Today the Full Court of the Family Court unanimously allowed an appeal from a decision of a judge of the Federal Circuit Court of Australia. Justice Aldridge, with Ryan and Hannam JJ agreeing, held that judge had erred by:

  • issuing an injunction preventing the mother from breastfeeding the parties’ 11 month old baby; and
  • ordering that the baby spend time with the father for 6 hours a day, 4 days a week.

In allowing the mother’s appeal, the Full Court set aside the order which stopped the mother breastfeeding the baby, remitted the issue of the father’s time with the baby for rehearing and made orders for the baby to spend time with the father two days a week for 5 hours pending the conclusion of the rehearing.

On 3 June 2015 the matter came before the primary judge on an application by the mother after the father failed to return the baby to the mother’s care. At that hearing the primary judge raised the issue of the mother’s breastfeeding in relation to evidence that she was taking medication to assist post-natal depression. The mother had also used cannabis on one occasion in the past 2 years and 4 weeks ago had been tattooed. His Honour was concerned that the mother would continue to breastfeed and declined to return the baby on that day.

The matter was adjourned until 5 June 2015. At that hearing the mother presented test results to the court that indicated that she did not have hepatitis or HIV, with the caveat that a test taken less than three months after exposure would not exclude the risk of acquisition of HIV. The judge relied on documents from the websites of Hepatitis Australia and the Australian Breastfeeding Association and was satisfied there remained a risk of the transmission of HIV to the baby if the mother were to continue breastfeeding. An order was made stopping her from doing so.

In allowing the appeal, in relation to the judge’s reliance on those documents, Justice Aldridge said at [46] of his reasons:

This, of course, highlights the need for expert opinion evidence to be given by persons who actually have expertise in that field as opposed to those who do not. Judges must not mistake their own views for being either facts not reasonably open to question or as appropriately qualified expert evidence.  That those views may have been obtained by the judge searching the internet compounds rather than alleviates the difficulty.

Having analysed the evidence, Aldridge J said it “was not capable of establishing the risk identified by the trial judge.”

The judge was also found to have erred by failing to consider the benefits to the baby, both emotionally and physically, of continued breastfeeding and any negative effects of its sudden cessation.

The Full Court also held that the primary judge did not properly consider the matters the Family Law Act 1975 (Cth) requires to be taken into account in determining the amount of time the baby should spend with its father.

 

  • This statement is a summary and not intended to be a substitute for the full judgment of the Full Court of the Family Court.

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