Court Assesses Risk of Harm to Determine Parenting Orders
Kisiel & Kisiel [2022] FedCFamC1A 218 (20 December 2022)
This case involves a father and mother who separated in 2020 and have been using a voluntary regime of shared parenting until mid-2022. The mother applied for interim orders which were granted on 4 July 2022, directing the father to return the child to the mother and allowing the child to live with her.
Facts:
This case is about a father and mother who separated in 2020, when their child was three years old. The father and mother had been using a voluntary regime of shared parenting until mid-2022, when the father refused to return the child to the mother. As a result, the mother applied for interim orders, which were granted on 4 July 2022, directing the father to return the child to the mother and ordering that the child live with her.
The primary judge made these orders on an “interim-interim” basis, with the parenting dispute to be finalized at a later time. The father attempted to file an application in an appeal to adduce further evidence in the appeal, but was unsuccessful and the application was instead filed on 12 December 2022.
Ground 1 contends the primary judge failed to afford the father procedural fairness by acceding to the parties’ proposal to hear the dispute on an “interim-interim” basis, but then failing to return and finalise the interim dispute. It is likewise contended that the primary judge “erred in the assessment of risk in ordering supervised time”. It is contended the error is evident by three failures: the failure to take material considerations into account; the failure to consider alternatives to supervised time; and the failure to impose injunctions upon the father to mitigate the risk.
Issue:
Whether or not the appeal should be granted.
Applicable law:
Analysis:
The mother failed to file and serve her evidentiary material for the hearing within the time allowed by the primary judge, in which event the father opened the hearing by asserting it should proceed on an “undefended” basis. The primary judge sensibly rejected the proposal because the dispute was not “undefended” at all. The mother appeared at the hearing with legal representatives ready, willing and able to vigorously contest the outcome despite not having filed her material on time, so her default had to be handled in a more pragmatic way – such as by her deprivation from reliance upon the late evidence or by an adjournment of the hearing, perhaps attended by a costs order against her.
The only measures which could satisfactorily mitigate the risk of harm to the child were to limit the time he spends with the father, require their supervision, and restrain the father’s contact with the child outside such supervised visits. The reasons for judgment are not stripped of either sufficiency or cogency by the omission of the primary judge to expressly state that the “non-denigration” injunction, informally posited by the father’s counsel as an idea during submissions and which was not part of the father’s formal application, would not be enough to attenuate the risk.
Conclusion:
The Application in an Appeal filed on 12 December 2022 is dismissed. The appeal is dismissed. The appellant should pay the respondent’s party/party costs of and incidental to the appeal, fixed in the sum of $13,714.70
Case: Kisiel & Kisiel [2022] FedCFamC1A 218
Judgment of: AUSTIN J
Counsels:
Counsel for the Appellant: Ms Tabbernor
Solicitor for the Appellant: Sward Law
Counsel for the Respondent: Mr Havenstein
Solicitor for the Respondent: Rossi Simicic Lawyers
Counsel for the Independent Children's Lawyer: Mr Cook
Solicitor for the Independent Children's Lawyer: Maguire & McInerney Lawyers