It is very common in parenting proceedings for parents to have different versions of events which took place during the relationship or following separation. The recent decision of Bielen & Kozma [2022] FedCFamC1A 221, serves as a timely reminder of the impact that false allegations can have in parenting proceedings on all parties, and how this is viewed by the Court.
First instance decision
The case involved two young children aged 6 and 4 who had been living with their mother since their parents’ separation, 3 years prior. The children spent minimal time with their father following separation and throughout a substantial part of the proceedings. There were periods where the children did not spend any time with the father, periods of supervised time with the father and periods of non-supervised time. The mother made several reports to police and the Department of Communities and Justice making allegations against the father. The father alleged that the mother had been making false allegations against him in order to alienate the children from him, which the mother denied.
The trial judge in the first instance found that the mother had made “malicious” false allegations of abuse, and that the children had been exposed to her ongoing false narrative. The judge found that the children were subjected to an unacceptable risk of harm in the mother’s care, and this would likely continue into the future. Significantly, the trial judge ordered that the children’s residence be changed from the mother to the father. Further, the trial judge ordered that the children do not spend time with, or communicate with, the mother unless agreed upon in writing between the parties. Prior to any time commencing, the mother was to engage in therapeutic assistance.
Appeal
The mother appealed the decision to the Full Court on 8 grounds. One of the grounds of appeal was that the mother alleged that the trial judge failed to consider the “primary consideration” set out in s60CC of the Family Law Act 1975, being the benefit to the children of having a meaningful relationship with both parents. You can read more about the considerations the Court will have in parenting matters on the Court’s website here.
Notwithstanding the primary consideration for the Court to consider the benefit of a meaningful relationship with both parents, above all else, the Court must consider and give greater weight to the need to protect the children from harm from being subjected to, or exposed to, family violence, abuse or neglect.
The mother was successful on 3 grounds of appeal to the Full Court. The Full Court found that the trial judge failed to consider what steps could reasonably be taken to allow the mother to continue to have a meaningful relationship with the child. The orders for the father to have sole parental responsibility, the children’s residence and the unacceptable risk of harm were not issues challenged by the mother on appeal.
Relying on previous decisions, the Court found that where the Court finds an unacceptable risk of harm, the judge must determine what steps could be taken (if any) to mitigate the risk to the children to the “maximum extent possible”. In this case, this is the psychological risk to the children in being separated from the mother indefinitely.
The matter was remitted for hearing as to communication with and the children spending time with the mother. At the time this article was written, this issue has not yet been determined by the Court. While the mother was in partly successful in her appeal and will likely spend some time with the children in the future, under the current orders (and will not be an issue to be decided in the rehearing of the matter) the children will remain living with the father and he will have sole parental responsibility for the children.
This case is evidence of how serious the Court takes unfounded allegations, particularly in relation to the impact on children being exposed to those allegations. The Court took drastic measures in relocating the young children from the mother (their primary attachment figure) to the father, whom they had not spent significant periods of time within the preceding years following separation.
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