In an extraordinary case in Newcastle a mother of an 11 month old baby was restrained from breastfeeding the children because her recent tattoo put the child at unnecessary risk of contracting HIV. The Judge also ordered that the child spend from 9am to 3pm Sunday, Monday, Wednesday and Friday with the father. The mother had an AVO in place and the father had pleaded guilty to assaulting her. This is an unusual arrangement that is not often seen in care arrangements of children especially with a child so young. The decision was slammed by the professionals and academics studying the effects of breastfeeding. The Trial Judge made several comments to the mother about stopping breastfeeding.
The matter was heard on 5 June 2015 and there were Interim Orders. The mother appealed and on 19th June 2015 the full bench of the Family Court (being 3 Family Court Justices) unanimously found in favour of the mother. The Appeals Court had some interesting comments to make about the first Judge’s decision. The Court was critical of the first Judge for admitting his own evidence and said:
‘It highlights the need for expert opinion evidence to be given by persons who actually have expertise in that field as opposed to those who do not. Judges must not mistake their own views for being either facts not reasonably open to question or as appropriately qualified expert evidence’ and ‘The evidence was not capable of establishing the risk identified by the Trial Judge’ The Appeals Court overturned the Order for the mother to stop breastfeeding.
Of the Orders for the child to spend time with the father each alternate day was described by the Appeals Court as:
‘The basis of his Honour’s judgement is that because the child had been living with the father for two weeks there was now a platform for longer periods of time to ameliorate the effect of being separated from the father and the paternal grandmother. How, in the life of an 11 month old baby, that period could support his Honour’s approach is not apparent to me’.
“The Orders provide for an 11 month old child to spend six hours with his father every Sunday, Monday, Wednesday and Friday. Quite simply, how such an arrangement is in the best interests of an 11 month old baby is beyond me. Such an arrangement is of its very nature unsettling to the child and likely to lead to instability”.
The Appeals Court sent the matter back to the lower Court for a re-determination of the time that the child is to spend time with the father.
As in all family law cases, the evidence before the Judge must support the orders made.
If you need advice in relation to residence of children call Ruth Single on 4324 7699.