Appealing an order with the Family Court of Australia

A father successfully applied to the Family Court of Australia appealing an order where he had been prohibited from spending time with or communicating with his four year old child. The parties in the matter had separated before the child turned one. The trial judge had accepted the mother’s evidence that in 2009 the father grabbed a 30cm knife from her which she had been using to slice tomatoes and thereafter the parties struggled. Despite this, the parties had reached an agreement regarding the father spending time with the child but such visits only took place twice before the arrangement ceased. The father had not spent any time with, or communicated with the child since 1 March 2009 when the child was 11 months old.

The central issue in these proceedings was whether the father posed an unacceptable risk of harm to the child. The mother asserted that he represented such risk because of alleged violent conduct during the course of the relationship. The mother was essentially seeking that the father be completely eliminated from the child’s life.

It was found on appeal that there was no evidence from which a conclusion could properly be drawn that the father was likely to harm the child or that there was an unacceptable risk of him doing so.

Alternative Arrangements Proposed for Child Access

The father had put forward to the trial judge a number of different proposals by which the child could have some relationship with him including permitting the father to send cards on special occasions, supervised time with the father and requiring the mother and child to engage with therapists etc. The appeal court found that the trial judge needed to consider such options and whether the risk of harm to the child still remained unacceptable.

The appeal court found that the trial judge was in error as he failed to properly disclose his reasoning as to why the orders prohibited the father spending any time with or communicating with the child. It appears the trial judge did not consider an alternative regime of orders, which, if balanced appropriately, would reduce the risk and potentially benefit a future relationship between the father and child.

The matter was remitted for further hearing.