…disproportionate to identified unacceptable risk
In Bielen & Kozma  FedCFamC1A 221 (20 December 2022), the Full Court (McClelland DCJ, Henderson & Harper JJ) allowed an appeal from orders where six and four-year-old children changed from living with the mother to the father.
At first instance, the court found that the children had been exposed to the mother’s ongoing false narrative that they had been sexually abused by the father, posing an unacceptable risk of ongoing emotional harm in her care. The court ordered that the mother have no time nor communication with the children, save for the provision of cards.
The mother argued that the court erred where it found that, as the mother posed an unacceptable welfare risk, “it is unnecessary to explore the remaining primary consideration and additional considerations contained in section 60CC” () of the Family Law Act 1975 (the Act).
The Full Court said (from ):
“ … [T]he focus of parenting proceedings should be on ‘the effect on the child’ of the parties’ respective proposals (Fairfield & Hoffman  FamCAFC 151 … (…)
 … [T]he primary judge was in error in failing to consider s60CC(2)(a) and any factor contained within s60CC(3), particularly s60CC(3)(d). (…)
 … The fact that [the primary judge] … failed to give ‘proper, genuine and realistic consideration’ in a manner that was consistent with the objects of Part VII of the Act … is apparent from the judgment. Nowhere in the body of the judgment does the primary judge set out her assessment of the consequences for these young children of losing the benefit of a meaningful relationship with their mother. (…)
 In Helbig & Rowe  FamCAFC 117, the Full Court explained … that where a case is conducted on the basis of … unacceptable risk of harm to a child in the care of one parent, ‘[t]he first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk’ … ”
Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. 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).