Bant & Clayton

In the case of Bant & Clayton, the court dealt with an appeal in a family law matter concerning the custody of a child. The father contested the trial judge's determination that there was an unacceptable risk of psychological harm to the child if removed from the mother and that the father would remove the child from Australia. The trial judge had found the father's evidence to be unreliable and had concerns that the father would impose foreign law on the child if permitted to take her out of Australia.

The primary legal issue before the court was whether the trial judge erred in concluding that there was an unacceptable risk of family violence to the child if removed from the mother. The court found that the trial judge did not err in treating the risk of psychological harm as a risk of family violence under the Family Law Act 1975 (Cth). The court also determined that the trial judge's rejection of the father's evidence was a proper basis for finding an unacceptable risk that the father would seek to impose foreign law and remove the child from Australia. The court held that the trial judge's findings were plainly open and adequately supported by the evidence.

The court concluded that the appeal was allowed in part, as the trial judge had erred in failing to provide adequate reasons for certain orders regarding the father's time with the child. The court set aside certain orders and remitted the matter back to the Family Court for a rehearing limited to the issue of the time the child is to spend with the father and the conditions of that time. The court also ordered the parties to file written submissions regarding costs associated with the appeal and certain applications in the appeal.

The court dismissed the father's application to adduce further evidence in the appeal, finding that his failure to seek to reopen the proceedings prior to the delivery of judgment was fatal to his application. Similarly, the mother's application to adduce further evidence was dismissed as the evidence did not go to the issues raised in the successful grounds of appeal. The court ordered the parties to file written submissions as to the question of costs.