FAMILY LAW – APPEAL – CHILDREN – Allegations of risk of sexual abuse – Single expert report – Credit – Alleged errors of fact – Weight attributed to the evidence – Unacceptable risk – Unacceptable risk of abuse not established – Where children to live with father and spend time with mother – Where there is no merit in any of the grounds of appeal – Appeal dismissed.
FAMILY LAW – APPLICATION IN AN APPEAL – Application to adduce further evidence on appeal – Application dismissed.
The Application in an Appeal filed 27 August 2015 be dismissed.
The appeal be dismissed.
The appellant mother pay the respondent father’s costs of and incidental to the appeal as agreed, or in default of agreement as assessed, within twenty-eight (28) days of the agreement or the assessment.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Helbig & Rowe and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY
Appeal Number: EA 50 of 2015 File Number: PAC 5421 of 2010
Ms Helbig
Appellant
and
Mr Rowe
Respondent
and
Legal Aid NSW Independent Children’s Lawyer
and
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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Details
AGLC
Helbig & Rowe [2016] FamCAFC 117
Case
[2016] FamCAFC 117
Decision Date
CaseChat Overview and Summary
In the appeal case of Helbig & Rowe, the mother sought to appeal the primary judge's findings regarding the care, custody, and control of the children. The dispute centred around allegations of risk of sexual abuse against the father, with the mother arguing that there was an unacceptable risk of abuse if the children were to live with the father and spend time with her. The matter was heard by the Family Court of Australia.
The legal issues before the court included whether the primary judge erred in law by failing to take into account all of the material before him, whether the primary judge erred in the weight attributed to the evidence, and whether the primary judge erred in fact in relation to certain factual findings. Additionally, the court had to consider the mother's application to adduce further evidence on appeal, which was made pursuant to the Family Law Rules.
The court found that there was no merit in any of the grounds of appeal. The court held that the primary judge did not err in law or in fact, and that he appropriately assessed the evidence, including the single expert report, and determined that there was no unacceptable risk of sexual abuse. The court also dismissed the mother's application to adduce further evidence on appeal, finding that it was not appropriate to allow such evidence in the circumstances of this case. The appeal was therefore dismissed, with the mother ordered to pay the father's costs of and incidental to the appeal.
Orders
Orders of the court
1.
The Application in an Appeal filed 27 August 2015 be dismissed.
2.
The appeal be dismissed.
3.
The appellant mother pay the respondent father’s costs of and incidental to the appeal as agreed, or in default of agreement as assessed, within twenty-eight (28) days of the agreement or the assessment.