Fitzwater & Fitzwater

Case [2019] FamCAFC 251

FAMILY COURT OF AUSTRALIA

FITZWATER & FITZWATER [2019] FamCAFC 251
FAMILY LAW – APPEAL – PARENTING – Majority decision – Where the father appeals from orders made by a judge of the Family Court of Australia providing for the children to spend supervised time with him – Where the Independent Children’s Lawyer supported the father’s appeal – Where the trial judge made a finding that the father posed an unacceptable risk of harm to the children – Consideration of the application of s 140 of the Evidence Act 1995 (Cth) in proceedings where there is an allegation of an acceptable risk of harm – Whether the trial judge’s reasons for judgment are sufficient to meet the requirement identified in N and S and the Separate Representative (1996) FLC 92-655 – Where the trial judge did not weigh all of the evidence as a whole to determine the nature, extent and likelihood of the risk of sexual abuse to the children – Where the trial judge did not adequately give reasons for the finding of an unacceptable risk of harm to the children – Appeal allowed – Orders made by the trial judge set aside as on and from the date of the rehearing in the Family Court of Australia – No order as to costs.
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 65AA, 69ZT, 69ZV

Baira v RHG Mortgage Corporation Ltd (2012) 297 ALR 416; [2012] NSWCA 387
Bant & Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222
Bant & Clayton [2019] FamCAFC 198
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Browne v Dunn (1893) 6 R 67
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Johnson and Page (2007) FLC 93-344; [2007] FamCA 1235
Kuhl v Zurich Financial ServicesAustralia Ltd (2011) 243 CLR 361; [2011] HCA 11
Kuru v New South Wales (2008) 236 CLR 1; [2008] HCA 26
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
M v M (1988) 166 CLR 69; [1988] HCA 68
Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
N and S and the Separate Representative (1996) FLC 92-655; [1995] FamCA 139
Napier and Hepburn (2006) FLC 93-303; [2006] FamCA 1316
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66
Nikolakis & Nikolakis [2010] FamCAFC 52
Oswald & Karrington (2016) FLC 93-726; [2016] FamCAFC 152
Partington & Cade (No.2) (2009) FLC 93-422; [2009] FamCAFC 230
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Potter and Potter (2007) FLC 93-326; [2007] FamCA 350
Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332…

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Details
AGLC
Fitzwater & Fitzwater [2019] FamCAFC 251
Case
[2019] FamCAFC 251
Decision Date

CaseChat Overview and Summary

Fitzwater & Fitzwater involved an appeal by the father against orders made by a judge of the Family Court of Australia, which allowed supervised visitation with his children. The Independent Children’s Lawyer supported the father’s appeal. The primary dispute centered around the trial judge's findings that the father posed an unacceptable risk of harm to the children, particularly concerning the risk of sexual abuse.

The legal issues in this case included the application of section 140 of the Evidence Act 1995 (Cth) in the context of allegations of an acceptable risk of harm. The court had to determine whether the trial judge’s reasons for judgment were sufficient to meet the requirements identified in N and S and the Separate Representative (1996) FLC 92-655. Specifically, the court needed to consider whether the trial judge appropriately weighed all of the evidence to determine the nature, extent, and likelihood of the risk of sexual abuse and whether the judge gave adequate reasons for finding an unacceptable risk of harm to the children.

The court found that the trial judge did not weigh all of the evidence as a whole to determine the nature, extent, and likelihood of the risk of sexual abuse. The judge also did not adequately give reasons for the finding of an unacceptable risk of harm. Consequently, the appeal was allowed, and the orders made by the trial judge were set aside. The court remitted the proceedings to the Family Court of Australia for rehearing. No order was made as to costs.

Orders

Orders of the court

1.

The appeal be allowed.

2.

Paragraphs (2)–(11) inclusive of the orders made by the trial judge be set aside as on and from the date of the first hearing before the judge who is to undertake the rehearing of the proceedings.

3.

The proceedings be remitted to the Family Court of Australia for rehearing.

4.

There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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