HOWELL & GAGNE

This matter concerned the parenting arrangements for a child, X, born in 2007, involving the mother (applicant), the father (respondent), and the paternal grandmother (intervener). The dispute arose in circumstances where both parties made allegations of violence and abuse, and there was an unacceptable risk of further violence, sexual abuse, and physical abuse. The Court was faced with a difficult choice between two parenting regimes, neither of which was ideal, particularly as neither the maternal nor paternal families were free from histories of psychological instability.

The primary legal issues before Justice Austin were whether the presumption of equal shared parental responsibility applied, and if not, what parenting orders were in the best interests of the child, considering the risks of harm. The Court was required to determine with whom the child should live and spend time, and the nature of parental responsibility, given the allegations of family violence and the child's apprehension towards the mother's partner.

Justice Austin found that the presumption of equal shared parental responsibility did not apply due to reasonable grounds to believe family violence had occurred between the mother and father, and between the mother and her partner. The Court determined that the child was at risk of physical and psychological harm in the mother's household due to exposure to abuse, neglect, and family violence, including fear engendered by the mother's partner. While risks were also present in the father's household, they were considered less pronounced. Consequently, the Court ordered that the child live with the father and paternal grandmother, and spend substantial time with the mother, subject to specific injunctions restraining the child's interaction with three individuals associated with the maternal family. The mother, father, and paternal grandmother were all granted equal shared parental responsibility.