Nardello & Fillmore 2009 FamCAFC 42

The mother of four children appealed a decision by the judge to place two younger boys aged 7 and 8 years with their father and older brother, while a girl was placed with the mother.  The mother argued that the judge had failed to carry out a comparative risk assessment for the father and mother, and had failed to give weight to the children’s attachment to the mother.  The mother also argued that the judge had allowed gender to carry the day as the males in the family had been placed together (sibling relationship).

The appeal judges noted that the mother had a history of physical abuse of the two older children as a form of discipline, and that she had hit the children with implements including a vacuum pipe and wooden spoon.  The father had also hit one older child who was assessed as having an intellectual disability and behavioural difficulties.  The appeal judges considered that the mother’s abuse was more extensive.

The appeal judges found that the children were attached to both parents, and that the father had minimal earlier involvement in the care of the children.

The appeal judges did not accept that gender had carried the day as the trial judge considered the evidence.

The appeal judges allowed the appeal on the grounds of lack of comparative assessment on risk and attachment.