Family Court Appeal Highlights Difference Between Order And Undertaking In Parenting Case

In Solonose & Squires [2015] FamCAFC 190 (30 September 2015), Strickland J heard an appeal of the father against orders that were made by Judge Connolly on the application of the mother. Although most of the father’s appeal was unsuccessful, the appeal court did upheld an appeal in relation to an injunction preventing the father from leaving the parties’ 8 year old child alone with the father’s brother.

Allegations were were made that the father’s brother, who is intellectually disabled, had been ‘sexually inappropriate’ with the child. The Police and the Department of Human Services investigated such allegations, however no substantive evidence was found. The father of the child provided an undertaking to the Department of Human Services that he would not bring the child into contact with his brother. However, the mother was still concerned about the child being with his uncle and as such, sought an injunction.

Strickland J stated that because the father had indicated that he did not intend to breach the undertaking, there was no reason why the mother should not be able to rely on the undertaking rather than seek an additional injunction in court.

It was argued that given the fact that the mother felt concerned about the brother, the orders would make her feel a lot more comfortable than the father’s undertaking to the Department. However, the basis for the order to be made at first instance was that making the injunction sought would be the same as the undertaking that the father had previously provided as explained before. According to Strickland J on appeal, this was clearly an error in law as the remedies that flow if there is a breach of a court order as compared to breach of a private undertaking is quite different.

According to Strickland J, it was not open to Connolly J to make the order for the reason that the mother of the child will be more comfortable than merely having an undertaking from the father. Instead, the judge needed to be satisfied that there were allegations that required an injunction to be made. As stated before, as no substantive evidence was found for the allegations that were made against the father’s brother, it follows that there was no proper basis on which his Honour was able to make the order.

For this reason, the appeal court set aside the injunction against the father leaving the child alone with the father’s brother.

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