Kallam & Roystone - [2021] FedCFamC2F 497

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kallam & Roystone [2021] FedCFamC2F 497

File number(s): ADC 5830 of 2020

Judgment of: JUDGE BROWN

Date of judgment: 3 December 2021

Catchwords: FAMILY LAW – Parenting arrangements for a child who is three years old – where parties have different rosters – where the parties cannot agree on time arrangements – best interests of the child – how a court determines a child’s best interests – shared care arrangement – where the child has always had a shared care arrangement – where the parties mistrust each other – where the parties have no capacity to co-parent and solve problems – nature of an interim hearing – assessment of risk – where shared care regime is a protective factor for the risk posed.

Legislation: Family Law Act 1975 (Cth), Pt VII, ss.60B, 60CA, 60CC, 61DA, 65DAA, 68LA

Cases cited: Mazorski v Albright (2007) 37 Fam LR 518
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676
Russell v Russell [2009] FamCA 28
MRR v GR (2010) 240 CLR 461

Division: Division 2 Family Law

Number of paragraphs: 115

Date of hearing: 26 November 2021

Place: Adelaide

Counsel for the Applicant: Ms Betro

Solicitor for the Applicant: Andreyev Lawyers

Counsel for the Respondent: Mr Praolini

Solicitor for the Respondent: Legal Services Commission of South Australia

Counsel for the Independent Children’s Lawyer: Ms Horvat

Solicitor for the Independent Children’s Lawyer: J Richard Croft
ORDERS

ADC 5830 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR KALLAM

Applicant

AND:
MS ROYSTONE

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

3 DECEMBER 2021

THE COURT ORDERS UNTIL FURTHER OR OTHER ORDER THAT:
1.The applicant, Mr Kallam (hereinafter referred to as “the father”) and the respondent, Ms Roystone (hereinafter referred to as “the mother”, and collectively referred to as “the parties”) have equal shared parental responsibility for the child X (‘the child’) born in 2018.
2.The child live with the mother and the father on an equal time basis on the basis delineated in orders (3) and (4) hereof.
3.The child live with the father in a four-week rotating schedule in accordance with the father’s work roster as follows:
(a)In week one: commencing on 6 December 2021 and each fourth week thereafter, from 12.00pm on Monday until 9.00am on Friday, being a four-night period;
(b)In week two: commencing on 15 December 2021, and each fourth week thereafter, from 12.00pm on Wednesday to 9.00am on Monday, being a five-night period;
(c)In week three and four: commencing 24 December 2021, and each fourth week thereafter, from 12.00pm on the Friday of week three, until 9.00am, on the following Wednesday, being a five-night period;
(d)The father’s time will revert to the week one arrangement as set out in order 3(a) above on the week commencing 3 January 2022, and continue in a four week rotating schedule as outlined in orders 3(b) and 3(c) above.

4.The child live with the mother…

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 Kallam & Roystone

Details

AGLC: Kallam & Roystone [2021] FedCFamC2F 497
Case: [2021] FedCFamC2F 497
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia, Division 2, was asked to determine the parenting arrangements for the three-year-old child, X, who had been living in a shared care arrangement since birth. The parents, Mr Kallam and Ms Roystone, could not agree on how to configure a regime in which X would spend equal periods of time with each parent, given their different work schedules and the mother's existing shared care arrangement with the father of her other children. The court was required to determine the best shared care arrangement for X, considering the relevant statutory provisions and principles of family law. The court considered the parties' capacity to co-parent, their history of mistrust, and the potential for future conflict. It also assessed the recommendations of a Family Report and the views of the Independent Children's Lawyer. The court concluded that an equal time regime, based on the father's work roster, was in X's best interests, despite the challenges it posed for the mother and her children. The court ordered equal shared parental responsibility, an equal time regime, and specific arrangements for special occasions, while also mandating co-parenting counselling for the parties.

The court ordered that Mr Kallam and Ms Roystone have equal shared parental responsibility for X, and that X live with each parent on an equal time basis, according to a four-week rotating schedule based on the father's work roster. The court also ordered specific arrangements for special occasions, communication between the parties, and the use of a co-parenting app. The court did not mandate any regime of therapy or anger management for either party, but authorised the release of the reasons for judgment to the person who would provide the co-parenting counselling. The court adjourned the case for mention in the middle of the next year, to allow time for the parties to adapt to the new regime and to see if the conflict between them diminished.

Orders