Potter v Potter

This appeal concerned contact arrangements between a child and her father, following allegations of sexual abuse. The primary dispute revolved around the trial judge's findings regarding the occurrence of sexual abuse and the risk posed by unsupervised contact with the father. The appeal was heard by Bryant CJ, Coleman and May JJ.

The legal issues before the Full Court were whether the trial judge erred in making a positive finding that sexual abuse had occurred, and whether it was open to her to conclude that unsupervised contact between the child and the father would expose the child to an unacceptable risk of sexual abuse. This was particularly in circumstances where the trial judge found it impossible to identify the father as the perpetrator, although he was one of two possible perpetrators. The Court was also asked to consider the standard to be applied in making a finding of unacceptable risk of abuse and whether the trial judge correctly formulated or applied the relevant legal principles.

The trial judge found it more likely than not that the child had been sexually abused by a person the child called "Daddy". While there were three such individuals – the father, the paternal grandfather, and the maternal grandfather – the evidence led the judge to conclude it was unlikely the paternal grandfather was the abuser due to minimal contact. The judge was unable to identify the perpetrator between the father and the maternal grandfather, noting the maternal grandfather had extensive unsupervised time with the child and inconsistencies in his evidence. Despite the inability to definitively identify the father as the abuser, the trial judge considered the risk of unsupervised contact with the father or maternal grandfather, applying the principles of s 140(2) of the Evidence Act.

The Full Court ultimately ordered that supervised contact be maintained between the child and the father, upholding the trial judge's assessment of unacceptable risk.