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Credibility on Trial: Appellate Court Overturns Parenting Orders

In Jefford & Kaluza [2026] FedCFamC1A 6, the Full Court of the Federal Circuit and Family Court of Australia (Hogan, Altobelli & Jarrett JJ) overturned draconian parenting orders that completely severed a father’s contact with his two children. The appellate judges found that the trial judge had failed to consider crucial prior findings, ignored credibility evidence, and misapplied the principles governing unacceptable risk and evidentiary assessment under the Family Law Act 1975 (Cth). The decision is a powerful reminder that risk assessments in child protection cases must be evidence-based, holistic, and procedurally fair.

Facts and Issues

Facts

  • The parties, Mr Jefford (father) and Ms Kaluza (mother), were parents of two children, X (b. 2017) and Y (b. 2019).
  • In 2019 and 2020, the mother alleged the father had sexually abused X, then a toddler. These allegations were dismissed in Kaluza & Jefford [2025] FedCFamC1F 281 by Austin J, who found no unacceptable risk and questioned the mother’s credibility for possible tactical conduct.
  • Despite those findings, in 2023 the mother again alleged sexual abuse following the children’s contact visits.
  • The 2025 primary judge (Smith J) made no-contact orders and found a “real and substantial possibility” that the father had sexually abused X and posed an unacceptable future risk to both children.
  • The father appealed, arguing that the trial judge ignored prior evidence, failed to assess credibility properly, and erred in finding risk without evidentiary foundation.

Issues

  1. Did the primary judge err by failing to consider relevant prior judicial findings (Austin J’s 2022 decision)?
  2. Was the mother’s credibility adequately assessed in light of her conduct and conflicting evidence?
  3. Was the finding of “unacceptable risk” properly supported by reliable evidence?
  4. Did the trial judge err by failing to consider whether risk could be mitigated by less restrictive orders?

Rule (Law)

Key Legal Principles:

  • Unacceptable Risk Test: Derived from M v M (1988) 166 CLR 69 — courts must balance the possibility of risk against the harm of severing a parent-child relationship.
  • Best Interests of the Child: Family Law Act 1975 (Cth) ss 60CA, 60CC — child safety is paramount, but relationships should be maintained where safely possible.
  • Appellate Standard: House v The King (1936) 55 CLR 499 — appellate intervention justified if discretion exercised on wrong principle, relevant considerations ignored, or result plainly unjust.
  • Standard of Proof: Briginshaw v Briginshaw (1938) 60 CLR 336 — the more serious the allegation, the clearer the proof required under s 140 of the Evidence Act 1995 (Cth).
  • Weight and Credibility: Fox v Percy (2003) 214 CLR 118 — appellate courts conduct a “real review” of evidence, not a mere deference to findings.
  • Expert Evidence: Judges must assess experts’ reasoning and factual basis, not defer blindly (GLJ v Trustees of the Roman Catholic Church (2023) 280 CLR 442).

Application (Analysis)

1. Failure to Consider Prior Findings

Justice Hogan found that the primary judge’s refusal to consider Austin J’s 2022 judgment was a fundamental legal error. The earlier findings, which discredited the mother’s allegations and identified tactical reporting, were highly relevant to assessing her 2023 claims and credibility.

By “proceeding as though none of that had happened,” the judge acted on a wrong principle and ignored material considerations, violating House v The King.

2. Misapprehension of Evidence and Credibility

The appellate court highlighted significant inconsistencies:

  • The mother told a counsellor that X said “Daddy made my gina bleed,” a statement later proven false.
  • She misled both the counsellor and the court expert by implying that the child had made that statement, when in fact the mother herself invented it.
  • Despite these fabrications, the trial judge found her “a credible witness” — a finding the Full Court described as “demonstrably wrong and contrary to compelling inferences.”

This failure to grapple with credibility destroyed the factual foundation for any risk finding.

3. Weight Given to Unchallenged Expert Evidence

While the trial judge relied heavily on the Court Child Expert’s interpretation of the child’s “disclosures,” the expert’s evidence was derived from hearsay and unverified counselling notes. The counsellor (Ms DD) was never called, meaning the reliability of her notes could not be tested. The appellate court held it was unacceptable to rely on such untested material where the ICL failed to discharge their obligation under s 68LA(2) of the Family Law Act.

4. Failure to Balance Harm and Benefit

The trial judge recognised that cutting contact would cause “inevitable psychological harm” to the children but made no finding explaining why supervised or identity contact could not ameliorate risk.

The appellate court found this omission contrary to law, citing Betros & Betros [2017] FamCAFC 90 — courts must weigh protective harm vs relational harm and explain why lesser restrictions would not suffice.

Judgment and Reasoning

  • Appeal Outcome: Allowed.
  • Orders: Parenting orders set aside; matter remitted for retrial before a different judge; both parties granted Federal Proceedings (Costs) Act 1981 (Cth) certificates.
  • Reasoning:
  • The trial judge erred in law by failing to consider relevant historical findings (Austin J, 2022).
  • Findings of risk and credibility were unsustainable given the factual inconsistencies.
  • The reliance on untested expert material and failure to consider risk mitigation amounted to appealable error.
  • The overall judgment was “plainly unjust,” satisfying House v The King.

Cited Precedents

  • M v M (1988) 166 CLR 69
  • House v The King (1936) 55 CLR 499
  • Fox v Percy (2003) 214 CLR 118
  • Lee v Lee (2019) 266 CLR 129
  • GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442
  • Isles & Nelissen (2022) FLC 94-092
  • Betros & Betros [2017] FamCAFC 90

Take-Home Lesson

Jefford & Kaluza [2026] stands as a powerful caution against narrow, decontextualized findings in sexual risk cases.

Judges must:

  • Assess risk holistically, considering prior credibility and findings.
  • Avoid overreliance on hearsay or untested expert notes.
  • Balance protection with the psychological cost of total estrangement.
  • Provide transparent reasoning for why less restrictive orders (e.g., supervision) won’t suffice.

Ultimately, Hogan J’s reasoning restores faith in appellate oversight as a safeguard against “procedural tunnel vision” in family law risk assessments.

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