Keane & Keane: Parenting Orders and the Re Andrews Principle

The 2021 Family Court decision of Keane & Keane [2021] FamCAFC 1 was an appeal against parenting orders for a five-year-old child made by a judge after a final hearing. The mother appealed based on allegations that there was a need to protect the child from physical or psychological harm and from being subjected to or exposed to, abuse, neglect or family violence.

The original decision in Keane & Keane

In the primary proceedings for the matter of Keane & Keane, the mother alleged that she and the child had experienced family violence perpetrated by the father throughout the relationship. These allegations extended to sexually inappropriate behaviour involving the child. The father denied the allegations.

The mother’s initial application was for the child not to spend any time with the father given the concerns that the child would be at risk in the father’s care. The father applied for the child to initially spend supervised time with him, then transition to unsupervised time.

On 8 May 2020, orders were made for the child to live with the mother and spend time with the father. Initially, that time would be supervised. The mother did not appeal the orders made on 8 May 2020 insofar as they related to parental responsibility, residence and the child spending supervised time with the father.

However, the primary Judge decided that the supervised time would ultimately transition into unsupervised time with the changeover to occur at a contact centre, a professional centre or at a police station. The mother appealed the orders made for the father’s time with the child to transition to being unsupervised.

Family violence and parenting matters

Unfortunately, many cases which reach the Federal Circuit and Family Court of Australia , particularly in relation to parenting arrangements contain allegations of family violence directed at a parent, at a child, or both. The Family Law Act 1975, requires the court to consider those allegations and depending on their nature assess the risk that a parent may pose to a child when determining appropriate parenting arrangements. This is particularly the case in circumstances where the allegations are denied and there is little evidence to support them. The court must be mindful that sometimes false allegations are made.

Given the Act’s primary focus is protecting the child’s right to have a meaningful relationship with both parents provided the child is not at risk of harm. In circumstances where family violence may have occurred, the court is still required to facilitate the child having a relationship with the perpetrating parent, where that is appropriate. This can be achieved by the time being supervised and/or limited.

The trial judge in Keane & Keane considered the allegations of family violence made by the mother and was ultimately critical of both the mother and the father of the reliability of their evidence in relation to that issue.

The trial judge found that the father had committed acts of family violence on the mother round the time of separation, however not to the extent that the mother had alleged. The trial judge found “the possibility of past sexual abuse of the child [by the father] to be so unlikely that it cannot establish any real chance of sexual abuse” (at [405]).

The parties participated in a lengthy trial where they were both legally represented and an Independent Children’s Lawyer had been appointed. It was clear from the mother’s case that she had not considered that the court could order that the father spend time with the child in any manner and maintained a ‘no time’ case throughout the hearing. This was also reflected in how her case was presented to the court. The father on the other hand presented his case in a manner which supported the court making orders for him to spend time with the child and ensured that appropriate questions were asked of the family report writer that covered these issues.

The basis of the mother’s appeal did not dispute the adequacy of the reasons provided by the trial judge in relation to the child’s time with the father transitioning from supervised time to unsupervised time. She argued that this transition should never occur and the child’s time with the father should always be supervised.

The Re Andrew principle

The mother in Keane & Keane argued that the trial judge had made an error by not accepting her submissions about the impact on her if orders were made for the child to spend unsupervised time with the father. This is known as the Re Andrew principle and was set out in the 1996 decision of Re Andrew [1996] FamCA 43; (1996) FLC 92-692. In that case, it was determined that:

“unsupervised time between the father and the child would cause such a level of distress and anxiety in the mother so as to sufficiently affect her parenting capacity and that, as a result, the father’s time with the child should be limited to weekly two hour visits at a contact centre in B Town”.

The mother submitted that the trial judge had failed to adequately consider the impact on her and her capacity to care for the child in circumstances where she would be experiencing a high level of distress and anxiety arising from her belief that the child is at risk of harm when spending time with the father. Further, that the child would be adversely impacted by witnessing the mother’s high-stress levels. Therefore it could not be determined to be in the child’s best interest for the mother to be reduced to such a state.

The outcome of the appeal was that it was found that the trial judge had adequately and thoroughly considered all the relevant issues pertaining to the case including the allegations of family violence and the Re Andrew principle. It was determined that the trial judge exercised his broad discretion afforded to him under the Act and therefore there was no appealable error. The decision of the trail judge stood.

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