Children – parental capacity not always impacted where concerns held on child’s safety in other parent’s care

In Keane [2021] FamCAFC 1 (18 January 2021) the Full Court (Alstergren CJ, McClelland DCJ & Benjamin J) dismissed an appeal from orders made for the care of a 4 year old, where Judge McEvoy found that the father had committed acts of domestic violence towards the mother.

Judge McEvoy ordered that the father spend supervised time with the child, which was to then increase to unsupervised time.

The mother appealed, arguing that the court had misapplied “the Re Andrews principle” (that the mother’s caregiving capacity would be discernibly impaired by an order that the child have time with the father).

The Full Court said (from [75]):

“ … [A]uthorities applying ‘the Re Andrews principle’ … [have] been expressed in a variety of ways (…)

[80] Subsequent authorities … confirm that it is an error to assume that, in … every case where a parent is concerned about the safety of a child in the other parent’s care, the court will infer that there is an unacceptable risk that the concerned parent’s parenting capacity will be adversely impacted. (…)

[81] … [T]he Full Court in Marra [ed. full citation: Marra & Marra (Unreported, Full Court of the Family Court, Fogarty, Baker & Butler JJ, 8 September 1993)] held that not only is it necessary for the court to determine whether a parent has a genuine concern about the welfare of the child in the care of the other parent but it is also necessary to determine whether the concerned parent’s parenting capacity will be ‘discernibly impaired’. (…)

[111] … [A]side from stating that she would be very distressed by such orders, no evidence was placed before the primary judge to assist his Honour in making an assessment of the level of that distress. … [H]is Honour found that the mother would seek appropriate therapy if necessary. … [T]hose findings were … open … on the … evidence …”

Craig Nicol is the editor of The Family Law Book and Keleigh Robinson is the co-editor. Both are Accredited Specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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