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Lane & Nichols [2016] FamCAFC234

The matter of Lane & Nichols [2016] famcafc234 was a parenting matter where the mother had alleged that the father had sexually abused the parties’ 5 year old child. The mother asserted that the child had disclosed, through words and conduct, the abuse to her and to other people, however the child had not made any disclosures in interactions with the Department of Community Services. The father adamantly denied the allegations and suggested the mother was coaching the child. The father sought an Order for supervised time – the mother opposed it. There was an ICL, however they made no submission in favour or against the Order sought by the father. The Trial Judge made an interim Order that the child spend supervised time with the father for 2 hours each week at a contact centre. The mother appealed (& the ICL supported the mother’s appeal).

One of the grounds of the mother’s appeal was that the trial judge had not appropriately taken into account a report from the child’s counsellor and which raised the possibility of risk to the child if time was ordered between the child and the Father, as well as a Family Report which recommended a “no time order”.

The child’s sexual abuse counsellor (Ms F) held a strong view that the father had sexually abused the child and concluded that supervised time with the father would have a negative impact on the child. The mother relied on a short report from Ms F which recommended that there be no contact between the father and the child based on information provided by both the child and the mother during therapy.

The Trial Judge referred to a Family Report prepared by a family consultant whom expressed concerns about the Father and child having unsupervised time but failed to express a view as to whether supervised time would be appropriate. There was no evidence to support that the child would be negatively impacted by spending supervised time with the father. The interaction between the father and the child before the family consultant was positive and “there was no evidence of anger, anxiety or distress” displayed by the child. The Full Court concluded that “the family consultant did not identify anything, at all, based upon observations of the interactions upon which he opined that supervised time could not occur”.

The Full Court held that the evidence of the counsellor Ms F and the family consultant of “postulating potential risks of harm to the child on even supervised time with the father” to be inadmissible and if treated as admissible, the Full Court suggested that no weight could be placed on the evidence.

The Full Court was critical of the qualifications of the sexual assault counsellor and the family consultant, whom were both social workers. The Full Court looked into the resumes of both professionals and expressed concerns that:

  • There was no evidence that identified that Ms F and the family consultant were experts that were qualified to express admissible expert opinion on whether the sexual abuse allegations were likely to be true.
  • There was no opinion expressed by a qualified expert as to whether or not the supervised time at the contact centre with the father could potentially cause psychological harm to the child.

The Full Court was also critical of Ms F’s as she did not observe the child and the father together; failed to elaborate with particularity the information given to her during the therapy that made her believe that supervised contact with the Father would traumatise the child and the Mother. The Full Court also highlighted that report did not contain the basis of the conclusion for a “no time order”, that is, why supervised time was not suitable.

The mother’s appeal was dismissed.

This case is important for practitioners and parties to consider whom they seek to rely on as “experts” and important for professionals engaged by parties as “experts” to have a thorough understanding of their role and their limitations when providing evidence in proceedings.