At a time when family violence is foremost in our minds and there have been many changes to the legislation to recognise the impact of family violence it seems unusual that a Division 2 Judge would seem to completely dismiss verified instances of serious risk but that is what happened in Friseal & Friseal  [2025] FedCFamC2F 75, a case in Hobart that also involved the Department for Education, Children and Young People (“the Department”) as an intervener.  In those proceedings, involving three children aged 16, 15 and nine, before the primary judge, an officer from the Department gave oral evidence in respect of past family violence and serious risk of harm.  The father had been charged with several assaults against the mother, as well as a breach of a family violence order, to which he had entered guilty pleas.  The mother, ICL and the Department all raised issues of risk of future harm to the children.  Further, the Child Court Expert gave evidence as to the father’s lack of insight into his behaviour.  Despite this evidence, Orders were made for time between the nine-year-old child and the father, initially supervised and then progressing to unsupervised.

The mother thereafter appealed and the matter, in Friseal & Friseal  [2025] FedCFamC1A 102, came before the Full Court of which Her Honour, Christie J, was a member.  By the time of the hearing of the appeal all parties had agreed on a Minute of Orders allowing the appeal, discharging some of the primary Judge’s Orders and remitting the matter for re-hearing.  Notwithstanding this agreement, the Court had to be satisfied that an appealable error had been established.  In giving her Judgment and Reasons Her Honour agreed with the submissions made by the mother as follows:

20 I agree that there has been error and accept the appeal should be allowed in predominant reliance on the matters set out in Ground 3 as set out below:

The Trial Judge whilst acknowledging the centrality of family and domestic violence erred in assessing whether the Father had engaged in family violence including behaviour that coerces or controls a family member by failing to:

(a) Properly identify the behaviour about which complaint is made;

(b) Identify the full context of the behaviour including any explanation that may be given by the alleged perpetrator; 

(c) Identify the impact of the behaviour on the alleged victim;

(d) Make all relevant factual findings; and

(e) Explain why the behaviour in question is or is not family violence that coerces or controls the family member and if the alleged behaviour does not entail a course or a pattern of conduct, explain how the behaviour can nevertheless be characterised as behaviour that coerces or controls, if so found.

The appeal was allowed, the matter remitted for re-hearing and Costs Certificate issued to the mother but not to the father.