FAMILY LAW – APPEAL – CHILDREN – INTERIM PARENTING ORDERS – where the mother appeals against interim orders for the child to spend limited time with the father supervised at a contact centre – where disputed issues of fact surrounding allegations of sexual abuse of child by the father unable to be resolved in interim proceedings – mother alleging abuse and father contending allegations fabricated – where interim issue for determination whether even limited time supervised at a contact centre posed any unacceptable risk to the child – whether any procedural unfairness or inconsistency in approach of the primary judge in the conduct and outcome of two interim hearings – whether primary judge misapprehended or failed to give sufficient weight to evidence of a sexual assault counsellor and a family consultant – where no procedural unfairness or inconsistency on the part of the primary judge established – where subject evidence of sexual assault counsellor and family consultant did not meet the requirements of s 55 of the Evidence Act 1995 (Cth) – where no weight could legitimately be given to such evidence – primary judge did not misapprehend the subject evidence but even if such an error were established no substantial miscarriage could be founded upon the subject evidence – where primary judge legitimately placed weight upon the family consultant’s observations in the report process in determining the question of unacceptable risk – no error established – reasons given by primary judge for orders not inadequate – appeal dismissed.
[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
Lane & Nichols [2016] FamCAFC 234
Case
[2016] FamCAFC 234
Decision Date
CaseChat Overview and Summary
Lane & Nichols is a case where the mother appealed against interim orders that allowed the child to spend limited time with the father under supervision at a contact centre. The mother alleged that the father had sexually abused the child, while the father claimed that the allegations were fabricated. The Family Court was required to determine whether the limited supervised time with the father posed an unacceptable risk to the child, and whether there was any procedural unfairness or inconsistency in the approach of the primary judge. The court also needed to consider whether the primary judge misapprehended or failed to give sufficient weight to the evidence of a sexual assault counsellor and a family consultant.
The court found that there was no procedural unfairness or inconsistency on the part of the primary judge in the conduct and outcome of the two interim hearings. The evidence of the sexual assault counsellor and family consultant did not meet the requirements of section 55 of the Evidence Act 1995 (Cth), and therefore, no weight could be given to it. The primary judge did not misapprehend the evidence, but even if such an error had been established, no substantial miscarriage could be founded upon the evidence. The primary judge legitimately placed weight upon the family consultant’s observations in the report process in determining the question of unacceptable risk. The reasons given by the primary judge for the orders were not inadequate, and the appeal was dismissed.
The court dismissed the appeal against the orders made by Judge L. Turner on 10 June 2016 and made no order as to the costs of the appeal. The form of the order was subject to the entry of the order in the Court’s records. The court found that the primary judge had legitimately exercised their discretion in making the interim orders, and there was no error in the primary judge’s approach or reasoning. The court also found that the evidence of the sexual assault counsellor and family consultant was not admissible, and therefore, could not be relied upon in making the decision.
Orders
Orders of the court
1.
The appeal against the orders of Judge L. Turner made on 10 June 2016 is dismissed.
2.
There be no order as to costs of the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.