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Children – interim order that father spend no time with child set aside on appeal

In Lim & Zong [2020] FamCAFC 20 (31 January 2020) Kent J (sitting in the appellate jurisdiction of the Family Court of Australia) allowed the father’s appeal against Judge Tonkin’s interim order that the father spend no time and not communicate with the child (an order not sought either by the mother or the independent children’s lawyer (ICL)) and that he consult a clinical psychologist for preparation of a report as to “whether there was a risk to the mother and child being exposed to further family violence by the father” ([3]).

The mother alleged violence by the father, which he denied, saying that the mother had historically alleged violence to disrupt his relationship with the child. A report from a family consultant who accepted the mother’s allegations opined that the father was likely to continue to perpetrate family violence towards the mother ([31]). The father complained that he had not had an opportunity to cross-examine the report writer.

After (at [33] and [50]) citing Salah [2016] FamCA 100 (a judge at an interim hearing must for the purpose of s60CG consider “the risk of family violence”) and SS & AH [2010] FamCAFC 13 (“findings made at an interim hearing should be couched with great circumspection”), Kent J said ([52] [53]):

“…[H]ere the inescapable conclusion is that the primary judge’s decision rested upon… concluded findings of fact…So much is clear from the…order for no time or communication despite…not being sought by either parent or, importantly, by the ICL…

(…) [T]he…judge was in error in failing to…articulate to the parties…the father in particular, and afford him the opportunity to be heard on, the prospect of…an interim order for no time or communication. Moreover, review of the transcript does not reveal the…judge having foreshadowed to the father, or calling for his submissions upon, questions about his attendance upon a clinical psychologist for the purpose of further reports. Importantly, in the manner in which those orders are framed, the determinations made by the…judge about family violence were to be taken as a given by the…psychologist…[T]he…orders speak of ‘further’ family violence being perpetrated by the father and the orders make provision for the expert to be provided with the…judge’s reasons for judgment and the family reports, all of which express unequivocal conclusions about the disputed issues…concerning family violence.”

Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).

This story was originally published in Proctor April 2020.

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