IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA Appeal No NA65 of 2004 AT BRISBANEFile No BRF7153 of 2002
BETWEEN:
TF Appellant Father - and - JF Respondent Mother - and - Children’s Representative
REASONS FOR JUDGMENT
CORAM: Bryant CJ, Kay & May JJ DATE OF HEARING: 16 February 2005 DATE OF JUDGMENT: 24 May 2005
APPEAL SUMMARY
MATTER:TF & JF & Child Representative
APPEAL NUMBER:
NA 65 of 2004
(BRF 7153 of 2002)
CORAM:Bryant CJ, Kay and May JJ
DATE OF HEARING: 16 February 2005
DATE OF JUDGMENT: 24 May 2005
Catchwords
APPEAL – children – contact – allegations of sexual abuse – Full Court found trial Judge’s findings relating to the probability that the children believe that the father has done the things which are the subject of their disclosure and that they are subject to an unacceptable risk of emotional or psychological harm if supervised contact were ordered ought not be sustained on the evidence – Full Court found trial Judge erred in failing to make an order that the father have access to their medical and educational progress as there was no evidence that it would not be in the children’s best interests – re-exercise of discretion – s 68F(2) Family Law Act 1975 (Cth) – weight given to 9 year old child’s wishes – no expert evidence that the mother would be so overborne by contact of the father to the children as to be unable to function adequately as the principal caregiver to her children – appeal allowed in part –father have fortnightly supervised contact with two of the three children and the father be kept informed about the three children’s educational and medical progress – costs certificate granted to the appellant father and children’s representative.
Bryant CJ and Kay J
This is the father’s appeal against orders made by O’Reilly J on 21 September 2004 that the father have no contact with his children X born February 1995, Y born May 1996 and Z born February 1998.
By his appeal the father seeks orders that would enable him to have supervised contact with the children on alternate Sundays at a contact centre in a Queensland city north of Brisbane (‘the contact centre’) and that he be provided with or have liberty to obtain information concerning their medical and educational progress. The father’s appeal is supported by the Children’s Representative.
Background
The parties were both born in 1968. They married in March 1991 and separated in December 2001. At the time of their separation X was almost 7, Y was 5½ and Z almost 4.
While the evidence as to the nature and frequency of contact during 2002 is unclear, on 18 December 2002 orders were made by consent that provided for the father to have contact with the children each second Saturday from 9.00am to 5.00pm in the town of the mother’s home where the children reside and be supervised by…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Fitzpatrick & Fitzpatrick
Sign in free to access the full text
Details
AGLC
Fitzpatrick & Fitzpatrick [2005] FamCA 394
Case
[2005] FamCA 394
Decision Date
CaseChat Overview and Summary
This appeal concerned an application for orders regarding the children's contact with their father, brought before Bryant CJ, Kay and May JJ. The primary dispute revolved around the mother's belief that the children had been sexually abused by the father, and the subsequent impact of this belief on the children's willingness to engage in supervised contact. The mother had been forcing the children to attend contact, which was becoming increasingly difficult.
The court was required to determine whether the mother's belief of sexual abuse was unreasonable or irrational, and to assess the children's wishes and their capacity to cope with continued supervised contact. Further issues included the father's capacity to meet the children's emotional needs, particularly in light of his admitted sexual activities, and the potential psychological harm to the children if contact were to continue or be denied. The court also had to consider the overall welfare of the children, balancing their protection from harm against the detriment of depriving them of a relationship with their father.
The court found that the mother held a genuine belief of sexual abuse, which was not unreasonable or irrational. It was noted that the children, X and Z, expressed a wish not to see the father, while Y wished to see him. The court acknowledged the father's capacity for love and nurture within a supervised setting but expressed concern regarding his capacity to address the children's emotional needs and his potential to take responsibility, given his sexual activities. The court concluded that the children were experiencing existing disturbance and that their protection from emotional and psychological harm necessitated the denial of supervised contact, despite the potential detriment to their relationship with the father.
The court ultimately ordered the denial of supervised contact, finding it appropriate to protect the children from emotional and psychological harm.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Her Honour then turned under the heading of “Evidence of present disturbance” to examine each of the children. She said: Her Honour then said in a paragraph that has really been the subject matter of the main focus of this appeal, as follows (emphasis added): Her Honour then set about examining the various matters that the Family LawAct 1975 (“the Act”) compels her to pay attention to under s 68F(2). She identified the children’s wishes, accepting that X and Z had expressed a view to the counsellor that they did not wish to see the father. Her Honour took the view that the wishes appeared to be genuine and despite their young ages should be taken into account. Her Honour identified that Y had expressed to DC that she did wish to see the father. She said: Her Honour turned her attention to the likely effect of any change should contact be suspended, saying: Her Honour concluded the mother had the capacity to provide for the children’s emotional needs if contact stopped but expressed concern that the mother would have the capacity to provide for the needs of X and Z if contact was ordered and the children continued to assert that they did not wish to attend contact. Her Honour found that the mother held a genuine belief that the children had been sexually abused which was not unreasonable or irrational. She accepted the evidence that X and Z had pleaded with their mother not to go on contact and that the mother had to “force” the children to go on contact which “progressively got more difficult over time”. She said: Her Honour concluded that within the context of supervised contact the father had the capacity to provide love and nurture to the children but that there was little evidence of his capacity to provide for emotional needs of the children. Her Honour expressed some concerns about the father’s potential to take responsibility for his children having regard to his admitted sexual activities saying: Her Honour noted that the contact centre was able to offer long-term supervised contact and then said (emphasis added): Her Honour declined to order any limited telephone contact on the basis that it might be likely to cause upset and confusion to the children, and then said: Her Honour said that whilst it was not an easy decision to make, an order for a denial of supervised contact, bearing in mind the matter of [Y]’s and [Z]’s beliefs, and an indication of existing disturbance in all three children was appropriate in that “they must be protected from emotional and psychological harm as much as physical harm”. The appeal before us was argued on the basis that the finding of an unacceptable risk of psychological harm to the children by continuing the supervised contact regime that had been in place for at least a year could not be sustained if proper regard was paid to the evidence of the contact centre coordinator as well as to the general evidence relating to the satisfactory progress of the children in all other aspects of their life. It was urged upon us that the welfare of the children would be significantly detrimentally damaged by depriving them of a relationship with their father.