Kennedy and Masuyo - [2012] FamCA 471

FAMILY COURT OF AUSTRALIA

KENNEDY & MASUYO

[2012] FamCA 471

FAMILY LAW – CHILDREN – Where the children have been exposed to high levels of domestic violence by both parties – where the mother alleges alcohol misuse and drug abuse by the father – where the nature of each child’s relationship with each of their parents is different – where the mother and the children are Torres Strait Islander – where there are practical difficulties in travelling between the locations where the parties reside - where the younger child may spend block periods of time with his father on X Island – where restrictions are placed upon the younger child’s time with the father both in terms of the use of alcohol and restrictions on travel by sea
FAMILY LAW – DE FACTO PROPERTY – where the husband’s evidence was that the parties attempted a reconciliation for a period of two days after 1 March 2009 - declaration pursuant to s 90RD(2)(d) Family Law Act that a period of the de facto relationship of the parties existed after 1 March 2009

Family Law Act 1975 (Cth)

Dahl & Hamblin [2011] FamCAFC 202

APPLICANT:

Mr Kennedy

RESPONDENT:

Ms Masuyo

INDEPENDENT CHILDREN’S LAWYER:

Terry Newman

FILE NUMBER:

CSC

196

2010

DATE DELIVERED:

18 June 2012

PLACE DELIVERED:

Thursday Island

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

29 February 2012 – 2 March 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

COUNSEL FOR THE RESPONDENT:

Ms Benson

SOLICITOR FOR THE RESPONDENT:

Bottoms English

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fellows

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Newman Family Lawyers

Orders

Parenting

All previous orders and undertakings be discharged.
Subject to order 9, the father have sole parental responsibility in relation to the child D born … July 1995.
D spend time with both his parents as he chooses.
The mother have sole parental responsibility in relation to the child L born … July 2000 except L shall attend T Secondary School, Y Island, whilst the mother lives on Z Island or Y Island or at any other place from where L can commute to T Secondary School on a daily basis.
The child L shall live with his mother.
The child L shall spend time with his father as follows:
6.1.At any time agreed by the parties in writing but failing any other agreement:
6.1.1.On one weekend per month from the conclusion of school on the Friday until the commencement of school on Monday with the father to collect L from school and return L to school;
6.1.2.The weekend referred to in 6.1.1 be the weekend which commences the first Friday of the month, except that if the weather does not permit the father to travel to Y Island by sea, the father may, on 24 hours notice in writing, cancel that proposed visit and nominate another weekend in that month during which L will spend time with his father and his father will travel to Y…

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 Kennedy and Masuyo

Details

AGLC: KENNEDY & MASUYO [2012] FamCA 471
Case: [2012] FamCA 471
Decision Date: 18 June 2012

CaseChat Overview and Summary

This matter concerned parenting orders made by Watts J. The dispute involved the father and mother of two children, D and L, regarding the parental responsibility and time arrangements for each child.

The court was required to determine the specific terms of parental responsibility for each child, including who would have sole parental responsibility and the conditions under which each parent would spend time with the children. Further issues included the location and conditions for the children's time with their parents, particularly concerning the father's residence and the presence of certain individuals. The court also had to address communication protocols between the parents and children, and the parents' conduct towards each other and the children.

Watts J made detailed orders concerning the children's living arrangements and time with each parent. The father was granted sole parental responsibility for D, with D to spend time with both parents as he chooses. The mother was granted sole parental responsibility for L, with L to live with her and spend time with his father under specific conditions. These conditions included regular weekend and holiday time, with detailed provisions regarding travel, the father's sobriety, and the involvement of a third party, Mr R, to monitor the father's compliance. The orders also stipulated that neither parent would use illegal substances or alcohol in the presence of the children, and prohibited denigration of the other parent.

The court also made orders regarding communication between the children and their father, the father's financial contributions to L's phone calls, and the provision of school reports. Additionally, the father was restrained from allowing L to come into contact with a specific individual. The orders included provisions for written communication between the parties and a declaration that a de facto relationship existed between the parties which ended after 1 March 2009.

Orders

Orders of the court

Parenting

All previous orders and undertakings be discharged.

Subject to order 9, the father have sole parental responsibility in relation to the child D born … July 1995.

D spend time with both his parents as he chooses.

The mother have sole parental responsibility in relation to the child L born … July 2000 except L shall attend T Secondary School, Y Island, whilst the mother lives on Z Island or Y Island or at any other place from where L can commute to T Secondary School on a daily basis.

The child L shall live with his mother.

The child L shall spend time with his father as follows:

6.1. At any time agreed by the parties in writing but failing any other agreement:

6.1.1. On one weekend per month from the conclusion of school on the Friday until the commencement of school on Monday with the father to collect L from school and return L to school;

6.1.2. The weekend referred to in 6.1.1 be the weekend which commences the first Friday of the month, except that if the weather does not permit the father to travel to Y Island by sea, the father may, on 24 hours notice in writing, cancel that proposed visit and nominate another weekend in that month during which L will spend time with his father and his father will travel to Y Island by air.

6.1.3. For the first half of all school holidays which are in or commencing 2012 and the second half of all school holidays which are in or commence 2013 and alternating each year thereafter, such holidays to commence at 12 noon on the first Saturday of school holidays and conclude at 12 noon on the middle Saturday of the school holidays and at 12 noon on the middle Saturday of the school holidays and 12 noon on the final Saturday of the school holidays respectively.

6.1.4. During periods either or both the children are in the care of the father, the father shall not consume or use illegal substances or consume alcohol for 24 hours prior to his time with the children and throughout the duration of his time with the children and the father will ensure no person shall consume alcohol in his home whilst the children are in his care.

6.1.5. For a period of three months from the date of these orders, L shall spend time with his father on Y Island, Z Island or W Island and in the waters one nautical kilometre around those islands (including any other island within that distance).

6.1.6. After a period of three months from the date of these orders, L may spend time with his father on X Island on the following conditions:

6.1.6.1. L stays at M Street, X, or any other place that the father ordinarily resides on X Island from time to time;

6.1.6.2. Until L is 14 years of age, Ms N not be present at M Street, X, or what other premises the father might ordinarily live on X Island from time to time whilst L is with the father except between the hours of 10am and 5pm;

6.1.6.3. The father inform the mother in writing seven days beforehand of his intention to take L to X Island;

6.1.6.4. Until the end of the 2012/2013 Christmas school holidays the father present himself to Mr R, (…) on one occasion each day when he is with L on X Island at a time to be agreed upon between the father and Mr R and failing agreement at a time nominated by Mr R for the purposes of Mr R or his nominee making some assessment as to the father’s sobriety;

6.1.6.5. The father may take L to the west coast of the mainland (for example to Bamaga and Seisia) upon the father giving the mother seven day’s written notice of his intention to do so. The father is not to travel with L by boat from or to the Y Island/Z Island/W Island area to or from X Island.

6.1.7. Mr R at the conclusion of the third term school holidays and at the end of the 2012/2013 Christmas school holidays, provide to the Independent Children's Lawyer and the mother’s lawyer, a short written report confirming that in his observations (or the observations of any person Mr R may nominate) when L has been with his father on X Island, the father has not been under the influence of alcohol;

6.1.8. Mr R forthwith report to the Independent Children's Lawyer and the mother’s lawyer in writing, if in his opinion, the father has failed to comply with order 6.1.4 or 6.1.6.4 and if such a report is received, the Independent Children's Lawyer has liberty to relist the matter before me on seven days notice.

The child L shall communicate with the father by telephone every Wednesday night between 7:00pm and 7:30pm with the father to initiate the calls to a telephone number provided by the mother.

Neither party shall use or be under the effects or an illegal substance or have drug paraphernalia in their residences when caring for the children.

The mother ensure both children have the opportunity to participate and maintain instruction and exposure to their expected and usual Torres Strait Island cultural practises.

10.

Both parents shall encourage and support the child D to obtain qualified professional education and therapeutic counselling pertaining to illegal substance abuse and alcohol misuse and assist D to develop relationships with Torres Strait Island community elders for the purpose of guidance and support.

11.

Neither party shall denigrate the other parent or their extended family members or the other parent’s cultural practises or identity within the presence or hearing of the children and shall remove the children from the presence of other persons who may be doing so.

12.

Neither party shall physically discipline the children.

13.

Either party intending on holidaying with the children outside the Torres Straits Island area shall provide the other parent in writing with itineraries and contact telephone numbers, 7 days prior to such time away from the Torres Strait Islands.

14.

The parties inform the other of any emergency medical procedures concerning the child including any attendance by them at a hospital or doctor/medical centre whilst they are in the care of that person.

15.

The children communicate with their father as and when they choose, using their mobile phones as provided to them by the father.

16.

The father from time to time place money in an iSaver account (with the NAB) to fund L’s calls to his father on L’s mobile phone.

17.

The child L shall be at liberty to telephone his father at any time L chooses using his mobile phone.

18.

The mother shall authorise the school attended by L to provide to the father at his expense copies of school reports, school circulars and newsletters and any school photographs. and the mother will do everything necessary to provide authority to L’s school principal and L’s guidance officer to speak to the father about L.

19.

The father authorise the principal of the college that D attends to communicate with the mother about D’s progress and to assist the mother facilitate making arrangements to contact D.

20.

The mother will do nothing to impede L receiving gifts, letters and cards from his father and in particular the mother shall not return gifts to the father.

21.

The father be restrained from allowing L to come into contact with Mr C of W Island.

22.

Written communication required by these orders should be by email or SMS and for that purpose, each parent is to provide the other with their current email address and mobile telephone number from time to time.

23.

Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Property

24.

Pursuant to s 90RD(2)(d) Family Law Act a declaration is made that a de facto relationship existed between the parties which ended after 1 March 2009.

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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