Kennedy & Peyton

Case [2023] FedCFamC1F 790

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Kennedy & Peyton [2023] FedCFamC1F 790

File number(s): ADC 4269 of 2020
Judgment of: BERMAN J
Date of judgment: 15 September 2023
Catchwords:

FAMILY LAW – CHILDREN – With whom a child lives with – Relocation – Where the mother seeks to relocate the two children’s residence up to approximately 200 kilometres away – Where the father concedes that the children should be permitted to relocate subject to it being within 150 kilometres from her current location – Where the mother is the primary carer – Where the mother contends that there is an increased range of educational opportunities for the children and an enhanced ability for her to obtain employment –Where the Court finds there is merit in the mother relocating – Orders.

FAMILY LAW – CHILDREN – With whom a child spends time with – Consideration of risk of harm – Where the Court finds that father’s conduct and the attitude of the paternal grandparents directly impacts upon his parenting capacity and places the children at risk of emotional and psychological harm – Consideration of the extent to which the injuries sustained by the father’s child of a new relationship are matters relevant to the parenting considerations in respect of the subject children – Where the Court finds on the balance of probabilities, the father or his partner deliberately inflicted significant and serious injuries to the said child – Where the single expert opines, and the mother concedes, that the children would benefit from an ongoing relationship with the father – Where the single expert opines that the risk can be mitigated by supervision and the ability of the children to self-protect – Where the risk is not unacceptable – Where the father’s time with the subject children is to be in the substantial presence of various people for three years – Orders.

Legislation:

Family Law Act 1975 (Cth) Division 12A, s 60B(1), 60B(2), 60CC, 60CC(2), 60CC(3), 60CC(2A), 60CA, 61DA, 61DA(2), 61DA(4), 69ZN, 69ZT, 69ZT(3)

Evidence Act 1995 (Cth)

Children and Young People (safety) Act 2017 (SA) s 35
Cases cited:

Beckham & Desprez [2015] 55 Fam LR 310

Blanding & Blanding [2016] 55 Fam LR 218

Champness & Hanson (2009) FLC 93-407

Cotton & Cotton (1983) FLC 91-330

Harridge & Harridge [2010] FamCA 445

M v M (1988) 166 CLR 69

N & S & The Separate Representative (1996) FLC 92-655

Sigley & Evor [2011] 44 Fam LR 439

Vasser & Taylor-Black (2007) FLC 93-329

B Mahendra, “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
Division: Division 1 First Instance
Number of paragraphs: 356
Date of hearing: 8, 9, 10, 15, 16, 17 & 18 May 2023
Place: Adelaide
Counsel for the Applicant: Ms Betro
Solicitor for the Applicant: Annells Lawyers
Counsel for the Respondent: Mr Bowler
Solicitor for the Respondent: Jordan & Fowler Family Lawyers
Counsel for the Independent Children's Lawyer: Ms Lindsay
Solicitor for the Independent Children's Lawyer: Ms…

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AGLC
Kennedy & Peyton [2023] FedCFamC1F 790
Case
[2023] FedCFamC1F 790
Decision Date

CaseChat Overview and Summary

In the case of Kennedy v Peyton, the Federal Circuit and Family Court of Australia (Division 1) dealt with a complex family law matter concerning the relocation of two children and the determination of parenting arrangements. The primary issue was whether the mother should be permitted to relocate the children to a new residence up to approximately 200 kilometres away. The father conceded that relocation within 150 kilometres was acceptable. The court had to balance the mother's argument for increased employment opportunities and educational prospects against the father's concern for maintaining proximity.

The court found merit in the mother's proposal to relocate, acknowledging her status as the primary carer and the potential benefits for the children. Regarding the parenting arrangements, the court examined the father's capacity to provide a safe environment for the children, considering the risk of emotional and psychological harm. Despite evidence suggesting that the father's conduct and the attitude of the paternal grandparents might impact his parenting, the court concluded that the risk could be mitigated through supervision and therapeutic interventions. The court determined that the father's time with the children should be supervised for three years, with a gradual reduction in supervision as the children grew older and more capable of self-protection.

The final orders granted the mother sole parental responsibility, allowing her to relocate the children to a specified area. The father's access was structured to ensure supervised visits initially, transitioning to unsupervised visits as the children reached the age of nine. The orders also included detailed provisions for handovers, communication between parents and children, and restrictions on alcohol consumption and social media postings. The court aimed to balance the needs and safety of the children with the rights and responsibilities of both parents.

Orders

Orders of the court

ADC 4269 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS KENNEDY

Applicant

AND:

MR PEYTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

15 SEPTEMBER 2023

THE COURT ORDERS THAT:

1. All previous parenting orders be discharged.

2. Ms Kennedy (“the mother”) do have sole parental responsibility for X born 2015 and Y born 2017 (collectively “the children”) provided that prior to making any decisions regarding the health and/or education of the children, the mother shall consult with Mr Peyton (“the father”) in order to reach consensus or mutual agreement but in the absence of agreement, the mother shall be able to make the final determination.

3. The mother be permitted to relocate the permanent place of residence of the children to a location either in City JJ, Victoria or approximately 200 radius of Town L (whichever is the greater) with the mother to provide the father with the address to which she will be relocating and the school at which X and Y will attend.

4. The children spend time with the father as follows:

(a) each alternate weekend from 12 noon on Saturday until 5.00 pm on Sunday;

(b) As and from 24 November 2023, each alternate weekend from 5.00 pm on Friday until 5.00 pm on Sunday;

(c) In the event that the children are not already in his care, then from 5.00 pm on the Saturday prior to Father’s Day until 5.00 pm on Father’s Day provided that if the children would be in the father’s care in accordance with the terms of this order on Mother’s Day then the children shall return to the mother’s care at 5.00 pm on the Saturday prior to Mother’s Day and remain in her care;

(d) From 12 noon 23 December 2023 until 4.00 pm on Christmas Eve 2023 and each alternate year thereafter provided that the children shall spend from 4.00 pm on Christmas Eve 2023 until 5.00 pm on Boxing Day 2023 and each alternate year thereafter with the mother;

(e) From 4.00 pm on Christmas Eve 2024 until 5.00 pm on Boxing Day 2024 and each alternate year thereafter provided that the children shall spend from 12 noon on 23 December 2024 until 4.00 pm on Christmas Eve 2024 and each alternate year thereafter with the mother;

(f) For the Christmas 2023/2024 school holidays, time spending in accordance with subparagraph (b) hereof shall continue save and except that such time spending shall conclude at 5.00 pm on Tuesday;

(g) For the July and September/October 2024 school holidays, time spending in accordance with subparagraph (b) shall continue save and except that such time spending shall conclude at 5.00 pm on Thursday;

(h) As and from Christmas 2024/2025, school holidays time spending in accordance with subparagraph (b) shall be suspended during school holidays and in lieu thereof in the April, July and September school holidays at times to be agreed in writing between the parties and failing agreement, from 5.00 pm on the last day of school term until 5.00 pm on the middle Saturday of such school holiday period and for the Christmas school holidays, for the first, third and fifth weeks of such school holidays (subject to any other time spending in accordance with the terms of these orders) from 5.00 pm on the Saturday until 5.00 pm on the following Sunday;

(i) For Easter 2024, from 9.00 am on Good Friday until 5.00 pm on Easter Saturday provided that the children shall spend from 5.00 pm on Easter Saturday until 5.00 pm on Easter Sunday 2024 and each alternate year thereafter with the mother;

(j) For Easter 2025, from 9.00 am on Good Friday until 5.00 pm on Easter Monday and each alternate year thereafter provided that the children shall spend from 9.00 am on Good Friday 2026 until 5.00 pm on Easter Saturday 2026 and each alternate year thereafter with the mother; and

(k) At such other times as may be agreed in writing between the parties.

5. Until Y attains the age of 9 years of age being 2026, all time spending between the children and the father shall be taken substantially in the presence of the following people:

(a) The paternal grandparents (or either of them);

(b) Mr KK;

(c) Ms HH;

(d) Mr LL;

(e) Ms MM; and

(f) Ms NN.

6. Upon overnight time commencing, the father shall ensure that he has appropriate sleeping arrangements for the children including separate beds for each child.

7. Handover as between the parties shall take place as agreed in writing and failing agreement as follows:

(a) In the event that the mother is residing at Town E and the father at Town L then at the GG Cafe, Town E;

(b) Upon the mother relocating, handover in one weekend and each alternate week thereafter shall take place with the mother delivering and collecting the children from the McDonald’s Restaurant closest to the father’s home or such other public location as may be agreed in writing between the parties from time to time and the next weekend, and each alternate weekend thereafter, shall take place with the father (or his supervisor) collecting and delivering the children to the McDonald’s Restaurant closest to the mother’s home, or such other public location as may be agreed in writing between the parties from time to time.

8. The parties shall facilitate X and/or Y telephoning and/or video calling the other parent at the request of the children or each of them when in his or her care with such phone/video calls being made to the mobile number nominated in accordance with the terms of this order unless otherwise agreed in writing between the parties.

9. The children shall telephone each parent and/or sibling on that person’s birthday, in the event that the children do not spend time with that person on their birthday.

10. Both parties shall keep each other informed in writing of their current residential address, mobile phone number and email address and advise in writing of any changes to same within 24 hours.

11. The parties shall communicate on all non-urgent issues regarding the care, welfare, development, health, education and extra-curricular activities and time spending arrangements for the children via an agreed Parenting App.

12. The mother shall authorise any school at which X and/or Y may attend from time to time to provide the father with access to school reports, school newsletters, school photographs and the ability to attend such school/functions to which caregivers are invited including assembly’s, school concerts, sports day and parent teacher interviews.

13. The mother will advise the father of information in respect of any medical specialist, General Practitioner, dental practitioner, allied health professional, psychologist or counsellor with whom X and/or Y may consult from time to time provided that any information sought by the father shall be at his sole expense.

14. Both parties shall ensure that the other parent is listed as an emergency contact at any school or extra-curricular activity at which the children or either of them may attend from time to time.

15. Both parties shall notify the other as soon as reasonably practicable of any serious illness or medical emergency effecting X and/or Y whilst in his or her care and in the event that X and/or Y are admitted in hospital, the name of the hospital and the treating doctor such that each of the parties are permitted to visit X and/or Y during any period of hospitalisation.

16. The father be restrained and an injunction is hereby granted restraining him from consuming alcohol for 12 hours prior to, or during, any period that the children are in his care.

17. The parties be restrained and an injunction granted restraining each of them from:

(a) Abusing, denigrating, belittling, rebuking or insulting the other in the presence of, or within the hearing of, the children or allowing any other person to do so;

(b) Permitting the children or either of them to read any document filed in, or produced for, use in these proceedings or allowing any other person to do so.

(c) Permitting the children to be left alone with Ms F; and

(d) Posting any information on any social media platform regarding these proceedings, any allegations made in these proceedings, the other parent’s family or allowing any other person to do so.

18. The appointment of the Independent Children’s Lawyer is discharged.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (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

The orders sought by the ICL represent a significant change from an earlier position which was that until Y attains the age of 10 in 2027, the father’s time should be limited to two consecutive Sundays out of three from 9.00 am to 5.00 pm but that the time shall occur substantially in the presence of either the paternal grandparents, the father’s sister and/or brother in law or such other person as may be agreed between the parties in writing.BACKGROUND The mother and the children together with B, aged 12, and C, aged 11, live in Town E. The mother seeks to relocate her four children to either City JJ which is her preferred destination or City SS which is a little closer to Town L. The mother is currently employed in hospitality. The father is supported by the paternal grandparents in Town L. The father is employed in a managerial role with a franchise. Neither of the parties are currently in a relationship however it appears that the father may maintain a friendly relationship with D’s mother, Ms F. As considered, D was the subject of an order made in the Youth Court in late 2021 which has resulted in him being under the Guardianship of the Minister and is now in a foster, or other care, arrangement. There is no evidence that the intention of the Minister is to seek to return D to either Ms F, the father or the paternal grandparents who are the subject of a failed application to become D’s kinship carers. There was some suggestion that the paternal grandparents were considering further litigation in respect of D. It appears that neither Ms F nor the father spend time with D however the mother has made arrangements for the children to see D. Both children are currently enrolled at Town E School. There does not appear to be any significant developmental issues that impact upon the children although there is evidence that suggests Y may be more affected by what has happened to D than X. The paternal grandparents were parties to the current proceedings however prior to trial on 17 April 2023, they filed a Notice of Discontinuance. It is not controversial that the paternal grandparents are supportive of the father, will continue to supervise his time with the children when they are not living in Adelaide and do not accept that the father had any responsibility in respect of the injuries occasioned to D. It is a stark feature of the proceedings that neither of the parties but in particular the father, produced evidence that would assist the Court in determining or identifying the perpetrator or those responsible for the injuries that D sustained.TREATMENT OF EVIDENCE At the commencement of the trial I highlighted the provisions of Division 12A of the Act and in particular, whether the Court should dispense with the provisions of s 69ZT of the Act and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”). Neither party, nor the ICL spoke against the application of the provisions of s 69ZT of the Act. I consider that the principles of s 69ZN of the Act will be better served by receiving the evidence of each of the parties relied upon, but exercising my discretion under s 69ZT(3) of the Act as to the weight which will be given to the evidence, particularly, if it is contentious.THE EVIDENCEThe mother

Evidence

Evidence Before The Court

I consider that the principles of s 69ZN of the Act will be better served by receiving the evidence of each of the parties relied upon, but exercising my discretion under s 69ZT(3) of the Act as to the weight which will be given to the evidence, particularly, if it is contentious.THE EVIDENCEThe mother In evidence, the mother conceded that she is unsure as to whether the father deliberately inflicted injuries to D. The mother accepted that contrary to the content of paragraphs 124 and 125 of her trial affidavit, she does not now think that the father would hurt the children. At paragraph 124 of the mother’s trial affidavit, the mother considered that the information from DCP as to the extent and nature of the injuries sustained by D “was devastating and terrifying”. The following appears at paragraph 127 to 129 inclusive:127.I have been terrified at times of sending [the children] to spend time with [the father] as I kept thinking about all of those terrible injuries suffered by [D] while in the care of his mother and [the father]. I have held grave concerns about sending the children to spend time with a person who may have severely injured a defenceless baby, or did not do anything to protect his child who was being abused by another person. I have also been afraid because DCP have repeatedly emphasised to me in their communications with me the need to be very protective of [the children], due to their opinion that [the father] represents an unacceptable risk. This has left me afraid that if I do not do what they want, my children may be removed from my care. The file relating to [the children] has been closed by DCP as they were satisfied at the time that I was being protective. I refer to the letter from DCP dated September 2021, Document 19 in my Tender Book.128.The children may be at risk of physical harm in the father's care and are at risk of emotional harm to the children (sic). The risk of emotional harm relates to the father attempting to blame one of them for [D's] injuries. The father and the paternal grandparents maintain a very hostile attitude towards me.129.[The father] tells me that it is my fault for causing an atmosphere of "danger and anxiety". This is caused by what happened to [D]. The paragraphs as quoted provide the foundation for the thrust of the father’s assertion that the mother engaged with DCP not because she held any genuine or real concern for the safety of the children but rather to use the investigation of D’s injuries and his removal from the father’s care as a strategy to minimise and restrict the father’s relationship with the children. The mother was referred to an email dated March 2022 sent to Ms Q, a case worker for DCP. The tenor of the email is to enquire as to whether a decision has been made by DCP to formally intervene in the proceedings. The timing of the email is of some relevance in that it was sent in anticipation of a further court hearing on 18 March 2022 at which time the mother considered that the father would seek increased time with the children and potentially an application for supervision to cease. The email should also be seen in the context of the criminal charges in respect of D’s injuries being discontinued.

Decision

Reasons for decision

I have rejected that proposition and consider that the needs of the children and the concessions made by the mother could properly be reflected by the orders sought by her. The continuation of strict supervision to date allows for a relaxation whereby the father’s time with the children would be in the substantial presence of the nominated supervisors. When Y attains the age of nine years, taking into account matters raised by Ms U, it is reasonable to find that the children would be able to self-protect.CONCLUSION The mother seeks an order that she have sole parental responsibility for the children. That order is supported by the ICL but opposed by the father. I propose the make an order that the mother have sole parental responsibility together with the mother’s further proposal that she will consult the father regarding health and/or education but that in the absence of agreement she is able to make the final determination. For the reasons given, the children will live with the mother. I consider that it is in the children’s best interests that the mother is able to take up residence either in City JJ or City SS in order to maximise her opportunity for secure employment, housing, an expanded range of child care and out of school hours options and schooling for the children. I will extend the distance that the mother is permitted to relocate to include City JJ, Victoria or approximately 200 kilometres radius from Town L (whichever is more distant). The mother will be able to make her own arrangements as to when the children’s relocation takes place although it is anticipated on the mother’s evidence that she will not seek to do so before the end of the 2023 academic year. The mother sought that as from 16 July 2023, the children should be able to spend extended time with the father from 4.00 pm on Saturday until 5.00 pm on Sunday and from 26 August 2023, from 9.00 am Saturday until 5.00 pm on Sunday. As from 5 November 2023, the mother proposes that the father’s time commence at 5.00 pm on Friday until 5.00 pm on Sunday in each alternate week. The father seeks a graduated increase in time such that after 16 weeks, the children would spend each alternate weekend with the father from the conclusion of school Friday (or 3.00 pm if a non-school day) until 5.00 pm on Sunday. There is merit in the orders sought by the father and to a significant degree, they mirror the mother’s proposal. The mother seeks that until Y attains the age of eight years being 2025, the time spending with the father shall be taken substantially in the presence of the paternal grandparents (or either of them), Mr KK, Ms HH and/or Ms MM between the hours of 5.00 pm and 8.00 pm. The father concedes that there should be supervision on the basis that a nominated supervisor be substantially present however, the period during which supervision is required should be limited. The ICL promotes a finding that the father presents as an unacceptable risk to the children. I have considered that whilst the risk is significant, it is not unacceptable and can be mitigated for the reasons that Ms U considered relevant, namely, the age at which the children would be able to self-protect, the supervision either strictly imposed or satisfied by substantial presence and the work undertaken by the father in terms of therapeutic assistance, counselling and continuity employment.

Ratio Decidendi

Legal Principle Established

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