A judge who ordered that a toddler be removed from a mother who says she was only trying to flee her partner's bullying family has warned perjury charges could be laid against whichever parent is lying.
The Sunday Star-Times revealed last weekend that a "without notice" interim parenting order was given to the father by a Family Court, meaning the mother never got to tell her side of the story before four police officers arrived and took her child.
The incident has raised concerns about without notice orders, usually only granted in domestic violence cases. A Law Society expert warns there could be an "enormous" increase in such orders because of changes to Family Court procedures.
In the case reported last weekend, the father claimed the mother, originally from South America, would take the 15-month-old girl out of the country if she was told of the application, and that the child was at risk. He claimed the mother had handed day-to-day care of the child to him, was not living with him, and had "abducted" the toddler.
But the mother later filed an affadavit saying she was living with the man and his extended family, and fled with the child when they insisted she give up her baby, due to be born in a couple of months, because there was no room in the house. She told the court she was made to write a note saying she was not living at the address, so that the father could illegally claim a domestic purposes benefit. He denies this.
After the article, Principal Family Court Judge Peter Boshier investigated, and sent the Star-Times the original written decisions of Judge Peter Callinicos.
Judge Callinicos said in his original decision in June that he was satisfied that if the mother was notified it could result in "serious injury or undue hardship or risk to the safety of the applicant or child". He said he had noted the "status quo", with the mother's agreement, was that the child was placed in the father's care.
At that point he did not know the mother was claiming she had been made to lie about not living at the address.
Callinicos said he was relying on the father's sworn statements and that "all material events have been disclosed".
At a subsequent hearing in July, Callinicos expressed his concerns about the case, and the "significant gulfs in position between the parties". He said it was a "gulf which is difficult to reconcile" and he had warned both parties they could face perjury charges.
He granted the mother visiting rights twice a week, and said it was important the relationship between mother and child continued as soon as possible.
Judge Boshier said when a without notice order was made, the court must return to the case promptly. He had been advised that a judicial conference would be held on August 31, and the case would be set down for a substantive hearing.
The Law Society's family law spokesman, Garry Collin, said a recent review of the Family Court had proposed that parenting order applications go down one of three tracks - without notice, simple and standard. Only under the without notice track would applicants be entitled to a lawyer, legal aid and a lawyer for the child.
"You'll see an enormous rise in these, because you're not entitled to a lawyer any other way. Lawyers are naturally going to try and get people down the without notice track."
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