such times as agreed between the parties as evidenced in writing which can be by text message;

2. (ii) On the next day, Sunday, for a period of not more than 4 hours at times to be agreed between the parties as evidenced in writing which can be by text message;

2. (iii) If the father is able to be in South Australia on a Friday or Monday immediately before or after the Saturday or Sunday in paragraphs 2(d)(i) or 2(d)(ii) above herein AND the day falls in the School Holidays or is a pupil free day or is a public holiday THEN on one of those days for a period of not more than 4 hours at times to be agreed between the parties as evidenced in writing which can be by text message; and

2. (iv) If the father is able to be in South Australia on a Friday or a Monday immediately before or after the Saturday or Sunday in paragraphs 2(d)(i) or 2(d)(ii) and any of the children is involved in speech or occupational or other therapy of any kind then the father is at liberty to attend at such therapy with the mother and the child or children.

2. (c) At such further and other times as may be agreed between the parties and evidenced in writing.

Special Occasions

(d) In the event that each of the children’s birthday and/or the father’s birthday falls on a day where the father does not spend time with the children, the father be at liberty to call said children via Skype at a time agreed between the parties as evidenced in writing (in text).

(e) On Christmas Day, a period of not more than 3 hours at times to be agreed between the parties as evidenced in writing which can be by text message.

3. That it is a condition of the father’s time spending in paragraphs 2 above that:

3. (a) The father provide notice of his intention to spend time with the children not less than 7 days in advance of same (noting that the weekends of 2-3 January 2021 and 30-31 January 2021 are to be avoided).

3. (b) That Y and X each be accompanied by a Community Support Worker provided by Access4u, funded by NDIS in accordance with their NDIS Plan on each visit.

3. (c) That visits pursuant to these orders occur at such location as the father may select and advise to the mother not less than 3 hours prior to the visit, from the following:

3. (i) B Street Reserve Playground

3. (ii) C Playground at Suburb D

3. (iii) E Park, F Street, Suburb G

3. (iv) H Reserve, J Street, Suburb K.

3. (v) A L Cafe (they are located at Suburb M or Suburb N or Suburb O)

3. (vi) P Play Centre, Suburb Q

3. (vii) Such further or other location as may be agreed between the parties from time to time and evidenced by writing (text)

3. (d) That the father do confirm with the mother the locations the father visited with the children to the mother within 24 hours following his time with the children, for the purposes of COVID-19 contact tracing.

4. Handover occur between the parties at the location specified for the children’s time spending with the father.

5. Without admission as to the need for same, the father is restrained and an injunction is hereby granted restraining him from taking the children or any of them to any area proximate to an expanse of water (Beach, Lake, Dam, Swimming pool, Water Park, Spa) unless he has not less than one adult per child present with him to assist in the supervision of the children.

6. That the father ensure the children are restrained by appropriate child restraint in any motor vehicle in which they are transported.

7. That the parties each forthwith enrol in, complete and exchange completion certificates from the following courses:

7. (a) The Brave Program;

7. (b) Autism SA’s ‘An Introduction to Autism Spectrum for Families and Carers’ (which is available electronically);

7. (c) An additional course in relation to understanding and reducing autistic related ‘meltdowns’ and understanding sensory issues for the children to be agreed between the parties as evidenced in writing; and

7. (d) An attachment-based post-separation parenting course.

Communication

8. That the children have electronic communications with the father at such times as agreed between the parties via skype and in default of agreement, each Saturday and on Christmas Day in the event that the father does not spend time with the children, at 11:00am (SA time).

9. That until time commences pursuant to paragraph 2 herein, the mother shall on a fortnightly basis provide videos and photos of the children and information as to their care, welfare and development by email to the father.

Family Assessment Report

10. That the parties do all things necessary to instruct Ms R, Psychologist, to undertake a Family Assessment Report directed to the future care arrangements of the children with the father to meet his half share thereof on a private paying basis and the mother to meet her half share at Legal Services Commission rates.

11. Further consideration of the matter is adjourned to 15 March 2021 at 9.30am for directions.

IT IS NOTED that publication of this judgment under the pseudonym Kadens & Kadens is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

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.