Howells and Madden

This matter came before Judge Terry concerning the parental responsibility and living arrangements for a child named X. The dispute centred on the father's contact with X, with the mother expressing significant fears regarding the father's past behaviour and its potential impact on both X and her own capacity as the primary caregiver.

The court was required to determine the best interests of the child X, specifically considering the likely effect of any change in X's circumstances, including separation from a parent. This involved assessing the potential impact on X of spending time with the father, and crucially, the impact on the mother of such arrangements. The court also had to consider the mother's genuinely held belief that the father posed a risk of abduction or withholding X, and whether this belief, even if not entirely rational, significantly affected her capacity as the resident parent.

Judge Terry reasoned that the mother's fears, stemming from a past incident where the father allegedly attempted to take X overseas, were not fanciful and had a profound and lasting effect on her. The mother's actions, such as moving towns, obtaining a silent phone number, and avoiding electoral rolls, demonstrated the depth of her anxiety. The court accepted that the father's secrecy regarding his address and date of birth augmented these fears. While acknowledging that an adolescent X might resist abduction, the court recognised that the mother's feelings of anxiety were understandable and impacted her well-being, evidenced by her need for anti-anxiety medication. The mother also perceived the father's behaviour as bullying, which she believed would be a negative experience for X.

The court ordered that the mother have sole parental responsibility for X, and that X live with the mother. The father was granted limited communication rights, including weekly telephone calls, the ability to send letters and gifts, and to respond to emails from X. Any time spent between the father and X was to be by agreement between the parents, with the order clarifying that this was permissive and did not oblige the mother to facilitate such time. Both parties were ordered to keep each other informed of their contact details.