FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kannan & Kannan [2023] FedCFamC2F 226
File number: PAC 2277 of 2020 Judgment of: JUDGE OBRADOVIC Date of judgment: 3 March 2023 Catchwords: FAMILY LAW – Parenting – Allegations of physical, sexual and financial abuse – No findings of fact sought – No risk established – Parenting capacity – Children to live with father and spend time with mother Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61DA Cases cited: Banks & Banks [2015] FamCAFC 36
Faizan & Jameel [2021] FedCFamC2F 194
Isles v Nelissen [2022] FedCFamC1A 97
Johnson & Page [2007] FamCA 1235
M & M (1989) 166 CLR 69
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Slater & Light [2011] FamCAFC 1
Division: Division 2 Family Law Number of paragraphs: 142 Date of last submission/s: 21 February 2023 Date of hearing: 20-21 February 2023 Place: Parramatta Counsel for the Respondent: Mr Livingstone Solicitor for the Applicant: Byron & Associates Solicitor for the Respondent: Taylor & Scott Lawyers Counsel for the Independent Children's Lawyer: Ms Conte-Mills Solicitor for the Independent Children's Lawyer: Harb Lawyers
Table of Corrections 14 May 2024 At [19] the words “The phrase “unacceptable risk” does not appear anywhere in the Act.[1] However,” are deleted.
[1] Isles v Nelissen [2022] FedCFamC1A 97, [58] (“Isles v Nelissen”).
ORDERS
PAC 2277 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KANNAN
Applicant
AND: MR KANNAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
3 MARCH 2023
THE COURT ORDERS THAT:
Parental Responsibility
1.The father, Mr Kannan, shall have sole parental responsibility for the children X (born 2015) and Y (born 2019) (“children”), subject to order 2 below.
2.In his exercise of parental responsibility, the father shall:
(a)Advise the mother prior to any decision made concerning the children in his exercise of sole parental responsibility;
(b)Allow the mother at least seven (7) days to consider the father’s proposal and respond in writing to the father; and
(c)Take into consideration any views expressed by the mother prior to making a final decision.
Live with and Spend Time
3.The children shall live with the father.
4.The children shall spend time with the mother during school term, as agreed between the parties and failing agreement in a two-week cycle commencing the first Wednesday following the making of these Orders, as follows:
(a)Week 1: from the conclusion of school (or 3pm if a non-school day) on Wednesday until 6pm on Thursday;
(b)Week 2: from
after schoolthe conclusion of school on Friday (or 3pm if a non-school day) until the commencement of school (or 8am if non-school day) on the following Monday; and(c)Such other times as agreed between the parties in writing from time-to-time.
School Holidays
5.Until Y commences school, the children shall spend time with the mother:
(a)During term 1, 2 and 3 school holidays from the
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CaseChat Overview and Summary
The court found that there was no risk of harm to the children and that both parents had the capacity to meet the children's needs. The court did not make any findings of fact in relation to the allegations of physical, sexual, and financial abuse made by Ms Kannan. The court held that the children should live with the father, Mr Kannan, and spend time with the mother according to a set schedule. The parties were also required to facilitate communication between the children and the other parent and to provide each other with certain information relating to the children.
In making its decision, the court considered the best interests of the children as the paramount consideration. The court found that the father was better placed to provide for the children's day-to-day care and that the mother's proposed spending time arrangements were reasonable. The court also noted that the parties had been able to cooperate in relation to certain issues, such as the children's education and healthcare.
The court made orders for the father to have sole parental responsibility for the children, subject to certain obligations to consult with the mother. The children were ordered to live with the father and spend time with the mother according to a set schedule, with additional time during school holidays. The parties were required to facilitate communication between the children and the other parent and to provide each other with certain information relating to the children. The parties were also required to obtain passports for the children and to make arrangements for international travel.
Orders
Orders of the court
PAC 2277 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS KANNAN
Applicant
AND:
MR KANNAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
3 MARCH 2023
THE COURT ORDERS THAT:
Parental Responsibility
1. The father, Mr Kannan, shall have sole parental responsibility for the children X (born 2015) and Y (born 2019) (“children”), subject to order 2 below.
2. In his exercise of parental responsibility, the father shall:
(a) Advise the mother prior to any decision made concerning the children in his exercise of sole parental responsibility;
(b) Allow the mother at least seven (7) days to consider the father’s proposal and respond in writing to the father; and
(c) Take into consideration any views expressed by the mother prior to making a final decision.
Live with and Spend Time
3. The children shall live with the father.
4. The children shall spend time with the mother during school term, as agreed between the parties and failing agreement in a two-week cycle commencing the first Wednesday following the making of these Orders, as follows:
(a) Week 1: from the conclusion of school (or 3pm if a non-school day) on Wednesday until 6pm on Thursday;
(b) Week 2: from after school the conclusion of school on Friday (or 3pm if a non-school day) until the commencement of school (or 8am if non-school day) on the following Monday; and
(c) Such other times as agreed between the parties in writing from time-to-time.
School Holidays
5. Until Y commences school, the children shall spend time with the mother:
(a) During term 1, 2 and 3 school holidays from the conclusion of the last day of school until 4pm on the middle Saturday of the school holidays; and
(b) During term 4 school holidays from 10am on the first Saturday of the school holidays for 7 days, and then each alternate week thereafter for a period of 7 days.
6. Once Y commences school, the children shall spend time with the mother:
(a) In even numbered years for the first half of each school holiday period commencing on from the conclusion of the last day of school until 10am on the middle Saturday of the school holiday period; and
(b) In odd numbered years for the second half of each school holiday period commencing at 10am on the middle Saturday of the school holiday period to 4pm on the last day of the school holiday period.
Special Occasions
7. Notwithstanding any other order to the contrary, the children shall spend the following special occasions with each of the parties respectively unless they are already doing so at the time:
(a) With the mother, from 9am until 5pm, on Mother’s Day;
(b) With the father, from 9am until 5pm until on Father’s Day;
(c) With the mother on the mother’s birthday from the conclusion of school until 6pm or if on a non-school day, then from 9am until 5pm.
(d) With the father on the father’s birthday, from the conclusion of school until 6pm or if on a non-school day, then from 9am until 5pm.
(e) With the party not otherwise spending time with the children on their respective birthdays where the children shall move together between the parties and not individually:
(i) From the conclusion of school until 6pm; or
(ii) If a non-school day, from 11am until 2pm.
Communication
8. The parties shall not hinder, prevent or discourage the children from initiating communication from with the other party at all reasonable times and, for the purposes of same, the parties shall do all acts and things necessary to ensure their mobile telephones (until such time as the children have their own mobile telephones) are able to accept communication from the other party.
9. The parties shall be at liberty of communicating with the children by phone and/or video conferencing (such as FaceTime and other such applications) on the days they do not spend time with the children between 7pm and 7.30pm.
Changeover
10. For the purpose of facilitating changeover other than on those occasions when either party collects or returns the children to or from school, the party who is about to commence his or her time with the children shall collect them from the outside of the other party's residence, unless otherwise agreed between the parties in writing.
International Travel (Section 65Y)
11. The parties shall be permitted to take the children outside Australia on the following conditions and/or as otherwise agreed between the parties in writing:
(a) Such travel shall take place only during the children's school holiday periods they are spending with the travelling party pursuant to these Orders or during a period that includes religious celebrations overseas;
(b) The travelling party shall provide the other party details of their proposed travel, including an itinerary and details of where the children will be staying and how they will be able to be contacted during the period of travel, not less than six weeks prior to the intended departure date;
(c) The travelling party shall provide copies of his or her and the children's flight tickets to the other party not less than two weeks prior to the intended departure date;
(d) The travelling party shall facilitate telephone communication between the non-travelling party and the children not less than two times per week of travel; and
(e) The non-travelling party shall do all acts and things and sign all documents necessary as requested by the travelling party within seven days of a request so as to facilitate the children's intended travel, subject to compliance with Orders 11(a) – 11(c) herein.
12. The parties shall do all acts and things and sign all documents necessary to have passports issued and/or renewed for the children within seven days of a request for the purpose of facilitating the travel referred to in Order 11 herein, with the intended travelling party bearing the costs of same.
13. The father shall retain the children's passports but shall provide them to the mother not less than two weeks in advance of her intended travel pursuant to Order 11 herein with such passports being returned to him within seven days of the mother returning to Australia.
Miscellaneous
14. The parties shall keep each other informed of any change to their residential addresses, landline numbers, mobile telephone numbers and personal email addresses within 24 hours of such change taking place.
15. The parties shall communicate and promptly respond to each other by phone, email or text message in a respectful and conciliatory manner as and when reasonably practicable or necessary and limit such communication to issues concerning the children.
16. Each party shall ensure the other is advised promptly of any medical emergency or significant illness suffered by, or relating to, the children including sufficient details regarding such illness or condition and any treatment.
17. The parties, as and when requested, shall forthwith do all acts and things and sign all documents necessary to ensure each of them may receive a copy of the children's school reports, newsletters and other relevant notices issued by their school.
18. Neither party shall question the children about events nor conversations in the household of the other party or use corporal punishment to discipline the children or allow a third party to do so.
19. Neither party shall denigrate the other party nor anyone associated with that party in the presence or hearing of the children, and shall forthwith remove them from any third party doing so.
20. Unless otherwise agreed between the parties in writing, neither party shall discuss with the children these proceedings or proposed changes to these Orders, or permit any other person to do so.
21. The parties shall be at liberty to provide a copy of these Orders to any third party necessary to ensure compliance with these Orders or as required including but not limited to medical and education service providers.
THE COURT NOTES THAT:
A. These Orders have been amended pursuant to rule 10.13(1)(g) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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