KENNEDY & PEYTON - [2020] FCCA 3268

FEDERAL CIRCUIT COURT OF AUSTRALIA

KENNEDY & PEYTON

[2020] FCCA 3268

Catchwords:
FAMILY LAW – Interim parenting arrangements for children aged 5 and 3 – mother retained children on advice from Department for Child Protection – Department investigating injuries sustained by a child aged 1 that is not subject to these proceedings, whilst in the father’s care – whether children exposed to family violence as a result of these injuries – Department opposed to the father seeking an increase in his time with the children – assessment of risk – best interests of the children.

Legislation:

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

Cases cited:

B & B (1993) FLC 92-357

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman (2015) FLC 93-654

Goode & Goode (2006) FLC 92-286

Marvel & Marvel (No2) [2010] FamCAFC 101

Mazorski v Albright (2007) 37 FamLR 518

Slater & Light [2013] FamCAFC 4

Applicant:

MS KENNEDY

Respondent:

MR PEYTON

File Number:

ADC 4269 of 2020

Judgment of:

Judge Brown

Hearing date:

26 November 2020

Date of Last Submission:

26 November 2020

Delivered at:

Adelaide

Delivered on:

1 December 2020

REPRESENTATION

Counsel for the Applicant:

Mr Boehm

Solicitors for the Applicant:

Degaris Lawyers

Counsel for the Respondent:

Mr Bowler

Solicitors for the Respondent:

Jordan & Fowler Family Lawyers

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

That the children X born in 2015 and Y born in 2017 live with the mother.
That the parties follow all written direction of the Department for Child Protection in relation to the father’s supervised time spending with the said children.
The father be retrained and an injunction be granted restraining him from:
(a)Attending at the children’s kindergarten, child care and school;
(b)Attending at the children’s extra-curricular activities including but not limited to the upcoming Auskick presentations; and
(c)Approaching the mother and the children in any public place whether they are together or not.
The mother be permitted to seek such therapeutic assistance or counselling for the children as she may be advised by CAMHS in writing or by such other medical professionals.
Pursuant to section 69ZW of the Family Law Act, the Department for Child Protection (Families SA) are ordered to provide to the court the following documents
(a)any notifications to the agency of suspected abuse of the children X born in 2015, Y born in 2017 and D born in 2020, or of suspected family violence affecting the children;
(b)any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;
(c)any reports commissioned by the agency in the course of investigating a notification.
Pursuant to section 69ZW of the Family Law Act, South Australia Police are ordered to provide to the court the following documents
(a)Copies of any reports or notifications of child abuse allegations or allegations of family violence involving either of the parties MS KENNEDY born in 1988 or MR PEYTON born in 1981 or the children…

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 & PEYTON

Details

AGLC: KENNEDY & PEYTON [2020] FCCA 3268
Case: [2020] FCCA 3268
Decision Date: 1 December 2020

CaseChat Overview and Summary

The proceedings concerned interim parenting arrangements for two children, aged five and three. The mother had retained the children, and the Department for Child Protection was involved due to an investigation into injuries sustained by a younger child, aged one, while in the father's care. The Department opposed the father's application for an increase in his time with the subject children.

The central legal issues before the Court were whether the subject children were exposed to family violence as a result of the injuries sustained by the younger child, and how to assess the risk posed to the children in determining their best interests. The Court was required to balance the father's desire for increased time with the children against the potential risks identified by the Department.

In reaching its decision, the Court applied the principles of assessing risk in parenting proceedings, particularly where allegations of family violence or harm to a child are present. The Court considered the Department's opposition and the ongoing investigation as significant factors in its assessment of the children's best interests. The Court's reasoning focused on ensuring the safety and well-being of the children during the interim period, taking into account the information available regarding the injuries to the younger child.

Orders