Horan & Beckett 2010 FamCAFC 200

Both parents requested reviews of an interim order.  A child aged 4.5 years had lived with his father for four years after the mother left the family.  A judicial officer issued an interim order for the child to live with the mother and to spend time with the father.  The father appealed on the grounds that a single expert witness had reported that the child’s primary attachment figure was the father.

Both the mother and father had re-partnered.  The parents lived in different states.  The mother had three children from three different fathers.

The father did not ask his new partner to provide evidence although it was planned that she provide care for the child. Evidence was presented that the father’s new partner had mental health issues, used drugs, and had difficulty coping with her own three young children.  The father used cannabis on a daily basis, was enrolled in a rehabilitation programme but did not attend regularly and did not comply with therapy (therapy for parent), and had returned positive drug screens.  The father was found to require daily support from members of his extended family to care for the child.  During the six month period before the trial the father had obtained material assistance for basic necessities from a welfare agency on a weekly basis while spending significant funds on cannabis.

The mother had reportedly ceased substance use.

An assessor reported that the father’s house was very untidy (environmental neglect).  The mother’s household was reported to be more stable.

A consultant reported that the father experienced moods when he yelled and that he had anger problems (mood disorder).  The father reportedly allowed the child to display angry behaviour.

A consultant reported that interrupting a child’s primary attachment after a child turned three years may produce temporary distress but was less of a concern for long term development (age of child).

The expert gave a generalised opinion that, “There is substantial research in regard to the negative consequences to the children of substance abusing parents.  Such children often experience distortion and secrecy, as well as social isolation.  They are more vulnerable to accidents and injuries and to exposure to traumatic events including violence.  They generally have more health problems and poorer developmental outcomes.”

The Full Court found that a family assessment provided expert evidence that is valuable when relevant material is presented to assist a Judge in forming ultimate conclusions.  When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them to be consistent with the rest of the body of evidence.

The appeal judges noted that judges are required to weigh evidence and to state what significance they place on certain evidence, and to give reasons for orders that are clear to others. The appeal court concluded that the trial judge had addressed all relevant considerations giving reasons that referred to evidence. The appeal was dismissed.