THE COURT INCREASES CHILD'S TIME SPENT WITH HIS FATHER TO ENSURE NO UNACCEPTABLE RISK OF HARM WHILE LIVING WITH THE MOTHER

MAEDA & BEAULIEU (No.3)

FEDERAL CIRCUIT COURT OF AUSTRALIA

[2020] FCCA 217

In this case, the Court decides for the best interests of the child, who alleged that his mother assaulted him.

Facts:

Mr. Maeda (the father and applicant) applied a variation of the existing orders so that X (the child) should spend equal time with each party.  The application arose out of the child's disclosures to the family report writer that Ms. Beaulieu (the mother and respondent) repeatedly smacked him on the bottom, face, or head. 

The mother, who had been undergoing treatment for some mental health, denies that she has struck the child.  She alleged that the child was coached by the father to make false allegations against her.  She, on the other hand, claimed that the father maintained a sexual relationship with her when she was below the age of 17, which the father denied.  She offers the allegation as a reason why she withheld the child from the father in breach of orders since December of 2019.

Issue:

Is it in the best interest of the child to vary the existing orders, particularly on the orders concerning the time the child spends with each party?

Held:

According to the family report writer, the child may be at risk of harm in his mother's care as a result of excessive corporal punishment amounting to assault.  The family report writer's assessment of the mother's mental health exacerbated the concern of the child's welfare.  In addition, the family report writer also assessed the mother as self-focused rather than child-focused and had doubts about the mother's attunement to the child's needs.

In considering the family report writer's findings, the Court found that there was a need for some variation in the existing orders to ensure no unacceptable risk of harm to the child while living with his mother.  The Court made orders for the child to spend regular time along the lines of the existing agreement, and some further time with the father.

The Court was satisfied with the evidence that there were grave concerns about the welfare of the child in the mother's care, given that the child alleged that he was "smacked" by his mother and that the mother violated the existing orders by withholding the child.  The Court finds that it is in the best interest of the child to spend more time with the father to ensure that there will be no unacceptable risk of harm to the child.