FAMILY LAW - APPEAL – Findings of fact – failed to give sufficient reasons – appeal dismissed.
FAMILY LAW - CHILD ABUSE – Unacceptable risk of father sexually and emotionally abusing the children – factors that might indicate a risk in the future – how unacceptable risk is to be assessed - father allegedly engaged in predatory sexual behaviour with other children - father’s prior conviction of indecent assault overturned.
FAMILY LAW - CHILDREN – With whom a child lives – father seeking an equal shared arrangement – trial judge ordered supervised time with children.
That the father pays the costs of the mother and the Independent Children’s Lawyer of and incidental to the appeal as agreed and in default of agreement as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Nikolakis & Nikolakis is approved 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 51 of 2007 File Number: PAF 219 of 2005
Mr Nikolakis
Appellant
And
Ms Nikolakis
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Nikolakis (“the father”) appeals against parenting orders of Flohm J which were made on 19 March 2007. In summary, those orders granted Ms Nikolakis (“the mother”) sole parental responsibility for the parties’ four children, permitted the mother to relocate with the children from Sydney to the Gold Coast, and provided for the children to spend two hours supervised time with the father on four occasions each year. The mother filed a cross-appeal against the orders but subsequently discontinued the cross-appeal and did not pursue it before us.
Central to her Honour’s decision, and the focus of the father’s challenge on appeal, was a finding that the father posed an unacceptable risk of sexually and emotionally abusing the children. The father contends that this finding was based on legal and factual errors. The mother…
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
Nikolakis & Nikolakis [2010] FamCAFC 52
Case
[2010] FamCAFC 52
Decision Date
CaseChat Overview and Summary
Nikolakis & Nikolakis involved an appeal by the father against a Family Court decision regarding the living arrangements of the parties’ children. The appeal centred on the findings of fact made by the trial judge, particularly those related to the risk of the father sexually and emotionally abusing the children. The father contested the trial judge's decision to order supervised time with the children, arguing that there were insufficient reasons provided for the judge's conclusion that an unacceptable risk of abuse existed.
The court needed to determine whether the trial judge had provided adequate reasons for finding an unacceptable risk of abuse, and whether this risk was properly assessed. It also needed to consider the appropriate living arrangements for the children, with the father seeking an equal shared arrangement. The court had to weigh the father's past behaviour and allegations against the mother, including the father's prior conviction of indecent assault, which had been overturned.
The court found that the trial judge had given sufficient reasons for the findings made, including the risk of future abuse. The court held that the risk of abuse was unacceptable and considered the father's past predatory sexual behaviour towards other children, despite the overturned conviction. The court concluded that the trial judge's decision to order supervised time with the children was appropriate and dismissed the appeal. The father was ordered to pay the costs of the mother and the Independent Children’s Lawyer of and incidental to the appeal.
Orders
Orders of the court
1.
That the appeal be dismissed.
2.
That the father pays the costs of the mother and the Independent Children’s Lawyer of and incidental to the appeal as agreed and in default of agreement as assessed.