FATHER SEEKS CHILDREN’S URGENT CHANGE OF RESIDENCE; ALLEGES THAT MOTHER POSES RISK OF HARM DUE TO POOR MENTAL HEALTH
WEN & JONG
FEDERAL CIRCUIT COURT OF AUSTRALIA
[2020] FCCA 749
This case concerns an interim application for parenting orders.
FACTS:
Mr. Wen (father) filed an urgent application to have X and Y (children), who are currently living with Ms. Jong (mother), live with him. The essence of the father’s case is that the threatened suicide attempt and the knife incident, which demonstrates the mother’s poor mental health. The father alleged that the mother, due to poor mental health and inability to control herself, poses a risk to the children. The father also sought urgent change of supervision.
The mother, although she admitted that she had had some issues, said that these arose particularly in and as a consequence of the husband’s conduct in the relationship and also, to some extent, to her alcohol use, which she said she has reduced. Further, she stated that the children are not at risk in her care.
ISSUE:
Whether or not the Court should grant the father’s urgent interim application for change of the children’s residence and supervision.
HELD:
The father said that because of the risk the mother poses and the potentially dramatic consequences of the risk, the children should forthwith live with him and that the mother should spend either no time with the children or supervised time On the other hand, the mother’s primary position is that there is no sufficient evidence of risk to the children to justify the Court taking the dramatic act of moving the children urgently and the Court should wait for a report from Dr. A.
Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. However, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested.
The Court cannot avoid the responsibility to make a decision about the children’s safety, and accordingly to its assessment of the risk, its likelihood and the severity of potential catastrophic risks to the children. The Court made Orders that are a necessary but temporary measure only until all the evidence can be tested, evaluated and weighed at a final hearing. Hence, the Court granted the father’s application for interim change of residence of the children and supervised time with the mother.