KADLEC & OLANDER - [2020] FCCA 70

FEDERAL CIRCUIT COURT OF AUSTRALIA

KADLEC & OLANDER

[2020] FCCA 70

Catchwords:
FAMILY LAW – PARENTING – Father applying for a change of residence for a child aged 7 – second round of litigation – where the child is primarily attached to his mother – whether the child is at risk of harm in the mother’s care – whether the mother has parenting capacity issues which mean that the child would be better living with the father – whether the child’s relationship with the father will be at risk if he continues to live with the mother – where the answer to all these questions is no – where the mother has greater availability to care for the child – where the mother has health issues and where there is a higher risk of further proceedings if the child remains with the mother but where on balance it is in the child’s best interests to live with the mother – dispute about parental responsibility – where the presumption in s.61DA applies and where there is no evidence which would support a finding that the presumption should be rebutted – where the previous consent orders provide for the parents to have equal shared parental responsibility save for matters concerning religious instruction and for the child to live with the mother and spend time with the father – similar orders now made.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Cases cited:

Reston & Jarry [2019] FamCAFC 241

Rice & Asplund (1979) FLC 90-725

Applicant:

MR KADLEC

Respondent:

MS OLANDER

File Number:

NCC 27 of 2016

Judgment of:

Judge Terry

Hearing dates:

15, 16, 17 & 18 December 2019
& 20 January 2020

Date of Last Submission:

20 January 2020

Delivered at:

Newcastle

Delivered on:

22 January 2020

REPRESENTATION

Counsel for the Applicant:

Mr Graham

Solicitors for the Applicant:

Birtles Legal

Counsel for the Respondent:

Mr Guyder

Solicitors for the Respondent:

Moin Morris Schaefer

Counsel for the Independent Children’s Lawyer:

Mr Davies (save for 20 January 2020)

Solicitor Advocate for the Independent Children’s Lawyer:

Ms Wooi (on 20 January 2020)

Solicitors for the Independent Children’s Lawyer:

Krstina Wooi Lawyer

ORDERS

Subject to Order 2 the mother and the father shall have equal shared parental responsibility for the child [X] born … 2012 (“[X]”) except in relation to religious instruction for which the mother shall have sole parental responsibility.
The mother is at liberty to enrol [X] in Town A Public School.
[X] shall live with the mother.
[X] shall spend time with the father at all times as agreed between the parties and in the absence of agreement as follows:
(a)Each alternate week during school terms from 4:30pm on Thursday until 5:00pm on Sunday commencing in the first week of each school term.
(b)In 2019/2020 and all odd numbered years thereafter for the second half of the NSW Christmas school holiday period from 9.00am on the middle Saturday until 5.00pm on the last Sunday.
(c)In 2020/2021 and all even numbered years thereafter…

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 KADLEC & OLANDER

Details

AGLC: Kadlec and Olander [2020] FCCA 70
Case: [2020] FCCA 70
Decision Date: 22 January 2020

CaseChat Overview and Summary

In the matter of KADLEC & OLANDER, heard before Judge Terry, the father sought a change of residence for the parties' seven-year-old child. This was the second round of litigation concerning the child's living arrangements. The primary dispute revolved around whether the child was at risk in the mother's care, whether the mother's parenting capacity issues would render the child better off living with the father, and whether the child's relationship with the father would be jeopardised if he continued to reside with the mother.

The court was required to determine several legal issues, including the application of the presumption of equal shared parental responsibility under section 61DA of the *Family Law Act 1975* and whether there was sufficient evidence to rebut this presumption. The court also had to consider the paramountcy of the child's best interests, specifically the benefit of a meaningful relationship with both parents, and assess the mother's capacity to facilitate such a relationship, particularly in light of past allegations made by the child.

The court reasoned that the presumption of equal shared parental responsibility was not rebutted. It found that the child would benefit from a meaningful relationship with both parents, noting the father's stable circumstances and the child's positive relationship with him and his extended family. Despite concerns raised by the Independent Children's Lawyer regarding the mother's handling of past allegations made by the child, the court found no evidence that these allegations were impacting the child's relationship with his father or that the mother lacked the capacity to facilitate this relationship. The court concluded that it was in the child's best interests to live with the mother, acknowledging her greater availability for care, despite potential risks of further proceedings.

Consequently, the court made orders reflecting equal shared parental responsibility, with the child to live with the mother and spend time with the father according to a detailed schedule. The mother was granted sole parental responsibility for religious instruction and liberty to enrol the child in a specific public school. An injunction was also made restraining the mother from allowing the child contact with a named individual. All other outstanding applications were dismissed.

Orders

Orders of the court

Subject to Order 2 the mother and the father shall have equal shared parental responsibility for the child [X] born … 2012 (“[X]”) except in relation to religious instruction for which the mother shall have sole parental responsibility.

The mother is at liberty to enrol [X] in Town A Public School.

[X] shall live with the mother.

[X] shall spend time with the father at all times as agreed between the parties and in the absence of agreement as follows:

(a) Each alternate week during school terms from 4:30pm on Thursday until 5:00pm on Sunday commencing in the first week of each school term.

(b) In 2019/2020 and all odd numbered years thereafter for the second half of the NSW Christmas school holiday period from 9.00am on the middle Saturday until 5.00pm on the last Sunday.

(c) In 2020/2021 and all even numbered years thereafter for the first half of the NSW Christmas school holiday period from 9.00am on the first Saturday until 5.00pm on the middle Sunday.

In addition to the time provided for in Order 4 the father shall spend time with [X]:

(a) In all odd numbered years from 12 noon on Christmas Eve to 12 noon on Christmas Day.

(b) In all even numbered years from 12 noon Christmas Day to 12 noon Boxing Day.

(c) If Father’s Day falls on a weekend that [X] is not spending time with the father [X] shall spend time with the father from 5.00pm on the Saturday immediately preceding Father’s Day to 5.00pm on Father’s Day;

In all even numbered years [X] shall spend time with the mother from 12 noon on Christmas Eve to 12 noon on Christmas Day.

In all odd numbered years [X] shall spend time with the mother from 12 noon on Christmas Day to 12 noon on Boxing Day.

If Mother’s Day falls on a weekend that [X] is not spending time with the mother the father’s time with [X] shall be suspended and [X] shall spend time with the mother from 5.00pm on the Saturday immediately preceding Mother’s Day to 5.00pm on Mother’s Day.

If the mother is required to be absent from Town A on any school day with the result that the child is not able to attend school that day she shall give the father notice by email at least seven days’ prior to her required absence except in the event of an emergency in which case the notice shall be given as soon as reasonably practicable and ask whether he wishes to have [X] in his care during her absence. If within 24 hours of the mother giving the father this notice he indicates a willingness to have [X] in his care while the mother is absent from Town A then [X] shall spend time with the father while the mother is absent from Town A.

10.

[X] shall communicate with the father by telephone for not more than 30 minutes between 4.30pm and 6.00pm each Wednesday, and Saturday when he is not spending time with the father, and for the purpose of this clause the father shall telephone the mother’s mobile telephone number.

11.

[X] shall communicate with the mother by telephone for not more than 30 minutes as follows:

(a) Between 4.30pm and 6.00pm each alternate Saturday during the father’s spend time with, and

(b) Between 4.30pm and 6.00pm each Wednesday and Saturday during school holiday periods that he is spending time with the father and for the purpose of this clause the mother shall telephone the father’s mobile number.

12.

For the purpose of [X] spending time with the father unless otherwise agreed between the parties should changeover not occur at [X]’s school changeover shall occur at the McDonalds Restaurant in B Street Town A.

13.

Each party is to advise the other party and keep the other party advised of their current address and contact telephone numbers and advise the other party of any changes to these details within seven (7) days of such change occurring.

14.

Each party shall communicate with the other at the earliest practicable time within 24 hours of any hospital consultation or consultation with a medical practitioner or any serious illness, accident or emergency relating to [X].

15.

The parties shall keep each other fully informed of all matters concerning the health of [X] including names of medical practitioners and health practitioners who attend him from time to time.

16.

The mother is restrained by way of an injunction from allowing [X] to come into contact with or to have any communication with Mr CMr C.

17.

For the purposes of communication in relation to [X] unless otherwise agreed between the parties they shall communicate by text message or other electronic means or by way of a communication booklet.

18.

Pursuant to s.65DA(2) and s 62B of the Family Law Act 1975, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

19.

All outstanding applications are otherwise dismissed.

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

S. 60CC (2) contains the primary considerations and the first of these is the benefit to the child of having a meaningful relationship with both of his parents. [X] will benefit from having a meaningful relationship with both of his parents. The father is employed and has no drug, alcohol or mental health issues. [X] has been spending time with him regularly for the last 2 ½ years and benefits from having a father in his life. Through his father [X] is able to maintain a relationship with his paternal grandparents and his large extended paternal family including cousins he enjoys playing with. In her case outline document the Independent Children’s Lawyer said that one of the issues in the case was the mother’s capacity to facilitate a relationship between the child and the father and her concern arose out of the fact that since the orders were made on 19 June 2017 [X] has on several occasions made statements to the effect that the father “touched his wee wee” in 2015. However the reality of what has happened with the father spending time with [X] since the consent orders were made suggests that the occasional mention of the allegations is having no impact on [X] spending time with or maintaining a good relationship with him. The father did not give evidence of a single occasion between 19 June 2017 and 4 August 2018 when there were changeover difficulties or difficulties with [X] fitting into his home and save for his evidence about the January 2018 statement he did not suggest that [X] had said a single negative thing about him let alone a negative thing which might have emanated from the mother. [X]’s time with his father was interrupted between 10 August 2018 and early October 2018 but that had absolutely nothing to do with [X] making allegations that the father had touched him in 2015. Since early October 2018 [X] has spent time with the father in accordance with the orders. He was observed to have a good relationship with him at the family report interviews in May 2019. The father and his family said that [X] was happy and settled when he spent time with the father. The father did not complain about any reluctance by the child to spend time with him or about the child making any negative comments which might have emanated from the mother and there have been no changeover difficulties. [X] has been spending time with the father in accordance with orders for 2 ½ years save for disruption of about 8 weeks in August/September 2018 and he has a good relationship with him. On the occasions since 19 June 2017 when he has mentioned the indecent touching allegation in the mother’s presence the mother has either ignored it and done nothing with it or has taken steps to divert [X]’s attention. There is simply no basis for finding that because the mother cannot completely dismiss the allegations from her mind she lacks the capacity to facilitate a relationship between the father and the child or that the child’s relationship with the father will be under threat if he continues to live with the mother.