Kisiel & Kisiel (2022) FedCFamC1A 218
Kisiel & Kisiel  FedCFamC1A 218 is an appeal from a parenting case.
The father appealed Orders that restrained him and for the child to only spend professionally supervised time with him.
The appeal was unsuccessful.
Costs were awarded in a fixed sum to the Respondent on a party party basis.
Interim orders were made on 11 August 2022.
These interim orders have been appealed as the father had been restrained under section 68B of the Act from approaching the mother and the child, for the child to live with the mother. The orders also allow the child to spend time with the father under professional supervision for no less than 2 hours a week and restrain the father from contacting the child outside these times.
An ICL was appointed after that interim hearing and joined with the mother in resisting the appeal.
The child is 5 years old.
From separation in 2020 to mid-2022, the parties had a voluntary arrangement where the child spent substantial time with the father.
The father’s refusal to return the child to the mother in June 2022 prompted litigation.
At paragraph 8 we are told:
“Due to the mother’s intended reliance upon belatedly served evidence, the hearing proceeded on the understanding that the primary judge would make the orders on what was described as being only an “interim-interim” basis, with the interlocutory dispute having to be finalised at a later time. The primary judge pronounced the orders and delivered ex tempore reasons following the hearing on 11 August 2022.”
The father tried to file an application in an appeal seeking leave to adduce further evidence and that application was dismissed.
The father had wanted to rely on evidence that had not been able to be relied upon by him at the interlocutory hearing. The court said, “If there was no justification for it then, there could be no justification for it now”.
The court further said “the father is still able to revive the as yet unfinished interlocutory hearing before the primary judge and seek to adduce the evidence in that forum. The appeal is not the place to complete the unfinished original hearing”.
There was discussion about the issue of interim interim and the court provided these notations.
“The court offered the parties the opportunity for an Interim Hearing to conclude the hearing of the Application in a Proceeding in which Interim Interim orders were made on 11 August 2022. The father declined that opportunity.”
That ground did not succeed.
The next ground was that the primary judge failed to engage with the legislative pathway.
The court rejected this ground.
The court then considered many of the aspects of the legislative pathway.
The court said:
“In this instance, the dispute was entirely focussed upon the parties’ reciprocal allegations that the child was at risk of harm in the other’s care.”
At paragraph 34, the court said:
“At no time did the father’s counsel make any submission at all to engage s 60CC(2)(a) of the Act as a material consideration, so its invocation in the appeal has the appearance of being an afterthought.”
That ground was found to be without merit.
The next ground was that the primary judge erred in the assessment of risk in ordering supervised time.
The next ground considered that the injunctions were made without a proper basis. In the course of the trial, the judge had said to the father’s counsel “he has made threats and has posted them publicly. It seems a very unwise course to take.
Then, counsel for the father replied, “Certainly. Certainly, your Honour, there is no doubt about that” and then went on to add, “He has not acted on any of those threats”.
His Honour then asked the father if he needed to come near the mother, and when the father’s counsel said no, His Honour responded then as to what would be the injustice if a 68B Order was made. The father’s counsel replied, “There wouldn’t be, your Honour”.
The mother received a costs order as the appeal was unsuccessful.