In my research into Australia’s domestic violence epidemic, I’ve found an endless list of cases in Australia where parenting orders have been used as a blunt instrument to punish mums who were trying to keep their children safe from domestic violence and other crimes.

Apologies that the language about the parents in this post is mostly gendered (“mum”, “dad”, etc.). I could have said “parent A / parent B”, but instead, I’ve used gendered language based on how the parents were talked about in the court judgements because I don’t know these people’s preferred pronouns.

So let’s talk about why in Queensland, the Family Court of Australia and the Magistrates Courts, mums get slammed for doing the very thing mums are known for: protecting their babies.

This is not legal advice; I am not a lawyer. I am publishing this as a concerned citizen and an advocate for DFV victim-survivors.

And please ignore any typos; I was typing out this post on my phone this morning when I couldn’t sleep. #3amthoughts am I right? 😅

Let’s get into it.

Kalant & Jordain (No. 3) [2021] FamCA 191:

• Summary: Mum jailed for not picking up the phone.
  
  
• See https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1F/2021/319.html
• Dad took mum to court, because the mum missed 2 x meetings with the Court’s Child Expert, but on one of the 2 times it was a phone appointment, and the expert literally did not call the mum, and she had no number to call them on. The second time, we don’t know why the call didn’t go through.
• Court ordered a 6-month bond against the mum, saying she has to follow all the parenting orders, i.e. meet with the child court expert.
• Then dad took mum to court again, charging mum with 1 x count of not letting the kids see him (“not facilitating the kids spending time with”), but the facts are unclear.
• Court ordered 14 days of jail time against the mum (suspended on a 2-year good behaviour bond), saying she has to facilitate the kids’ relationship with the dad, otherwise she is breaching the parenting orders.
• The mum appealed, and that is this case, No. 3. The Court said, “it is not the purpose of contravention proceedings to punish”, but then turned around and said the jail time was still “necessary” to make sure the mum knew she had to follow the parenting orders to the letter.

Beckett & Beckett (No. 3) [2021] FCCA 1759:

• Summary: Mum fined $17,000 for not forcing kids to visit father.
• See https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2021/1759.html
• In 2017 (No. 1), the mum received sole parental responsibility of the kids.
• After those final orders were made, the dad said the mum had failed multiple times to facilitate him spending time with the kids. But on every occasion he alleged, this was because the kids did not want to go see him. So dad took mum to court again in 2017 to make her facilitate spending time, again in 2018 (same reason), again in 2019 (he took out a DVO against her), and again in 2020 (for 3 x counts of not facilitating spending time).
• In the 2021 ruling (No. 3), the father also claims that the mum didn’t tell him where one of the kids goes to school, but the court thankfully didn’t agree with him on that.
• The court said the mum contravened the parenting orders “without reasonable excuse”, by not forcing the kids to go see their dad when they didn’t want to go. This doesn’t stack up well against the UN Declaration of the Rights of the Child, which says children have basic human rights to express their views to the court (article 12) and to spend time with people they choose (article 16), but hey, I’m not a human rights lawyer.
• Result: Court fined Mother $17,099.90 by ordering it as a Child Support payment from her to the dad through the Department of Human Services.

Oswin & Oswin [2019] FamCAFC 164:

• Summary: Mum jailed for enrolling kids in school.
• See https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2019/164.html
  
  
• 3 years before this 2019 case, the primary judge said mum contravened parenting orders (equal shared parental responsibility) “without reasonable excuse”, by enrolling 2 of the 3 kids in school, and by not helping dad to get passports for the kids. Court ordered 7 days’ jail, suspended on a 2-year good behaviour bond. Dad now seeks mum be put in jail again.
  
  
• Appeal Court ordered that everyone cooperate to get the kids a passport.
  
  
• Appeal Court said that investigating available options for schools is not a “unilateral decision”.
  
  
• Appeal Court said that mum was actually innocent and the primary judge actually should not have decided mum contravened the parenting orders.
  
  
• The dad was ordered to pay $6,455 to the mum to comply with a costs order from the 2019 case.
  
  
• The Attorney-General was ordered to pay legal costs of the appeal for both the mum and the dad, because the primary judge decided wrongly.

Bircher & Bircher (2022) FedCFamC1A59:

• Summary: Dad kept child away from Mum, but Mum got in trouble.
• See https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1A/2022/59.html
  
  
• The first court case between dad and mum was in 2011, with parenting orders in 2014, amended in 2015, amended in 2017, and replaced with new parenting orders in 2019.
  
  
• In the 2022 case, the dad withheld one of their children C (14yo) from the mum for 7 days, and the mum responded by withholding that child for 7 days to make up the time.
  
  
• For context, the kids were 15, 14, and 12.
  
  
• The court said the mum should not have tried to “even the score”.
  
  
• The court fined the mum $600 and ordered that she give the dad an extra 7 days of make-up time. Court did not give the dad the changes (“variations”) in parenting orders that he was asking for.
• Follows on in Bircher and Bircher [2022] FedCFamC1F 884: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1F/2022/884.html?
  
  
• Mum requested variations to parenting orders, and dad filed his own request for variations in parenting orders as his response.
  
  
• In the 2019 orders, Mum had sole parental responsibility for choosing the kids’ schools, and Dad had sole parental responsibility for all health decisions.
  
  
• Mum was applying for sole decision-making on all matters, and a reduction in the amount of time the kids spend with dad, because the kids were unhappy with the 2019 arrangement of shared care, with evidence from a child psychologist that they’re all suffering from mild to moderate anxiety, and 2/3 kids are teenagers now.
  
  
• The dad claimed the mum tried to stop the kids seeing the child psychologist.
• The court said there’s no evidence except for the mum’s opinion about why the kids want to spend more time with her now, and the judge was dismissive of the child psychologist’s evidence.
  
  
• The court said it’s not in the kids’ best interest to make any changes just because the kids changed their mind, so I won’t. Quote: “41. That children change their views about their living circumstances is not uncommon. Indeed, one might expect that unless they are living in an ideal environment (and these children are not) it is likely that from time to time their views (or the views of one or two of them) about their living arrangements might change. … A change in views, of itself, is unlikely to have the necessary quality to demand that the welfare of the child or children expressing them be revisited. Rather, it is what informs that change of view which is ordinarily critical.”

Josey & Meibos (2009) FMCAfam 470:

• Summary: Mum not allowed to change schools after moving house, and has to pay legal costs to violent dad.
• Mum changed schools after moving house, to prevent violent dad from seeing them every day.
  
  
• No court orders existed at the time, so she was legally within her rights to move house for her and her kids, and to change the schools they were enrolled in.
• Court reprimanded mum and ordered that she unenroll them from the new schools and re-enroll the kids in their old schools.
  
  
• The mum was ordered to pay the dad’s legal costs, up to a max of $1,500 costs she had to pay.

McClintock & Levier (2009) FamCAFC 62:

• Summary: Court orders mum to move back to live closer to dad.
• See https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2009/62.html
  
  
• This case was an appeal against mum’s jail sentence – mum had admitted to contravening parenting orders without reasonable excuse, and Magistrates Court sentenced mum to 6 months’ jail time. The sentence was stayed after mum had already served 16 days in jail.
  
  
• Her appeal won – all 3 appeal judges in the Family Court agreed that 6 months’ jail was “manifestly excessive”, and suspended the mum’s jail sentence from 6 months down to the 16 days already served, on a 2-year good behaviour bond.
  
  
• But the fact is, the mum already spent that time in jail. She was already punished and separated from her kids. It’s unjust that it happened at all.
• The “contraventions” are when the dad says the mum didn’t let the kid spend time with him – mum admitted to 6 of 7. The mum moved her and her kid out of the shared home in NSW, took the kid on a holiday to Qld, then moved her and her kid to WA, and enrolled the kid in school in WA. Mum said she did this because she was worried about her kid’s safety (“welfare”), and the Magistrates Court saaaaiiiid they would take that into account. But did they?
• The police arrested the mum in WA after 13 months, and at the Magistrates Court, they put the mum in jail for 6 months and fined her to pay the dad’s legal costs, on the basis of deterring future criminal activity by parents. The kid has lived with the dad ever since, which the appeal court said is also a punishment against the mum.

Vaughton & Randle (No. 3) (2013) FamCA 467:

• Summary: Mum jailed for not buying plane tickets.
• Family Court ordered mum on a 2-year good behaviour bond, paying $1,000 fine as security within 7 days, and paying dad’s legal costs and paying the ICL’s legal costs up to $2,350 within 60 days, and dad got compensatory time of about a week and a half, and also mum now has to spend time with her kids supervised by the dad’s parents, whereas before the dad had to spend time supervised by the dad’s parents.
  
  
• The dad (living in Adelaide) said the mum (living in Tasmania) had failed to facilitate him spending time with the kid 9 times (up to 32 hours each time, total 12 days), and she admitted this. There was an issue about who would pay for plane tickets – so court eventually ordered mum to pay for plane tickets for when kid comes to her in Tasmania, and dad to pay for plane tickets for when kid goes to him in Adelaide.
  
  
• The 2012 court ordered a penalty against the mum of 1 month’s jail time, suspended so long as the mum was not convicted of contravening parenting orders again, and discharged (wiped) after 1 year. And (very weird) the 2012 court ordered an injunction to prevent the mum taking her kid to see a psychologist.
  
  
• After the dad filed the court application, the mum kept the kid with her until the 2012 court hearing, so the 2012 court also ordered that the dad get an extra 6 fortnights of make-up time (wow). Court said giving dad extra make-up time is in the best interests of the child because it punishes their mum so she doesn’t do it again. Quote: “This would also serve as a reminder to the mother of the consequences of contravening orders of this Court without reasonable excuse. That reinforcement is also in the best interests of the child.” Thankfully, the appeal court said the dad does not get the extra 6 fortnights of make-up time.
  
  
• Appeal court ordered mum to pay dad’s legal costs.
  
  
• The dad tried to get orders that the mum would return to Adelaide until trial, and the first court refused. The appeal court agreed not appropriate to order that mum moves, and instead just moved the trial date closer.
  
  
• The first court had ordered the dad to not take the kid to any sporting clubs,  for the kids’ safety, so again not sure what happened there, but doesn’t look great. And the appeal court agreed, saying that as the ICL pointed out, the dad can do other activities with the kid.

Which court decision surprises you most?

What court cases should I summarise next?