Parker & Karl

[2007] FamCA 1089

FAMILY COURT OF AUSTRALIA

PARKER & KARL [2007] FamCA 1089

FAMILY LAW- APPEAL FROM DECISION OF FEDERAL MAGISTRATE – appeal from interim orders – failure to appoint Independent Children’s Lawyer – whether federal magistrate erred in failing to specifically refer in reasons to s 61DA of Family Law Act – allegations of abuse - whether federal magistrate gave insufficient weight to evidence regarding risk of harm to the children – whether father’s time with children should be supervised at Children’s Contact Service – high level of risk to children if father’s time not professionally supervised – appeal allowed – re- exercise of discretion – Independent Children’s Lawyer appointed – father’s time with children to be supervised at Children’s Contact Service.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 60K & 61DA

Federal Proceedings (Costs) Act 1981

House v The King (1936) 55 CLR 499
Bellenden (formerly Satterthwaite) v Satterthwaite (1948) 1 All ER 343
Re K (1994) FLC 92-461
Goode and Goode (2006) FLC 93-286
Newlands and Newlands (2007) FamCA 168
K and B (1994) FLC 92-478
B and B (1993) FLC 92-357
A and A (1998) FLC 92-800
M and M (1988) FLC 91-979

APPELLANT: Ms Karl

RESPONDENT: Mr Parker

FILE NUMBER: ADC 1606 of 2007

APPEAL NUMBER: SA 45 of 2007

DATE DELIVERED: 17 September 2007

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 2 August 2007

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 22 May 2007

LOWER COURT MNC: [2007] FMCAfam358

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Mellows

SOLICITOR FOR THE APPELLANT: Legal Services Commission of South Australia

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: Moody Rossi & Co

ORDERS

1. That the appeal be allowed.

2. That pursuant to Section 68L of the Family Law Act 1975 (As Amended) the interests of the children B born September 2000 and BI born September 2002 be independently represented by a lawyer and that such representation be arranged by the Legal Services Commission of South Australia and that to expedite the appointment of the Independent Children’s Lawyer within seven [7] days of the date hereof each party do cause to be forwarded to the said Commission a copy of all documents filed by that party.

3. That paragraph 1 of the orders made by Federal Magistrate Brown on 22 May 2007 be set aside.

4. That in lieu of the said paragraph 1 the following paragraphs be substituted:

   (a)The parties do all things necessary to register with the nearest Children’s Contact Service to where the said children live to facilitate supervised visits between the said children and the father at times to be nominated by the Children’s Contact Service.

   (b)The parties share equally the cost associated with the supervised visits at the Children’s Contact Service.

5. That the court grants to the appellant mother a costs certificate pursuant to Section 9 of the Federal Proceedings (Costs) Act 1981 being a certificate stating that in the opinion of the court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Parker & Karl.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

PARKER & KARL

Appeal Number: SA 45 of 2007
File Number:  ADC 1606 of 2007

MS KARL

Appellant

And

MR PARKER

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an appeal by the mother against all of the orders made by Federal Magistrate Brown on 22 May 2007.

2. Despite that, the only order about which the mother really complains is in paragraph 1.  That essentially provided for the children to spend time with the father on alternate weekends from 6:00pm Friday until 6:00pm Sunday supervised by Ms L.

3. Paragraph 2 of the orders dealt with telephone communication, paragraph 3 dealt with the father completing an anger management course and a parenting course, and paragraph 4 dealt with ensuring that a family assessment is carried out.  The mother did not seek to set aside or discharge any of these orders and no submissions whatsoever were addressed to them.

4. The only possible explanation for not limiting the appeal to paragraph 1 is that one of the grounds of appeal is that the Learned Federal Magistrate had erred in not appointing an Independent Children’s Lawyer, and she sought an order for such an appointment.

5. In any event, I proceed on the basis that there is in fact no appeal against paragraphs 2, 3 or 4 of the Learned Federal Magistrate’s order.

6. The father chose not to respond to the appeal and did not attend the hearing of the same.  Thus I only have the submissions made on behalf of the appellant.

Brief factual background

1. The father was born in 1974 and the mother was born in 1978.

2. The parties commenced to live together in May 1999 and they separated in February 2004.

3. There are two children of the relationship, namely B born in September 2000 and BI born in September 2002.

4. Proceedings were first commenced by the mother in the Family Court of Australia in late 2004.  Those proceedings were ultimately settled by agreement between the parties and on 8 October 2005 final orders were made providing for the children to reside with the mother and for the father to have contact on alternate weekends, on Wednesday evenings, and during school holidays.

5. The father then commenced proceedings on 21 September 2006 seeking in effect a week and week about shared care arrangement.

6. On 23 October 2006 consent interim orders were made providing for the children to live with the mother and to spend time with the father on one week of each fortnight from after school on Thursday until the commencement of school on the next Monday, and in the other week from after school on the Thursday until the commencement of school on the Friday.

7. On 19 March 2007 the proceedings were transferred to the Federal Magistrates Court.

8. On 17 April 2007 the matter was fixed for final hearing, an order was made for the filing of affidavits, and a Section 11F family dispute resolution conference was ordered.

9. On 20 April 2007 the mother filed a notice alleging abuse and an application seeking orders suspending the orders made in the Family Court of Australia, for the children to live with the mother, for them to spend time with the father at such times and upon such conditions as determined by the court, and for the appointment of an Independent Children’s Lawyer.  The basis of the mother’s application was that when the children were returned to her by the father the child B was quiet, she had a black eye and she had bruising on her legs.  The mother spoke to the father who disclosed that he had hit B with a strap.  The mother took the child to a doctor and made a report to the child abuse line.

10. On 1 May 2007, a consent order was made by the Learned Federal Magistrate suspending the order for the children to spend time with the father, and provided for the father to communicate with the children by telephone. A further order was made pursuant to Section 69ZW of the Act directed to Families SA seeking all documents, assessments and reports held by them, and the matter was adjourned to 22 May 2007.

11. In the documents subsequently produced by Families SA an assessment was made that the father’s physical violence to B had resulted in injury to her and an investigation was recommended.  However, that did not occur and the file was closed because of insufficient resources.

12. On 8 May 2007 the father filed responding documents in which he acknowledged that he had used a leather strap once on the child’s legs but denied causing the black eye.  At the hearing before the Learned Federal Magistrate on 22 May 2007 the father proposed a reinstatement of weekend overnight time with the children without supervision, but if supervision was required he proposed Ms L, the mother of his partner, be used.

13. The mother’s position was that any time spent by the children with the father should only occur at a Children’s Contact Service supervised by a professional supervisor.

14. At the hearing the Learned Federal Magistrate allowed the father, Ms L and another witness called by the father, Mr A to be cross examined.

15. At the conclusion of the hearing the Learned Federal Magistrate delivered an ex-tempore judgment and made the orders the subject of this appeal.  I will refer later to the Learned Federal Magistrate’s reasons where relevant in the context of the mother’s grounds of appeal.

The principles applicable to the appeal

1. The circumstances in which an appellate court should interfere with a discretionary judgment were set out in HOUSE v THE KING (1936) 55 CLR 499 at 504-505 where Dixon, Evatt and McTeirnan JJ said:

   “The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some of the material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his orders, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

2. With particular regard to a challenge based on the weight given by a trial Judge to factors relevant to an exercise of discretion, in BELLENDEN (formerly SATTERTHWAITE) v SATTERTHWAITE (1948) 1 All ER 343 at 345, Asquith LJ said:

   “…It is, of course, not enough for the wife to establish that this court might, or would, have made a different order.  We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable.  It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”

The grounds of appeal

1. The mother’s grounds of appeal are as follows:

   “1.That the Learned Federal Magistrate erred in making interim orders for the father to have supervised time with the children [B] and [BI]::

   1.1On an overnight basis;

   1.2Under the supervision of Ms [L];

   1.3In the circumstances.

   2.That the Learned Federal Magistrate erred in failing to appoint an Independent Children’s Lawyer.

   3.That the Learned Federal Magistrate erred in coming to his conclusion in law in the exercise of his discretion in that:

   3.1He misdirected himself as to the provisions of s.60K and s.61DA of the Family Law Act 1975 (as amended) given that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of a child or children has engaged in family violence or abuse of a child or children;

   3.2He placed insignificant weight on the medical and other evidence (including the father’s admissions of violence) and the history of violence involving members of his family, including his criminal convictions and/or behaviour;

   3.3Gave insufficient weight to the mother’s concerns about the need for professional supervision in the circumstances of this case, the lack of experience of Ms [L], her position in the family and to the mother’s lack of knowledge of Ms[L] and her family;

   3.4He failed to give sufficient weight to the prospect of the children being placed at risk of further harm from their father or, alternatively, made findings in that regard which were against the weight of evidence.

   4.That the Learned Federal Magistrate should have found that the child [B] had already been hurt by her father, in the presence or to the knowledge of her sister [BI], was likely to be at risk of further physical or psychological harm if she were to spend significant periods of time with him, pending a proper investigation and assessment of the matter, and that such time should either be suspended or professionally supervised by the children’s contact service if allowed at all.”

2. It is apparent that ground 3 comprises the specific examples of how the Learned Federal Magistrate is said to have erred in ground 1, and that ground 4 is itself a summary of what the mother says the Learned Federal Magistrate should have done.

3. I will now deal with these grounds of appeal.

Ground 2

1. It is stating the obvious to say that the Learned Federal Magistrate did not make an order for the appointment of an Independent Children’s Lawyer.  However, there was an application for such an order before him, and he referred to that in his reasons, but he did not address in those reasons whether the order should be made or not.  During the course of the hearing the Learned Federal Magistrate did engage in a brief debate about this with the counsel for the mother, and it seems that the Learned Federal Magistrate was querying the need for an Independent Children’s Lawyer.  The Learned Federal Magistrate suggested that the mother’s counsel could adequately cross examine the father at trial and any issue of the children’s views could be addressed in a “professional report”. 

2. However, in my view the failure to appoint an Independent Children’s Lawyer in this case is a clear error by the Learned Federal Magistrate.  I say that not just because the Learned Federal Magistrate failed to address the application in his reasons, but because the facts of this case require the appointment of an Independent Children’s Lawyer pursuant to the principles established in Re K (1994) FLC 92-461. There is a high level of conflict between the parties, there are difficult behavioural problems exhibited by at least one of the children, there are allegations of physical violence by the father, some of which he admits, and Families SA despite indicating that the allegations warrant investigation, do not have the resources to do so and have closed their file.

3. Thus, at least to this extent the appeal should be allowed.

Ground 3
Ground 3.1

1. I must say that I do not understand what complaint the appellant is making in relation to how the Learned Federal Magistrate applied Section 60K of the Act.

2. Section 60K applies where an application is made to the court seeking a parenting order and a Notice of Abuse is filed alleging abuse. It requires the court to:

   31.1Consider what interim or final orders should be made to protect the child and to enable appropriate evidence to be obtained as expeditiously as possible;

   31.2Make such orders as the court considers appropriate; and

   31.3Deal with the matter as expeditiously as possible.

3. In his reasons for judgment the Learned Federal Magistrate correctly concluded that Section 60K applied here, he made an order pursuant to Section 69ZW of the Family Law Act, he then dealt with the proceedings expeditiously and he made interim orders that he considered appropriate.  Of course, the mother complains that those orders were inappropriate, but I can see no basis for finding that the Learned Federal Magistrate “misdirected himself as to the provisions of Section 60K…”.

4. In his outline of argument the mother’s counsel expressed the complaint differently, namely, that the Learned Federal Magistrate “misdirected himself as to the combined effect of the provisions of Section 60K and Section 61DA”, but that does not advance the argument as to Section 60K. There is no merit in this part of this ground of appeal.

5. Next, there is Section 61DA of the Act.  That provides:

   “(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   Note:     The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

   (2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)family violence.

   (3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”

6. The complaint is that the Learned Federal Magistrate “misdirected himself as to the provisions of …Section 61DA in that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe (in this case the father) has engaged in family violence or abuses of the children”.

7. It is said that the Learned Federal Magistrate “should have found on the evidence that the presumption was displaced or simply did not apply”.  Yet, he “made no such finding when in fact he was obliged to do so”, and he did not even refer to Section 61DA in his reasons.

8. It is said that to not consider Section 61DA and make a finding about it reveals an error in reasoning which permeates the entire judgment, and in particular it indicates that the Learned Federal Magistrate did not give any or any proper consideration to the father’s physical violence towards the child B.

9. The Full Court in GOODE and GOODE (2006) FLC 93-286 clearly articulated how interim proceedings are to be conducted following the amendments to the Act introduced on 1 July 2006.  The required steps are to:

   38.1Identify the competing proposals of the parties;

   38.2Identify the issues in dispute in the interim hearing;

   38.3Identify any agreed or uncontested relevant facts;

   38.4Consider the relevant matters in Section 60CC; and

   38.5Decide whether the presumption in Section 61DA is to apply and the considerations that arise from that presumption.

10. Thus, to repeat, it is suggested that to not consider the presumption is an error in itself, but in this case it leads to the implication that the Learned Federal Magistrate did not properly consider the issue of physical violence.

11. There is no doubt that the Learned Federal Magistrate should have referred to Section 61DA in his reasons for judgment, and that he should have made a specific finding that the presumption did not apply (NEWLANDS and NEWLANDS (2007) FamCA 168 at [81]), but in my view that does not necessarily lead to this ground of appeal succeeding. The Learned Federal Magistrate found that the father had been physically violent towards the child B and it is open to find that he did not apply the presumption for that reason (Section 61DA(2)). Thus, his failure to specifically cite Section 61DA is of no moment and does not affect the outcome.

1. Further, to suggest that because the Learned Federal Magistrate did not specifically refer to Section 61DA implies that he did not give proper consideration to the evidence of physical violence is unsustainable. The Learned Federal Magistrate proceeded on the basis that the father had been physically violent towards the child B and the issue he had to decide was the level of protection that was required pending trial.

Ground 3.2

1. The Learned Federal Magistrate referred to the relevant principles from the authorities and recognised that he needed to make an assessment of the level of risk of physical violence to the children if placed into the father’s care, and what if any level of protection he needed to impose.  He in effect found that the children were at risk without supervision and determined that supervision by Ms L would provide the necessary level of protection to the children.

2. The complaint is that in so concluding the Learned Federal Magistrate “gave insufficient weight to the medical and other evidence, including the father’s admission of some violence and his history of violence towards members of his own family”.  It is said that if the Learned Federal Magistrate had taken that evidence sufficiently into account he would have found that the level of risk is such that the children should only spend time with the father (if at all) under the supervision of a professional supervisor at a Children’s Contact Service.  This of course brings in grounds 3.3, 3.4 and 4 of the Notice of Appeal.

3. I find that the Learned Federal Magistrate did not sufficiently take into account the evidence that was before him in reaching his conclusion. 

4. The Learned Federal Magistrate said this in his reasons for judgment:

   “67.Accordingly, the fact that an issue of abuse has been raised is not of itself sufficient to stop the father having some interaction with the children concerned.  I have to make some assessment of the degree of risk involved to the children and take steps proportionate to that risk.  That may be professional supervision or it may be private supervision.

   68.Both professional supervision and private supervision have advantages and disadvantages, but particularly in the case of this matter, professional supervision will be subject to a delay.  The time available is likely to be limited and, to use the expression that the Full Court used, is not likely to provide relaxed parenting time.  Undoubtedly, a contact centre – and I am not being critical of contact centres at all – the environment provided by such centre is perhaps at times a somewhat stilted one.  Time at such a centre will also be extremely limited.

   69.My function today is to assess the risk of harm to the children and reach a conclusion as to whether or not it is an unacceptable risk, and also to fashion orders which are appropriate given the degree of risk.

   70.I am concerned about the father’s past propensity to have recourse to violence, as is demonstrated by his two prior convictions which I think are serious.  I also bear in mind that over a considerable period of time the father has played a meaningful role in the lives of these two children and that came about as a result of consent orders made by the Family Court.  I think that is a significant thing.

   71.At this stage it seems unlikely that a court will ever be able to get to the bottom of why [B] had a black eye.  It is possible to conjecture on many reasons why she had a black eye.  Some of those are innocent explanations, others are sinister, but I think it is also a matter of some significance that the father has acknowledged his role in one serious incident which on the evidence before me seems to be an isolated occurrence.

   72.The father has taken some steps by way of the courses he is undertaking at Relationship Australia.  No doubt the mother will say – and it is quite right that she says it – that the father has been given anger management in the past, when he was placed on a good behaviour bond following the conviction against him for assaulting his sister.  It is all very well to say that the use of the belt was a misjudgement on his part, but I have to make some assessment of the risk of him losing his temper again.

   73.[B] is undoubtedly a difficult and challenging child.  At this point I do not know why her behaviour is difficult and challenging, but it does not appear beyond the bounds of possibility (sic) that it is as a result of the parties’ difficult parental relationship with one another.

   74.I have to look at the risk of the father losing his temper again with either [B] or [BI], and make some assessment of that risk.  There will always be a risk that somebody will lose his or her temper, nobody is perfect, but I look at the prior history of the father’s involvement with these two children.  I look at the father’s acknowledgment of his behaviour.  I look at the fact that he has undertaken some courses.

   75.The father, although it is not his preference, puts forwards Ms [L] as a supervisor.  Ms [L] struck me as a decent person.  I acknowledge that it is very easy for friends and associates to come forward and offer their help, and very often such people do not know the implications of supervision.  Ms [L] is prepared to give an undertaking that she will terminate any time the father spends with the children if there is any untoward behaviour on the father’s part.  I was impressed by Ms [L].

   76.From the mother’s point of view, she is an unknown quantify.  That sadly is a result of the parties’ difficult relationship with one another and I suspect because of Ms [L]’s relationship to the father’s current partner.  I have to balance all sorts of competing considerations, one of which is the need for these children to have a meaningful relationship with both their parents.

   77.I am concerned that the children’s relationship with their father, if I do not consider some means of them spending time with him, will lose some significant element of meaning and that may have long-term implications for these children.

   78.Having assessed the risk, part of which comes from the father’s acknowledgment of his behaviour, I have come to the view that the children can be protected, if I make an order that the time the father spends with the children occurs subject to Ms [L]’s supervision.“

5. However, the evidence is clear.  The child B had been exhibiting behavioural difficulties, the father was having difficulty managing that behaviour, he reached “the end of his tether” and he used a leather strap certainly on B’s legs causing bruising.  However, there was also the black eye.  The photographs confirm its presence, and the doctor’s view was that it was “consistent with strikes from the father”.  The father denied causing this and attempted to provide an explanation for it.  Thus, there is an issue as to the cause of a serious injury to the child B in the context of the father’s admission of losing control as a result of his inability to manage difficult behaviour by the child, and with the background of him being violent in the past and having two convictions for assault on his sister.

6. This was an interim hearing, where Families SA had expressed their concern about the allegations but were not able to investigate the same, where there was no Family Report yet before the court, and no Independent Children’s Lawyer had been appointed.

7. The level of risk of further harm being caused to the children if the father was able to spend time with them in the way that he sought was clearly high, and pending further investigation and a trial warranted extreme caution by the Learned Federal Magistrate.

8. The Learned Federal Magistrate correctly identified that he had to not only take into account the need to protect the children from physical harm but also the benefit to the children of having a meaningful relationship with both parents, but in my view the Learned Federal Magistrate erred in emphasising the latter over the former in this case.

9. The Learned Federal Magistrate was concerned about the delay that would be entailed with requiring supervision of the time the children spend with their father at a Children’s Contact Service.  He was also concerned about the limitations on the amount of time that the children could spend with their father at such a centre, and the “stilted environment” at such a centre.  Thus, he chose to allow weekend overnight time supervised by Ms L.  By so doing I find that the Learned Federal Magistrate did not take proper account of the level of risk of further physical harm to the children.

10. In recounting the history of this matter, the Learned Federal Magistrate referred to the medical evidence which took the form of a certificate by the doctor who saw the child and which described the bruises on her legs and face as being consistent with “strikes from father during an access visit”, but he then does not appear to take it into account in reaching his conclusion.  Nor did he address the inconsistency between the objective evidence of the photographs of the injuries and the father’s evidence that he only struck B once.  Despite this and without making any finding of credit the Learned Federal Magistrate accepted the father’s claim that his use of the strap was an “isolated incident” and proceeded accordingly.

11. The Learned Federal Magistrate provided for Ms L to supervise the time the father spends with the children, but I find that that does not address the level of protection required.  I have no difficulty with the Learned Federal Magistrate’s assessment of Ms L as a “decent person”, and his comment that he was “impressed by her”.  He had the advantage of seeing Ms L in the witness box and hearing her give evidence.  But the important issue is whether the court can be satisfied that the supervisor will respond if a circumstance arises that requires the child to be protected (K and B (1994) FLC 92-478 per Kay J at p.80,971) and I consider that given the level of risk the Learned Federal Magistrate gave insufficient weight to Ms L’s lack of experience as a supervisor and to her position as the mother of the father’s partner, in order to be so satisfied. With the high level of risk of further physical harm there was a need for professional supervision in a Children’s Contact Service (B and B (1993) FLC 92-357). Thus the Learned Federal Magistrate erred in this regard as well.

12. I also note that the Learned Federal Magistrate proceeded on the basis that the only way to ensure the maintenance of the children’s relationship with the father was via overnight weekend time supervised by Ms L.  However, there was no basis on the evidence before the Learned Federal Magistrate to conclude that that relationship could not be maintained via time spent at a Children’s Contact Service and particularly given the relatively short period of time before a final hearing could take place.

Grounds 3.3, 3.4 and 4

1. I do not consider that I need to say anything more about these grounds of appeal.

Conclusion

1. It follows from my discussion of the grounds of appeal that there is merit in the appeal and it should be allowed.

Re-exercise of discretion

1. Having concluded that the exercise of discretion cannot stand, it is necessary for me to consider whether it is appropriate to re-exercise that discretion.

2. Given that this is an appeal from an interim decision, and the final hearing has apparently been set, I am of the view that I should re-exercise the discretion.

3. Although the appellant mother has set out in her Notice of Appeal the orders that she seeks, the appeal proceeded on the basis that if there was to be time spent by the children with the father then that should take place at a Children’s Contact Service under supervision.  The appellant’s case was not just that paragraph 1 of the orders made by the Learned Federal Magistrate should be discharged or set aside.

4. There is no doubt that the children should spend time with the father, and there is no doubt that that time should be supervised.  The issues are whether that time should take place at a Children’s Contact Service under supervision of a professional supervisor or on the basis of there being overnight weekend time at the father’s home supervised by Ms L, or even I suppose at the home of Ms L.

5. In determining this issue the paramount consideration is what is in the best interests of the children (Section 60CA of the Family Law Act), and to address that in this case it is necessary to focus on the primary considerations in sub-section 60CC(2) of the Act.  They are the benefit to the children of having a meaningful relationship with both parents (a), and the need to protect the children from physical harm (b).  The father here promotes sub-paragraph (a) but the mother promotes sub-paragraph (b).

6. Since the separation the children have spent regular and frequent periods of time with the father, and it is apparent that prior to the incident with the strap they enjoyed a relatively good relationship with him.  The father is concerned that if he is not able to spend significant time with the children in the period pending the final hearing his relationship with them will be damaged.

7. However, the mother’s case is that there is a need to protect the children from further harm until the disputed allegations can be investigated, until there is a Family Report available, and until the trial is able to take place, and that can only be achieved by supervised time at a Children’s Contact Service.

8. It is clear that where allegations of physical abuse have been made the court must assess the level of the risk of harm to the children, reach a conclusion as to whether or not it is an unacceptable risk, and then fashion orders which cater for the degree of risk (A and A (1998) FLC 92-800, at p.87,996). In doing that the court must of course be mindful of the benefit of the children having a meaningful relationship with the father, but the protection of the children is foremost (M and M (1988) FLC 91-979). Here, in assessing the level of risk, determining whether there is an unacceptable risk, and making appropriate orders the following evidence is relevant:

   63.1The father had a good relationship with the children prior to the incident with the leather strap;

   63.2The father had two convictions for assault on his sister;

   63.3The child B had been exhibiting difficult behaviour and the father was having difficulty in controlling that behaviour;

   63.4The father lost his temper and struck the child B with a leather strap;

   63.5The medical evidence that the bruising to the legs and to the face is consistent with the father striking the child;

   63.6The father’s denial of causing the black eye;

   63.7The inconsistency between the objective evidence and the father’s evidence.  The photographs clearly show bruising on both legs yet the father says he only struck B once;

   63.8The assessment by Families SA that this was a matter of “high risk” and should be investigated;

   63.9The inability of Families SA to investigate the allegations;

   63.10The fact of the father commencing but not yet completing courses with Relationships Australia addressing anger management and parenting;

   63.11The lack of experience of the proposed supervisor and the fact that she is the mother of the father’s partner.

9. In my view there is a high level of risk here to the extent that there is an unacceptable risk of further harm if the children spend time with the father in other than supervised sessions at a Children’s Contact Service.

10. This is not a case where there are allegations made and the father denies those allegations.  Here the father admits striking the child B and acknowledges that his behaviour was inappropriate.  Thus there is no doubt of the need for protection, but there are the disputed allegations and the very real prospect of the father losing his temper again which require the level of protection to be high.  Supervised time at a Children’s Contact Service strikes the right balance between the need for protection and maintaining the relationship between the children and their father, particularly on an interim basis pending a final hearing.

11. In relation to the appointment of an Independent Children’s Lawyer, I have said all that I need to and I confirm that in my view there is an obvious need for such an appointment.

Costs

1. In the event that the appeal was successful on a matter of law the appellant sought a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981.  I consider it appropriate in the exercise of my discretion to grant a certificate.

I certify that the preceding
67 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 17^th day of September 2007.

……………………………………….
Associate