Does smacking children create an unacceptable risk of harm? Which case won?
Court makes interim orders regarding young children after mother and father separate
The husband and wife had two children, born in 2010 and 2014, before they separated in 2015.
In 2016 the Federal Circuit Court of Australia made interim orders that the children should live with the mother and spend substantial time with the father. This arrangement worked well until 2 May 2018.
Child tells father of being struck by mother
On 2 May 2018 the elder child, a daughter, disclosed to her father at a school sports carnival that she was not participating in the carnival because the mother had struck her the night before. The father immediately took the child to the acting school principal and then to the police, where the child repeated her story of being struck by the mother.
The versions of events given by the child to the father, the principal and the police all varied slightly, but the consistent gist of the allegation was that the mother had struck the elder child on the evening of 1 May 2018.
Father contravenes interim orders by failing to return either child
The father refused to return the elder child to the mother after going to the police. Even though the father had refused to return the elder child to the mother, the mother still sent the younger child to him for the following weekend in compliance with the interim orders.
The father failed to return either child to the mother at the end of his contact weekend.
Both parents file applications for court orders
The mother filed an urgent application for a recovery order and the father filed an application seeking an order that there be a change of residence and that the children live with him because there was an unacceptable risk of physical and emotional harm to the children while they lived with the mother.
The judge of the Federal Circuit Court found that there was not an unacceptable risk of harm to the children living with the mother and she made final orders that the interim orders, which had worked well for two years, continue.
The father appealed to the Family Court of Australia, which had to decide whether the children should continue to live with their mother or should change to living with their father.