FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against an order for indefinite supervised time with the parties’ three children – Whether the Federal Magistrate erred in finding that the father posed an unacceptable risk of emotional harm to the children – Where the father was diagnosed with and being treated for Asperger’s – Where the Court received expert evidence reports from a Court appointed psychiatrist, and the father’s treating psychologist – Where the experts expressed differing opinions as to the issue of risk – Where the finding of unacceptable risk was open on the expert evidence, the recent evidence of the father’s behaviour and the mother’s concerns – Where no error was demonstrated in the Federal Magistrate’s application of the legal principles and exercise of discretion in finding the father posed an unacceptable risk of emotional harm – Whether the Federal Magistrate erred in making an order of indefinite duration for supervised time with the children – Where an order for supervised time was appropriate because a finding of unacceptable risk was made – Where the indefinite supervised time order was not sought by the mother or the Independent Children’s Lawyer – Where the indefinite nature of the supervised time order was not justified in the circumstances and not substantiated by adequate reasons – Appealable error established – Where given the length of time which has passed since the hearing of the matter, and the age of the children and expert reports, a rehearing with further updated expert evidence is necessary – Appeal allowed and issue of the father’s time with the children and the circumstances in which that time should be spent be remitted for rehearing.
FAMILY LAW – APPEAL – COSTS – Where the father and the Independent Children’s Lawyer sought costs certificates in the event the appeal was successful – Where the mother was self represented and incurred no legal costs – Where the appeal being allowed because of error on the part of the Federal Magistrate, the father and the Independent Children’s Lawyer should receive costs certificates in the appeal, and all parties should receive certificates for the rehearing.
[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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Slater & Light [2013] FamCAFC 4
Case
[2013] FamCAFC 4
Decision Date
CaseChat Overview and Summary
In Slater & Light, the primary dispute revolved around the best interests of children in the context of parental access and supervision, given one parent's diagnosis of Asperger's syndrome. The matter was before the Family Court of Australia, where the court was tasked with weighing the competing expert opinions on the father's condition and its implications for the children's welfare.
The key legal issues before the court involved whether the father posed an unacceptable risk to the children, and if so, whether the court had adequately considered the evidence provided by the experts. The court had to assess the weight given to the father's diagnosis and prognosis, as well as the impact of Asperger's syndrome on the children's development and relationship with their father. Additionally, the court needed to determine if the proposed supervision orders were necessary and proportionate to the risks identified.
The court carefully evaluated the evidence presented by both parties, focusing on the experts' assessments of the father's condition and its implications for the children. The court acknowledged the importance of the father's condition but ultimately found that the risks were manageable with appropriate supervision. The court also noted the potential harm caused by limiting the father's contact with the children and balanced this against the need to protect the children from any identified risks.
Ultimately, the court determined that while there were risks associated with the father's condition, they were not of such a magnitude as to warrant indefinite supervision orders. The court ordered supervised contact between the father and the children, with specific conditions aimed at mitigating any potential risks while still allowing for a meaningful relationship to develop.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence Before The Court
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Ratio Decidendi
Legal Principle Established
Counsel for the Independent Children’s Lawyer also put to Dr S directly the issue of whether she had considered the best interests of the children as understood within the provisions of the Act (Transcript,18 April 2011 page 64, line 30 – page 65, line 8):[COUNSEL ICL]: …Now, you’ve said it’s in the best interests of the father and this is your third last paragraph – I’m sorry second last paragraph. You say: I believe it is in the children’s and [the father’s] best interests that [the father] have free access to his children. Now, you certainly believe it’s in [the father’s] best interest and he is your client?‑‑‑Yes.When you made that recommendation for the children had you taken into consideration the sections of the Family Law Act considering the best interests of the child?‑‑‑Not specifically. Are you – are you familiar with those sections of the Act?‑‑‑No, I’m not. …Yes, children can be greatly affected by Asperger’s in a parent and I suppose that’s where I’m getting at. If they – they need the education. They need contact with [the father] and to be able to develop a relationship with him. (emphasis added) Counsel for the father submitted that in coming to the conclusion that the father posed an unacceptable risk, his Honour failed to give adequate consideration to Dr S’s evidence about the father’s condition and prognosis. It was also submitted that his Honour failed to give adequate weight to Dr M’s evidence that she did not have as much experience dealing with Asperger’s syndrome as did Dr S. In relation to his Honour’s comment that he was faced with two opposing professional opinions, counsel said “the evidence did not bear out the opposing professional views”. It was also noted, as will be discussed further below, that the Independent Children’s Lawyer submitted in the trial that there was not an unacceptable risk to the children. Counsel for the father accepted that some risks were present, however submitted in effect that these were acceptable risks that could be dealt with by appropriate orders. In relation to ground 3, counsel for the father submitted there was a significant body of authority in this Court cautioning against the making of indefinite supervision orders. We were referred in particular to the judgment of May J in Fitzpatrick and Fitzpatrick (cited above in Moose & Moose) and the effect supervised contact has on the emotional wellbeing of children. Counsel complained that the effect of the order was further exaggerated because it cut back the father’s time with the children from two hours per week to two hours per fortnight, in circumstances where no party had expressly sought that order. It was acknowledged that there were sensible reasons for so doing, namely enabling the children to partake in other weekend activities and to go on holiday, however counsel questioned whether any meaningful relationship was possible in such time and under such conditions.