KADENS & KADENS

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
(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.
(b)Thereafter each three weeks:
(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;
(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;
(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
(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.
(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.

That it is a condition of the father’s time spending in paragraphs 2 above that:
(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).
(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.
(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:
(i)B Street Reserve Playground
(ii)C Playground at Suburb D
(iii)E Park, F Street, Suburb G
(iv)H Reserve, J Street, Suburb K.
(v)A L Cafe (they are located at Suburb M or Suburb N or Suburb O)
(vi)P Play Centre, Suburb Q
(vii)Such further or other location as may be agreed between the parties from time to time and evidenced by writing (text)
(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.
Handover occur between the parties at the location specified for the children’s time spending with the father.
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.
That the father ensure the children are restrained by appropriate child restraint in any motor vehicle in which they are transported.
That the parties each forthwith enrol in, complete and exchange completion certificates from the following courses:
(a)The Brave Program;
(b)Autism SA’s ‘An Introduction to Autism Spectrum for Families and Carers’ (which is available electronically);
(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
(d)An attachment-based post-separation parenting course.

Communication

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).
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

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.
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).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3236 of 2018

MR KADENS

Applicant

And

MS KADENS

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Kadens “the father” and Ms Kadens “the mother” began to live together in late 2012 and married in 2013. They finally separated on 19 February 2017.
The parties are the parents of three children, each of whom has very significant special needs. The children are X born in 2014; Y born in 2015; and Z born in 2017; each of whom currently live with their mother in Adelaide.
The central issue, for the court, at this interim stage, is what periods of time the children should spend with their father and what conditions, if any, should attach to that time.
The mother’s position is that the time should occur in a secure location and be subject to some form of supervision, as a necessary response to the children’s special needs and the fact that the father has not spent extensive time with them in recent years.
The father’s position is that supervision is currently unnecessary, as he has already successfully completed an extensive introductory process of supervised time, as required by the mother, and has demonstrated in this process that he is an insightful and responsible parent, who is able to manage the children’s special needs.
It is further the father’s position that the mother is an unreasonable and insecure person, who seeks to restrict his relationship with the children to service her own emotional needs, at the expense of the children and their entitlement to have a proper level of relationship with him.
The mother disputes this formulation and has asserted that she wants the children to have a meaningful level of relationship with their father, but not at the expense of their overall safety. Informing her position is her assertion that the father does not have a proper appreciation of the extent of the children’s special needs.
It is axiomatic from this brief introduction that Mr Kadens and Ms Kadens have a poor and mistrustful relationship with each other. This is a reflection of difficulties arising in their marriage and the extremely traumatic circumstances surrounding their final separation.
Overlaying this extraordinary level of difficulty is the fact that the parties live in separate states and are not well-resourced financially. These difficulties, in turn, have been exacerbated by the Covid19 pandemic crisis, which has rendered interstate travel, in Australia, extremely problematic.
In this context, the father points to the fact that, in early March of this year, just as the full implications of the pandemic were becoming apparent, the mother agreed to him having unsupervised, if brief time with the children, which he was unable to take up due to the border between South Australia and Western Australia being restricted.
He asserts that it is symptomatic of the mother’s inherent unreasonableness and desire for control that she has reneged on this agreement, as soon as he is likely to be able to travel to South Australia, without having to quarantine on his return and now wishes to place stringent conditions on his time with the children.
From the mother’s perspective, in the approximately nine months that have elapsed since this now controversial order was made, the diagnoses in respect of each child’s special needs have become clearer and their individual needs more pronounced. In addition, the two older children has been granted funding, by the NDIS, for a disability support worker to be present almost constantly, which is testament to the extent of their needs.
In these circumstances, it is her position that it is self-apparent that the special needs of the children require the highest level of support to ensure that each is safe and, as such, it would be imprudent of the father to attempt to manage the children without a high level of assistance.
In answer, the father submits that he is well-versed in the children’s care and will be able to make appropriate arrangements, with the assistance of his family and friends, to ensure the children are safe. He disputes some aspects of the children’s special needs, particularly in regards to ENT issues and is of the view that the mother excludes him from receiving information from their medical specialists.
The court must resolve this dispute at an interim stage, which provides only the capacity to hold a truncated hearing, which does not provide for cross-examination. As such, the court cannot form a fully informed picture of each of the parties concerned and what is more likely than not to be an objective appreciation of the various controversies arising between them.
In addition, this is the type of case which is likely to require an independent and expert assessment of the family, particularly the nature of the children’s relationship with each of their parents, which will include an appraisal of the implications of the children’s special needs within the dynamic of the family.
As yet, no such assessment has been prepared. A factor which, again, hamstrings the court’s capacity to make a fully informed decision of what is likely to be the preferable outcome for the children.
The parties need to be aware that the proper forum, if they are unable to reach an agreed outcome themselves, for the resolution of their various controversies, is a final hearing, which will take place over a number of days but, due to time constraints in the court system, is unlikely to take place until 2022.
Accordingly, the outcome of the current case will be provisional in nature. It is also likely to be augmented by later decisions (or, I hope, subsequent agreement between the parties) as more evidence comes to hand, particularly so far as the children’s special needs are concerned.
The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed. In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[1]
[1] See Goode & Goode (2006) FLC 92-286 at 80,901 [68]
In Marvel & Marvel[2] the Full Court indicated that, very often, in interim proceedings, where issues of risk are raised, it is often incumbent on courts, such as this one, to adopt a cautious approach. The Full Court said as follows:
“Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing.”
[2] See Marvel & Marvel (No2) [2010] FamCAFC 101 at [120]
I appreciate the emotional quotient of the current matter. Inevitably, whatever is the outcome, one party will feel that it is wrong and perceive that they have been unheard, by the court, as a result. This is regrettable but unavoidable. I am required to focus on the children’s best interests rather than the aspirations of the parties themselves.
Necessarily, the extreme level of controversy and disharmony arising between the parties militates in favour of the court adopting a cautious or conservative approach to care arrangements for the children rather than embarking on more expansive or experimental arrangements.

Background

The father is from Perth. The mother is from Adelaide. They met at work, when both were attending the same conference. Afterwards they kept in touch and formed a relationship.
Initially the couple lived in Perth, but moved to Adelaide, for financial reasons, in April of 2015. Between this date and the date of final separation, the parties lived with the mother’s parents, in their home, in Adelaide. The father returned to live in Perth, 48 hours after the separation.
The separation was extremely traumatic. It is the father’s position that he was summarily evicted, from the Adelaide home, by the mother and her parents, on the basis of a misconceived allegation that he had intentionally assaulted X.
As such, he had no alternative other than to return to Perth, with the financial assistance of his parents, as he had nowhere to live in Adelaide and no means of support. It would appear to be the case that he remains bitter about what occurred and what he considers to have been a trumped up allegation of assault.
The father commenced proceedings, in the Family Court of Western Australia in May of 2018. He asserted that the mother had frustrated all his efforts to maintain contact with the children and, at the time of his application, he had not seen them for fourteen months. He had many criticisms of the mother’s capacity as a parent and home maker.
The father’s application was transferred to this court, in Adelaide, on 11 July 2018. The mother responded to the father’s application after the proceedings had been transferred. It was her position that the father had isolated himself from the family, during the latter stages of the parties’ relationship and had behaved in an aggressive and violent manner, which culminated in the father assaulting X.
In the period after the parties separated, police had made an application, on the mother’s behalf, for an interim protection order, against the father, which named her and the three children as protected persons.
In addition, she had reported the alleged assault on X and, as a consequence, Mr Kadens was charged with aggravated assault by SAPOL. In these circumstances, the mother objected to the father spending any time with the children concerned, until the criminal charge had been resolved.
It appears to be the case that, whilst he was in Perth, a warrant for the father’s arrest was issued by the relevant court in South Australia. As a consequence, the father had to return to Adelaide to seek bail and deal with the charge against him, which took some time.
This hampered this court’s capacity to deal with the case, which was initially referred to the docket of Judge Kelly. On 14 December 2018 Her Honour made an order authorising the father to send cards and gifts to the children for Christmas.
In addition, on this date, the court made an order appointing an independent children’s lawyer for X, Y and Z. The independent children’s lawyer is Robert Seymour, an experienced Adelaide family solicitor, who is employed by the Legal Services Commission of Australia.
The prosecution elected to withdraw the criminal charge against the father in April of 2019. The interim intervention order was also discharged. In these circumstances, on 11 April 2019, after the matter had been transferred to me, the parties were able to agree on a raft of orders, which enabled the father to interact with the children subject to a variety of professional supervisors.
The professional supervision was to be initially provided by Mr S, who provides individualised supervision for separated families but at a considerable cost. Thereafter, time was scheduled to occur at the Suburb T CCC, which is a Commonwealth funded Children’s Contact Centre, the fees of which are means tested. Both Mr S and the CCC were requested to prepare reports in respect of the supervised visits concerned.

Ultimately, for logistical reasons, the father began to spend time, with X and Y, at the Suburb U CCC. Z did not attend the early visits as she sustained a leg fracture on 6 August 2019. Z began to attend visits, with the older children, on 28 September 2019. Between mid-August 2019 and early February 2020, the father was able to travel, from Perth to Adelaide, for a total of eleven visits with the children.
Mr Kadens describes the visits in the following terms:
“The visits have been very positive and have all gone very well. The children and I have reconnected and enjoyed our time together. From the first visit and despite the time that has passed since I had spent time with the children in person, the children immediately referred to me as “Daddy” or “Dad”. The children give me hugs at the end of the visits, come to me to be comforted and I have changed the children's nappies and assisted them with toileting. When Z joined the visits; she also immediately caned me Daddy and hugged me at the end of her first visit. They are curious, asking me lots of questions, play happily, ask me to play with them or help them with activities, and often laugh and giggle while they/we are playing.”[3]
[3] See father’s affidavit filed 3 March 2020 at [4]
I have been provided with a report from the Suburb U CCC, which is congruent with the father’s assessment of the visits concerned. By occupation, Mr Kadens is a health care worker. As such, it is his evidence that he is qualified to care for people with a variety of injuries and health conditions, including anaphylaxis.
In this context, the mother has deposed that X suffers from severe allergies and asthma; Y suffers from asthma; and Z requires grommets. The father asserts that his training equips him to deal with any crisis arising from these conditions.
He continues to be critical of the mother, asserting that she does not provide him with either prompt or full details of the medical treatment received by the children from time to time, particularly in respect of ENT issues.
Against this background, the father pushed for an increase in his time, with the children, and a move away from a professionally supervised setting. When the case returned to court, on 30 October 2019, I referred the parties to a child dispute conference, with a family consultant, pursuant to the provisions of section 11F of the Family Law Act. The family consultant concerned was Ms V, who provided a brief memorandum to the court, on 18 February 2020.
What is clear from Ms V’s memorandum is that the parties continue to have marked difficulties in communicating effectively with one another and their parenting relationship is one marked by a high degree of mistrust. For obvious reasons, this level of deficit must have implications as to how effectively they augment an appropriate response to the children’s special needs, in the context of the children transitioning between them.
In addition, each party asserts that the other has some mental health issues. The father asserting that the mother is narcissistic and so inclined to act out in order to prevent him having a proper level of relationship with the children.
Whilst the mother alleges that the father lacks impulse control, which during the parties’ marriage rendered him liable to commit acts of physical and verbal abuse against both the children and herself. Needless to say, neither party has any specific psychological expertise.
The mother reported to Ms V that the children had significant developmental needs. In this context, it was her position that the children required extra support to interact effectively with their father. Accordingly, at this stage, she suggested that the next step was for the father to have unsupervised time, with the children, but within the setting of the CCC playgroup.
On the other hand, the father advised Ms V that he wished to push forward his relationship with the children. In this context, he proposed an incremental increase in his time, on an unsupervised basis. At this stage, he was prepared to travel to Adelaide, every four weeks, in order to spend time with the children.
Ms V provided the following opinion in respect of the family:
“The parties each detailed a number of significant safety concerns regarding family violence, mental health and physical injuries to the children. In view of the allegations, a cautious approach may be warranted given the children’s young ages and lack of agency. The mother’s proposal for the father’s time to continue at the CCS, although unsupervised, appeared reasonable given the children’s developmental needs, the safety concerns, and the need for the father to build his relationship with the children given the disruption in his relationship. Such a venue would provide a secure base for the children.”[4]
[4] See child dispute conference memorandum dated 18 February 2020 at [27]
Ms Kadens has had three different solicitors in the proceedings. Her most recent solicitor began to act only on 17 November 2020. Accordingly, her middle solicitor managed the litigation, on her behalf, from August 2019 until this date.
On 16 March 2020, the court made a further raft of orders, with the consent of each of the parties, which envisaged the father spending three hours of unsupervised time, with the children, on each Saturday and Sunday of every fourth weekend. In addition, orders were made for the father to have Skype or electronic communications, with the children, each Saturday at 10:00am.
It is common ground that these orders have never been implemented and, with the change of the mother’s solicitor, are now controversial. The reason why the orders have not been carried out relates to the pandemic crisis, which coincided with the making of the orders and which rendered it extremely problematic for citizens to travel between Western Australia and South Australia, particularly given quarantine requirements.
In this difficult and challenging context, each of the parties has sought to change the un-implemented orders. As previously indicated, it is the father’s position that it would be unreasonable for the court to allow the mother to walk back from what she had agreed in the light of his successful time with the children.
On the other hand, it is the mother’s position that, with her change of solicitors, she is now better placed to gather the extensive medical evidence germane to the children’s special needs, which more significantly, indicates that the children’s special needs are more extensive and problematic than was apparent in March of 2020, and now it is appropriate for the court to take a more considered approach to the issue of time.
The father is particularly critical of the mother and her lawyers for filing two affidavits, to which are attached over a hundred pages of medical reports in the days leading up to this interim hearing, which he would characterise as being tactically motivated and fundamentally unfair to him.
For her part, the mother asserts that the material is relevant and supports her case that the special needs of the children concerned should be the major factor influencing the court’s decision. Accordingly, she contends that although the material is lengthy, it is germane to the court’s determination. I agree with the mother’s position.
It is for that reason, the court’s decision was not delivered on an ex tempore basis immediately following the relevant hearing. Rather, the court’s decision was reserved so that I could assess this extensive material, which in my view, must be considered central to the children’s best interests.

The parties’ respective proposals

It is probable, at the time of writing (Sunday, 13 December 2020), the Government of Western Australia will accept that South Australia is a no-risk jurisdiction, so far as the transmission of COVID-19 is concerned. As such, Mr Kadens will be able to travel to South Australia prior to Christmas, without having to quarantine for fourteen days on his return to Perth.
In these circumstances, he wishes to spend time, with the children, at Christmas, and anticipates that he will be able to do so. He is particularly anxious to spend face to face time with X, Y and Z, given the fact that he has not seen them for a significant period of time.
In addition, given that he was not able to take up the arrangements for time ostensibly agreed, between the parties, in March of 2020, he would want to spend a minimum of four hours, with the children, on each of his visits to Adelaide.
The father realises that is necessary for him to give the mother as much notice as possible of his proposed visits to Adelaide. However, he points to the fact that in the face of the pandemic, there have been rapid changes in border restrictions between Western Australia and South Australia and it is not always possible for him to know exactly when he will be able to travel. In these circumstances, he proposes giving at least fourteen days’ notice of his intention to spend time with the children.
Mr Kadens has deposed, in each of his affidavits, his appreciation that the children do have very significant special needs. In this context, he deposes as follows:
“I have done my own research into parenting for children with autism and special needs. I regularly keep updated on the CliniKids Autism Research run by the W Centre here in Perth which provides many helpful strategies and insights.
I note that many of the courses for parenting children with autism are tailored to parents who are currently living with their children and have in person experience with them and as such, I intend to work through these to assist in improving and fine-tuning my parenting skills as my in person involvement with the children increases. I don't believe completing these courses should be a prerequisite for my in person contact with the children to recommence.
I work as a health care worker so I have a working medical knowledge, a current CPR and First Aid Certification, advanced life support and anaphylaxis training, and it is part of my job to remain calm in high stress situations. I regularly work with vulnerable people and people with a high level of additional needs. I believe these skills are transferable to many other high stress interpersonal situations, including parenting children with additional needs and will assist me to ensure the children are safe and happy when they are in my care.”[5]
[5] See father’s affidavit filed 9 December 2020 at [32] & [34]
In addition, it is the father’s position that it is somewhat hypocritical that the mother asserts that he is not in tune, with the children’s special needs, when she regularly fails to provide information about the children’s health and other issues in a timely manner and/or directly from their relevant health practitioners.
However, the father recognises that it will be necessary for him to interact with the children in a safe and secure location, given Y’s, in particular, propensity to try and abscond. In these circumstances, he appreciates that it will be necessary for him to have adult assistance, when he spends time with the children. However, it would be his preference that he select such an adult and the time not take place in an overly institutionalised setting.
The father’s preferred location, for him to engage with the children, is the B Street Reserve Playground in Suburb N. This park has specifically configured equipment tailored for children with sensory and/or developmental needs. It also has a large toilet block with a well-equipped parenting room and is securely fenced.
The father recognises that the children will have to be exchanged between the parties at a secure location. In this context, he is open to utilising the McDonalds at Suburb AA, which the mother has proposed. Her preference would be for the parties to exchange the children in the car park. However, the father believes that this would be unsafe and exchanges should occur within the restaurant itself to guard against one of the children running off.
Essentially, Mr Kadens proposes that he would travel to Adelaide every three weeks and spend time with the children, on each Saturday and Sunday, for a period of not less than four hours, alternating between 12pm and 4pm and 10am and 2pm. In addition, if he was able to stay over for a long weekend, he would want to spend additional time, with the children, on either the preceding Friday or the subsequent Monday.
If the border restrictions have been eased, he would want to spend time with the children on Christmas Day, Boxing Day and Sunday 27^th December for periods of between 11am and 5pm; 12pm and 4pm; and 10am and 2pm; respectively.
The father proposes Ms R, a psychologist, to undertake the required family assessment report, which has hitherto been delayed due to the pandemic emergency. The mother is open to Ms R preparing this report.
As previously indicated, the mother’s position is informed by what she asserts is more up to date information regarding the children’s special needs and the fact that they have been each granted a significant level of funding pursuant to the NDIS. At this juncture, it is appropriate for me to summarise what this evidence indicates.
X has been diagnosed as having the following conditions:
·Autism spectrum disorder at level 2;
·Global development delay;
·Sensory processing disorder;
·Multiple speech and language delays;
·Sinus tachycardia;
·A heart condition, which has resulted in him being hospitalised on multiple occasions;
·Asthma;
·Low muscle tone;
·Anxiety;
·A turned eye and short sightedness, which requires him to wear glasses;
·Anaphylaxis and severe allergies, including but not limited to nuts, fish, mushrooms, penicillin and bee stings.
The mother has deposed that X demonstrates high risk behaviours, which include him: mouthing non-food objects; biting; head butting; physical outbursts and at times violent meltdowns. X has no awareness of ‘stranger danger’; runs away and does not always respond to verbal instructions. Additionally, X has not yet been able to be successfully toilet trained and it is unknown whether he ever will be.[6]
[6] See mother’s affidavit filed 27 November 2020 at [6]
Y has been diagnosed with the following conditions:
·Autism spectrum disorder at level 2;
·Global development delay;
·Sensory processing disorder;
·Speech and language delays;
·Hyper flexible joints;
·Severe anxiety;
·Gluten intolerance;
·Asthma; and
·Myoclonic dystonia and seizures.
The mother has deposed that Y also demonstrates high risk behaviours, which include running away and failing to respond to verbal instructions. As a precaution, he is required to wear a harness, when leaving the house.
As recently as 12 October 2019, the mother broke her arm when she was running after Y and fell, after his harness broke and he was in danger of being run over by a car.[7]
[7] Ibid at [15]
Z has been diagnosed with the following conditions:
·Sensory processing disorder;
·Expressive and receptive speech and language delays;
·Multiple growth and developmental delays.
The mother has also deposed that Z demonstrates high risk behaviours. She is currently being investigated by the BB Hospital for aspiration concerns, as she has a propensity to inhale her food and drink into her lungs, which may cause her to choke. As such, she is required to be supervised, at all times, when she eats or drinks. She too is unaware of stranger danger and is prone to run away and not respond to verbal instructions.
As previously indicated, issues to do with the children’s ENT health has been a significant bone of contention between the parties. It is the mother’s position that the children are subject to repeated viral illnesses and ear, nose and throat infections, which require surgical intervention. The father does not necessarily agree and feels that he has been shut out of the diagnostic process.
From the father’s perspective, in order to advance his relationship with the children, given the distance he must travel and the expense involved, it makes logistical sense for him to spend as much time as is possible, with the children, on each of his visits.
On the other hand, the mother’s emphasis is on safety, which she contends requires that there be some form of supervision in place. In this context, she has deposed as follows:
“Taking all three children out alone is extremely difficult and something I often avoid because of the risky behaviours of the children and the further risk any one of them may be at whilst I am attending to the needs of another. Whilst I appreciate that the Children’s Contact Centre Observational Report was positive I note that the father had significant assistance and guidance from staff in ensuring all children remained safe.”[8]
[8] Ibid at 43
In this context, it is the mother’s position that she herself is unable to take the three children into the community alone because of the extreme level of risk this would entail. As such, she refutes any suggestion that she is being pedantic or overly protective in respect of her response to the children’s special needs and her attitude in this case is one which could be construed as being obstructive to the father’s understandable desire to reconnect with the children.
Rather, it is her position that she is responding to the practical reality of the children’s exceptional level of special needs and potential to come to harm. Her fear is that some crisis will occur in respect of two of the children concurrently, to which the father will not be able to respond simultaneously, with possibly deleterious consequences.
For example, Y may run away, as he is prone to do, potentially into traffic; whilst X may experience an episode of anaphylaxis requiring treatment with an Epi-pen. Although the coincidence of two such instances may be regarded as improbable, given the extent of the children’s special needs, from her perspective, it is a risk not worth taking, at this stage.
As previously indicated, it is the mother’s evidence that the circumstances surrounding X, Y and Z have significantly changed since March of 2020 in the sense that the NDIS has now recognised the extent of the children’s special needs.
From the father’s perspective, this is largely irrelevant to the question at hand, as it does not impact on the level of those special needs but only relates to how funding is to be provided for their treatment and support.
As such, he refutes the mother’s suggestion that NDIS considerations are relevant to the issue of supervision. From his perspective, nothing of significance has occurred since the agreement of March 2020.
Ms Kadens has provided a brief email from Ms CC,[9] who is described as the senior disability manager for the children concerned. This indicates that a community support worker will be provided to support the family 24/7.
[9] See mother’s affidavit filed 10 December 2020 at [28]
In these circumstances, it is the mother’s position that a disability support worker, should attend all the father’s visits with the children, notwithstanding his resistance to such an intervention. In this context, the mother deposes as follows:
“I strongly believe that it is in the best interests of Y and X to have a Community Support Worker able to support each of them during the Father's time with the children in Adelaide. These workers will not 'interfere'. The worker is there to support the child achieve their NDIS goals.
I appreciate that the father has indicated a willingness to have a support person with him by way of friend. However, I say that the purpose of this Core Funding is specifically because NDIS have determined that both Y and X are entitled to a trained professional to support them in the community due to their disability. I ask that the father not disregard the children's NDIS Plans, funding and diagnoses in eagerness to commence time with the children.
I say I am profoundly concerned at the danger factor of the children in public, especially Y, and say that the father's time would proceed without anxiety to me and consequently to the children if he would permit Y and X to be assisted by their Community Support Worker funded by NDIS. I do not wish to curtail or supervise the father and his time but I am concerned that he is absolutely unaware of the magnitude of the task and the very real safety concerns that exist for the children.”[10]
[10] Ibid at [30] – [32]

In all these circumstances, the mother’s proposal for the next tranche of time between the father and the children is as follows:
·At the DD playgroup at the Suburb U Children’s Contact Centre for three Saturdays;
·Thereafter, for three separate visits, on each Saturday for a period of not more than three hours and on the following Sunday for the same period. This could be extended on either the preceding Friday or succeeding Monday if the children’s educational and health schedule permits;
·Thereafter, on a similar basis, for four hours on each such visit;
·She proposes that the father attend her home, on Christmas Day this year to spend time with the children. She would vacate the home and not intrude upon the father’s time with them.
It would be an essential precondition of each of these visits that Y and X be accompanied by their community support worker, as funded by the NDIS, in accordance with their relevant NDIS plan. Z does not as yet have such funding but I anticipate that it is in train.
The time at DD Playgroup would also be subject to supervision of CCC workers, but on an informal basis. The mother’s counsel, Ms Lindsay, conceded that her client was not wedded to this intervention as an essential precursor to the children spending longer periods of time with their father.
In addition, the mother is open to the time occurring at the B Street Reserve and has nominated a number of other locations, within the Adelaide metropolitan area, which she asserts would provide a suitably secure location for the time envisaged.
However, from her perspective, the sine qua non of the father’s time with the children is the accompaniment of the community support worker, which she asserts is essential to provide a sufficient level of support for the children to avoid them coming to harm.
As previously indicated, the mother is open to Ms R preparing the necessary family assessment report. She also proposes that the parties each engage in a number of parenting programs, including ones relating specifically to children with autism.
Given the children’s special needs, Ms Kadens would also want an injunction made restraining the father from taking the children to anywhere proximate to an expanse of water, such as a beach or swimming pool. To his great credit, the father agrees to abide by such an injunction, although he does not see the need for it, as he would not foresee the children going to such a place with him at this stage of their development.
Finally, the parties agree that there should be a specific time for the children to have skype or electronic communication with their father, which the mother says should be 10am and the father asserts should be 11am.
Although the issue of the children’s ongoing ENT treatment continues to be controversial between the parties, this was not an issue which received significant submissions during the recent interim hearing.
This is because the parties are scheduled to attend upon the relevant surgeon, Dr EE on 18 December 2020 and I would anticipate, following this intervention, they will be in a position to each agree on a way forward. This is fervently to be hoped.
Mr Seymour has retained Ms Lee of counsel to appear on his behalf in this interim hearing. Ms Lee has elected not to engage with the minutiae of the parties’ competing applications.
However, her instructions from Mr Seymour are that the independent children’s lawyer is of the view that the children’s best interests will be served, in this difficult and problematic case, by the court adopting a cautious and incremental approach.
The father has made it clear that he would not want to visit the mother’s home at Christmas time, as he would feel unwelcome and uncomfortable there. His major objection to the other aspect of the mother’s proposal is the presence of the community support worker, which he believes is unnecessary and amounts to supervision of his time with the children in another form.

The legal principles applicable

At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. They are contained in Part VII of the Family Law Act 1975 (“the Act”).
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see the Act at section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
“a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.”
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
In this particular case, sub-paragraphs (b);(d);(e);(f); & (i) of section 60CC(3) are relevant. These subparagraphs deal with the following issues:
·The nature of the child’s relationship with parents and significant other persons, including grandparents;
·Effects of a child being separated from a parent;
·Logistical issues relating to a child’s right to maintain parental relationships;
·The capacity of the parties to provide for the needs of the children concerned;
·The attitudes to the responsibilities of being a parent demonstrated by the parties concerned.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[11]
[11] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[12] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[13]
[12] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[13] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Sentiments such as these inform my considerations in this case. X, Y and Z have idiosyncratic needs. As such, the circumstances pertaining to their care and the appropriate parenting arrangements warrant particular and individualised care. In my view, this includes how the court approaches the task of assessing the potential pitfalls of any particular care scenario.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright[14] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.
[14] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Accordingly, in my view, the rationale of Part VII of the Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.
It is the father’s case that the court needs to give pre-eminence to the benefits X, Y and Z will derive from interacting with him, for as long as possible, in the least institutional setting as possible, so the relationship between them can increase in its level of intimacy and connection. This is, in turn, will ensure that the relationships in question are meaningful.
As such, it his position that he, bearing in mind the children’s special needs, should be placed in a position where he alone is largely left to cater for them, without the intervention of the mother, via any proxy appointed by her, no matter how well meaning, whilst he spends time with them. He aspires to parenting the children without what he would see as any unnecessary intervention.
Essentially, it is his case that he is just as in tune with the children’s special needs as is the mother and, as such, he should be able to manage them, as he sees fit, just as the mother does, without his intervention. By necessary implication, he contends that such an approach will extend rather than restrict his relationship with the children, in these acknowledged challenging circumstances.
On the other hand, the mother approaches the case from the vantage point of protective concerns. It is her position that issues relating to the children’s safety must be prioritised.
Essentially, the issue arising in this difficult and challenging matter in which each party has raised legitimate issues, entails the court assessing the degree of risk, which may conceivably arise for the children concerned and then put in place a response, which it considers is proportionate to the degree of risk so assessed.
However, at the same time, the court cannot overlook the centrality of the children’s relationship with their father. These two issues must be balanced against one another, with safety issues in the ascendancy.
In Deiter & Deiter,[15] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
[15] See Deiter & Deiter [2011] FamCAFC 82
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [16]
[16] Slater & Light [2013] FamCAFC 4 at [37]
After assessing the risk, which cannot be deferred at the interim stage, on the basis of deficiencies arising in the evidence then available, the court must consider what response is proportionate the degree of risk so identified. Clearly the range of options can range from no time to either equal time or substantial and significant time.
In many cases, at the interim stage, a conservative approach to the risk identified may be some form of supervision, in either a professional or lay form, or the restriction of time to daylight hours, in tandem with injunctive orders. Such outcomes must be considered in the light of the degree of risk of an adverse outcome occurring.
In W and W[17] the Full Court was reluctant to place strict guidelines as to when supervision was required and what form it should take. They said as follows:
“We appreciate that the decisions in these cases have the potential for long term consequences for a child, and they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.”
[17] W & W (Abuse allegations; unacceptable risk) (2005) FLC 93-289 at [115]
In W & W, the Full Court spoke of a tension arising between the protection offered to a child by supervised contact with the potential detriments occasioned by the artificiality and limitations offered by such supervision, which can impact on the emotional wellbeing of the child concerned by a curtailment of his or her parental relationship. Supervision has limitations.
Supervision may not provide sufficient time for the fostering of an appropriate parental relationship. It may prevent the parents concerned managing their own parenting relationship with one another. It may provide an unnecessarily sterile environment which inhibits the development of spontaneity and intimacy between parent and child.
To a large extent, it is the father’s position that his time, with the children, should be as extensive and as untrammelled as possible, given the distance he must come to interact with them and the expense involved. He argues that he should spend as much unsupervised time, with the children, as possible, to enhance his relationship with them, given these difficult logistical circumstances.
On the other hand, it is the mother’s position that the children’s special needs and the risks germane to them – particularly Y’s propensity to run away, a characteristic which he shares with X; X’s allergies and potential to suffer anaphylaxis; and Z’s potential to aspirate her food; amongst the other features of the children’s needs, particularly their autism and developmental delay – should be given priority.
It is her case that, as the children’s undisputed primary carer, in the not inconsiderable period since the parties separated, it must be the case that she has a greater degree of insight into the children’s special needs and how they should be approached. In these circumstances, it is only to be expected that she would be anxious about what might happen, whilst these vulnerable children are away from her oversight.
In B & B[18] the Full Court said as follows:
“…It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.”
[18] B & B (1993) FLC 92-357 at 79,780
The mother has not provided any specific medical or psychological evidence to indicate that she is a particularly anxious person. I do not regard this as a deficit in her case. Rather, I accept that each of the children has the potential to display or suffer either behaviour or a condition which is life threatening.
In these circumstances, in my view, even the most laid back of parents would be extremely worried about possible dangers for X, Y and Z. Ms Kadens is the children’s primary carer. As such, she is the person who has the most knowledge of their behaviour. In my view, her concerns and feelings cannot be easily over-looked by the court.

Conclusions

I can appreciate why the father would feel frustrated that the mother has apparently gone back on what she previously agreed, following what he regards as an extensive and highly successful period of supervised time with the children.
However, in my view, it is misconceived to approach a case involving the paramountcy principle by application of some form of the legal doctrine of issue estoppel. Regardless of what the parties have or have not previously agreed, X, Y and Z’s best interests remain the court’s most important consideration and I do not consider that I am bound by the parties’ earlier agreement.
I am not in a position to ignore the mother’s carefully formulated concerns. In my view, risk is everywhere, so far as these children are concerned, and it would be remiss if the court took anything other than a cautious and incremental approach.
The risk identified by Ms Kadens cannot, in my view, be characterised as far-fetched or resulting from some form of hysterical hyper-vigilance. Her own evidence is that she would not consider taking out all three children together, without support, because of the risk of absconding; medical emergency; and for reasons relating to their special needs.
In my view, it is also significant that the NDIS have reached the conclusion that the children require a high degree of professional assistance, in the form of a community support worker, in the jargon, 24/7.
I have no desire to appear patronising or condescending towards Mr Kadens, or dismissive of his professional expertise, but the reality is that he has hitherto had extremely limited time with the children and none, so far, without recourse to assistance in managing them as a group.
I also appreciate that it is his case that he is aware of the potential problems and will be able to plan appropriately and take appropriate precautions, which will include taking assistance with him to his preferred location for time, which will be in a secure and appropriate play facility.
However, his preferred assistants are not known to the mother and she does not presently trust the father (and he her). In my view, this level of mistrust is likely to provide fertile ground for the mother’s understandable anxieties about the children’s safety to become magnified.
In my view, one of the more significant features in the case is the fact that Ms Kadens has been the children’s sole primary carer for a period approaching four years, during which period, the father has had an extremely curtailed level of involvement with them.
I appreciate that it is the father’s position that this hiatus was not attributable to any fault referrable to him. Essentially, he had no viable alternative other than to return to Perth and could not then easily become involved with the children whilst what he regards as the concocted police charge against him proceeded through the court.
However, be that as it may, in my view, his relationship with the children is more likely than not to be in its formative stages, given the interruption to it arising from the circumstances of the parties’ separation. This, when coupled with their undoubted special needs, warrants the court taking an extremely measured and conservative approach.
As the Full Court noted in Marvel, I appreciate this may be distressing for the father or regarded by him as unnecessarily cautious. However, the reality is this case may have a significant way to go yet. As such, as the evidence develops and is augmented, it will be possible for the orders made at this stage to be modified or extended, as appropriate.

In my assessment, the risk represented by the children interacting with their father, given their special needs, without a community support worker being present, is one which would be unacceptable for me to take at this stage. A specially trained person alleviates the risk arising from the combination of all three children’s special needs.
I acknowledge the father’s selection of a location for him to interact with the children is a sensible and child-focussed one and, as such, reflects well on the level of his insight into parenting the children, whom I accept he loves very much. However, in my view, the safety of the children must be paramount.
There is nothing arising from the mother’s evidence and the reports from the extensive range of medical experts whom she has involved in the children’s care and treatment to indicate that she does not have an appropriate level of insight into the significant needs of the children concerned.
I appreciate why, given the parties’ difficult history with one another, the father would feel uncomfortable spending Christmas in the mother’s house. That is a matter for him. Whether there will be a disability support worker available on Christmas Day is a fact not known to me.
I also appreciate that there must be some proportionality between the time which the father spends with the children and the expense involved in him travelling to Adelaide, which must be considerable. However, once again, safety concerns cannot be sacrificed on the altar of logistics. In my view, a mechanism to extend the time is an appropriate compromise.
In these circumstances, I am not disposed to make the order proposed by the mother for contact arrangements to commence at DD Playgroup. At the same time, the court cannot under-estimate safety issues, so far as the children are concerned. Accordingly, I propose to make the orders as essentially formulated by the mother, with the variations to which I have alluded.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and fifty four (154) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate:

Date: 18 December 2020

[2020] FCCA 3479

18 December 2020

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Procedural Fairness

Remedies

Jurisdiction