MOTHER CHANGED HER MIND AND DOES NOT WANT TO LET HER CHILDREN SPEND UNSUPERVISED TIME WITH THE FATHER
Kadens & Kadens [2020] FCCA 3479 (18 December 2020)
This is an interim parenting proceeding where the father seeks for unsupervised time with the children alleging that there was already an agreement between him and the mother 9 months ago.
Facts:
The parties are the parents of three children, each of whom has very significant special needs. The children are X born in 2014; Y born in 2015; and Z born in 2017; each of whom currently live with their mother in Adelaide. The mother has deposed that X suffers from severe allergies and asthma; Y suffers from asthma; and Z requires grommets.
In the period after the parties separated, police had made an application, on the mother’s behalf, for an interim protection order, against the father, which named her and the three children as protected persons.
The mother’s position is that the time should occur in a secure location and be subject to some form of supervision, as a necessary response to the children’s special needs and the fact that the father has not spent extensive time with them in recent years.
The father’s position is that supervision is currently unnecessary, as he has already successfully completed an extensive introductory process of supervised time, as required by the mother, and has demonstrated in this process that he is an insightful and responsible parent, who is able to manage the children’s special needs.
The father points to the fact that, in early March of this year, just as the full implications of the pandemic were becoming apparent, the mother agreed to him having unsupervised time with the children. Such submission suggests that the mother is estopped from making any further changes to the agreed upon parenting arrangements.
From the mother’s perspective, in the approximately nine months that have elapsed since this now controversial order was made, the diagnoses in respect of each child’s special needs have become clearer and their individual needs more pronounced.
It is her position that it is self-apparent that the special needs of the children require the highest level of support to ensure that each is safe and, as such, it would be imprudent of the father to attempt to manage the children without a high level of assistance. In answer, the father submits that he is well-versed in the children’s care and will be able to make appropriate arrangements, with the assistance of his family and friends, to ensure the children are safe.
Issue: Is the mother estopped from letting her children spend time with the father without supervision as agreed upon last March?
Law:
- Family Law Act 1975SS.60B, 60CA, 60C
Analysis:
The legal principle of Estoppel is a common law equitable remedy with the purpose of preventing (estopping) a person from going back on their word in contractual agreements. Estoppel is argued when one party has relied on a promise made by the other party and suffered a detriment as a result.
As estoppel is a common law contractual remedy it it not usually seen in Family Law cases, this is a novel approach to attempt to argue it in a parenting matter.
It is misconceived to approach a case involving the paramount principle by application of some form of the legal doctrine of issue estoppel. Regardless of what the parties have or have not previously agreed, X, Y and Z’s best interests remain the court’s most important consideration.
Ms Kadens has been the children’s sole primary carer for a period approaching four years, during which period, the father has had an extremely curtailed level of involvement with them. His relationship with the children is more likely than not to be in its formative stages, given the interruption to it arising from the circumstances of the parties’ separation. This, when coupled with their undoubted special needs, warrants the court taking an extremely measured and conservative approach.
In the court’s assessment, the risk represented by the children interacting with their father, given their special needs, without a community support worker being present, is one which would be unacceptable for the court to take at this stage. A specially trained person alleviates the risk arising from the combination of all three children’s special needs.
Conclusion: The mother is not estopped from not letting her children spend time with the father without supervision, despite previous agreement.
