The Facts

Court makes interim orders regarding young children after mother and father separate

The husband and wife had two children, born in 2010 and 2014, before they separated in 2015.

In 2016 the Federal Circuit Court of Australia made interim orders that the children should live with the mother and spend substantial time with the father. This arrangement worked well until 2 May 2018.

Child tells father of being struck by mother

On 2 May 2018 the elder child, a daughter, disclosed to her father at a school sports carnival that she was not participating in the carnival because the mother had struck her the night before. The father immediately took the child to the acting school principal and then to the police, where the child repeated her story of being struck by the mother.

The versions of events given by the child to the father, the principal and the police all varied slightly, but the consistent gist of the allegation was that the mother had struck the elder child on the evening of 1 May 2018.

Father contravenes interim orders by failing to return either child

The father refused to return the elder child to the mother after going to the police. Even though the father had refused to return the elder child to the mother, the mother still sent the younger child to him for the following weekend in compliance with the interim orders.

The father failed to return either child to the mother at the end of his contact weekend.

Both parents file applications for court orders

The mother filed an urgent application for a recovery order and the father filed an application seeking an order that there be a change of residence and that the children live with him because there was an unacceptable risk of physical and emotional harm to the children while they lived with the mother.

The judge of the Federal Circuit Court found that there was not an unacceptable risk of harm to the children living with the mother and she made final orders that the interim orders, which had worked well for two years, continue.

The father appealed to the Family Court of Australia, which had to decide whether the children should continue to live with their mother or should change to living with their father.

case a - The case for the father

case b - The case for the mother

  • The mother of my children inflicted emotional and physical violence upon them.
  • There is a serious risk of emotional and physical harm to my children in their mother's violent household.
  • The risk that my children could be harmed by their mother physically abusing them in future is evident from the fact that she physically assaulted my daughter on 1 May 2018.
  • The determination about the lack of any "unacceptable risk" of harm in the mother's household was incorrect, because the primary judge failed to take into account that my daughter gave consistent accounts of her assault by her mother to me, to the school authorities and to the police.
  • There is no proper basis for the court not to accept my evidence as truthful and correct, so the court should make an order for the children to live with me and to have only very limited supervised time with their mother.
  • I did not assault my daughter.
  • Even though the police spoke to my ex-husband and my daughter after the alleged incident, they did not charge me with assault.
  • The versions of events my daughter gave to my ex-husband, to the school principal and to the police were inconsistent with one another.
  • The details about how the alleged assault occurred and what (if any) injury it caused remain quite unclear.
  • The version of the injuries my ex-husband reported to the police and the child's counsellor were inconsistent with the doctor's report.
  • There is no risk of physical or emotional harm to the children while they live in my household. The court should maintain the current orders as they stand.

So, which case won?

Cast your judgment below to find out

Ruth Whisker

Children and parenting arrangements

Stacks Law Firm