KAISLER & TALGO - [2020] FCCA 3596

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAISLER & TALGO

[2020] FCCA 3596

Catchwords:
FAMILY LAW – Parenting – interim application by father for time with child who is 5 and a half years old – where father reported to SAPOL and DCP in 2017 for discussing sexual fantasies about children and his daughter in online chat room – where no charges laid – where mother says child has recently displayed behaviours consistent with having been sexually assaulted – where father admits the 2017 conduct but denies dealing with the child inappropriately in any way – assessment of risk – further information sought by police and department – father’s interim application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 62G(2), 68L & 69ZW

Cases cited:

Deiter v Deiter [2011] FamCAFC 82

Slater v Light [2013] FamCAFC 4

Applicant:

MR KAISLER

Respondent:

MS TALGO

File Number:

ADC 5442 of 2020

Judgment of:

Judge Heffernan

Hearing date:

16 December 2020

Date of Last Submission:

16 December 2020

Delivered at:

Adelaide

Delivered on:

22 December 2020

REPRESENTATION

Solicitors for the Applicant:

Ms Elkins for Williams Barristers & Solicitors

Solicitors for the Respondent:

Ms Dansie for Stevens Law

NOTING THAT the Department of Child Protection is respectively requested to attend at Court on the next occasion and is to consider its decision as to whether or not to conduct an investigation on the allegations made by the mother

THE COURT ORDERS THAT:

The application for the father to have in person time with the child, X born in 2015, is dismissed.
During the period of the adjournment, the father is at libery to have video call time with the child as follows:
(a)On Christmas Day between 10.00am and 10.30am;
(b)One occasion per week on a day to be agreed between the parties between 6.00pm and 6.30pm; and
(c)The mother is to use her best endeavours to faciliate and not frustrate the video call time.
The father is at liberty to send cards and presents to the child for Christmas.
The parties do all things necessary to enrol in and be accepted into the supervised time program at either the Suburb B or Suburb C Children’s Contact Service (NOTING that the supervised time will not commence without further Order of this Court).
The parties comply with all reasonable directions of any employee of the Children’s Contact Service and follow all guidelines regarding the use of the Service.
At the conclusion of six (6) visits at the Service, a report be obtained from the Service at the joint expense of the parties.
The father is to obtain a report from Mr D as to his previous counselling with Mr D.
The father is to obtain an independent psychiatric assessment by either Dr E or Dr F and is to file and serve a copy of such report.
For the purpose of preparing the report, the solicitors for the mother are at liberty to forward to the independent psychiatrist:
(a)Copies of all affidavit materials and pleadings filed in these…

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 KAISLER & TALGO

Details

AGLC: KAISLER & TALGO [2020] FCCA 3596
Case: [2020] FCCA 3596
Decision Date: 22 December 2020

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Heffernan considered an interim application by the father for time with his five-and-a-half-year-old child. The dispute arose following allegations made to SAPOL and the Department for Child Protection in 2017 concerning the father discussing sexual fantasies about children and his daughter in an online chat room. While no charges were laid at the time, the mother reported that the child had recently exhibited behaviours consistent with sexual assault. The father admitted the 2017 conduct but denied any inappropriate interaction with the child.

The court was required to determine the father's interim application for in-person time with the child, which necessitated an assessment of the risk posed to the child. This assessment involved considering the father's past conduct, the mother's current concerns about the child's behaviour, and the ongoing investigations by police and child protection authorities. The court also needed to decide on appropriate interim arrangements for contact and gather further information to inform future decisions regarding the child's welfare and best interests.

Judge Heffernan dismissed the father's application for in-person time with the child, prioritising the child's safety and well-being. The court applied the principles of assessing risk in family law proceedings, particularly where allegations of child abuse or inappropriate conduct are present. The reasoning focused on the need for further information and assessments before any in-person contact could be permitted. Consequently, the court made detailed orders for supervised contact, the appointment of an Independent Children's Lawyer, a family report, and the provision of information from child protection and police departments. The father was permitted limited video call time and the ability to send gifts, while both parties were directed to engage in supervised contact programs and parenting courses.

Orders

Orders of the court

The application for the father to have in person time with the child, X born in 2015, is dismissed.

During the period of the adjournment, the father is at libery to have video call time with the child as follows:

(a) On Christmas Day between 10.00am and 10.30am;

(b) One occasion per week on a day to be agreed between the parties between 6.00pm and 6.30pm; and

The father is at liberty to send cards and presents to the child for Christmas.

The parties do all things necessary to enrol in and be accepted into the supervised time program at either the Suburb B or Suburb C Children’s Contact Service (NOTING that the supervised time will not commence without further Order of this Court).

The parties comply with all reasonable directions of any employee of the Children’s Contact Service and follow all guidelines regarding the use of the Service.

At the conclusion of six (6) visits at the Service, a report be obtained from the Service at the joint expense of the parties.

The father is to obtain a report from Mr D as to his previous counselling with Mr D.

The father is to obtain an independent psychiatric assessment by either Dr E or Dr F and is to file and serve a copy of such report.

For the purpose of preparing the report, the solicitors for the mother are at liberty to forward to the independent psychiatrist:

(a) Copies of all affidavit materials and pleadings filed in these proceedings;

(b) Copies of the material supplied by the imbedded family liaison officers from the Department of Child Protection and SAPOL;

(d) and the independent psychiatrist is at liberty to contact Mr D to discuss his assessment of the applicant.

10.

The parties be restrained and an injunction is hereby granted restraining them from discussing these proceedings with or in the presence of the child.

11.

The father is to make all necessary enquiries to enrol, attend and complete a Circle of Security Parenting Course and provide the Court with a certificate of completion under cover of affidavit as soon as it becomes available.

12.

Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed to represent the interests of the child X born in 2015 and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within 7 days of the date hereof and that the Independent Children’s Lawyer use his or her best endeavours to meet with the said children such as to be in a position to make submissions to the Court on the adjourned date.

13.

Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship X born in 2015 attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, with such report to be released no later than 30 June 2021.

14.

The Family Report to deal with the following matters:

(a) to include interviews with the parties, the child and relevant family members (with the father and the child at the discretion of the family consultant;

(a) observed interaction between the child and the parties;

(b) any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

and

(d) any other matters that the family assessor considers important to the welfare or best interests of the said child.

15.

The solicitors for the parties (or self-represented party) forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Child Dispute Co-ordinator.

16.

Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

17.

Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:

(a) Children’s Court;

(b) a child protection authority;

(d) a convener of any legal dispute resolution conference.

18.

Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

AND THE COURT NOTES THAT:

A. At the date on which a copy of the Report is to provide to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B. Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C. In the event a party to these proceedings objects to the release of the Family Report pursuant to orders made herein, they shall write to the Chambers of Judge Heffernan seeking that the matter be listed on short notice for their objection to be heard.

19.

Pursuant to Section 69ZW of the Family Law Act 1975 (Cth), the Department for Child Protection do provide the Court with the following documents or information:

(a) copies of any notifications regarding abuse allegations arising relating to the child X born in 2015;

(b) copies of any notifications regarding abuse allegations arising relating to either party during the course of their adult lives, MR KAISLER born in 1989 and MS TALGO born in 1992.

(d) the outcome or findings of any such investigations; and

(e) copies of any reports received by the Department for Child Protection in the course of investigating any such notifications.

20.

Pursuant to section 69ZW of the Family Law Act 1975 (Cth), the South Australian Police Department shall provide the Court with the following documents or information:

(a) copies of any reports or notifications of child abuse allegations or allegations of family violence involving either of the parties (MR KAISLER born in 1989 and MS TALGO born in 1992) or the infant child X born in 2015; and

(b) the outcome or findings of any such investigations, including antecedent reports for each of the said parties.

21.

Further consideration of the matter is adjourned to 9.30am on 5 February 2021 before Judge Heffernan for directions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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