Kaisler & Talgo - [2023] FedCFamC1F 201

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kaisler & Talgo [2023] FedCFamC1F 201

File number(s): ADC 5442 of 2020

Judgment of: KARI J

Date of judgment: 6 March 2023

Catchwords: FAMILY LAW – FINAL ORDERS – Where the matter was listed for a seven day trial and resolved on the first day – Where final orders were entered in to by consent – Where at this juncture the Court is satisfied that the father presents as an unacceptable risk of harm to the child

Cases cited: Kaisler & Talgo [2020] FCCA 3596

Division: Division 1 First Instance

Number of paragraphs: 38

Date of hearing: 6 March 2023

Place: Adelaide

Counsel for the Applicant: Ms Lindsay

Solicitor for the Applicant: Daniel John Lawyers

Counsel for the Respondent: Mr McQuade

Solicitor for the Respondent: Stevens Law

Counsel for the Independent Children's Lawyer: Ms Horvat

Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia
ORDERS

ADC 5442 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR KAISLER

Applicant

AND:
MS TALGO

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

KARI J

DATE OF ORDER:

6 MARCH 2023

BY CONSENT IT IS ORDERED BY WAY OF FINAL ORDERS:
1.That the child X born in 2015 live with the Mother.
2.That the Mother do have sole parental responsibility for the child.
3.That the Father is at liberty to have video call time with the child as follows:-
3.1On each of the child’s Birthday and Christmas Day between 10.00am and 10.30am; and
3.2As and from the date of the Father’s compliance with written confirmation of his enrolment in W Program and one attachment-based parenting course (pursuant to paragraphs 12.3 and 12.4) and confirmation of arranged appointments with Dr N and with P Services (pursuant to paragraphs12.1 and 12.2 hereof) then on one occasion per week on a day to be agreed between 6.00pm and 6.30pm; and
3.3That the Mother is to use her best endeavours to facilitate and not frustrate the video call time.

4.That it is a condition of the continuation of the FaceTime calls that the Mother or her agent is at liberty to:
4.1 be present and within hearing distance during the entirety of the call and
4.2terminate the call in the event of any inappropriate communication occurring.

5.That the FaceTime calls are to be of such duration not exceeding 30 minutes which the child may determine save and except:
5.1as otherwise terminated pursuant to paragraph 4.2 above herein and / or
5.2as otherwise agreed between the parties evidenced in writing.

6.That the Father be at liberty to send the child a letter each month, as well as gifts on special occasions such as the child’s birthday and Christmas.
7.That for the purposes of paragraphs 3, 4, 5 and 6 herein, the Mother shall keep the Father informed of a nominated mobile telephone number and postal address at all times.
8.That the Mother shall forthwith do all things necessary to seek a referral for the…

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 [2023] FedCFamC1F 201
Case: [2023] FedCFamC1F 201
Decision Date

CaseChat Overview and Summary

In this case, the Federal Circuit and Family Court of Australia (Division 1) dealt with a parenting application concerning the child X, born in 2015. The proceedings were initiated by the father in November 2020, and the matter was listed for a seven-day trial but was resolved on the first day itself. The primary legal issue in this case was whether the father presented an unacceptable risk of harm to the child and whether the proposed final orders were in the best interests of the child.

The court found that the father did indeed present an unacceptable risk of harm to the child based on the evidence before it. The court noted that the father had been involved in an online conversation in an adult-based fantasy chatroom where he allegedly made inappropriate comments about showering with the child and having her wash his penis. The court also considered the child's concerning sexualised behaviour at childcare and the mother's decision to withhold the child from spending time with the father. Despite the father's denial, the court found that the allegations were serious and could not be overlooked. The court further observed that the father had not taken significant steps to address the concerns raised in the proceedings, despite being represented by counsel for the past nine months.

Based on the evidence before the court, the final orders made by consent provided for the child to live with the mother, who was granted sole parental responsibility. The father was allowed limited communication with the child, which included two Skype calls each year and weekly Skype communication, subject to certain conditions. These conditions included the father's engagement with various professional services, such as P Services, a psychologist, and an attachment-based parenting course. The orders also included provisions for the child's developmental assessment, school reports, and the father's compliance with the required steps.

In conclusion, the court found that the proposed final orders were in the child's best interests and made the orders as per the agreement between the parties. The court emphasized that the father needed to take responsibility for his actions and work towards addressing the concerns that had been raised in the proceedings. The court also noted the importance of bringing the proceedings to a conclusion for the child's sake.

Orders