Case: Jefford & Kaluza [2026] FedCFamC1F 281
Case Overview
The Federal Circuit and Family Court has allowed an appeal against parenting orders that completely severed a father’s relationship with his two young children. By a 2-1 majority (Hogan and Jarrett JJ, Altobelli J dissenting), the Court found the original trial judge made critical errors in assessing whether the father posed an “unacceptable risk” of sexual harm to the children.
The Court ordered a complete retrial before a different judge and granted costs certificates to both parties.
Background
The parents had been engaged in litigation since 2020. In July 2022, orders were made for the children to live with the mother and spend four hours weekly with the father. The mother was also permitted to relocate the children internationally.
In January 2023, the mother stopped all contact after the daughter (then aged 5) made disclosures about the father “touching” her. The mother commenced new proceedings seeking “no time” orders based on alleged unacceptable risk of sexual harm. The father sought increased time and opposed international relocation.
The Trial Judge’s Decision
The trial judge could not make a positive finding that sexual abuse had occurred but found:
A “real and substantial possibility” the father had sexually touched the daughter
The father posed an “unacceptable risk” of future sexual harm
The children should have no time or communication with the father
The judge acknowledged this would cause the children “significant psychological and emotional harm” but considered it necessary for their safety.
The Appeal: Why the Majority Allowed It
Justice Hogan (with whom Justice Jarrett agreed) identified several critical errors:
1. Failure to Consider Material Evidence
The trial judge expressly stated he would only consider events from January 2023 onward, ignoring:
A previous trial in July 2022 where another judge had made findings about the mother’s credibility
The mother’s earlier acceptance of the father’s denial of similar allegations
Her prior conduct in leaving the children in the father’s unsupervised care despite allegations
2. Flawed Assessment of Witness Credibility
The trial judge accepted the mother as a “credible witness” despite evidence showing she had:
Told the child’s therapist the daughter said “daddy made my gina bleed” when the child had never said this
Allowed the Family Report writer to believe this serious allegation came from the child
Only admitted this was an “overstatement” when cross-examined
3. Inadequate Assessment of Key Evidence
The judge relied heavily on notes from the child’s therapist (Ms DD) who was never called to give evidence. Without hearing from her, it was impossible to assess:
Whether disclosures recorded came from the child or the mother
The context in which information was obtained
Whether questions were leading or suggestive
4. Insufficient Consideration of Alternatives
The judge concluded that only a “no time” order could address the risk, without:
Properly considering whether long-term supervised time could work
Explaining why no communication (cards, gifts) was necessary
Addressing the different circumstances of the son (who had never made any disclosures)
The Dissenting View
Justice Altobelli would have dismissed the appeal, finding:
The trial judge’s findings were open on the evidence
The error about the “bleeding” allegation was immaterial
The father was bound by how he ran his case at trial
No adequate alternative proposals were put to the trial judge
Key Legal Principles Reaffirmed
The judgment clarifies several important legal principles:
Appellate Review Standard: The House v The King standard applies to parenting orders, meaning appellate courts can only intervene for specific types of error, not merely because they would have decided differently.
Unacceptable Risk Assessment: Even if the prospect of abuse is only possible (not probable), it may still be an unacceptable risk requiring protective orders.
Material Considerations: Judges must consider all relevant evidence, not artificially limit their consideration to recent events.
Procedural Fairness: Parties must be given proper opportunity to address any proposal the court is considering, especially when it departs significantly from what either party sought.
Practical Implications for Clients
Comprehensive Evidence is Crucial: This case shows the importance of presenting all relevant historical context, even if previous findings were unfavourable. Selective presentation can lead to appealable error.
Witness Credibility Matters: Courts scrutinise not just what witnesses say, but their overall reliability and consistency over time.
Consider All Alternatives: Even in serious risk cases, courts must properly consider whether lesser measures (supervised time, communication-only orders) could address safety concerns while preserving relationships.
Expert Evidence Must Be Tested: Relying on documentary records from untested witnesses (like the therapist here) can be problematic. Consider whether key witnesses need to be called.
Clear Proposals Help: Courts expect parties to present workable alternatives. Vague suggestions about “supervised time” without practical details may not be adequately considered.
Next Steps
The case will now return for a completely new trial before a different judge. Both parties have costs certificates to help cover appeal costs.
This summary provides general information only and does not constitute legal advice. If you have questions about how this decision might affect your situation, please contact our family law team for specific advice tailored to your circumstances.
