Joyner & Whiteside 2015 FamCAFC 44

Both parents migrated from Africa and separated after having a child aged 5 years.  Existing orders were that the child live with the mother and spend time with the father.  The father withheld the child after finding bruising that the school attributed to normal activities, and the father appealed orders on several grounds.

A family assessor reported that the father held a  strong belief that the child was being physically abused, and that the mother’s poor English reduced her capacity to provide adequately for the child.  The assessor reported that the father lacked insight into the impact on the child of his withholding the child.  The judge found that the father acknowledged that the mother’s parenting was competent through his proposal that the child spend significant time with the mother.

The father alleged that the family assessment was inadequate as it focused primarily on the father’s withholding the child and not on the mother’s parenting capacity (expert evidence unsatisfactory).  The assessor acknowledged this bias, stating that this priority was set by the ICL.  The appeal court found that while family assessors might be expected to investigate and to analyse the child’s attachments with key figures in its life …  it does not follow that the assessor is obliged to ask the same questions of, or in relation to, each parent.  Rather the assessor is entitled to structure the process which generates their report according to the individual requirements and dictates of each case.  The appeal court found that the assessor’s report was adequate.

The father held a strong belief that the child was at risk of sexual abuse while in the care of the mother but no evidence was provided to substantiate this concern.  The father claimed to withhold the child to protect the child.  The trial judge did not give weight to the father’s concern, and this was a ground of appeal.

The father arranged for a report from his treating psychologist who had seen him on five occasions based on a referral for stress, and who reported that the father was of sound mind and had reasonable grounds for concern about the child.  The treating psychologist acknowledged that all available information had come from the father.  The father submitted that the trial judge gave insufficient weight to the evidence of the treating psychologist, but this claim was not accepted by the appeal court.