FATHER APPEALS ORDER FINDING HIM POSING AN UNACCEPTABLE RISK TO HIS CHILDREN
HARRISON & HARRISON
Family Court of Australia
[2019] FamCAFC 261
This is an appeal case against the final parenting orders made by a judge of the Family Court of Australia, which gave sole parental responsibility and custody to the children’s mother and the two younger children only to spend time with their father at specified times.
Facts:
Mr. Harrison (Father and Appellant) filed an Amended Notice of Appeal, supported by the Summary of Arguments that covered much the same points as the Amended Notice of Appeal, against the final parenting orders made in the Federal Circuit Court of Australia, which provided for Ms. Harrison (Mother and Respondent) to have sole parental responsibility and that they live with her, and that the two younger children (Y, born 2019, and V, born 2013) spend time with their father at specified times. No orders were made in relation to the eldest child (Q, born 2003). The orders were made based on the primary judge’s conclusion that Ms. Harrison posed no risk to the children of physical or emotional harm and finding that Mr. Harrison’s conduct in embroiling the children in the dispute with Ms. Harrison have the potential to damage the younger children’s relationship with their mother.[1] The appeal against the orders was dismissed, and the father was ordered to pay the respondent mother’s costs of and incidental to the appeal fixed.
Issue:
Whether or not one or the other parent posed as an unacceptable risk to the children in his or her care.
Held:
The Court agreed to the finding of the primary judge that Mr. Harrison had been emotionally abusive to his children and presents an ongoing risk of harm to them.[2] Mr. Harrison was found to have told Y to lie about being physically and emotionally abused by his mother during an interview with the Family Report Writer, the Department of Health and Human Services Victoria (DHHS) and other parties. The primary judge found that Mr. Harrison’s conduct toward the children, especially to Y, was harmful, and that he not only exposed, but also involved them in his conflict with Ms. Harrison. Hence, Mr. Harrison was found to have posed as an unacceptable risk to the children.
The Amended Notice of Appeal was supplemented by the Summary of Arguments, which the Court found to have covered the same points. The Court found the Summary of Argument merely repeating the ground of appeal. In the case of Bahonko v Sterjov[3], the Full Court of the Federal Court of Australia held that:
“Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error. This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable (sic) error.”
Hence, as neither written or oral submissions supported appealable error or any proper basis for challenging the primary judge’s orders and the ground of appeal did not appear to raise any question of general principle, the Court dismissed the appeal.
[1] Harrison & Harrison [2019] FamCAFC 261 (20 December 2019) at (7)
[2] Ibid at (341)
[3] Bahonko v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415