Bielen & Kozma (2022) FedCFamC1A 221
The case of Bielen & Kozma [2022] FedCFamC1A 221 is a Full Court parenting appeal.
In this case, there was an appeal against final parenting orders. The children’s residence was changed from the mother to the father following a finding that the mother posed an unacceptable risk of harm to the children due to her belief the children had been subjected to sexual abuse by the father.
The important issue for practitioners is that there is a consideration that the primary judge failed to give consideration to methods of risk amelioration before considering no time.
The matter was remitted for hearing in relation to the issue of whether and how the children will spend time and communicate with the mother and pending further hearing, the children are to spend time with and communicate with the mother as agreed between the parties.
The notation is important as it says at B:
“That the findings as to the mother posing an unacceptable risk to the children are not challenged by the mother in the context of the rehearing.”
The primary judge had made a finding that the mother’s views and manner of engagement with the children was unlikely to change through a program of therapy.
The appeal was upheld primarily on the basis that:
“… the primary judge failed to consider whether steps could reasonably be taken to allow the children to retain their meaningful relationship with their mother, to the maximum extent possible, consistent with protecting them from that identified risk. The indefinite severance of the children’s relationship with their mother was, in those circumstances, disproportionate to the identified risk”.
The court referred at paragraph 27 to the High Court Decision of Masson v Parsons [2019] HCA 21 in which they noted that:
“…the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child” (Bold emphasis added).“
The Act provides at paragraph 43(1)(c) that the court must have regard to the need to protect the rights of children and promote their welfare.
The court said at paragraph 30:
“While used on several occasions in the Act, there is no definition of the “welfare” of the child. We are of the view, however, that consideration of matters impacting upon the welfare of the child necessarily involves focusing upon the immediate, medium and long-term impact of proposed orders upon the child’s physical, emotional and psychological safety, security and well-being.”
Section 60CC sets out the matters the court “must consider”.
The Act requires the court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence – section 66(2)(b).
The Full Court found that the primary judge was in error in failing to consider section 60CC(2)(a) and any factor contained within section 66(3), particularly section 66(3)(d).
Paragraph 67 of this decision is important.
“In that respect, we recognise that there are a number of pronouncements by the Full Court expressing disapproval of parenting orders which see protracted or indefinite supervision of the child’s time with a parent. However, as noted by Tree J in Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96 at [19], the views expressed in such cases are not legislative edicts and each case must be decided on its own facts, including whether, in the particular circumstances of this case, an order for supervision was justified even though it could potentially be for an indefinite period.”
The court remitted the matter for rehearing.