Biggs & Hurst (Application pursuant to Rice & Asplund) 2014 FamCA 217


A trial judge made orders enabling the father to spend time with the children, conditional upon a number of factors including successful completion of a three month residential rehabilitation program and completion of parenting programmes.  The father sought that these orders be discharged based on his uncorroborated evidence that he had ceased consuming alcohol.

The father submitted a report from a psychologist whose curriculum vitae showed limited qualifications in relation to issues of alcohol.  The judge expressed serious doubts about the expertise of the psychologist in the particular area, and about conclusions based solely upon the father’s assertion that he was sober.  The judge found that much of the psychologist’s report dealt with parenting aspects and parenting of the children, but the psychologist had neither seen nor met the mother nor had the psychologist seen or met the children (expert evidence unsatisfactory).  The judge viewed the report as an adversarial report and declined permission for the father to rely on the material (inadmissible evidence).

The judge admitted evidence that the father had participated in further instances of family violence and breaches of an AVO, and had been incarcerated.  The trial judge had found that the mother suffered a long history of domestic violence, both verbal and physical assaults, at the hands of the father.  The judge found that the father lacked candour and credibility.  The judge was not satisfied that the father had made any genuine endeavour to undertake the course required of him.

The judge found that it was open for the father to file affidavit material from expert treating physicians (treatment report), but he had not done so.

The judge was not satisfied that the evidence demonstrated any material changed circumstances, and dismissed the application.