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RELOCATION CASE WHERE SUSPICION OF ABUSE CAUSED THE FATHER TO GET HIS CHILD FROM THE MOTHER

Damgard & Abrola [2020] FCCA 2194 (21  July 2020) 

This case is about a father who took his child from the mother since the latter allegedly inflicted physical harm to their child 

Facts

The parties are already separated. On 30 June, the father went unannounced to the mother’s home and while the child was at home with the mother’s housemate, the father took X and has since not returned him.  The father says that the reason he acted in that way was because he is concerned about the child’s welfare. He said that once he had the child in his possession, he noticed that there were sores that looked suspiciously like cigarette butts in three places on the child’s body 

He took the child to a clinic wherein the report stated that “X has sores and rhinorrhoea” and then goes on to talk about the child’s treatment. There is no mention in the certificate that the sores look suspiciously like cigarette burns. The court asked the father whether there was any other investigation of what he had suspected may be cigarette burns.  He told me there was not any other investigation. 

Issue:  

Whether the mere suspicion that a child has been deliberately harmed is sufficient cause for the father to unilaterally take his child from the mother’s care 

Held

The court is not satisfied that there is any proper basis for the conduct of the father in removing the child unilaterally from the mother’s care.  He has had the child medically examined and there is nothing to suggest the child has been subjected to deliberate harm by any person.  There is nothing whatsoever to suggest that there was urgency of a kind which would require the immediate removal of the child from the mother’s care, and I am satisfied that the child ought to be returned to the mother’s care until all these matters can be properly explored and examined. 

Conclusion:  

Hence, the court orders that X should be returned and live with his mother. 

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