In Syms [2021] FamCAFC 38 (26 March 2021) the Full Court (Aldridge, Watts and Austin JJ) heard an appeal where a mother unsuccessfully argued that her three children were at unacceptable risk of sexual abuse by their father.
The court found that the mother’s fixed but unfounded views posed an unacceptable risk of emotional harm and that the children live with the father.
The mother’s time was to be supervised after a four-month moratorium. Such supervision was to continue at the discretion of the father.
The Full Court said (from [93]):
“…[H]er Honour was not satisfied that the children were describing actual events of abuse…
[94] …[I]t was found that the allegations … [by the children to the mother] ‘began a course of action akin to a mission to establish that the children had been sexually abused by the father’ (at [170]). (…)
[106] The single expert … considered that the probability of the father being a sexual abuser was ‘fairly low down the list’. There is no reason whatsoever to consider that her Honour did not have regard to … the entirety of the single expert’s evidence.”
As to the risk posed to the children by the mother, the Full Court said (at [116]): “…[T]he most relevant time for considering whether the mother posed a risk of emotional harm … due to her fixed belief that they had been sexually abused … was at the hearing before the primary judge…”
As to the father’s discretion to determine when supervision would cease, the Full Court said (at [140]):
“We do not accept that the order is … for permanent supervision. The primary judge expected that the father would act reasonably, but if he did not, the mother could return to Court to … lift the supervision requirement. In doing so, she would not be bound by the rule in Rice and Asplund [1978] FamCA 84 because the primary judge expressly envisaged such an application…”
The mother lost her appeal and was ordered to pay costs.
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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