The Court of Appeal has overturned a residence order granted to a father who had not had contact with his three daughters for seventeen months. Prior to the order, the mother had made numerous allegations of domestic violence. The most significant of these was against one of the children, but the judge found the allegation to be unfounded.
The mother had previously obstructed contact between the father and the three children over a considerable period of time. However, when she filed her final statement in anticipation of the trial, she appeared to have seen the error of her ways. The judge in the lower court found that this could be attributed to the father’s competitive application for residence.
The judge who transferred residence to the father had done so on the basis that she considered the mother’s change of position could not be trusted. The mother was, however, granted generous contact with her children.
At the appeal, the mother argued that the judge had based her decision on the wrong issue. Although some weight had to be attached to the mother’s intent, the crux of the matter was the risk relating to having the children live with their father. The Court agreed. Allowing the appeal, the residence order in favour of the father was dismissed and a contact order substituted with immediate effect.
This is a clear example of judicial frustration with cases in which one parent repeatedly ignores court orders. The mother’s assertion that she would in future comply with the court's rulings should have been put to the test. Strict warnings about any future failure to comply with court orders should have been given and a period of time allowed in order to gauge the mother's actual intentions.