Kent and Kent and Anor - [2012] FamCA 103

FAMILY COURT OF AUSTRALIA

KENT & KENT AND ANOR

[2012] FamCA 103

FAMILY LAW – CHILDREN – Magellan matter – with whom a child lives; with whom a child spends time – where there is evidence relating to child abuse or family violence – where it is in the best interests of the children to reside with the maternal aunt.

Family Law Act 1975 (Cth)

MRR v GR (2010) 263 ALR 368
Cowley v Mendoza [2010] Fam CA 597
Goode and Goode (2006) FLC 93-286

APPLICANT:

Ms M Kent

FIRST RESPONDENT:

Ms B Kent

SECOND RESPONDENT:

Mr Arkwright

INDEPENDENT CHILDREN’S LAWYER:

Matthews Folbigg Pty Ltd

FILE NUMBER:

PAC

2082

2009

DATE DELIVERED:

1 March 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

13, 14 and 15 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ladopoulos

SOLICITOR FOR THE APPLICANT:

Sarah Bevan Family Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Ms Conti-Mills

SOLICITOR FOR THE FIRST

RESPONDENT

Parks Coady Family Lawyers

COUNSEL FOR THE SECOND

RESPONDENT

Ms Snelling

SOLICITOR FOR THE SECOND

RESPONDENT

White & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Shearman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Matthews Folbigg Pty Ltd

Orders

That the paternal grandmother, Ms Arkwright (‘the paternal grandmother’) is joined as a party to the proceedings.
That all existing orders in relation to the children K, born on … June 2001, and C, born on … October 2007, (‘the children’) are discharged.
That the maternal aunt, Ms M Kent (‘the maternal aunt’) has sole parental responsibility for the children.
That the children live with the maternal aunt.
That the children spend time with the mother, Ms B Kent (‘the mother’)
(a)On five (5) consecutive occasion at the B Contact Centre or the P Contact Centre on dates and at times to be nominated by the Co-ordinator of the Centre and
(b) Thereafter, each alternate Saturday from 10.00am until 2.00pm and
(c)On any additional or alternate occasion upon which the mother and the maternal aunt agree from time to time.
That the child C spend time with the paternal grandmother
(a)Each alternate Sunday from 10.00am until 5.00pm for a period of two (2) calendar months and each other Thursday form 10.00am until 5.00pm from the date of these orders and
(i)Each alternate weekend from 9.00am on Saturday until 6.00pm on Sunday and
(ii)In each July school holiday for a block period of six (6) days from 9.00am on the first Saturday until 9.00am on the following Friday and
(iii)On any alternate or additional occasion upon which the paternal grandmother and the maternal aunt may agree from time to time.
That the paternal grandmother in restrained from:
(a)Leaving C in the unsupervised care of the father Mr Arkwright and
(b)Permitting C to come into contact with the paternal uncle Mr D.
That K spend time with the paternal grandmother in accordance with her (K’s) wishes and subject to the restraints prescribed by order 7.
That the parties do all things necessary to…

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.

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Details

Case: [2012] FamCA 103
Decision Date: 1 March 2012

CaseChat Overview and Summary

In the matter of *Kent and Kent and Anor*, Stevenson J joined the paternal grandmother, Ms Arkwright, as a party to the proceedings concerning the children K and C. The court discharged all existing orders relating to the children and made new orders concerning their parental responsibility and time arrangements.

The court was required to determine the appropriate arrangements for the children's residence, parental responsibility, and time with their mother, Ms B Kent, their maternal aunt, Ms M Kent, and their paternal grandmother, Ms Arkwright. Additionally, the court needed to consider specific restrictions on the paternal grandmother's contact with the child C and the children's time with the father and paternal uncle.

Stevenson J ordered that the maternal aunt have sole parental responsibility for the children and that they live with her. The mother was granted supervised time with the children at contact centres, with provisions for increasing unsupervised time by agreement. The paternal grandmother was granted significant time with the child C, including alternate weekends and school holidays, with specific restrictions preventing C from being left unsupervised with the father or coming into contact with the paternal uncle. The child K's time with the paternal grandmother was to be in accordance with K's wishes, subject to the same restrictions. The court also made orders regarding the timing of contact to ensure it was not concurrent and included provisions for Christmas and C's birthday, as well as the maternal aunt's ability to suspend contact for holidays.

Orders

Orders of the court

That the paternal grandmother, Ms Arkwright (‘the paternal grandmother’) is joined as a party to the proceedings.

That all existing orders in relation to the children K, born on … June 2001, and C, born on … October 2007, (‘the children’) are discharged.

That the maternal aunt, Ms M Kent (‘the maternal aunt’) has sole parental responsibility for the children.

That the children live with the maternal aunt.

That the children spend time with the mother, Ms B Kent (‘the mother’)

(a) On five (5) consecutive occasion at the B Contact Centre or the P Contact Centre on dates and at times to be nominated by the Co-ordinator of the Centre and

(b) Thereafter, each alternate Saturday from 10.00am until 2.00pm and

That the child C spend time with the paternal grandmother

(a) Each alternate Sunday from 10.00am until 5.00pm for a period of two (2) calendar months and each other Thursday form 10.00am until 5.00pm from the date of these orders and

(i) Each alternate weekend from 9.00am on Saturday until 6.00pm on Sunday and

(ii) In each July school holiday for a block period of six (6) days from 9.00am on the first Saturday until 9.00am on the following Friday and

(iii) On any alternate or additional occasion upon which the paternal grandmother and the maternal aunt may agree from time to time.

That the paternal grandmother in restrained from:

(a) Leaving C in the unsupervised care of the father Mr Arkwright and

(b) Permitting C to come into contact with the paternal uncle Mr D.

That K spend time with the paternal grandmother in accordance with her (K’s) wishes and subject to the restraints prescribed by order 7.

That the parties do all things necessary to ensure that the children’s time with the mother, as prescribed by order 5, and C’s time with the paternal grandmother, as prescribed by order 6, occur on consecutive and not concurrent weekends.

10.

That, notwithstanding the provisions of any other order:

(a) C will spend time with the paternal grandmother from 7.00pm on 25 December until 7.00pm on 26 December in each year and

(b) C will spend time with the paternal grandmother on her (C’s) birthday in each year from 3.00pm or the conclusion of school until 7.00pm

(c) The maternal aunt may suspend time with the mother and the paternal grandmother upon the provision of 21 days written notice for the purpose only of taking the children on a holiday out of the Sydney metropolitan area.

11.

Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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