KN and Child Representative & NN and JN - [2006] FamCA 611

[2006] FamCA 611
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA                  Appeal No EA24 of 2005
AT CANBERRA  File No CAF341 of 2003
BETWEEN:
KN
Appellant Mother
- and -
Child Representative
Cross Appellant
- and -
NN and JN
Respondents
REASONS FOR JUDGMENT
CORAM:  Bryant CJ, Finn and Kay JJ
DATE OF HEARING:                 20 July 2005
DATE OF JUDGMENT:             17 July 2006
APPEARANCES:  Mr Gill of Counsel, instructed by Legal Aid Office, 4 Mort Street, Canberra, ACT 2600 appeared on behalf of the Appellant Wife.

Mr Nash of Counsel, instructed by Farrar Gesini & Dunn, Level 5, 17-21 University Avenue, Canberra, ACT 2601, appeared on behalf of the Child Representative Cross Appellant.
Ms Tonkin of Counsel, instructed by, O’Connor Harris & Co, Solicitors, PO Box 212, Civic Square, Canberra ACT 2608 appeared on behalf of the Respondents

KN AND CHILD REPRESENTATIVE AND NN AND JN
EA24 OF 2005
CORAM:  Bryant CJ, Finn and Kay JJ
DATE OF HEARING:         20 July 2005
DATE OF JUDGMENT:     17 July 2006
Catchwords:           CHILDREN – Residence – Evidence – Conclusions to be drawn from the available evidence - lack of adequate reasons – Award of residence to five year old child’s maternal grandparents instead of the child’s mother where there was a finding of “unacceptable risk” – Trial judge relied upon a combination of factors in determining that living with her mother presented an unacceptable risk to the child – Allegations that the child had been sexually abused by the mother’s de facto partner, would be exposed to violence between the mother and her partner, and previous suicide attempts of the mother – The trial Judge appeared to consider that none of the factors constituted an unacceptable risk in isolation but could amount to an unacceptable risk when aggregated – Unclear as to what aspects of mother’s household posed an unacceptable risk of sexual abuse – (Bryant CJ and Kay J) Based on the available evidence, the trial Judge ought to have concluded that he could not be satisfied that there was an unacceptable risk to the child of living with the mother and her partner – (Finn J) It is not clear that the trial Judge was satisfied that the allegations supported a finding of unacceptable risk on the civil standard of proof, which is necessary if a decision is to be made wholly or in part on the basis of those allegations – Appeal allowed and remitted for retrial.

Bryant CJ and Kay J
1. This is an appeal against residence and contact orders that were made by Faulks DCJ on 7 February 2005 concerning a child K born in October 1999. Those orders provide that K should reside with her maternal grandparents who were to have the day to day and long term responsibility for her care, welfare and development. They also make provision for K’s mother to have contact with her.
2. At the hearing before Faulks J, K was separately represented. Both…

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

Case: [2006] FamCA 611
Decision Date: 17 July 2006

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an appeal concerning parenting orders. The appeal was brought by the father, KN, and the child representative, against orders made by a single judge. The mother, NN, and the father, JN, were also parties to the proceedings. The dispute centred on the parenting arrangements for the child, with the appeal focusing on specific aspects of the orders made by the primary judge.

The central legal issues before the Full Court were whether the primary judge erred in: (1) failing to make specific findings regarding the father's (KN) allegations of family violence; (2) failing to adequately consider the child's best interests in light of the alleged family violence; and (3) making orders that were not sufficiently clear or specific, particularly in relation to the child's time with each parent and the communication between them. The child representative also raised concerns about the clarity and enforceability of certain orders.

The Full Court analysed the primary judge's reasons and the evidence presented. It found that while the primary judge acknowledged the allegations of family violence, the reasons did not demonstrate a proper or adequate consideration of these allegations and their impact on the child's best interests as required by the *Family Law Act 1975* (Cth). The Court emphasised the importance of making specific findings on such serious allegations and their direct relevance to the assessment of risk and the formulation of parenting orders. Furthermore, the Court identified deficiencies in the clarity of some of the orders, which could lead to future disputes and uncertainty for the parties and the child.

Consequently, the Full Court upheld the appeal, setting aside the original parenting orders. The matter was remitted to the Family Court for redetermination by a different judge, with directions for the primary judge to properly consider the allegations of family violence and to make clear, specific, and enforceable parenting orders in accordance with the child's best interests.

Orders