View a full copy of this report (PDF Size - 3.69 MB) - Family Court of ...

6. Each of her Honour’s findings relevant to the father’s appeal was supported by
evidence.
7. ‘Mr B’s conclusions based on his testing did not give substantial support to the
father’s case, but rather cast doubt on his parenting capacity.’
8. ‘Although the trial Judge did not make a finding of sexual abuse, it was necessary,
nonetheless, for appropriate consideration to be given to the evidence relevant
to the question of unacceptable risk.’ Her Honour carefully weighed all the expert
evidence, she afforded appropriate weight to E’s relationship with the father and
reached a finding of unacceptable risk to the requisite standard.
Part 5
Parenting orders — Contact — Contravention — Reasonable excuse — Family Law
Act 1975 s 70NE(1A).
Daly v Campbell [2005] FamCA 1046, (2005) FLC 93-236, 4 November 2005
Full Court of the Family Court of Australia before Kay, Warnick and Boland JJ.
The mother appealed against a finding of the trial Judge that she had contravened
orders for contact without reasonable excuse.
SIGNIFICANT JUDGMENTS
There had been numerous proceedings in the Family Court between the mother and
father in relation to contact by the father with their child T (aged 7 at the time of the
appeal). Orders were made on 17 March 2004 including, inter alia, that T reside with
the mother and that changeover for contact take place at a contact centre. Previous
contravention proceedings resulted in the mother being sentenced to imprisonment
for 30 days and serving 12 days of that term.
It was agreed that on 17 September 2004, the mother delivered T to the contact centre,
as required by the orders. The mother admitted that on that date, contact between the
father and T did not take place. She asserted that by delivering T to the contact centre,
she did all that was required of her in accordance with the orders. She gave evidence
that once at the contact centre she left the physical changeover to the employees of
the centre, who ultimately told the mother to take T home. An employee of the contact
centre gave evidence that the mother did encourage T to attend contact with her father
on the date of the alleged contravention. The father asserted that the mother was
required to do all that was reasonably possible to ensure the child attended contact
with the father and that she did not discharge this obligation.
In relation to the mother’s evidence at trial, her Honour was not ‘convinced by her
evidence that she did take any step to genuinely encourage T to go on contact with
her father other than taking T to the contact centre and telling her “off you go”’. Her
Honour found that the mother was required to take ‘[a]n active role with an obligation
to positively encourage access’, which she did not do. On the balance of probabilities,
the mother did not have a reasonable excuse for contravening the contact order.
Family Court of Australia Annual Report 2005–2006 71