Kennedy & Peyton (No 2)
[2022] FedCFamC2F 552
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kennedy & Peyton (No 2) [2022] FedCFamC2F 552
File number(s): ADC 4269 of 2020 Judgment of: JUDGE BROWN Date of judgment: 12 April 2022 Catchwords: FAMILY LAW – Interim arrangements for care of children aged 6 & 5 – time spending with father – allegations regarding a child of subsequent relationship – assessment of risk – issues of supervision – best interests Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 62G, 91B Cases cited: Kennedy & Peyton [2020] FCCA 3268
Kennedy & Peyton [2022] FedCFamC2F 366
Deiter & Deiter [2011] FamCAFC 82
Marvel & Marvel (No. 2) [2010] FamCAFC 101
W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892
Division: Division 2 Family Law Number of paragraphs: 123 Date of hearing: 12 April 2022 Place: Adelaide Counsel for the Applicant: Ms Bailey Solicitor for the Applicant: DeGaris Lawyers Counsel for the First Respondent: Mr Bowler Solicitor for the First Respondent: Jordan & Fowler Family Lawyers Counsel for the Second Respondents: Ms Tinning Solicitor for the Second Respondents: Adelta Legal Solicitor for the Independent Children's Lawyer: Ms Z ORDERS
ADC 4269 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KENNEDY
Applicant
AND:
MR PEYTON
First Respondent
MS C PEYTON and MR B PEYTON
Second Respondents
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
12 APRIL 2022
THE COURT ORDERS THAT:
1.That paragraphs 2, 7, 8, 9, 10, 11, 12, 14, 16, 17, 18, 19, 20, 21, 22, 23 of the orders made on 13 October 2021 do continue.
2.That paragraphs 4, 5 and 6 of the orders made on 13 October 2021 do continue in operation subject to the addition of further proposed supervisors as named below herein being at liberty to:-
(a)Supervised the time in which X and Y are in the care of the father and
(b)Effect handover due to illness or unavailability of the paternal grandparents or either of them.
3.That there be an order in terms of paragraph 13 of the orders made on 16 February 2021 varied such that it shall apply to the 2022 sports season.
4.That the father do spend time with X and Y as follows:-
(a)As from 17 April 2022, time spending shall resume in accordance with paragraph 3(a) of the orders made on 13 October 2021 which shall be varied to the extent that that time spending otherwise scheduled for 8 May 2022 shall take place on 7 May 2022 (acknowledging Mother’s Day),
(b)As from 12 June 2022, time spending shall take place in accordance with paragraph 3(a) of the orders made on 13 October 2021 save and except that time shall be extended to occur between 9.00am until 5.00pm pursuant to the terms of the agreement reached between the parties at FDR in January 2022;
(c)At such other times and places as may be agreed in writing between the parents.
5.That in the event that neither Second Respondent Paternal Grandparent is available to supervise the time in which X and Y spend time with the father, then the father is at liberty to have his half-brother MR BB and/or his wife, MS DD supervise such visits subject to the provisions of paragraph 7 hereof.
6.That save and except in the circumstances of emergency arising, the Second Respondent Paternal Grandparents shall provide to the mother notice in writing in the event that they both will be unable to supervise any visit in accordance with the terms of this Order which confirms that MR BB and MS DD are available to supervise such visit and with such written notice to be provided not less than 24 hours prior to any such scheduled visit.
7.That prior to the father being at liberty to have MR BB and MS DD supervise visits in accordance with the terms of this order, the father shall take all steps necessary to cause each of them to file and serve an affidavit confirming that:-
(a)they have read the pamphlet prepared by the Legal Services Commission on the role of a supervisor and
(b)that they fully understand and are willing to comply with their obligations as supervisors
(c)have been provided with and read a copy of the “narrative” prepared pursuant to paragraph 13 of the orders made on 13 October 2021 and which is attached to this Minute of Order
(d)they each agree not to discuss any matter as to the father’s child D’s care within the presence of or hearing of X and Y or either of them in terms other than those specifically detailed in the “narrative” attached to these orders.
8.That the parties are hereby restrained and an injunction is hereby granted restraining them each from discussing any aspect of the care of the father’s child D which is not confined to the agreed terms of the “narrative” attached hereto, to or with or within hearing of X and Y or either of them and/or permitting any other person to do so.
9.That both parents shall notify the other as soon as is reasonably practicable of any medical emergency or serious childhood illness affecting X and/or Y whilst in his or her care.
10.That paragraph 2 of the orders made on 7 October 2020 be dismissed.
11.That the father be at liberty to issue a subpoena to the Department for Child Protection.
12.That all extant applications of the parties for interim parenting orders (other than the Contravention Application filed by the father on 18 February 2022) are hereby dismissed as finalized.
13.That the competing Applications of the parties for final orders herein be transferred to Division 1 of this Honourable Court and listed for directions on a date to be advised by the Court.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kennedy & Peyton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
The reasons for judgment in this matter are being delivered orally following the hearing between the parties concerned. The reasons have subsequently been transcribed and then corrected for errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read. Some headings have been inserted to assist in this regard.
The matter of Kennedy & Peyton is listed before me today. Primarily, the proceedings are concerned with interim parenting arrangements for two children. They are X (herein after referred to as “X”), who was born in 2015, and Y (hereinafter referred to as “Y”), who was born in 2017.
The parties to the proceedings are X and Y’s mother, Ms Kennedy (hereinafter referred to as “Ms Kennedy”), and their father, Mr Peyton (hereinafter referred to as “Mr Peyton”). Also involved in the case, as third parties, are the children’s paternal grandparents, Ms C Peyton and Mr B Peyton.
At an earlier stage of the proceedings, it was ordered that the children be independently represented in the proceedings. Their representative is Ms Z, who all concerned will know, is a family lawyer, who practises in City N.
The proceedings today are interim in nature. They commenced at about 10.00 this morning and proceeded through the morning until the luncheon adjournment at 1.00 pm, then after lunch there were further submissions between 2.15 pm and about 3.10 pm.
As all concerned will be aware, it is the week prior to Easter and, from the father’s perspective and the perspective of the paternal grandparents, there is a degree of urgency in knowing whether arrangements for them to resume spending time with X and Y can be reinstated over the Easter period, particularly on Easter Sunday, which obviously is this coming Sunday.
For that reason, I am delivering these reasons forthwith, without an adjournment to consider them. It is more important that all concerned know what are going to be the forthcoming arrangements for the children. In addition, I am satisfied that I have a sufficient level of familiarity with the case.
The case is one which has a great deal of complexity about it. In this context, I have prepared two earlier written judgments. They were delivered on 1 December 2020[1] and, more recently, on 28 March 2022[2]. The latter judgment dealt with an application dealing with the father’s and the paternal grandparents’ wish that Ms Z be discharged as the Independent Children’s Lawyer.[3]
[1] See Kennedy & Peyton [2022] FCCA 3268.
[2] See Kennedy & Peyton [2022] FedCFamC2F 366.
[3] See Application in a Proceeding filed by Mr Peyton on 21 February 2022.
These proceedings are difficult, controversial and have generated significant amounts of documents. As such, it is agreed by all concerned, I think, that it is appropriate that the case be transferred to Division 1 of this court, which is more suited for hearing lengthy and difficult proceedings.
However, as I have been involved in the case for a significant period of time, as the Judge who previously dealt with matters on circuit to City N, I formed the view that it would be inappropriate for me to walk away from the case given the urgency of the need, from the father’s and grandparents’ perspective, that something be put in place in respect of time spending arrangements for them with Y and X.
BACKGROUND
I detailed some of the history of the parties’ relationship with one another in the earlier judgment, but, by way of background, as I recall, the father and mother commenced their relationship in late 2013. They met, I think, at a hotel owned by the paternal grandparents in Town E, and X and Y were produced as a result of that relationship.
The mother, Ms Kennedy, has two other children[4]. They are B and C, who live with her and have always done so. I think there is no controversy that, in the latter stages of the parties’ relationship together, Mr Peyton became involved with another person, who fell pregnant, and there is no doubt that the father and his then partner, Ms F, are the parents of another child, D, who was born in 2020.[5]
[4] See Affidavit of Ms Kennedy filed 8 September 2020 at [8].
[5] See Affidavit of Ms Kennedy filed 2 October 2020 at [91]-[93], see Affidavit of Mr Peyton filed on 19 November 2020 at [29]-[31].
D is not subject to these proceedings, but issues to do with his care are central to the case, as everyone is aware. I do not want to go through those matters in enormous detail this afternoon. I have already detailed what I know of them in the earlier judgments, but suffice it to say that D was removed from his parents in September of 2020 because of the view that the Department for Child Protection (“DCP”) had that D had sustained significant physical injuries whilst in the care of Mr Peyton with Ms F jointly or by one of either Ms F or Mr Peyton, acting individually.
Ms Kennedy was advised of this by the Department, and as a consequence of that commenced proceedings in this court in early September 2020. This was the background to the first judgment that was published by me in December of 2020.[6]
[6] See Kennedy & Peyton [2020] FCCA 3268.
The issue at that stage was what weight in the court’s deliberations should be given to what had happened to D in respect of determining interim arrangements for Y and X and what was the degree of risk Mr Peyton posed to the two children. It being the case that it was not asserted that he had ever physically harmed either Y or X.
The parties in this matter separated, I think, in September of 2019. That was difficult, it would seem, for Mr Peyton. I think there is no controversy that he had a period of inpatient treatment which occurred when he was about to become a father in respect of D.
But, significantly, against that difficult background, throughout 2020, Ms Kennedy and Mr Peyton were able to enter into an arrangement whereby they began to share the care of X and Y which enabled the two children to maintain their relationship with B and C.
Issues arose, I think, in August of 2020, when Ms Kennedy began to canvass a wish with Mr Peyton that she wanted to move to Western Victoria. So, significantly, it seems clear that, in the early period of X and Y’s lives, they have spent significant periods of time with their father and their mother, obviously, whilst that relationship was intact, and after that relationship fell into difficulties, in somewhat challenging circumstances, Mr Peyton maintained his relationship with X and Y, spending significant periods to time with them.
That is not to say that, from the mother’s perspective, there were not issues. It is her case that she was subjected to some coercive and controlling behaviour by the father during the parties’ relationship, which he refutes. She also asserts that, from time to time, Mr Peyton drank to excess and was involved more with his work commitments than family responsibilities.
In any event, everyone’s world changed when the Department for Child Protection became involved because of D. The world was turned upside down, not only the parties themselves but also the children who are the subject of these proceedings. In addition, I have got no reason to doubt that C and B were also affected, because Y and X went from seeing D regularly to not seeing him at all.
Mr Peyton himself was not able to interact with D, whilst very significant inquiries were made, by a variety of professionals from the Department for Child Protection. And, over the course of these proceedings, I have been supplied with voluminous reports from the department, including forensic medical reports that detail injuries relating to D.
So, in November of 2020, I had to deal with the matter for the first time, and it was at that stage that Ms Z was appointed. Because of the department’s involvement with D and also, to some extent, with Y and X, on 1 December 2020, I invited the department to intervene in these proceedings pursuant to section 91B of the Family Law Act 1975 (Cth)[7].
[7] Hereinafter referred to as “the Act”.
Otherwise, at that early stage, whilst the department was making its inquiries, I was of the view that it was appropriate that I take a cautious approach in respect of the case and, for that reason, I directed that X and Y should live with their mother and that the parties themselves follow the directions of the department in respect of the father spending supervised time with the two children concerned.
At that early stage, as I recall, it was the father’s position that he was not responsible for hurting or harming D in any way and that remains his position. He and Ms F, I believe, had been charged or were charged with some serious criminal offences regarding the physical neglect or assault of D, but those charges have not been proceeded with and D himself has been placed under the guardianship of the relevant minister, I think, until he turns 18.
But, apart from those things occurring, there has been no formal judicial finding or hearing or inquiry into who was responsible for D’s injury, and it is the position of the Independent Children’s Lawyer, after reading all the forensic medical reports that those injuries were caused by human intervention.
It is further her position, as I understand it, that she has not been supplied with any forensic expert opinion that surmises that the injuries could have been inflicted accidentally or by some other agency other than an adult. As I recall, Ms Z has formally indicated this view to the parties in writing.
It would be naïve to think anything other than that the degree of injuries sustained by D has implications for the degree of detached objectivity that can be brought to these proceedings. But, when I come to outline the law in more detail, I will be at pains to point out that I am concerned with the best interests of X and Y, not any other child or children.
I have invited the department to intervene in these proceedings on a number of occasions, not only when the proceedings began, but also more recently in somewhat controversial circumstances, earlier this year, in March. What the Department did prior to March is one of the more significant controversies in the case, at this stage.
The Department has provided me information, for which I am grateful, but they have declined to intervene in these proceedings – that is, to become a party to the proceedings, which would entitle them to make submissions and to call evidence and, as a party, for that evidence to be ultimately subject to cross-examination by the other parties concerned.
In those circumstances, it is my view that it is not my role to conduct an inquiry into the probity of the actions of the Department or any of its employees or workers, but it is undoubtedly the case that their involvement has been controversial, particularly from the point of view of the father and the paternal grandparents.
The case, after the first mention of the matter in late 2020, was adjourned to the City N sittings of the court and, as I recall, I dealt with it again on 16 February 2021, and, at that stage, the parties agreed that there would be a regime of supervised time between X and Y and their father at the City N Children’s Contact Centre.
Prior to that time, as I understand it, the Department itself had overseen Mr Peyton spending time with the two children concerned. At that stage, in February of 2021, it was clear that the Department was still investigating matters to do with D, and X and Y were also receiving some therapeutic counselling with S Families.
I am not precisely sure to what that counselling was directed, but, as I alluded to a moment ago, clearly, the children’s lives were turned upside down as a consequence of what happened to D and indeed in terms of what had then been fairly close to a shared care arrangement in terms of their parenting. So it was a difficult time for them.
In addition, the community in which the parties and the children live – that is, the townships of South Australia – Town E, Town L – they are small communities and necessarily people know everybody’s business to some degree or other, and X and Y – I suspect it would have been impossible to close their ears to what was being discussed in the community and, to some extent, the children would have had to have been told something. But, regardless of what is the outcome of these proceedings today or the proceedings in the future, the issue of D and X and Y’s relationship with him is never, I suspect, going to go away.
So, in February of 2021, there was, I hope, a cautious approach. Some injunctions were made stopping Mr Peyton going to some social occasions and sporting occasions, which may have had ramifications for Ms Kennedy. Injunctions were made restraining them from denigrating or abusing the other or using social media for malign purposes. The aim of those orders was to provide a conduit to maintain a relationship between the two children and their father in what were, from my perspective, extraordinarily difficult circumstances, whilst more information was gathered.
It should be noted that, at any time, it is open to the Chief Executive Officer of the Department to bring proceedings in the Youth Court, in the South Australian judicial hierarchy, and make their own application in respect of X and Y; and, if they did so, that it would automatically negate any jurisdiction I have in respect of their care arrangements under the Act.
The purpose of the Family Law Act 1975, amongst others, is to adjudicate disputes between parents regarding their children, whereas the state courts have authority for the care and protection of children in what is an ancient jurisdiction relating to the pro patria jurisdiction, which is Latin for for the community, in effect. The State has the responsibility to parent children in circumstances where their own biological parents cannot.
The case was adjourned until May of 2021, again in City N, and at that stage some orders were again agreed involving Ms Z’s representative, or Ms Z herself, I cannot recall now and also a solicitor from the Crown Law Department who appeared for the Department.
At that stage, it was agreed that the supervision would continue. The father was going to file some more information from the Child Protection Service about himself, but, significantly, at this stage, it was ordered that a Family Report be prepared pursuant to section 62G of the Act, and it was hoped that that report would be available on or before 18 October.[8]
[8] See Order made 19 May 2021.
The report was, in fact, prepared and released to the parties on 27 September 2021, and it was prepared by Ms U, who has undergraduate degrees in Social Work and Psychology. She also has a master’s degree in social work, and has been a Regulation 7 and child and family consultant and therapist in private practice from 2013 until the present, so she has about 20 years’ experience in assessing families in crisis in a variety of situations.
I do not think it is suggested that her expertise is open to question, but the fact remains, at this stage, her report has not been subjected to any scrutiny and she herself has not been subject to cross-examination.
However, from my perspective, at this interim stage, Ms U was clearly a significant witness, notwithstanding the lack of cross-examination. I have already alluded, in the earlier judgments to the difficulties that are presented people in my position at the interim stage, namely,
·I am not in a position to make findings of fact about issues in dispute.
·I do not have the opportunity to see who is a truthful witness and who is not a truthful witness without them being subject to cross-examination;
·In essence, I do not have the opportunity to make my own human judicial assessment of individuals;
·Rather, I must rely on what they say in affidavits, which are very often directed towards self-advancement and may be in factual conflict with other affidavits.
However, I must still make a decision. In cases involving the assessment of risk to a child, that process cannot be deferred until a later stage, but is more often than not done in a conservative manner, given the fact that interim orders can be changed, when more evidence comes to hand.
Ms U was able to interview each of the parties directly. She was also, significantly, able to talk to the two children herself, and B and C indeed, and also observe the two children interact with their mother and father.
So, in this sense, she is at a significant advantage over me: she has met Y and X. She has physically seen them. It is often said that a picture is worth 1000 words. It is a cliché, I acknowledge, but there is a certain amount of truth in it. Ms U’s report is 30-odd pages in length. I do not think any of the parties has said that it is obviously flawed and, from my perspective, it was a significant piece of evidence in determining what was the way forward for the family.
It is necessary for me to go through the report – I hope not in excessive detail. One of the problems with delivering an ex tempore judgment is, as one goes along, one does not have the opportunity to edit one’s thoughts. I apologise for that, but it is the best I can do this afternoon.
I should also point out that another significant controversy has arisen in the proceedings, and it is this. Ms Kennedy has lived in the past in South East Queensland. It is her case that she finds it emotionally draining and difficult to live in the Town E/Town L area. Where, from her perspective, everyone knows her personal business.
As such, she wants to move away from the area to – initially, she proposed, I think, City G and then talked of City N, but it is now her preference to move to Queensland. I am not dealing with the relocation aspect of the case today, but, for obvious reasons, it is likely to ratchet up tensions between the parties concerned because of the nature of the issue, and I will try and summarise from the legal point of view what that issue is.
We live in a free country. In this country, individuals can decide they want to live in any far corner of it. People have freedom of movement under the Constitution. It is an implied right.
On the other hand, children have a right, provided it’s in their best interests, to have a meaningful level of relationship with each of their parents, regardless of whether those parents are separated. In the case of young children, it is sometimes difficult for children to have a meaningful level of relationship with a distant parent over distance.
That is where the controversy of relocation arises, because the court has to balance competing claims of right – a parent who wants to relocate, on the one hand; against a parent who does not want to move but wishes to maintain a relationship with a child or children – and one of the functions of the Family Law Act 1975, amongst others, as I say, is to adjudicate post-separation parenting controversies.
Ms U interviewed the parties at some length and Mr Peyton, to his credit, acknowledged to Ms U that he had had some past mental health difficulties and has been subjected to some stress and financial issues. It is also the case that he has been diagnosed with attention deficit hyperactivity disorder (ADHD) and takes medication for that.
He also acknowledged that he had, from time to time, self-medicated; but, at the time of his involvement with Ms U, it was his position that he was alcohol abstinent. Ms Kennedy, for her part, indicated to Ms U that she had been the subject of physical aggression during the parties’ relationship and subject to verbal abuse.
More significantly, Ms U spoke with Y and X, X first. She separated from her mother without issue. She was a nervous child in interview but, as Ms U and she developed a rapport, she spoke more coherently.
She (X) said D had been part of the family but she does not get to see him much “because he got really badly hurt. That’s why we have to see him with somebody watching. Someone’s hurt him badly. They have not said who did it.” X went on to say she did not get to see dad much, but for the same reason as D: “He was leaving me by myself watching the kids, D and Y. He would talk to friends on the phone”; however, X said, at this stage, that the infrequency with which she had seen her dad at that stage made her feel sad.
She had some positive things to say about her father and she had enjoyed the fun things they had done at the Children’s Contact Centre. At that stage, X said she wanted time to remain at the Children’s Contact Centre. So the picture was of a child – at that time she was six years and two months of age, so not a mature child – struggling emotionally with what, for obvious reasons, was an extraordinarily difficult situation for her.
Y, the younger child, separated from her mother well. She said she used to live with dad and she felt happy to have some visits with him because she loved the visits and his family came, too – “Nana Ms C and Grandma Mr B” – and she reported they liked crafting, too, and that seems to be an activity Y enjoys – no doubt as with many children of her age, she enjoys sticking glue and pasting and things of that nature.
She was unsure about issues to do with D. She said, “We used to live with him, but D got hurt really badly so he can’t live with the father.” She said, “He’s with a roster family” – presumably, she means “foster family”. So again, Y, the younger child, has some knowledge of the issues to do with D but she has the insight of a child of her age in regards to it.
In terms of the interactions, the children were warmly observed to interact with their mother. They sought her out for feedback, and that is a given in this case, that certainly since September of 2020 it must be the case that Ms Kennedy has been the children’s main source of emotional and physical nurture and sustenance.
They were observed to be relaxed, spontaneously verbal with their mum – that is, they spoke to her readily – so, in the jargon, it is clear that Ms Kennedy is the children’s primary carer, and at this stage she is undisputed in that role, and that is a significant factor because I am not in the position, in determining how the children’s best interests are to be served, to ignore the consequences of whatever is done potentially impacting on her ability to parent the children capably.
There is nothing easy about this case and the whole process, from Ms Kennedy’s perspective. I acknowledge that from the paternal aspect of the family but also the maternal aspect because, as I observed to one of the lawyers, it is nothing to do with Ms Kennedy’s conduct that this terribly difficult case has come into court. She is a victim of it just as much as everybody else is, but she cannot be an actor in respect of anything to do with D, and against her will, perhaps, and for no reason to do with anything she has done, she has been forced to become engaged with the Department for Child Protection and all the challenges that necessarily must entail.
Y was observed with her father and she immediately engaged with him. X was quieter and she was more focused on what she was doing. Ms U noted that Mr Peyton was initially somewhat intrusive, and no doubt he was nervous. I suspect he would be. But, as the interaction flowed – and this is not an unusual occurrence – when there was what Ms U described as a “natural ebb and flow”, the children shared moments of delight with their father and the father praised the children’s efforts. There were some squabbles between the children, which Mr Peyton was observed to adjudicate appropriately. Some reference to D occurred.
Then Mr and Mrs Peyton Senior were introduced to the children and they greeted the children brightly. The children glanced up from what they were doing and Mr and Mrs Peyton, as one would expect of grandparents, said something about how the children were looking and what they were doing, and then the children began to talk with them. X found a board game and they had a game together, and this was described by Ms FF as positive in its interaction:
There was congruent affect backwards and forwards; discussion. X was bright and engaged with her grandmother. [9]
Mr Peyton Senior also engaged with Y and they had a discussion about play and that was appropriately warm. And, in her summary, Ms U said the children:
...appeared relaxed, bright and spontaneously verbal, and the adults –
that is, the grandparents –
showed the capacity to follow the children’s lead with regards to discussion and play.[10]
[9] See Family Report of Ms U dated 27 September 2021 at [133].
[10] See Family Report of Ms U dated 27 September 2021 at [133].
So, from Ms U’s case, the case presents a conundrum. It is a conundrum that arises also for the Department, to a certain extent, because Mr Peyton has consistently said that he has done nothing untoward, but D has been, in the opinion of the expert evidence, which is available to me – and there is nothing to rebut it and nothing is posited in this regard – there has been a significant injury to D. And Ms U said:
When denial persists in cases of abuse, and it is difficult to identify the context in which care was compromised and physical abuse was triggered, it is impossible to formulate a care environment. Often abusive incidents occur as a result of overlapping issues.[11]
So, in that context, Ms U recommended that the court proceed with caution.
[11] See Family Report of Ms U dated 27 September 2021 at [154].
From the father’s perspective and the perspective of the grandparents, they are placed in an untenable position. They either admit to something which they say they didn’t do to mollify experts or they run the risk of being penalised by the experts for not acknowledging their compromised behaviour, so they are damned if they do and they are damned if they do not.
And, as I say, that difficulty is not going to go away, given that the issue to do with D at this juncture appears unlikely to be subject to any external adjudication. It may possibly be adjudicated in Division 1 of the Court, but that remains in these adversarial proceedings for the parties to determine, to some extent, what issues they wish the court to examine.
So the difficulty was further compounded by Ms U’s view that there are positive elements to Mr Peyton’s relationship with Y and X:
They largely speak positively about their father and spending time with him. There were positive aspects of observed interaction between them, particularly between the father and Y. This does tend to suggest relationship with their father is a valuable one.[12]
[12] See Family Report of Ms U dated 27 September 2021 at [156].
At this stage, Ms Kennedy, to her credit, said she supported the children continuing to work with a counsellor and she said she was open to working with Mr Peyton to develop what she called a “script” and which Ms Z has called a “narrative”, which is, in effect, an agreed position between all concerned about how issues raised by the children about D, which they clearly know about to some extent, are to be dealt with and, to some extent, evaded and denatured, as it were, until no doubt the children become older. It really is in the context of how that issue is to be managed that I am called upon, in essence, to determine the interim arrangements for the children to interact with their father.
In this context, Ms U was supportive of the mother being able to relocate. Given issues to do with Mr Peyton, including his mental health issues, issues to do with substance abuse in the past and other issues to do with D and the difficulty of recommending a care regime, she was supportive of the children spending supervised time with their father and, given what she observed as a positive interaction between the paternal grandparents and the children, which she described as “positive and child focused”, she was in favour of them providing the supervision. She noted that they acknowledged the importance of them not denigrating Ms Kennedy and, significantly, not making the children feel responsible, in a personal sense, for inflicting D’s injuries.
I should point out, and I alluded to it in the earlier judgments, at one stage, the father asserted that there was a possibility that D had been injured accidentally by one of the other children dropping an item on him. Diplomatically, Ms U also thought an extra pair of hands to assist would be helpful for Mr Peyton.
Mrs Peyton is an educator – or a retired educator – I beg her pardon. Ms U judged both grandparents to be responsible members of their community. They are loyal to their son, whom they think is not a person who would injure a child. As I alluded to in the hearing, in my view, it is possible for a human being to be loyal to a relative but also alive to protective obligations in respect of a child. Mr and Mrs Peyton are like, as I say, everyone else in this case: their lives have been turned upside down.
So Ms U’s report was considered, measured, and, in my view, struck a balance between the children interacting with their father, whom obviously they knew well, and protective concerns, particularly in the context of serious issues of child protection, which were denied.
The case came back to court on 13 October. Mr Boehm appeared for Ms Kennedy; Mr Bowler, as he has done throughout, appeared for the father; Ms Tinning appeared for the grandparents, as she has throughout; and Ms Lindsay appeared for the independent children’s lawyer, and my recollection, and Ms Z disagrees and I confess that my memory cannot be considered encyclopaedic, but the orders do say they made by consent – indicates that the parties agreed on a gradually incremental regime for Mr Peyton to spend time with the children, starting on 24 October 2021 on two out of three weekends, on the Sunday from 12 until 5; handovers to be at the GG café, and the time subject to the supervision of the paternal grandparents.
There were some controversies, as I recall, about whether Mr Peyton could go to X’s end-of-year school concert and Y’s kindergarten graduation, but I said he could go if his parents were there, as I recall, and there was some controversy about Ms Z’s tacit direction that the paternal grandparents engage with their own therapist to enhance their knowledge of issues to do with child protection issues, and so on and so forth, but that was a notation and, on the objection of the grandparents, I did not make it.
It was envisaged, at that stage, that the parties would have a round table conference. That was to occur on or before the 15th of – not before 15 December 2021. As I understand it, I think it in fact occurred on 11 January, and at that stage again the parties ostensibly agreed to an extension of this regime.
Around about that time, mid-January of 2021, everything went wrong. The COVID epidemic became particularly severe in the Southeast of South Australia, I think, and there were issues with X and Y being exposed to COVID, their mother being exposed to COVID, but there were other problems. It is also Ms Kennedy’s position now that she was present at the conference on 11 January. But she felt that she had been pressured to some degree into agreeing with something with which she was not comfortable.
It seems to be the case, and I’m not critical of Ms Kennedy in this regard, that she has developed a rapport with workers at the Region P office of DCP. How could it be otherwise? They have become significantly involved in her life, in extraordinarily challenging circumstances. They have been involved in supervising the father’s time initially with the children. In these circumstances, it would seem to be the case that she has sought out their advice from time to time and perhaps it has been given; perhaps it has not.
I’m not in a position to make a concluded finding, how forceful it was or otherwise. I don’t know. But the department has provided information to me and that has occurred to some degree informally. As I’ve pointed out, I have one type of jurisdiction in respect of children; the Department of Child Protection has authority in respect of children in a different way.
There is an overlap between the two jurisdictions and over a number of years that has presented difficulties for ensuring that children are kept safe – that, in the jargon of administrators, that information in one silo is not provided to people making decisions about the same children in another silo, so there is an attempt, in the jargon, to “break down the silos”. Sometimes that works; sometimes that does not.
In any event, after the parties had ostensibly agreed to arrangements for the ongoing management of their family – and the Family Law Act, of course, encourages parents to make their own agreements in respect of children – some notifications were received in respect of X and Y on 17 January of 2022, and ultimately I was provided with a report dated 15 February 2022, which was given to me under the cover of a letter from the co-located child protection practitioner.
She is a person who is based in the family law courts here and gets information from departmental staff and provides it to me, and she provided me with a 12-page report which is headed Update on Department for Child Protection Intervention. Mr Bowler, who appears for the father, is highly critical that it does not contain the identity of its author.
Anyway, under the heading Child Protection Notification 17 January 2022, it was reported:
A family dispute resolution conference was held on 11 January 2022 in respect of X and Y’s care and contact arrangements. It was reported that an agreement had been reached as a result of this conference, and the time X and Y spent with Mr Peyton would be increased to eight hours every two out of three weeks, so from five hours to eight hours. It was reported that the contact would remain supervised by the paternal grandparents.[13]
And in this context it was reported, by somebody unknown, that:
X and Y were experienced increasing sleep disturbances and Y had been displaying signs of anxiety and distress and stating she did not want to go to see her father, and concerns were raised that Mr Peyton and the paternal grandparents were not demonstrating any empathy for Y’s experiences and were not listening to her concerns.[14]
So, essentially, it was asserted that there was a risk that the children were coming to some species of emotional harm when they were spending time with their father under the supervision of the paternal grandparents.
In addition, it was reported on 14 January 2022 Y had been left unattended with her father while she had a bath, and that was in breach of my order that the time be supervised. And it was also noted that:
The paternal grandparents continued to maintain a high level of advocacy for Mr Peyton, asserting that he was an exceptional, capable parent and they disagreed that he should be separated from his children or there was any need for him to be supervised.[15]
[13] See Exhibit B.
[14] See Exhibit B.
[15] See Exhibit B.
Mr and Mrs Peyton Senior are entitled to their opinion. Whether it is right or wrong may be, ultimately, determined when these proceedings are concluded, but they are entitled to their opinion. The unknown report writer, also noted that an agreed narrative had not been reached as to what the children would be told about D. In that context, as it was entitled to do, the department interviewed X and Y. Ms Kennedy was not present, and Y disclosed that she had been left alone in the bath with Mr Peyton and she said, “That’s not supposed to happen”:
Y reported that the paternal grandmother had checked on her and had then checked on X. Y did not disclose feeling unsafe with Mr Peyton and she spoke about some of the activities undertaken during these visits. Y disclosed that she did not always want to go on contact visits and wanted to stay with Ms Kennedy.[16]
[16] See Exhibit B.
X, in an interview at the same time, said that Y was upset at the start of visits and then they usually had fun. X spoke about the different activities they did during these visits, and they reported that she reported that, on 14 January, she had had a shower whilst Y had a bath:
X reported that the paternal grandmother had come to check on her in the shower. X reported that Mr Peyton had helped Y in the bath. When asked where everyone was while the bathing activities occurred, X identified that the paternal grandfather had been cooking crayfish and paternal grandmother had been with her “most of the time”, and for some of the time the paternal grandmother had been with Y.[17]
[17] See Exhibit B.
So Mrs Peyton Senior was also interviewed. She characterised Y’s behaviour as generalised separation anxiety, which she had experienced as an educator when children come to school. Mr Peyton was also acknowledged about the bathing incident and said:
Y may have believed that she had been left alone, but his mother had been in the child’s direct sight.[18]
And Mr Peyton acknowledged that Y experienced anxiety when the visits start, but it was his experience that, when the visits got going, she settled down.
[18] See Exhibit B.
So the report writer, at that stage, said that they had concerns about the increased contact for X and Y continuing and they had concerns about the department – about the paternal grandparents being impartial and providing the correct level of supervision. Those were significant allegations and the department were invited to intervene again. Their representative came along to a number of mentions of the matter. They have declined the invitation. They are not here today.
The mother relies on what the department has said and, essentially, it is her case that the court, at this stage, should revert to supervised time at a Children’s Contact Centre. She acknowledges that she wishes to pursue her wish to move to Brisbane, but, essentially, the basis on which it is asserted that there should be supervised time in a contact centre is as follow
·firstly the emotional challenges confronting Y and X, and I acknowledge those challenges;
·secondly what is asserted to be the father’s lack of insight and empathy for Ms Kennedy, and I have, I hope, tried to summarise the situation from her perspective that she is, essentially, blameless in terms of this current – the current proceedings in terms of what she did or did not do in September of 2020; and,
·thirdly, that it is asserted that Mr and Mrs Peyton Senior lack the capacity to be impartial supervisors.
I acknowledge – and I have already said this – that I have to consider the fact that Ms Kennedy is Y and X’s primary carer and I have to consider the impact on her of any orders that I make for the children to spend time with the two children concerned.
Ms Kennedy, in her affidavit of 3 March 2022, says that she feels essentially, caught betwixt and between the department on the one hand, telling her that she has to keep the children safe and be protective, and they don’t regard Mr Peyton as being a safe person and on the other hand she has to deal with these proceedings, which are enormously expensive and stressful for her.
She is fearful that the department may act if she does allow Mr Peyton to interact with the children in a manner of which it disapproves and she also has to deal with the proceedings in this court. She deposes that she is anxious about X and Y spending time with their father, given what she has been told about D. In this regard, I note that I haven’t got any expert psychological assessment of how Ms Kennedy is coping.
I have been provided with her lengthy diary. I approach her diary with some caution. I approach the extensive text messages that pass between the parties with some caution, other than to say there are lines of communication between Mr Peyton and Ms Kennedy, and it seems to me that, in the latter part of 2021, they were doing reasonably well.
Something went wrong in middle of January 2022, and the department certainly seems to have had a strong view, and Ms Kennedy has asserted that she was told by the department that, if she agreed to the father spending time with the children, of which the department did not approve, they would remove the children from her care.
Whether that is true or not I don’t know, but if at one stage, at one time, the department regarded Ms Kennedy as a capable parent, and if it be the case that she has provided a great deal of their care and nurture in challenging circumstances from the date of their respective births and there are issues to do with their siblings, that seems an extraordinary thing for the department to say, certainly not a helpful thing, but, as I say, the department is no longer here to answer those concerns.
LEGAL CONSIDERATIONS
It falls to me to make a decision as to what I think is in the children’s best interests at this stage and I turn now to the legal considerations I have to apply. In all matters to with a child, the child’s best interests are the paramount or most important consideration.
In determining how a child’s best interests are to be taken into account, I have to look at a long list of matters in section 60CC of the Family Law Act. That section creates two classes of considerations: primary considerations, and a longer list of additional considerations.
Generally speaking, given the objects of the Act – they are set out in section 60B – generally speaking, greater weight is given to the primary considerations, of which there are two:
·firstly, the benefit to the child of having a meaningful relationship with both of the child’s parents; and,
·secondly, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
As a result of an amendment to the Act and the insertion of section 60CC(2A), I am now directed to give greater weight to protective concerns.
In these cases, necessarily, the parties approach the case from one of these considerations more than the other. The father emphasises the benefits of the children having a meaningful level of relationship with him. The mother emphasises the need to protect the children, particularly the need to protect the children from suffering psychological harm from being subjected to or exposed to abuse, neglect or family violence.
As I say, it is her case that the abuse is a lack of empathy in dealing with – said to be displayed by Mr Peyton in dealing with the factual construct of this case, the father’s bullying of her and his lack of insight into her particularly difficult situation, and, essentially, that Mr and Mrs Peyton Senior will not be fully protective of the children because they are aligned with the children’s father, their son.
Mr Peyton, essentially, says “meaningful” is an ordinary English word. It is not defined in the Act. The word means what it means, which must be deprived from its context. The jurisprudence indicates it means the type of relationship that adds to a child’s sense of relationship with a parent that benefits the child. I think it is recognised that meaning comes from a parent being able to interact with a child in a variety of contexts.
Necessarily, a relationship does not become more meaningful the more time you spend with a child, but you have to have a sufficient amount of time with the child for the relationship to be meaningful. From Mr Peyton’s perspective, two hours at a Children’s Contact Centre is not going to add that level of meaning, particularly if it is a regime that is in place for a significant period of time,
In these circumstances, he fears that his relationship with the two children, already under some stress, will inevitably diminish and he won’t and the children won’t have the benefits of having a meaningful relationship with him. That will have long-term implications for the sense that their father knows and loves them and cares about them if they don’t spend enough time with him.
I have already alluded to what I have to do in this case. I have, essentially, to assess risk. There is a risk that the children lose a meaningful level of relationship on the basis of uncertain, and perhaps nebulous, concerns.
On the other hand, there is a risk that the children, because of their confusion about what’s going on in their lives, because of the mistrust between everyone concerned, because of the fact that, if there is a lot of talk going on where they live and at school, they are just totally confused and they are going to be subject to some level of emotional confusion.
So the test is that, essentially, the court should not countenance an outcome which presents an unacceptable level of risk that a child or children will come to harm. In making this assessment, I am not required to determine definitively whether a person has actually harmed a child or whether there will actually be the emotional abuse or neglect that Ms Kennedy asserts has occurred and will occur in future.
It may, in fact, be impossible for me ever, or for anyone, to know what is actually going on in the minds of the children. In addition, I have got to bear in mind that it may be impossible for me to, effectively, neutralise risk in a child’s life and, in doing so, I may create another type of risk – that is, the risk of the children losing their relationship with their father.
So these issues were discussed in a number of cases, but I think the leading case is W & W[19], and in applying the unacceptable risk test I am required to give real and substantial consideration to the facts of the case, what is happening in the case. Who has made the allegations to whom? What level of detail is involved? What are the problems being exhibited by the children? They are the sorts of things I need to look at.
[19] See W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892
In this case, at this juncture, there is no evidence that the children have come to any direct physical harm in the care of their father. The evidence indicates that there has been a relatively long lead-up period of supervised professional time at a Children’s Contact Centre, which proceeded satisfactorily.
I think it is significant that the mother agreed to a regime of time in October. She agreed to an extension of the regime in January. There is the presence of the paternal grandparents. I acknowledge they are aligned with their son whom they love.
Having acknowledged that alignment, that does not necessarily mean that they will be idly standing by if the children are distressed by whatever happens for whatever reason or that they are incompetent or lacking insight into what parents and grandparents do.
Mrs Peyton is an educator by profession. She has other children; she has other grandchildren. I have to look at the risk in that particular context. There is nothing easy about this case. I have gone to Ms U’s report in some detail. The children know that there are issues surrounding D.
It is to be expected that there is a level of uncertainty about how they are dealing with that, how they are travelling with that emotionally, what their level of insight is, what they have been told, and, at the end of the day, I have to look at the fact that what is proposed, at this stage, is an extension of five hours to eight hours. It is not, in my view, a dramatic increase.
Earlier in the year, in March, in fact, I spent some time indicating what is the role of an Independent Children’s Lawyer. I indicated Ms Z is inevitably going to be a lightning rod to attract controversy – allegations that she is in favour of one party; she is not in favour of another. She has, to a certain extent, a thankless task. She supports an increase.
It is her position that what is envisaged is a proportionate response to the risk arising for X and Y in this extraordinarily challenging situation, and that really is what I have to do.
In a well-known case, Dieter & Dieter,[20] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario. The court must look to the degree of probability that a harmful event will occur in future and what will be its severity to any individual, particularly any child who will be potentially affected by it.
[20] See Deiter & Deiter [2011] FamCAFC 82.
Ms Kennedy has reported the children being upset in terms of some video interactions with their father. Mr Peyton himself has reported the children being reluctant to come but in time settling down with him. Mr and Mrs Peyton Senior have described that as separation anxiety. Ms Z has attempted to agree an ongoing narrative as to what the children will be told and, as I have said, I understand there is still attendance in counselling at S Families.
In my view, the orders proposed by Ms Z are a proportionate response to the degree of risk that arise in this case. Necessarily, there will be bumps along the way, but in my view the risk of the children losing a relationship with their father in this extraordinarily difficult case is significant.
The mother has said, in the context of her relocation application, that she envisages the children spending time with their father and given the fact that X and Y are reported by the independent expert, Ms U, to have a positive relationship with their father, it would be, in my view, a disproportionate response to go back to supervised time, and in this I am – the Independent Children’s Lawyer has indicated, and she has a statutory responsibility to advocate what she thinks is the best outcome for the children, so I give weight to her experience, bearing in mind at one stage the father’s view was that she should be discharged.
The father has raised issues about some make-up time. These proceedings necessarily take a long time. They are time-consuming. They consume a lot of money. It troubles me that three months, really, has been lost in the case from the start of the year until now.
The best interests of the children concerned is the paramount consideration, and I am always troubled by make-up time because, as I said, time is not a fungible quality. You cannot put it in a jar. In this, although I sympathise with Mr Peyton’s frustration with the process and the fact that the time stopped – there was an order – no one – the mother, the department didn’t come along and say, “Court, we want you to stop this order for this, this and this reason.” They were reactive. They just let it be.
I don’t think, at this stage, make-up time is likely to be in the children’s best interests. I think, at this stage, a cautious approach in respect of that issue is warranted and, in that context, I refer to the case of Marvel & Marvel (No. 2)[21], in which it was said that, in interim proceedings, it is usually the case that a conservative approach is adopted, directed to avoiding harm to the children concerned, on the assumption that such an approach can be modified when more evidence is to hand. I think in this case it is probably wise to proceed slowly.
[21] Marvel & Marvel (No. 2) [2010] FamCAFC 101.
There are other issues about new supervisors. Mr and Mrs Peyton Senior have other aspects of their lives, no doubt, they wish to attend to from time to time, though I glean that their priority at this stage is supporting their son and they want to spend – they want to see X and Y, too. In this context, some other supervisors are proposed other than those who were earlier agreed to by all concerned, including the Independent Children’s Lawyer. That is Mr BB and his wife, Ms DD.
Now it’s proposed that another sister, Ms HH, and her partner supervise time. Ms Z says she has not made any inquiries of those individuals. They have filed affidavits and indicated they have read the relevant material. But again I am going to be cautious in respect of that issue and just leave it as uncontroversial as I possibly can in terms of the substitute supervisors and leave it at Mr BB and Ms DD. Perhaps in future the parties, if this works reasonably well, they can move on to that.
The final issue is the father wants to issue a subpoena to the Department of Child Protection. Senior Registrar Heuer made an order on 7 October 2020 restraining him from doing that. I will discharge that order and, as I say, otherwise dismiss the interim applications, other than the contravention applications that remain on foot and transfer the matter to the first division of this court. But, otherwise make orders in terms of the proposal that has been put forward by the Independent Children’s Lawyer.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Brown. Associate:
Dated: 5 May 2022
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