Miller & Harrington 2008 FamCAFC 150

There was an order for two children aged 14 and 11 years to live with their father and have supervised contact with their mother.  The mother applied to change orders so that the children live with her.  The children had been missing and had possibly absconded for a period of ten months on one occasion before they presented themselves to a police station.

The judge was asked to rule on whether there had been significant changed circumstances.  There was debate about how evidence should be considered.

The appeal court accepted that contested facts may require giving of evidence and cross examination.  Appellants have an onus of putting forward evidence to prove a change in circumstances (burden of proof).

The judge accepted an assessor’s report that the children did not want to see the father (reluctant to contact); that the mother had informed the children that they could decide whether they saw the father (child’s wishes); that the mother was unlikely to facilitate a meaningful relationship between the children and father; and that the mother had exposed the children to adult disputes.  The judge found that the mother wanted to exclude the father from the children’s lives.

Changed circumstances raised by the mother were: the father had denigrated the mother in front of the children; and the mother had given birth to a new child and the children had bonded with the new baby (sibling separation).

The appeal court found that the original situation was continuing rather than there being a significant change in circumstances.  The appeal was dismissed.