Ross and Potter

The Family Court of Australia heard an application by Ms. Ross against Mr. Potter concerning their child, Y. The dispute arose from Mr. Potter's failure to return Y to Ms. Ross's care as per existing court orders, and his subsequent removal of Y from school. Mr. Potter's refusal to return Y was based on his assertion that Y was at significant risk of harm from Ms. Ross's current partner, Mr. S.

The court was required to determine whether to grant Ms. Ross's application for a recovery order for Y and to consider Mr. Potter's interim application for Y to live with him. Central to these determinations were the allegations of physical harm to Y by Mr. S, and the mother's alleged failure to protect Y from such harm. The court also had to consider the existing parenting orders made in 2008, which stipulated Y's living arrangements and time with each parent.

Justice Murphy, applying the principles of Division 12A of the *Family Law Act 1975* (Cth), which mandates active management of proceedings without undue delay or formality, took the unusual step of hearing oral evidence from Ms. Ross and Mr. S due to the parties appearing unrepresented. Mr. Potter's allegations of harm to Y by Mr. S were largely based on hearsay statements attributed to Y. Both Ms. Ross and Mr. S categorically denied any physical assault or violence towards Y by Mr. S, stating that any physical contact was limited to consensual play wrestling, during which Y had not complained of injury.

The court ordered that Y be returned to the mother's care by the father, facilitating Y's attendance at school the following day. The father was directed to file and serve an application for parenting orders within seven days, to be heard on 25 January 2012, with the mother to file any response within seven days thereafter. The court also requested the Director-General of the Department of Communities (Child Safety Services) to undertake an investigation into the circumstances pertaining to the mother's household and to prepare a report pursuant to section 69ZW of the Act regarding allegations of abuse. Furthermore, a lawyer was appointed as an Independent Children's Lawyer to represent Y's interests, with leave granted for the ICL to share relevant information with Child Safety Services and the Queensland Police Service.