Can a father take a child away from a mother?
Case outline
A father was told by his 8 year old daughter that she had been “hit” by her mother. The daughter also told the school Principal and the Police. The father withheld the child and sought full custody. So, what did the court do?
As a result of the father withholding the child at the end of an access period, the mother made an urgent court application seeking the return of the child. The father responded with an urgent interim application seeking that the court reverse the child’s primary residence, so that she live with him. The Independent Children’s Lawyer (ICL) in the matter agreed that the child should live with the father. This is due to the mother’s relationship with an abusive partner.
Interim hearing
At an interim hearing, the evidence is untested and the court has limited powers to make findings of fact or test the evidence. For example, the judge did not make a finding about whether or not the mother had physically assaulted the child. At the interim hearing, the question is about the child’s ‘best interests’ and, if there is any risk to the child.
Due to the nature of interim hearings, it is important that all material evidence is before the court. In this case, issues were raised about the father’s evidence, and this provides some useful tips for parties filing affidavit evidence for interim hearings:
- If you are relying on video or audio recordings as evidence, this evidence should be disclosed to the other side and in your affidavit prior to the court date;
- The court ‘Practice Direction’ requires that an affidavit for an interim hearing be no more than 10 pages in length. If it is more, the court can request that you elect only 10 pages to rely on at the hearing, which will significantly affect the evidence at the hearing;
- If there are allegations being made, ensure they are as specific as possible. The nature of the alleged abuse, details of timing, what words were used and other details will assist the court to determine the level of risk, and also give credibility to the allegations.
Decision
In this matter, the court declined to make orders that the child live with the father. They were not satisfied there was sufficient evidence about the child being at unacceptable risk, if she remained in the mother’s care. The court did order that the mother not allow the child near her new partner.
Advice
Urgent interim parenting applications need to be prepared carefully. If you need assistance with urgent parenting arrangements contact our Brisbane office today to arrange a fixed fee, no-obligation initial appointment with an experienced family lawyer. Phone (07) 3221 4300, email [email protected] or fill in our online form here.
