COURT ORDERED INJUNCTION TO PROTECT CHILD FROM RISKS OF HARM POSED BY MOTHER’S PARTNER’S SON

ALBERT & PLOWMAN

FAMILY COURT OF AUSTRALIA

[2020] FamCAFC 23

In this case, the mother appealed[1] against the final parenting orders made by a judge of the Federal Circuit Court of Australia providing that the child live with the father, spend time with her, and restraining contact between the child and her partner’s son. 

Facts: 

As a background, the child was born in 2013. The parties separated when the child was about four months old. Proceedings between the parties in respect of the child under Part VII of the Act[2] concluded in March 2016. The Federal Circuit Court made consent orders for the child to live with the mother, for him to spend substantial time with the father, and for the parties to have equal shared parental responsibility for him. Ms. Albert commenced fresh proceedings because the parties and the Independent Children’s Lawyer (ICL) accepted that the existing offers were not working and no longer served the child’s best interests. Ms. Albert was then proposing to relocate with the child where her new partner resides, while the father intended to remain living in the Suburb C area. Interim parenting orders were made in March 2018, which restrained Ms. Albert from moving the child’s residence and compelled her to ensure his continued attendance at the pre-school where he was then enrolled. The following month, in April 2018, the child disclosed to Mr. Plowman’s new partner that Ms. Albert’s new partner’s teenage son (A) had sexually assaulted him. In response to the child’s disclosure, the father petitioned the Court for fresh interim parenting orders to reverse the child’s residence and restrain the child’s contact with A. Judgment in respect of the father’s interim application was reserved. Still, the parties agreed to implement what the trial judge described as “a shared-care arrangement” in the interregnum. Police notified the parties in June 2018 that no prosecution would result from the investigation of the sexual abuse allegations made against A, due to the insufficiency of evidence.

Consequently, the trial judge formally dismissed the father’s pending application for revised interim parenting orders and left in place the existing consent orders for the parties to have “shared care” of the child. The trial continued and pronounced orders, the subject of Ms. Albert’s appeal, in December 2018. The appeal was dismissed by the Court.

Issues:

Whether or not the orders of injunction to restrain contact between the child and A be imposed.

Held:

The question for the trial judge was how to deal with any residual risk of harm posed by A to the child. Considering that the risk of harm exists, the trial judge compared the protective capacity of the parties. The trial judge found the father was more protective of the child than the mother. This was based on the considerations, which are Ms. Albert’s dismissive attitude to the sexual abuse allegation against A reported to her and her subsequent willingness to have A attend a family party at which the child would also be in attendance even though there was an existing injunction precluding the child’s contact with A. According to the evidence before the trial judge, the mother did nothing at all to protect the child from A after she learned of the initial sexual abuse allegation against A in April 2017. There was no evidence she did anything to monitor or regulate the child’s interaction with A until April 2018.
Essentially, the trial judge concluded the possibility the sexual abuse had occurred, and the risk it might re-occur could only be adequately managed by an injunction because the mother’s dismissive attitude to the allegations meant her capacity to protect the child was diminished.

The trial judge weighed all the evidence presented to him in making the parental orders, and he did not put excessive weight on the sexual abuse allegation alone. The parent’s protective capacity is only one of the factors considered by the Court. The Court will still render judgments or orders in favor of child welfare, safety, and best interests.

[1] EA 8 of 2019

[2] Family Law Act 1975.