KAVANAGH & KAVANAGH - [2016] FamCA 162

FAMILY COURT OF AUSTRALIA

KAVANAGH & KAVANAGH

[2016] FamCA 162

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to reopen – Whether it is necessary in the interests of justice and best interests of the children to reopen the case – Where, since trial, the father has been charged with criminal offences relating to possession of child sexual exploitation material – Leave granted.

FAMILY LAW – CHILDREN – Interim parenting orders – Best interests – Whether the father should be permitted to have supervised contact with the children – Where the father has not been in contact with the children in a year – Where the father’s signed bail undertaking prevents contact with any person under the age of 17 years whatsoever.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Kavanagh

RESPONDENT:

Ms Kavanagh

INDEPENDENT CHILDREN’S LAWYER:

Justine Lilley

FILE NUMBER:

BRC

8664

2011

DATE DELIVERED:

15 February 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

15 February 2016

REPRESENTATION

THE APPLICANT:

In Person

SOLICITOR FOR THE RESPONDENT:

Mr Burrows

ABA Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lilley
Legal Aid Queensland

Orders

Leave is granted to the parties to inspect and photocopy, if required, the subpoena material received from the Queensland Police Service.

The trial in this matter is reopened.

The legal representatives for the mother and the father in person shall each be provided with copies of Exhibit 14.

IT IS NOTED that the Independent Children’s Lawyer has already made copies of Exhibit 14 and will today make those available to the legal representatives for the mother and to the father in person

Leave to granted to the mother to file and read an affidavit sworn by her on 11 February 2016.

The father shall provide to each of the other parties a copy of his latest Undertaking as to Bail, before he leaves Court today.

All previous parenting orders providing for the children, B born … 2006 and C born … 2008, to spend time with and communicate with the father are suspended until further order, and the children shall spend no time with and not communicate with the father at all other than by agreement between the mother, the father and the Independent Children’s Lawyer or by the father posting to the children, at the mother’s solicitor’s postal address, any cards and gifts that he wishes to send to the children on the occasions of their birthdays, Easter and Christmas time.

The Independent Children’s Lawyer has leave to cause any further subpoenas to issue out of the Court for the production of documents as she may from time to time consider appropriate.

The father shall provide written notice to the Independent Children’s Lawyer and the mother’s legal representatives, immediately upon the criminal proceedings currently pending against him being concluded.

The Independent Children’s Lawyer has leave to apply to relist the trial of this matter, for mention or further directions, as she considers appropriate.

The father shall provide to the Independent…

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.

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Details

AGLC: KAVANAGH & KAVANAGH [2016] FamCA 162
Case: [2016] FamCA 162
Decision Date: 15 February 2016

CaseChat Overview and Summary

In the matter of *Kavanagh & Kavanagh*, heard before Forrest J, the parties sought leave to reopen a trial concerning parenting orders. The dispute arose following the father's recent charges for criminal offences related to the possession of child sexual exploitation material, which occurred after the initial trial had concluded.

The central legal issues before the court were whether it was necessary in the interests of justice and the best interests of the children to reopen the case, and whether the father should be permitted to have supervised contact with the children. These issues were complicated by the father's lack of contact with the children for approximately one year and a specific condition in his signed bail undertaking that prohibited contact with any person under the age of 17 years.

Forrest J reasoned that the new criminal charges against the father were of such gravity that they fundamentally altered the circumstances relevant to the children's best interests and the overall interests of justice. The court considered that the father's bail undertaking, which expressly prevented contact with minors, was a significant factor that weighed against any grant of supervised contact. Consequently, the court granted leave to reopen the trial and ordered that the parties' legal representatives be provided with copies of the subpoena material received from the Queensland Police Service.

Orders

Orders of the court

Leave is granted to the parties to inspect and photocopy, if required, the subpoena material received from the Queensland Police Service.

The trial in this matter is reopened.

The legal representatives for the mother and the father in person shall each be provided with copies of Exhibit 14.

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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