By and -

Key decisions

  • Keane & Keane [2021] FamCAFC 1
  • Fei & Woong [2021] FamCAFC 2
  • Hui & Bai [2021] FamCA 6
  • England & Harrisson [2020] FamCA 1083

CHILDREN

Parental capacity not always impacted where concerns held as to a child’s safety in the other parent’s care

In Keane & Keane [2021] FamCAFC 1 (18 January 2021) the Full Court (Alstergren CJ, McClelland DCJ & Benjamin J) dismissed an appeal from orders made for the care of a four year old, where McEvoy J found that the father had committed acts of domestic violence towards the mother.

Judge McEvoy ordered that the father spend supervised time with the child, which was to then increase to unsupervised time.

The mother appealed, arguing that the Court had misapplied ‘the Re Andrews principle’ (that the mother’s caregiving capacity would be discernibly impaired by an order that the child have time with the father).

The Full Court said (from [75]):

‘[A]uthorities applying “the Re Andrews principle”… [have] been expressed in a variety of ways …

[80] Subsequent authorities … confirm that it is an error to assume that, in … every case where a parent is concerned about the safety of a child in the other parent’s care, the court will infer that there is an unacceptable risk that the concerned parent’s parenting capacity will be adversely impacted. …

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