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Alan Weiss

31st March, 2020

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The mother appeals orders that the children should live with their respective fathers and that she would have limited visitation rights.

In making parenting orders the judge had to balance the risk of abuse to the children if they lived with their mother against the advantage to the children to have a meaningful relationship with both parents.  S 60CC of the Family Law Act 1975 considered.

Background to the appeal

The family consists of 5 children. Two girls were living with their Aboriginal mother when the case started. Two other children live with father B and one lives with father K. During the first part of the trial it came to light that the mother permitted the girls to have contact with a paedophile. The judge ordered that the girls stay with their respective fathers.

However at the end of the trial interim orders were made allowing the girls to return to stay with their mother, provided that she does not allow them to come into contact with certain relatives and the paedophile. Whilst judgment was reserved, father B applied to re-open the trial, claiming that the mother breached the interim orders. Re-opening was allowed and it was ordered that both girls live with their respective fathers and the mother may spend a minimum of three hours every third week with the girls. The mother now appeals this order. The appeal concerns the two girls.

Applicant’s (the mother) legal arguments

The mother appealed the order on various grounds of error. It was argued that:

  • The trial judge failed to give adequate weight to section 60CC of the Family Law Act. (S 60CC outlines how the court must determine what is in the best interest of the child)
  • She failed to have proper regard to the children’s Aboriginal culture.
  • She did not give sufficient weight to the impact of the change in circumstances on the children, and
  • to their right to enjoy their culture, and
  • to their right to a meaningful relationship with both parents.
  • She also failed to make provisions for the siblings to spend time with each other.
  • She failed to consider the impracticability of the mother’s visiting arrangements. The mother had little money for travelling to visit the children.
  • The trial judge did not afford the mother procedural fairness in the way she conducted the proceedings at re-opening of the matter. She refused an application for the fathers to give evidence first. She intervened during the mother’s evidence to the point that it restricted the presentation of the mother’s case.
  • The trial judge was biased.

Respondent’s arguments

The respondents (both fathers) resisted the appeal. They believed that the two girls should live with their respective fathers and that they should have parental responsibility. The mother could spend 3 hours every third week with each of the girls near their homes. The fathers were of the opinion that this would protect the girls against the risk of being exposed to family violence and abuse.

The Court’s Findings

  • Regarding s 60CC:

In deciding on parenting orders the court must regard the best interest of the child as paramount. The Act requires that the need to protect a child should be given more weight than the benefit to the child of having a meaningful relationship with both parents. In this case the trial judge was correct to conclude that although there will be advantages to the children in having a meaningful relationship with mother, there was an unacceptable risk of abuse if they lived with her.

  • It was found that the trial judge did consider the children’s right to enjoy their culture. Although living with their Aboriginal mother would provide a greater likelihood of them enjoying the culture, this weighs less than the need to protect the children from physical or psychological harm. The mother also failed to provide much evidence about the culture.
  • The fact that the siblings will be separated, by living with the fathers, was properly considered by the trial judge. The children will be living closer to each other and the fathers have arranged for the children to spend time together.
  • Regarding the practicability of the mother’s visitation it was held that the only practicable way to ensure the children’s safety whilst in the care of the mother was to restrict their time with her to a few daylight hours, which would have to be spent in the vicinity of where the children lived.
  • The Appellate Court will be slow to overturn the trial judge’s discretion on what is in the best interest of the child. The trial judge was correct in deciding that the children’s safety was of greater importance.
  • Regarding the ground that the judge denied procedural fairness to the mother’s case, the Court reviewed the record and found nothing to suggest a denial of procedural fairness.
  • On the matter of bias, the Court found that the trial judge was merely focused on protecting the children.

The Court’s determination

The appeal was dismissed on all grounds. The girls were to remain with the fathers, and the mother had visitation rights as determined in the interim order.

This article provides basic information only and is not a substitute for a professional opinion or legal advice . It is prudent to obtain legal advice from a Family Lawyer when contemplating a separation or soon after a relationship comes to an end. It is noted that publication of this judgment by this Court under the pseudonym Backford & Backford and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Mother lost her appeal application to change parenting orders

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