Kinji & Haru - [2022] FedCFamC2F 514

Federal Circuit and Family Court of Australia
(DIVISION 2)
Kinji & Haru [2022] FedCFamC2F 514

File number(s): ADC 309 of 2021

Judgment of: JUDGE BROWN

Date of judgment: 26 April 2022

Catchwords: FAMILY LAW – parenting – child aged 12 years old – allegations of family violence – interim hearing – child has reported to court counsellor she does not wish to engage with father – order made for reunification counselling – agreed therapist has declined to remain involved – allegation father has attempted to stalk mother and child – application made by father to resume supervised time – whether order for supervised contact should be suspended – assessment of risk – best interests

Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60CA, 60B, 60CC, 62G, 68LA

Cases cited:
B & B (1988) FLC 91- 957

B & B (1993) FLC 92-357

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman (2015) FLC 93-654

H v W (1995) 126 Fam LR 788

M & M (1988) FLC 91-979

Marvel & Marvel (No 2) [2010] FamCAFC 101

Mazorski v Albright (2007) 37 FamLR 518

R & R: Children’s Wishes (2000) 25 Fam LR 712

Slater & Light [2013] FamCAFC 4

SS v AH [2010] FamCAFC 13

W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892

Division: Division 2 Family Law

Number of paragraphs: 117

Date of hearing: 11 April 2022

Place: Adelaide

Counsel for the Applicant: Ms James

Solicitor for the Applicant: Kin Lawyers

Solicitor for the Respondent: Mr Koziol

Solicitor for the Independent Children's Lawyer: Ms O’Brien
ORDERS

ADC 309 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR KINJI

Applicant

AND:
MS HARU

Respondent

AND
INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE BROWN

DATE OF ORDER:

26 April 2022

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 8 February 2022 is hereby dismissed.
2.The orders of 17 September 2021 relating to the child communication between the child X born in 2010 and the father continue during the period of the adjournment subject to X’s wishes.
3.Pursuant to Section 62G(2) of the Family Law Act (1975) the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit and Family Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 31 September 2022.
4.The family assessment to deal with the following matters:
(a)to include interviews with the parties, the child and relevant family members;
(b)observed interaction between the child and the parties;
(c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;
(e)any other matters that the family assessor considers important…

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 Kinji & Haru

Details

AGLC: Kinji & Haru [2022] FedCFamC2F 514
Case: [2022] FedCFamC2F 514
Decision Date

CaseChat Overview and Summary

This is an interim hearing in parenting proceedings concerning a child, X, born in 2010. The father, Mr Kinji, seeks orders that he be allowed to spend time with X, subject to professional supervision. The mother, Ms Haru, opposes this application. The primary issue before the court is whether it is appropriate to allow the father and X to interact, subject to professional supervision, given the allegations of family violence and the child's apparent reluctance to engage with her father. The court considered the evidence, which included the mother's allegations of family violence and the child's expressed views, as well as the legal principles relevant to interim parenting orders. The court concluded that there was an unacceptable degree of risk arising from X interacting with her father, even if subject to professional supervision. The court decided to take a cautious and conservative approach and dismissed the father's application. The court ordered that a family report be prepared and the case be listed for a final hearing.

Orders