Jaeger & Hollis 2014 FamCA 347

The mother was the primary attachment figure for four children aged between 4 and 9 years.  Allegations of physical and sexual abuse of the children were made against the mother’s new husband.  The children alleged that the step-father would smack them if they did not call him dad, were told that their father did not love them, were hit with a belt, and were both threatened with and hit with a whopping stick or a cricket stump.

The judge found that it was reasonable for the father to enquire about what kind of a step-father the mother’s new husband would be for the children (interrogate).  There was no evidence to suggest that the father had pressured the children or had planted ideas in the children’s heads about the complaints they might make.

The judge found that the mother would not act on complaints made by the children that raised the slightest possibility of causing difficulties for her new husband (prioritise children’s needs).  The mother had a limited capacity to give priority to her children over other important figures in her life, presently her husband and in the past her father.

The judge found the presumption of equal shared responsibility was rebutted by the evidence of lack of trust between the parents.  The judge found that there was an unacceptable risk of harm by corporal punishment inflicted by the mother’s new husband (harsh punishment), and that the mother had not shown a capacity to protect the children.  The judge ordered that the children live with the father, for the children’s time with the mother to be supervised, and for the mother to have weekly phone contact with the children.