IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIAAppeal NoNA2 of 2001 AT BRISBANEFile No BR11765 of 1999 BETWEEN:
MR H Appellant Father - and - MS K Respondent Mother CHILD REPRESENTATIVE
REASONS FOR JUDGMENT OF THE FULL COURT
CORAM: NICHOLSON CJ, KAY & MULLANE JJ DATE OF HEARING: 31 May 2001 DATE OF JUDGMENT: 19 July 2001
APPEARANCES: Mr Jordan, Solicitor, instructed by Harrington Batts, Solicitors, 239 George Street, Brisbane, Qld 4000, appeared on behalf of the Appellant Father.
Mr Cooper of Counsel, appeared on behalf of the Respondent Mother (128 Kamarin Street, Manly West Qld 4179).
Mr Slack of Counsel, instructed by Legal Aid Queensland, 44 Herschel Street, Brisbane Qld 4000, appeared on behalf of the Child Representative.
H and K NA 2 of 2001 Coram: Nicholson CJ, Kay and Mullane JJ Date of hearing: 31 May 2001 Date of judgment: 19 July 2001
CONTACT- orders made that father have continual supervised contact with child- very unlikely that abuse occurred- mother’s anxiety over unsupervised contact
The parties met in 1994 and began a relationship, however they never cohabited. Their daughter was born in 1996, and the relationship ended about six months after the child’s birth.
The father had a reasonable degree of contact with the child in her first three years of life. In early 1999, the child made statements suggesting that she had been sexually abused.
The Queensland Police and the Department of Families, Youth and Community Care carried out investigations. The mother stopped all contact between the father and the child from early 1999 until by agreement supervised contact commencing in late 1999. Initially supervised contact took place at a contact centre, and since mid 2000 at the home of a mutual family friend.
Before the trial Judge, the father sought orders for Saturday contact, to become alternate weekend contact by four months from the date of the orders and alternate overnight weekend contact three months thereafter. The mother opposed any contact at all.
His Honour found that the statements made by the child that suggested sexual abuse had occurred had little evidential value. There was conflicting evidence as to whom the perpetrator was and what the child had said about what happened. The trial Judge thought that in the circumstances it was wise not to have charged the father with abusing the child.
The trial Judge’s own impression on seeing and hearing the father was a favourable one, and he found that it was very unlikely that the father intentionally acted abusively towards the child. His Honour concluded that there was at most a very slight risk of inappropriate conduct on unsupervised contact and quite possibly no risk at all.
His Honour thought that if contact changed from supervised to unsupervised it would cause the mother intense stress which may impact on her caregiving ability. In addition, an order for unsupervised contact may eventually damage the child’s relationship with her father because of the…
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.
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AGLC
H & K [2001] FamCA 687
Case
[2001] FamCA 687
Decision Date
CaseChat Overview and Summary
The Full Court of the Family Court of Australia considered an appeal concerning supervised contact orders made in favour of a father. The mother had sought to restrict the father's contact with the child, citing concerns about potential abuse, while the father sought continual supervised contact.
The central legal issue before the Court was whether the original orders for continual supervised contact were in the best interests of the child, given the findings regarding the unlikelihood of abuse and the mother's anxiety. The Court had to determine if the evidence supported the continuation of supervised contact or if unsupervised contact was appropriate.
The Court reasoned that the original judicial officer had made findings that abuse was very unlikely. Despite these findings, the mother's persistent anxiety about unsupervised contact had led to the imposition of continual supervised contact. The Full Court considered whether this anxiety, in the absence of a substantiated risk of harm, justified the restriction on the father's contact. The Court applied principles relating to the best interests of the child, the need for evidence-based decision-making, and the impact of parental anxiety on children's welfare.
The Court ultimately allowed the appeal, setting aside the orders for continual supervised contact. It remitted the matter back to the Family Court for redetermination of the parenting orders, with directions to consider the findings of fact and the relevant legal principles.