FLAST NEWS
 ·   ·  829 posts
  •  ·  4838 friends

Stability Over Speculation: Court Refuses to Uproot Child Before Trial

In Huisman & Simonds [2025] FedCFamC1F 489, Justice Austin dismissed an urgent application by the paternal grandmother seeking to reverse interim care orders and have an infant live with her instead of the mother. The grandmother’s case was based on a positive drug test showing the mother’s use of amphetamines, which she argued placed the child at risk. Despite that breach, the Court found the evidence insufficient to justify an abrupt change in residence only six weeks before the final hearing. Justice Austin reaffirmed the long-standing principle that interim parenting orders should preserve stability and avoid reactive decisions where the facts remain untested.

Facts

  • The child was born in 2024 and lives with the mother under interim orders.
  • The father is incarcerated and not participating in proceedings.
  • The paternal grandmother has two nights of care per week.
  • She applied for fresh interim orders for the child to live with her full-time and for the mother to have only professionally supervised visits.
  • The application arose after the grandmother claimed she saw a “crack pipe” in the mother’s bag and the mother later tested positive for amphetamines, contrary to orders restraining illicit drug use.
  • The Family Report indicated the child was healthy, meeting developmental milestones, and bonded with both the mother and grandmother, though primarily attached to the mother.
  • The case was listed for final hearing in six weeks.

Issues

  1. Whether the mother’s breach of interim orders (positive drug test) justified reversing residence before trial.
  2. Whether the evidence showed the child was exposed to a serious risk of harm while in the mother’s care.
  3. Whether an immediate change would better serve the child’s best interests under s 60CA of the Family Law Act 1975 (Cth).

Law

Statutory Framework

  • Family Law Act 1975 (Cth):
  • s 60B – Objects of Part VII.
  • s 60CA – Child’s best interests paramount.
  • s 60CC – Factors in determining best interests.
  • s 61B–61D – Parental responsibility.
  • s 65D – Power to make parenting orders.

Precedents

  • Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346 – Interim parenting orders must be based on limited enquiry and preserve stability pending final determination ([23]).
  • Banks v Banks (2015) FLC 93-637 – Interim hearings are not the forum to resolve factual disputes or make findings where evidence is contested ([24]).

Application of Law to Facts

1. Procedural Context

Justice Austin noted that a final trial was imminent—only six weeks away—and that the application effectively sought to overturn residence orders on contested, incomplete evidence ([1], [38]).

2. Best Interests of the Child (s 60CA, s 60CC)

  • The grandmother alleged neglect and poor hygiene but relied solely on her own observations, which were untested and contradicted by the mother ([33]–[34]).
  • The Family Report confirmed the child was healthy, meeting milestones, and primarily bonded with the mother ([34]).
  • A sudden move could disrupt that attachment and cause developmental harm ([40]–[41]).

3. Drug Use and Safety Risk

  • The mother’s positive amphetamine result breached interim conditions but did not, by itself, demonstrate chronic or dangerous use ([32], [39]).
  • Justice Austin found the “current untested evidence falls short of exposing the seriousness of her illicit drug use” ([39]).
  • The issue was better left to the trial when full evidence could be examined.

4. Stability and the Goode & Goode Principle

  • Consistent with Goode & Goode, interim orders should maintain continuity unless there is urgent or compelling risk.
  • Frequent changes in care are detrimental for infants; stability and consistent routines are essential ([40]–[41]).
  • Because the grandmother’s proposal lacked defined supervised contact arrangements and could not ensure regularity, it was “inadvisably reactive” ([41]).

Judgment and Reasoning

Justice Austin concluded:

“The factual findings which might support orders reversing the child’s residence deserve much more thorough consideration at the trial.” ([41])

He emphasised:

  • Interim hearings are not to determine contested facts, especially where serious allegations are untested.
  • The child’s stability with the mother outweighed the uncertain risk posed by a single positive drug test.
  • Sudden relocation would be developmentally disruptive and unsupported by professional evidence.

Accordingly, the paternal grandmother’s urgent application was dismissed; the existing orders for the child to live with the mother remained in force pending trial ([42]).

Cited Paragraphs and Precedents

  • Statutory principles: [19]–[24]
  • Drug-use evidence and breach: [32]–[33], [39]
  • Child development and stability: [40]–[41]
  • Precedents: Goode & Goode (2006) at [68]; Banks v Banks (2015) at [47]–[50]

Take-Home Lesson

“Interim parenting orders must protect stability, not react to panic.”

Even when a parent breaches an order, the court requires reliable, tested evidence of risk before altering a child’s living arrangements. Minor or isolated lapses—particularly when the trial is near—rarely justify major disruption. This case reaffirms the Goode & Goode principle: interim decisions preserve continuity; final hearings resolve credibility and risk.

FLAST

Close