Caroline Overington | July 09, 2009
THE Family Court has ordered a Melbourne mother to hand her 19-month-old daughter over to the child's father, after she left Darwin with the child without his permission.
The mother, who has always been the primary carer of the child, has been ordered to hand over the child "outside the front gate" of the grandmother's house in Melbourne today or face the consequences, which include a possible jail term.
Federal magistrate Janet Terry said shared-parenting laws introduced by the Howard government in 2006 required her to apply a presumption that it was in the best interests of the child that her parents had equal shared parental responsibility for her.
"This is a very sad case," Ms Terry said. "I am faced with the choice of making an order that a 19-month-old girl be separated from her mother in order to ensure that she has the opportunity to develop a relationship with her father."
She said the principles of the new Family Law Act "make it clear that children have a right to know and be cared for by both their parents".
Ms Terry said the mother had acted "high-handedly" in removing the child from Darwin without the father's permission, and had refused to return to Darwin while a final settlement was worked out by the courts.
That being the case, the child should be returned to Darwin "at a time nominated by the father by text message sent to the mother".
The mother will not see her daughter again until August, when a five-day visitation is scheduled.
The father plans to take the child back to Darwin, where she was born, pending the final custody hearing.
The mother is originally from Melbourne but moved to Darwin in 2006 to take up a teaching job.
She met the child's father shortly after she arrived. They lived together for about a year, and had a child in 2007. When the relationship ended in May, the woman returned to Melbourne, taking her daughter with her. The mother told the court she wanted to stay in Melbourne with the child until the final custody hearing.
She said she would not return to Darwin pending a full court hearing because she had no support, no friends or family in Darwin.
Ms Terry said the couple "did not have an easy relationship.
"On May 9, without the father's knowledge or consent, the mother flew to Melbourne with (the child). The father was distressed when he discovered what had happened.
"He informed the mother that if she did not return to Darwin, he would apply for an order (to have the child returned.)"
He wrote by email, saying: "I do not think you fully comprehend what this feels like. It hurts me to have her taken away."
The father told the court he'd vacate the marital home in Darwin so the mother could live there with the child while a settlement was worked out.
The court ruling acknowledges that the "mother has always been (the child's) primary carer.
"A separation from the mother will be hard in the short term. However, children are sometimes forced to adjust to changes of this nature, for example if a parent dies.
"I am concerned that unless the importance of the child's relationship with her father is made clear to the mother, the stage will be set for a long history of difficulties spending time with the father."
The mother will appeal.
The shared-parenting laws are being reviewed by the Australian Institute of Family Studies. The federal government is awaiting its report before deciding whether the law needs to be changed.