KILLEN & CONRAD - [2020] FamCA 340

FAMILY COURT OF AUSTRALIA

KILLEN & CONRAD

[2020] FamCA 340

FAMILY LAW – CHILDREN – Interim Parenting – Where compliance with previous final Orders is impacted by COVID-19 social distancing and restricted activity measures – Where the mother makes an Application to vary to current Orders for the child to spend supervised time with the mother for up to six (6) hours’ – Where the parties came to an agreement that the mother is to spend supervised time with the child at her residence for three (3) hours’ on Mother’s Day – Where the mother seeks to spend an addition three (3) hours with the child, effectively, by way of make-up time, for the balance of the three (3) hours, on Sunday 24 May 2020 at her residence or at the maternal uncle’s residence – Where that Application is opposed by the father if the time occurs in the presence of the maternal uncle – Whether COVID-19 safety measures impact the viability of the mother’s Application for time to be spent at the maternal uncle’s residence –Whether there is insufficient evidence to establish the child spending supervised time with the mother at her residence is an unacceptable risk – Inability to consider the principle in Rice v Asplund (1979) FLC 90-725 – Orders made for the child to spend time with the mother on 24 May 2020 at a location and in circumstances determined to be acceptable by the father.

Family Law Act 1975 (Cth) s 43(1)(c), 60B(1), 60B(2), 60CA, 60CC, 65DAA.
Public Health and Well-Being Act 2008 (Vic) s 190, 200.
Stay at Home Directions (No 4) cl 1, 5, 7, 9, 11.
Restricted Activity Directions (No 5) cl 6.

B and B (1993) FLC 92-357
Banks & Banks (2015) FLC 93-637
Bant & Clayton (2015) 53 Fam LR 621
M and M (1988) FLC 91-979
Rice v Asplund (1979) FLC 90-725

APPLICANT:

Ms Killen

RESPONDENT:

Mr Conrad

FILE NUMBER:

MLC

1582

2015

DATE DELIVERED:

8 May 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

7 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr T Puckey

SOLICITOR FOR THE APPLICANT:

Landers and Rogers

COUNSEL FOR THE RESPONDENT:

Mr G Ambrose QC

SOLICITOR FOR THE RESPONDENT:

Fair Family Law

Orders

That the child, B, born … 2013 (the child), spend time with the mother from 12pm to 3pm on Sunday, 24 May 2020, at a location and in circumstances determined to be acceptable by the father.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Killen & Conrad has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation…

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

AGLC: KILLEN & CONRAD [2020] FamCA 340
Case: [2020] FamCA 340
Decision Date: 8 May 2020

CaseChat Overview and Summary

This matter concerned an application by the mother for interim parenting orders, seeking to vary existing final orders. The dispute arose because compliance with the previous final orders was impacted by COVID-19 social distancing and restricted activity measures. The mother sought supervised time with the child for up to six hours, having already agreed to three hours on Mother's Day. She proposed an additional three hours of make-up time on Sunday, 24 May 2020, at her residence or her maternal uncle's residence. The father opposed this additional time if it occurred in the presence of the maternal uncle.

The court was required to determine whether COVID-19 safety measures impacted the viability of the mother's application for supervised time at the maternal uncle's residence. It also needed to consider whether there was insufficient evidence to establish that supervised time with the mother at her residence posed an unacceptable risk. The court noted an inability to consider the principle established in *Rice v Asplund* (1979) FLC 90-725 in the circumstances.

In its reasoning, the court acknowledged the impact of COVID-19 restrictions on parenting arrangements. It found that the father's opposition to the maternal uncle's presence was a significant factor. The court ultimately made orders for the child to spend time with the mother on 24 May 2020, but stipulated that the location and circumstances of this time were to be determined by the father. The court ordered that the child spend time with the mother from 12pm to 3pm on Sunday, 24 May 2020, at a location and in circumstances determined to be acceptable by the father.

Orders

Orders of the court

That the child, B, born … 2013 (the child), spend time with the mother from 12pm to 3pm on Sunday, 24 May 2020, at a location and in circumstances determined to be acceptable by the father.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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