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Federal Circuit Court decisions reversing living arrangements

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Two recent decisions made in the Federal Circuit Court of Australia have seen children who have historically resided with their mothers since the breakdown of the parents’ relationship being ordered to live primarily with their fathers.

In Ridgely & Stiller [2014] FCCA 2668 an 8 year old girl was living with her mother and spending time with her father on alternate weekends and after school until dinner time one night per fortnight.  These arrangements had been put in place following on-and-off litigation over a six year period, including a 9 month period between 2013 and 2014 when the child did not spend any time with her father. 

Having heard evidence that the mother had on repeated occasions contravened orders for the child to spend time with her father, receiving recommendations from mental health experts, and in consideration of the longstanding acrimony between the parents, the Court was satisfied that the mother was incapable of supporting the child’s relationship with her father and that for there to be any chance of both parents being able to have a relationship with the child it would be necessary for the child to live with the father. The Court was satisfied that the father would support the child’s relationship with the mother in circumstances where the mother would not. 

Ultimately, the Court made orders for the child to live with her father and to spend time with her mother on a graduated basis until she was spending with her from Thursday to Monday in alternate weeks as well as time during school holidays and on special occasions.

In somewhat similar circumstances, a 7 year old girl in the decision of Bowles & Gillen [2014] FCCA 2556 was removed from her mother’s care and placed with her father.  In this matter the parties separated shortly after the birth of the child and the mother shortly thereafter relocated to a regional area approximately 4.5 hours from the capital city in which the parents had been living.  Over time the father began spending time with the child on approximately one weekend per month.

In the course of the proceedings the mother alleged that the child had made disclosures to her over the years of physical and sexual abuse carried out by the father.  The allegations had also been made to police, who had interviewed both the child and the father and had found no evidence of assault.  The judge found that the mother’s version of events had changed considerably over time and that she was not a credible witness.

The father held significant concerns regarding the child in the mother’s care based on the child’s behaviour when spending time with him.  She presented as angry and violent, using foul language, threatening violent acts such as “I’ll stab you to death” and demonstrating extreme mood swings.  Whilst the mother claimed that this behaviour had arisen as a result of the alleged abuse by the father, the father took the position that it demonstrated that the child was not being properly cared for by the mother.  The father also raised concerns regarding the child’s lax school attendance and personal hygiene.

Having heard evidence from the parents, their family members and mental health professionals who had been involved with the child, the Court accepted that the child was in crisis and that a change of circumstances was required.  On that basis, orders were made for the child to live with the father and spend time with the mother on one weekend per month, during school holidays and on special occasions.

For more information, please contact our Family Law team by email family@mst.com.au or by telephone +61 8540 0200.