Kelks & Gadella - [2021] FedCFamC2F 591

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kelks & Gadella [2021] FedCFamC2F 591

File number(s): ADC 3004 of 2021

Judgment of: JUDGE BROWN

Date of judgment: 16 December 2021

Catchwords: FAMILY LAW – Parenting arrangements for a child aged four – where father has no current contact with the child – best interests of the child – assessment of risk – where father wants to resume time with the child – where mother is proposing no time – where father is facing serious criminal charges – issues relating to family violence – coercive and controlling behaviour – application of the paramountcy principle.

Legislation: Family Law Act 1975 (Cth), Pt.VII, ss.4AB, 60B, 60CA, 60CC, 61DA

Cases cited:
B & B (1993) 16 Fam LR 353

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman (2015) FamCAFC 104

Marvel & Marvel (No 2) [2010] FamCAFC 101

Mazorski v Albright (2007) 37 Fam LR 518

Slater & Light [2013] FamCAFC 4

Division: Division 2 Family Law

Number of paragraphs: 108

Date of hearing: 9 December 2021

Place: Adelaide

Counsel for the Applicant: Ms Hume

Solicitor for the Applicant: Tessa Hume

Counsel for the Respondent: Ms Cocks

Solicitor for the Respondent: Tindall Gask Bentley
ORDERS

ADC 3004 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KELKS

Applicant

AND:
MR GADELLA

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

16 DECEMBER 2021

THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.The child live with the mother, Ms Kelks (hereinafter referred to as “the mother”).
2.The child spend no time with the father, Mr Gadella (hereinafter referred to as “the father”).
3.The father be restrained, and an injunction is hereby granted restraining him from attending at, or causing the child to be removed from any child care facility, kindergarten or educational institution in which the child made from time to time be enrolled and from allowing any other person to do so.

THE COURT FURTHER ORDERS THAT:
4.Pursuant to Section 62G(2) of the Family Law Act 1975 (Cth) the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit and Family 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 by 29 July 2021.
5.The Family Report is to deal with the following matters:
a.to include interviews with the parties, the child and relevant family members;
b.observed interaction between the child and the parties;
c.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;
d.the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth); and
e.any other matters that the family assessor considers important to the welfare or best interests of the said child.

6.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 Kelks & Gadella

Details

AGLC: Kelks & Gadella [2021] FedCFamC2F 591
Case: [2021] FedCFamC2F 591
Decision Date

CaseChat Overview and Summary

This case involves an interim application made by Mr Gadella, the father, for supervised time with his four-year-old child, X. Ms Kelks, the mother, opposes the application, alleging serious incidents of family violence involving the father, which she argues warrants the court not to contemplate any time occurring between X and the father. The court must consider the competing interests of X's best interests, including her need for emotional security and safety, against the risk of her losing a meaningful relationship with her father. The court's reasoning focuses on the assessment of risk arising from the child being exposed to family violence and its consequences, as well as the risks inherent in X losing the opportunity to have a meaningful level of relationship with her father. The court emphasises that, given the limited evidence available at the interim stage, any orders made by the court are provisional in nature, pending a further and more detailed inquiry. In this case, the court decides that there is an unacceptable risk of X suffering some species of emotional harm if the orders proposed by the father are made. The court orders that X should live with the mother, Ms Kelks, and that the father should not spend time with X. A Family Report will be prepared to examine the nature of X's relationship with each of her parents and her current perception of the dynamic of her family.

Orders