Usher & Usher

In the matter of *Usher & Usher*, Cleary J of the Family Court of Australia considered applications by both the father (Mr Usher) and the mother (Ms Usher) to vary interim parenting orders concerning their child, Y. The dispute arose following allegations of abuse between siblings X and Y, with the father seeking to vary Y's time with him and impose restrictions on X's presence during that time, and the mother proposing alternative arrangements contingent on X residing with her. The court noted that trial dates had been allocated for September 2021, meaning any interim changes would remain in place for approximately six months.

The court was required to determine two primary legal issues. Firstly, whether to grant the father's application to vary the interim parenting orders and the mother's counter-application. Secondly, the court had to consider whether exceptional circumstances justified the application of certain provisions of the *Evidence Act 1995* (Cth), which are otherwise excluded by section 69ZT(1) of the *Family Law Act 1975* (Cth), specifically in relation to the issue of alleged abuse of child Y.

Cleary J reasoned that making changes to the current arrangements, which had been in place for approximately six months until the trial, risked destabilising the children's relationships without a permanent basis for such changes. The court acknowledged that the existing arrangements were not ideal and that Y had expressed a desire for overnight stays with her father, but concluded that the current orders were functioning, albeit precariously. Consequently, the applications of both the father and the mother to vary the interim orders were dismissed. However, the court found exceptional circumstances, particularly the probative value of the mother's evidence regarding alleged abuse, to justify applying the excluded provisions of the *Evidence Act 1995* (Cth) to the issue of alleged abuse of child Y.