Kennedy & Kennedy 2010 Fam CAFC 195

A couple with an infant separated.

Overnight stays

The father applied to begin overnight stays for one night at a time when the child was aged 2 years and this was supported by a family consultant who noted that overnight stays allow parents to participate in all aspects of a child’s daily life.  The mother subsequently submitted reports from two experts who treated the child (a paediatrician and a  treating psychologist).  The two treating experts gave evidence that the child had developmental delay (he was functioning at about a 17 month old level at a chronological age of 26 months) and showed some signs of autism spectrum disorder.  The experts agreed that while the child would benefit from participation with both parents, they recommended that overnight stays commence when the child was aged 3 years due to the special needs, and that two overnight stays per fortnight commence when the child was aged 4 years.  The experts expressed an opinion that while many children are ready to commence overnight stays at the age of 30-36 months, changes to child-care arrangements need to be made slowly when a child has developmental difficulties (age of child).

The trial judge followed the advice of the two experts.


Expert Evidence

The father appealed the decision on the grounds that procedural fairness was not followed as the family consultant had not commented on the views of the other experts.

The appeal judge noted that the father had not objected to the admissibility of the evidence from the additional experts, and had not recalled the family consultant to comment on the evidence provided by those experts.  The appeal was rejected.