Jets & Maker 2010 FamCAFC 55

A 2 year old boy lived with his mother and spent time with his father.  The father sought an order by complaining that the mother had failed to arrange for the son to be present at a handover (contravene order).  The mother considered she had a reasonable excuse as she had found bruising on the boy’s chin and the child explained this by saying that the father had hit him.  The father reported that the boy fell.   The mother took the boy to two doctors, to police, to the child protection department and to a psychologist.  The mother raised further concerns about the father’s parenting saying that the child smelled of cigarette smoke when returning from stays with the father; the father did not provide changes of clothing; the child was afraid of attending a child-care as the father collected him from there; and the boy had hit out at the mother and grand-mother.

The judge considered that the bruise was minor and consistent with a child’s normal everyday living experience.  The judge considered that it was extraordinary for an assessing psychologist to interview a two-year old child for an hour.

The mother informed the court that she had visited a psychologist because assessments by two previous experts were adverse to her and she considered she had been traumatised due to family violence when interviewed, and was not in a state to be interviewed.

The judge found that the mother expressed unreasonable concerns about the child’s welfare and there was no history presented that would warrant her denying the father his allocated time with the child (reasonable concern). The objective evidence did not support any danger to the child that would justify her action and, on the balance of probabilities, she had breached the order.

The judge ruled that a report from a psychologist was inadmissible evidence because the report was unlikely to assist the judge to resolve the topic of concern.  The report had questioned evidence provided by two expert witnesses who were highly regarded by the court in a previous hearing.

The mother appealed the decision.  The appeal judge allowed the appeal.