Kennedy & Peyton (No 3)

Case [2025] FedCFamC1F 167

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Kennedy & Peyton (No 3) [2025] FedCFamC1F 167   

File number: ADC 4269 of 2020
Judgment of: CHRISTIE J
Date of judgment: 17 March 2025
Catchwords:  FAMILY LAW - Children - Interim orders - Father's application to vary interim orders - Where Father seeks to spend unsupervised time - Where Mother opposes this application - Where the Father’s evidence is insufficient to vary or discharge the existing parenting orders.
Legislation:

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

Goode v Goode (2006) FLC 93-286

Isles and Nelissen (2022) FLC 94-092

Kennedy & Peyton [2023] FedCFamC1F 790

Radecki & Radecki [2024] FedCFamC1A 246

SS & AH [2010] FamCAFC 13
Division: Division 1 First Instance
Number of paragraphs: 67
Date of hearing: 14 March 2025
Place: Adelaide
Counsel for the Applicant: Mr Bowler
Solicitor for the Applicant: Jordan & Fowler Family Lawyers
Counsel for the Respondent: Mr Fryer
Solicitor for the Respondent: Annells Lawyers

ORDERS

ADC 4269 of 2020

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

MR PEYTON

Applicant
AND:

MS KENNEDY

Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

17 MARCH 2025

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed on 20 February 2025 is dismissed.

2.The father pay the mother’s costs of the application at legal aid scale.

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.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Kennedy & Peyton has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

CHRISTIE J:

  1. This is an application for interim parenting orders concerning the children X born in 2015 and Y born in 2017 (“the children”).

  2. The applicant is the father of the children and the respondent is the mother of the children.

  3. These parties have a lengthy litigation history in this Court. His Honour Justice Berman made orders on 15 September 2023 (Kennedy & Peyton [2023] FedCFamC1F 790), which provided for the children to live with the mother and spend informally supervised time with the father until 22 February 2026, after which time the father’s time would become unsupervised.

  4. No appeal was filed against the orders of 15 September 2023.

  5. Approximately seven weeks after the making of the final orders, the mother…

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AGLC
Kennedy & Peyton (No 3) [2025] FedCFamC1F 167
Case
[2025] FedCFamC1F 167
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Mr Peyton sought to vary the interim parenting orders concerning his two children with Ms Kennedy. The primary issue was whether the father could spend unsupervised time with the children, a request opposed by the mother due to concerns about the safety of the children, particularly in light of the serious injuries sustained by the youngest child, D, who was in foster care. The court was tasked with determining whether the father's evidence was sufficient to warrant a change in the existing parenting arrangements that required supervised visits.

The court considered the evidence presented by both parties, focusing on the safety and well-being of the children. The father's application was based on his belief that he could now safely care for the children without supervision, citing changes in his circumstances and his commitment to avoiding past mistakes. However, the court found that the father's evidence did not sufficiently address the serious concerns raised by the mother and the past incidents of harm to the children, particularly the youngest child who had suffered multiple injuries. The court emphasised that the paramount consideration in such cases is the safety and best interests of the children, and that unsupervised visits could pose a significant risk.

The court dismissed the father's application, finding that the evidence did not justify a change in the existing orders that required supervised contact. The court noted that the father's past actions and the serious nature of the injuries sustained by the youngest child warranted continued caution and supervision. The court also considered the psychological and emotional needs of the children and the benefits of maintaining a relationship with each parent, if safe.

The court ordered that the father's application be dismissed and that he pay the mother's costs of the application at the legal aid scale. This decision underscores the court's commitment to ensuring the safety and well-being of children in family law matters, particularly when there are significant concerns about past harm and the potential for future risk.

Orders

Orders of the court

ADC 4269 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR PEYTON

Applicant

AND:

MS KENNEDY

Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

17 MARCH 2025

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed on 20 February 2025 is dismissed.

2. The father pay the mother’s costs of the application at legal aid scale.

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

In her Response to Application in a Proceeding the mother seeks that the father’s application be dismissed.BACKGROUND It is necessary to set out, at least in summary form, the factual matters which led to the making of the final orders and to the more recent interim orders. In that regard I have read the reasons for judgement of his Honour Justice Berman and her Honour Justice Kari. The parties separated on 5 September 2019 at which time their children were aged two and four. The father re-partnered with Ms F and on 3 February 2020 D was born to the father and Ms F. D was removed by the Department for Child Protection (DCP) following a full forensic medical assessment conducted under section 35 of the Children and Young People (Safety) Act 2017 (SA). The medical assessment report read:During the forensic medical assessment on 05/09/2020, [D] (aged 7 months) was documented to have extensive [injuries] with additional areas of inflicted bruising […] Photographs, statements and GP records indicate a further episode of extensive [injuries] several weeks earlier in [mid] 2020. Forensic investigations have identified [numerous] rib fractures involving [multiple] ribs of at least two different ages and a recent […] injury […] and a possible [further] injury.The photographs have also identified three additional previous episodes of injuries including forehead laceration ([early] 2020), facial bruising ([mid] 2020) and thigh bruising ([mid] 2020) suspicious for an inflicted mechanism.Based on available information, it is concluded that [D] (a non-mobile infant) has suffered from at least 6 episodes of trauma (including a forehead laceration[…], facial and temple bruising […] thigh bruising and minimum of two episodes of chest bruising […], and other areas […] and [numerous] rib fractures (from repeated episodes of inflicted blunt trauma to the chest) over a period of [several] months [in] 2020.[D] is not considered safe to return to the care environment within which he has experienced these repeated physical assaults. D is in the guardianship of the Chief Executive of the Department for Child Protection until age 18. He resides in foster care. The mother facilitates time between the children and D by arrangement with the foster carers. In the hearing before Berman J the father offered the following explanation for the multiple rib fractures identified by the forensic medical assessment:… the only observation made by the father that could have any connection with [D]’s injuries is the ported conversation with [Y] on 10 August 2020 that she had dropped a speaker away approximately 2.2 kg on [D]” I note that his Honour in his reasons for judgement sets out a text message conversation which occurred between the father and Ms F to the following effect:Father: I was just tickling him to try and make him laugh. I wouldn’t of thought he would’ve bruised him [Ms F]: I have no idea. I’m just really concerned. That’s all it makes me upset. I don’t want anyone thinking I am mistreating him.Father: my mistake obviously I was too rough and need to remember even though he’s a boy. He’s still super small.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Her Honour varied the final orders on an interim basis to provide for professionally supervised time on a monthly basis.CONSIDERATION As delineated by Austin J and Williams JJ in Radecki & Radecki [2024] FedCFamC1A 246 at [36]Orders made in parenting proceedings are never unequivocally final, because the Court is empowered by s 65D(2) of the Act, to discharge, vary, suspend or revive some or all parenting orders. Parenting orders can be varied by consent of the parties or by a court determination. Parenting orders are only “final” in so far as they determine an existing cause of action brought under Pt VII of the Act. It is trite to say that the court will vary orders where the evidence establishes that such variation is in the best interest of the subject children. The father’s current interim application has been filed in circumstances where the parties are awaiting a further final hearing. A new family report has been foreshadowed. While the provisions of s 65DAA of the Family Law Act 1975 (“the Act”) do not apply to interim orders it is important to understand that the manner in which interlocutory hearings are conducted, pursuant to the Rules, mean that the summary form of hearing is almost always best utilised when the circumstances warrant, that is, in circumstances of urgency and where the untested evidence supports the necessity to revisit existing interlocutory orders. It is therefore appropriate that I consider the evidence contained in each parties’ interim affidavit to determine whether it is appropriate to reconsider the existing interim arrangements. Notwithstanding amendment to section 60CC and Part VII more generally, the Full Court of the Family Court in Goode v Goode (2006) FLC 93-286 under the heading ‘how should interim proceedings be conducted?’ remains a useful methodology to be applied in so far as the first four steps identified at [82]:In an interim case that would involve the following:(a) identifying the competing proposals of the parties;(b) identifying the issues in dispute in the interim hearing;(c) identifying any agreed or uncontested relevant facts;(d)considering the matters in section 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place); In cases where there are allegations of risk, until the evidence can be tested, it is necessary to appreciate the impact on the children if allegations are subsequently found to be accurate or indeed, inaccurate (SS & AH [2010] FamCAFC 13 (“SS & AH”) at [41] and [100]). The Court’s approach to the assessment of risk has recently been clarified by the decision of Isles and Nelissen (2022) FLC 94-092. This is a best interests determination informed by the matters in s 60CC(2) of the Act. The most significant consideration on this interim application is what arrangements would promote the safety of the children. As will be explored it is also significant to consider the psychological and emotional needs of both children, and finally the benefits of a relationship between the children and each parent (if safe).