Warhurst & Landy 2014 FamCAFC 201

The trial judge ordered that the father have sole parental responsibility for a child, that the child live with the father and visit the mother at the discretion of the father.  The mother appealed the orders.

The Appeal Court considered the following evidence.  On the day the Court ordered that the child live with the father, the mother reported an allegation that the father had encouraged the child to engage in sexual behaviour with the father’s partner (sexual abuse), an allegation that was investigated but not substantiated (unsubstantiated allegation).

Later a consent order was agreed for the child to live with the mother and spend time with the father.  The mother subsequently asked the father to agree that she relocate to a distant town, but the father did not agree.  The mother then withheld the child from the father, saying that the child was afraid of the father.  The mother later alleged that the father had driven a car over the child’s foot to punish the child, an allegation that was investigated but not substantiated.  The mother then absconded with the child.  A recovery order was issued for the child to return to the care of the father.

The Appeal Court found that the mother made three unsubstantiated allegations that required investigations while the child was aged 4 years (credibility).  A family consultant reported that the child was exposed to an unacceptable risk when in the care of the mother, and that the mother lacked capacity to change.

The Appeal Court dismissed the mother’s appeal.