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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kennedy & Peyton (No 2)

Details

AGLC: Kennedy & Peyton (No 2) [2022] FedCFamC2F 552
Case: [2022] FedCFamC2F 552
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia considered the interim parenting arrangements for two children, X and Y, born in 2015 and 2017, respectively. The parents, Ms Kennedy and Mr Peyton, had separated, and the proceedings primarily concerned the time the children would spend with their father, Mr Peyton. The court had to weigh the benefits of the children having a meaningful relationship with their father against the need to protect them from potential harm. The court also had to consider the implications of another child, D, who was not subject to these proceedings but whose injuries had led to significant involvement of the Department for Child Protection. The court heard evidence from an Independent Children's Lawyer, a family consultant, and other parties. The court found that, while there were risks involved, the proposed arrangement of extended supervised visits with the father was a proportionate response to the circumstances. The court also dismissed some interim applications and transferred the matter to Division 1 of the court for further consideration of final orders.

Orders