Kennedy & Peyton (No 2)

Case [2024] FedCFamC1F 402

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Kennedy & Peyton (No 2) [2024] FedCFamC1F 402

File number(s): ADC 4269 of 2020
Judgment of: KARI J
Date of judgment: 14 June 2024
Catchwords: FAMILY LAW – CHILDREN – Interim Parenting Arrangements – Where the mother seeks a suspension of the final orders so far as they relate to time spending with the father – Where the current proceedings were commenced by the mother seven weeks after the delivery of the final judgment and orders – Where one child refuses to spend time with the father – Where the mother raises concerns about the deterioration of one of the children’s mental health – Where one child has threatened self-harm and physically threatened her sister – Where the father alleges that the mother has overreacted – Where the father alleges the mother is unable or unwilling to facilitate a relationship between the children and the father – Where the father alleges the mother is trying to alienate him – Where the court accepts that the mother has acted protectively and appropriately – Where the court finds that the father’s allegations appear entirely without foundation – Consideration of the conditions in which the father should spend time with the children – Where the father seeks compliance and reinstatement of the final orders in relation to one child and the other child to spend time with the father in accordance with her wishes – Where the court does not consider that disparate orders for each child are appropriate – Orders for the father is to spend supervised time with the children at a professional contact service on one occasion per month – Injunction granted restraining the father from attending at the children’s school, medical appointments and extra-curricular activities.  
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 64B, 65DAAA
Cases cited:

Franklyn & Franklyn [2019] FamCAFC 256

Kennedy & Peyton [2023] FedCFamC1F 790
Division: Division 1 First Instance
Number of paragraphs: 108
Date of hearing: 31 May 2024
Place: Adelaide
Counsel for the Applicant: Ms Betro
Solicitor for the Applicant: Annells Lawyers
Counsel for the Respondent: Ms Miller
Solicitor for the Respondent: Jordan & Fowler Family Lawyers

ORDERS

ADC 4269 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS KENNEDY

Applicant
AND:

MR PEYTON

Respondent

ORDER MADE BY:

KARI J

DATE OF ORDER:

14 JUNE 2024

THE COURT ORDERS THAT:

1.Paragraphs 4, 5, 6 and 7 of the Final Orders made 15 September 2023 be discharged.

2.The children live with the mother.

3.The father do spend time with the children at the VV Contact Service in City N on the following terms and conditions:

(a)That the time spending be supervised;

(b)That the time spending occur on one occasion each month, preferably on either Saturday or Sunday as can be facilitated by the service;

(c)For a period of two hours on each occasion; and

(d)With the parties to instruct the service to issue a report following each scheduled visit.

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AGLC
Kennedy & Peyton (No 2) [2024] FedCFamC1F 402
Case
[2024] FedCFamC1F 402
Decision Date

CaseChat Overview and Summary

Ms Kennedy sought an interim order to suspend certain aspects of the final orders relating to the time spending arrangements between the children and Mr Peyton. The court accepted that Ms Kennedy had acted protectively and appropriately in raising concerns about the children's mental health and safety. The court found that Mr Peyton's allegations were entirely without foundation. The court considered it appropriate to maintain the regime of time spending between the children and Mr Peyton at the VV Contact Service on one occasion each month. The court also granted an injunction restraining Mr Peyton from attending at the children's school, medical appointments, and extra-curricular activities without prior written consent of Ms Kennedy.

The court found that maintaining the current time spending arrangements was in the best interests of the children. The court considered that professionally supervised time spending was the safest setting for the children at this stage. The court also considered that it was important to maintain a consistent arrangement for both children to preserve their sibling relationship and emotional and psychological stability. The court rejected Mr Peyton's proposal for disparate arrangements for each child, finding it inappropriate to have different conditions for each child's time spending with the father.

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

ORDER MADE BY:

KARI J

DATE OF ORDER:

14 JUNE 2024

THE COURT ORDERS THAT:

1. Paragraphs 4, 5, 6 and 7 of the Final Orders made 15 September 2023 be discharged.

2. The children live with the mother.

3. The father do spend time with the children at the VV Contact Service in City N on the following terms and conditions:

(a) That the time spending be supervised;

(b) That the time spending occur on one occasion each month, preferably on either Saturday or Sunday as can be facilitated by the service;

(c) For a period of two hours on each occasion; and

(d) With the parties to instruct the service to issue a report following each scheduled visit.

4. The father be restrained and an injunction be granted restraining the father from attending upon the children’s school when the children are present, at any medical appointment of the children or any extra-curricular activity of the children without prior written consent of the mother.

5. The proceedings be adjourned for case management to 22 October 2024 at 4.00 pm.

6. That prior to the adjourned hearing, the mother do file and serve a copy of any reports provided by the VV Contact Service.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, orders shall be made suspending certain aspects of the final orders; significantly those relating to the children’s time spending with the father. In their place shall be a regime of supervised time spending at a professional contact service. BACKGROUND & THE PREVIOUS LITIGATION The background of this family, the relationship of the parents and the parenting arrangements for the children was canvassed in detail in the reasons of Berman J delivered 15 September 2023 (Kennedy & Peyton [2023] FedCFamC1F 790) (“the reasons”). I have had significant regard to those reasons and the findings made by his Honour, particularly in circumstances where the orders were not the subject of appeal. Whilst I have had regard to the reasons, for present purposes it is necessary to set out some background to contextualise the issues that have presented since the making of the final orders. With reference to the reasons (at [2]-[35]), the following summary can be given:(a)The parties lived together in a relationship between 2014 until their separation on 5 September 2019.(b)The “catalyst” for the parties’ separation was the father’s admission that he had commenced a sexual relationship with another woman.(c)The father’s new relationship resulted in the birth of a child D (“D”) in 2020.(d)In mid and late 2020 D presented with visible injuries ultimately resulting in a hospital attendance in late 2020. D was examined by a paediatrician from Child Protection Services (“CPS”) in late 2020 and:11[D] was diagnosed as presenting with […] fractures and […] suspected fractures […]. The […] fractures were considered to be of differing ages comprising […] recent fractures, […] fractures that were healing and […] fractures of indeterminate age. He also presented with elevated […] enzymes consistent with […] trauma.12The nature, position, number and differing ages of the fractures were considered by CPS to be inconsistent with accidental or inadvertent injury. The implication, as will be discussed, is that a more plausible explanation is that the injuries sustained by [D] were deliberate.(e)The mother commenced parenting proceedings in relation to X and Y on 8 September 2020, within short compass of the diagnosis of D’s injuries.(f)The parties to the previous parenting proceedings were the children’s parents, together with each the paternal grandfather and grandmother.(g)From the inception of the proceedings, arrangements were made for the children to spend supervised time with the father at a contact service, with the imprimatur of the Department for Child Protection (“DCP”).(h)Ultimately orders for regular time spending were made on 13 October 2021 which provided for the children to live with the mother and spend time with the father on two out of every three weekends from 12.00 pm until 5.00 pm, with such time to be supervised by the paternal grandparents. The paternal aunt and her husband were added to the list of potential supervisors of the father’s time by orders made by consent on 28 July 2022.(i)When making orders in July 2022 the parties also agreed to a “narrative” to be adopted by the supervisors in the event that the children asked questions about the father’s care of D. Justice Berman specifically commented in relation to that agreed narrative “it is difficult to understand the basis upon which it could have been expected that compliance with the “narrative” was either appropriate or able to be enforced”.(j)The final hearing was heard in May 2023 across seven days.(k)Shortly prior to the final hearing, on 13 April 2023, the mother filed a Further Further Amended Initiating Application. By that application, the mother did not ask the court to make orders that there be no time spending between the children and the father. Rather it was the mother’s position that there be time spending but that it either be supervised by the paternal grandparents or paternal aunt and uncle. The mother additionally sought that she have sole parental responsibility for the children and that she be permitted to relocate with the children to City G, Victoria (albeit at trial this was amended to City SS or City JJ, Victoria).(l)By his Further Amended Response to Initiating Application filed 5 May 2023, the father promoted orders that the parties have equal shared parental responsibility for the children. The father supported the children continuing to live with the mother, however he opposed their relocation to City G, instead seeking to restrict her relocation to a distance “anywhere within 150 kilometres distance by road of [Town L] in the state of South Australia”. The father pursued orders for time spending with the children on an unsupervised basis building incrementally such that within 14 months the children live with him in a five nights per fortnight regime.(m)The mother’s position was that if the court formed the view that the father was an “unacceptable risk of harm” to the children, his time spending was to remain supervised, however if the court was not of that view, then supervision would cease upon Y turning eight years of age.(n)In that regard, Berman J recorded:35.It is not suggested by the mother that the father presents as an unacceptable risk to the children arising out of any direct threat, action or behaviour of him towards the children but rather whether the circumstances surrounding the manner in which [D] sustained grievous injuries could result in a finding that the father presents as an unacceptable risk to the children.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I additionally consider that the professional supervision that the parties themselves saw appropriate to implement, is the safest setting for time spending at this stage. This is because:(a)A professionally trained supervisor is best able to monitor and report upon time spending and intervene if necessary.(b)Professional supervision is something that the mother supports and therefore creates an environment that the mother is most likely able to successfully encourage both children engaging with the father in, as the contact centre reports bear out she has done in recent months.CONCLUSION AS TO TIME SPENDING For all of the reasons I have given, I do not consider it appropriate to presently maintain the regime of time spending between the children and the father as provided for in the final orders made by Berman J on 15 September 2023. Whilst I accept that X appears to enjoy her time with her father, I equally consider that there are real safety concerns for both children if there is to be a disparate arrangement for each of their time spending with the father; not least of which are Y’s threats of self-harm, but also Y’s threats to physically harm X. I am equally concerned about the psychological and emotional development of both children, and the impact on their sibling relationship if there were to be disparate arrangements between them. I accordingly shall make orders for time spending to occur once each month at the AD Contact Service; a facility the children are familiar with attending.ADDITIONAL ORDERS SOUGHTReunification counselling between the father and Y The father promotes a process of therapy between himself and Y as a necessary ingredient to resolving Y’s current resistance towards spending time with him. In addition, the father promotes this occurring with Y’s current therapist Mr AB. As I have indicated to the parties, the prospect of Mr AB fulfilling this role raises significant concerns; particularly as to the confusion that this might cause Y, the preservation of her own therapeutic relationship with Mr AB, and her ability to see Mr AB as her own independent support person. Whilst the court understands from submissions made at the hearing that Mr AB is prepared to undertake this process if Y is to engage with a new therapist more proximate to her, in my view, that does not alleviate the concerns about the confusion such an arrangement would have a very real prospect of causing Y; a child who is already struggling to reconcile complex concepts relating to the injuries to D and her relationship with her father. In her recent report, Ms U turned her mind to further therapy that might be considered for this family. In that regard, Ms U variously opined:•In considering the other aspects that appear to be contributing to the resistance/refusal dynamics, given the parties last unsuccessful attempt at coparenting counselling it seems unlikely that re-engagement would be of benefit. The cessation, albeit brief, of proceedings also did not appear to result in an organic resolution of ill-will. The likelihood of their co-parenting relationship improving is very limited.…•The Court at trial raised doubts as to the utility of making directions relating to family therapy. It therefore seems more prudent if the father's involvement with [Y's] therapy occur as per her therapist's suggestion; [Y's] therapist indicates this will hopefully form part of her treatment.•The father's insight into [Y's] experience appears limited. There is the suggestion his capacity for emotional attunement is presently impacted by the current impasse, it also being noted that he has lost his job due to the impact of his emotional distress. He should remain involved with his counsellor and attend at his GP for assessment of depression/stress/anxiety.

Ratio Decidendi

Legal Principle Established

The evidence before the court, coupled with the findings of Berman J already discussed and to follow, enable me to reject that possibility, in particular:(a)It is apparent from the written exchanges between the parties in the lead up to and following the publication of the reasons and the making of the final orders, that the mother approached the father in writing in a conciliatory fashion. It is apparent on the face of the mother’s communications that she was attempting to draw a line under past events and move forward regardless of the outcome of the final hearing. The father however rebuked all such attempts, and the communication exchange that followed from the father is nothing short of inflammatory, controlling, assertive and dismissive of the mother’s overtures.(b)If it is the case that Y was resistant to time spending as described by the mother in the lead up to the visit in late 2023, it is to the mother’s credit that she encouraged and facilitated Y attending on that occasion despite her very significant concerns. Moreover, it was entirely appropriate for the mother to have raised those concerns in writing with the father in the detailed fashion thereafter. Unfortunately, instead of the father taking a conciliatory approach and a willingness to work with the mother and the children (particularly Y) to address the difficulties (which were not new and had been discussed in the various reports of Ms U in the earlier proceedings and during her oral evidence at the final hearing as discussed in the reasons) and support both children in maintaining their relationship with him and preserving their emotional and psychological stability (particularly that of Y), the father was entirely dismissive of the concerns raised by the mother. This is evidenced by his curt and dismissive responses to the crisis within four minutes of the mother’s initial message, which included:•[Ms Kennedy] this is all self serving nonsense and not true.•I knew you would try and do this.[20][20] Annexure “[MK]2” to the mother’s affidavit filed 2 November 2023.BEST INTEREST CONSIDERATIONS I have already discussed a number of matters relevantly to be considered pursuant to s 60CC. Hereunder I propose to address any further relevant considerations.What arrangements would promote the safety of the child and each person who has care of the child When regard is had to the independent evidence before the court, it is clear that there is a crisis so far as the children’s relationship with the father is concerned. The independent evidence includes the following:(a)The discharge summary from the City N hospital;(b)The report of Y’s psychologist Mr AB;(c)The reports from Town E School;(d)The reports from the children’s current school; and(e)The contact centre reports which record that Y has been resistant to all time spending with the father. In addition, the parties also agreed to commission a further report from the expert who had given evidence in the previous proceedings; Ms U. In that report, Ms U relayed a number of her observations and expressed her opinion in relation to the current crisis.