Appeal From Parenting Order Where Mother’s Evidence Against Father Not Accepted

11/05/2017

In a recent decision by the Full Court of the Family Court (the Full Court) in Bangi and Belov (2017), a father’s appeal against a decision made by the trial Judge was allowed in circumstances where the Full Court decided that the trial Judge had given insufficient consideration to the mother’s conduct toward the child, namely, exposing the child to family violence.

This was a parenting case involving a 10 year old child. The mother and the father each sought orders that the child live with them. After hearing the case, the trial Judge ultimately ordered (amongst other things) that the child live with the mother and spend time with the father for 5 nights a fortnight. This was in circumstances where the Judge had made findings which were not in favour of the mother including findings that:

  • the mother had exposed the child to violence and drunkenness.
  • the mother had not been cooperative with a court order that she take the child to a psychologist; and
  • the mother’s credibility was in question;

Moreover, the Judge had rejected the mother’s claims of violence by the father.

However notwithstanding all of this, the Judge believed that it was still in the child’s best interests to live with the mother as to remove the child from the mother would be traumatic to the child.

The father appealed on the basis that the Judge’s decision was inconsistent with his findings as to the mother’s parenting capacity, and that the decision was not supported buy the evidence.

The father further submitted that the report of the Family Consultant (which found in favour of the mother as being the primary attachment figure) was questionable as it transpired that the Family Consultant did not have all the evidence before him and had submitted a Report without due consideration of all of the evidence when preparing his report.

In broad terms, the Full Court of the Family Court decided that:

  • The trial Judge had not given sufficient consideration to the findings she had made in relation to the mother’s unfounded allegations against the father;
  • The Judge had given insufficient consideration to evidence that she had accepted from another independent witness who, in broad terms, gave evidence in support of the father’s case;
  • The Judge gave significant credence to the mother’s evidence even though the Judge had found that the mother was lacking credibility;
  • The mother had asserted that the father was violent and abusive towards her.  The Court did not accept the evidence of the mother.

When the Full Court of the Family Court considered the appeal, it found the trial Judge gave significant credence to the Report of the Family Consultant despite the fact that the Family Consultant was not aware of all of the evidence and consequently did not consider all of the evidence.

The Full Court of the Family Court decided in favour of the father and the father’s appeal was allowed.

Please do not hesitate to contact Richard Watson our family lawyer or Shereen Da Gloria his assistant should you be faced with a similar situation and are unsure of a way forward.

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