Napier & Hepburn

The Full Court of the Family Court of Australia heard an appeal concerning supervised contact arrangements for a six-year-old boy. The father, who had been granted only supervised contact, challenged the trial judge's decision. The dispute arose from statements made by the child following holiday contact with his father, and allegations of sexual abuse against the father, who had been questioned by police but not charged. The trial judge had found the father lacked candour regarding his sexual practices.

The central legal issues before the Full Court were whether the trial judge had adequately explained his reasons for concluding that unsupervised contact would expose the child to an unacceptable risk of abuse, and whether the trial judge's failure to reject the abuse allegations as groundless necessarily led to a finding of unacceptable risk. The court was also required to consider the appropriate exercise of discretion regarding future contact arrangements.

Bryant CJ and Kay J reasoned that the trial judge's judgment did not sufficiently articulate the basis for his conclusion of unacceptable risk, making it impossible to ascertain the specific factors that led to this determination. They emphasised that a failure to reject allegations of abuse as groundless does not automatically equate to an unacceptable risk. Consequently, they allowed the appeal and proposed to re-exercise the discretion by implementing a graduated regime of contact, progressing towards unsupervised contact, based on proposals received from the parties and the Independent Child’s Lawyer. In contrast, Warnick J would have remitted the matter for retrial, arguing that the Full Court should not substitute its own orders without conducting the necessary enquiry and explication into the allegations and the existence of an unacceptable risk, and that the parties' proposals were not evidence.