SHIVAS & DARBY
[2014] FamCA 1149
•2 October 2014
FAMILY COURT OF AUSTRALIA
| SHIVAS & DARBY | [2014] FamCA 1149 |
| FAMILY LAW – CHILDREN – Best interests – with whom the child shall live and spend time – where the child has meaningful relationships with both parents – where the child has been exposed to family violence and there is a need to protect him from both physical harm and psychological harm arising from that situation – where the child is frightened of the mother’s partner – where the mother is unable to reconcile the need to protect the child by giving up the ongoing partnership with the father of her two younger children – sibling relationships – child to live with the father – mother restrained from bringing the child into contact with her partner – child to spend extended weekends with the mother whilst ever the mother’s partner is away working – where in the event that the mother’s partner returns to form a relationship, weekend time will reduce but still remain, provided the mother does not bring the child into contact with her partner – where this outcome represents a balance between the child’s emotional needs and his physical and psychological safety. FAMILY LAW – CHILDREN – Parental responsibility – the presumption of equal shared parental responsibility does not apply – where both parties engaged in family violence – where whoever the child lives with is to have parental responsibility – father to have sole parental responsibility – father to report to, and consult with, the mother. |
| Family Law Act 1975 (Cth) ss 60CC, 64B |
| APPLICANT: | Mr Shivas |
| RESPONDENT: | Ms Darby |
| INDEPENDENT CHILDREN’S LAWYER: | Coast Law |
| FILE NUMBER: | (P)NCC | 1283 | of | 2013 |
| DATE DELIVERED: | 2 October 2014 |
| PLACE DELIVERED | Brisbane |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATES: | 15, 16 & 17 September 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Graham |
| SOLICITOR FOR THE APPLICANT: | King Law |
| RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Murray |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Coast Law |
Orders
That all previous Orders are discharged.
That the father shall have sole parental responsibility for the child J born … 2009.
That the child shall live with the father.
That until the child commences school in 2015 the child shall spend time with the mother:
(a)Each alternate weekend from 5.00 pm Thursday to 9.00 am Monday commencing on the first Thursday after the date of these Orders.
(b)Each other Thursday from 9.00 am to 5.00 pm commencing on the second Thursday after the date of these Orders.
That the child shall communicate with the mother on Mondays by the mother telephoning the child between 5.00 pm and 5.30 pm and by the father permitting the child to telephone his mother at any reasonable time.
That Orders 2, 3, 4 and 5 made herein are suspended for a period of four weeks.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shivas & Darby has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: (P)NCC1283 of 2013
| Mr Shivas |
Applicant
And
| Ms Darby |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Death of Mother’s Partner
In late September 2014, whilst judgment was reserved, the Court was contacted by the Independent Children’s Lawyer. The reason for the contact was to advise that the mother’s partner had died in an accident earlier in the month. By arrangement the matter was relisted for the parties to have the opportunity to consider the implications of his death on these proceedings.
Introduction
These are competing applications for parenting orders in respect of one child; a boy aged five and a half (‘the child’).
The applicant is the father, aged 30. The respondent is the mother, aged 27. The parties met in 2004, began living together in mid-2005 and the child was born in 2009. The relationship ended about six months after the birth of the child. Cohabitation was for a little over four years.
The parties were aged 20 and 18 when they began living together. Their relationship was a tempestuous one. The mother alleges that there were too many incidents of violence, including assault, for her to recollect as separate events. The father denies individual alleged assaults, but agrees the relationship was characterised by anger, argument and conflict. The parties were immature and behaved accordingly and there were still aspects of that immaturity on display during these proceedings.
Post-separation, the child lived with the mother and there were violent and angry confrontations at times over the arrangements for the child to see the father. However, there was generally regular time spent between father and son.
By these proceedings the father applied for the child to come to live with him; five years after separation. His application is based mainly on concerns for the safety of the child in the mother’s household. The father also seeks sole parental responsibility because the parties are unable to communicate civilly or sometimes at all. The father proposed in his application that the child spend time with the mother “as agreed”. During the course of the hearing, it was conceded that the orders would need to be defined, given the poor state of the parental relationship.
The mother’s response provided for the child to continue to live with her, for the parents to share parental responsibility and for the child to spend time with his father for extended alternate weekends, modified when he commences school in 2015 to alternate weekends, half school holidays and other special times.
The father also asked the Court to make an order that the mother be restrained from bringing the child into contact with or allowing him to communicate with the mother’s partner.[1] That issue is both central to the father’s application for residence, and to his position that the child should not be brought into contact with the mother’s partner wherever the child lives.
[1]Second Amended Initiating Application filed 24/06/2014, Order 5
The mother’s opposition to any such restraint being placed on her partner and her denial that her partner represents a risk to the child’s safety made the dispute intractable.
The adjournment application
On the first day of hearing, the mother appeared, unrepresented, to apply for an adjournment. There continued to be a solicitor on the record for her; the solicitor who had prepared the applications and affidavits. The basis of the application for adjournment was an outstanding appeal against a decision by legal aid not to extend the mother’s grant of aid. The mother was at Court without any of the documents relevant to her legal aid application. I required the mother’s solicitor to attend at Court, which she did.
Relevant correspondence between the solicitor for the mother and the Legal Aid Commission and correspondence by that solicitor with the other parties on 7 August 2014 was admitted into evidence as Exhibits 1 and 2. A close reading of that information revealed that it was unlikely that the mother’s appeal would succeed, given that the mother refuted the suggestion by the Commission that she had the financial support of a current partner. The mother denied that she received financial support from him, or that he was her current partner.
Taken in combination with her objection to the recommended restraint on the child of being brought into contact with that same person, it did seem to me that that internal inconsistency would be fatal to an appeal, just as it had clearly been fatal to the application for an extension of the grant of aid.
The mother of course was entitled to pursue her application on the basis that there should not be any injunction restraining her from bringing the child into contact with her partner, but it was always unlikely that the Commission would finance such a course of action when she did not concede the relationship.
The adjournment application was declined for the reasons delivered at the time and subsequently the solicitor for the mother, confirming that her client knew that in the event the matter was not adjourned she would continue unrepresented, I excused the solicitor from further attendance at Court at her request. Thereafter, the mother represented herself and was granted leave to have her own mother sit with her and assist her as a McKenzie Friend.
The respective households
The household of the father consists of himself living in rented accommodation in the central coast area of New South Wales. He has a new partner of about six months standing. Early in their relationship, his partner became pregnant and that child is due in February 2015. Although the pregnancy was apparently not planned, the father and his partner are pleased about it and are intending to move in together when these proceedings have concluded; probably after the child is born. The father’s partner currently lives with her father within reasonable proximity.
The mother’s household consists of herself, the subject child and two younger children aged two and one. They are the children of the mother and her current partner. There is also a child of the mother’s partner aged six and a half, who is an occasional visitor to the household. That child lives with either her grandmother or her mother.
It has to be said that the mother was not candid about the fact that the children’s father has continued as her partner. She strenuously denied a domestic relationship on the basis that her partner was working away from home in four week blocks with one week off. During that one week, the mother asserted that the children’s father came to visit them in her home. Over the course of the trial, a very different picture emerged.
Issues
The issues in this matter are as follows:
a)The capacity of each of the parents to meet the child’s needs; physical emotional, psychological and financial.
b)Whether the mother’s partner represents an unacceptable risk to the physical and psychological safety of the child.
c)The impact of separation of the siblings; being the child and his two younger sisters.
d)The significance of the father’s new partner and the child to be born early in 2015, in the event the child is living with the father.
e)Whether there was family violence in the relationship between the parents and the significance of that for the child wherever he is living.
History of events since the child was born
The child was born in 2009. The parties agreed that the mother would stay home to take care of the child and that the father would work to support them. He did so working approximately 40 hours per week as an apprentice. He worked in Sydney, although the parties’ home was on the central coast. He worked 12 hour shifts and was away from the home for long periods of time. The father said that when he was able to, he helped the mother with the care of the child; changing his nappy, feeding him, bathing him and putting him to bed. The mother asserted that the father had minimal time with the child for six of the seven months that they remained together after his birth. Both accounts are probably true; the mother provided almost all care of the child, the father helped when he could, which was not very often, given the timing of his shifts combined with travel to Sydney.
The father’s expectations were high; that the mother would not only care for the child but attend to all the domestic work of the household. His return from work to find “the house untidy and no meals prepared” led to conflict.[2] The mother was affronted by the notion that she would be treated as a housewife in addition to being the child’s mother.
[2]Affidavit of father filed 04/08/2014, par 10
The maternal grandmother came to the parties’ home to clean and tidy the house for the parties and the father says that he would regularly come home from a 12 hour shift and a four hour commute and cook dinner for them. Each apparently was resentful of the lack of acknowledgment by the other of their respective contributions. They were unable to articulate that to each other and accordingly spent most of the time angry and shouting abuse. Tensions rose.
The father said that the event which led to separation was his observation of the mother smacking the child for knocking a magazine off a coffee table. The child was not hurt. The relationship collapsed under the parties’ mutually unmet expectations, their immaturity and inability to communicate calmly.
The mother asserts that the father would often become angry and would pull her hair, tell her to leave the house and she would have to pack the child up and leave. The father denied this. The father did not deny often feeling angry; he did deny pulling the mother’s hair and asserted that he would leave when arguments broke out. They argued over money, over the child and over each other’s behaviour.
In about October 2009 the parties separated and have not lived together again.
Fight between mother and paternal aunt
In December 2009 a provisional Apprehended Violence Order (‘AVO’) was made for the protection of the mother and child from the paternal aunt. The mother’s version of events on that occasion was that a verbal argument broke out between the two women over who would be taking the child.
The report of what police were told states, and the father denies, that the father punched the mother in the face and took the child from her arms; that the mother proceeded to bang on the door and the father came out and kicked her, causing her to fall backwards. The mother left, later returning with a friend. In the meantime, the report records that the paternal aunt had arrived, came outside when the mother returned and pushed the mother over; they wrestled on the ground. There was a provisional order made and the mother did not see the child for about eight days.
The paternal aunt did not give evidence in the final hearing, although she had filed an affidavit in the past.
What this report reveals is a lack of restraint by both parties and a willingness to fight over the child.
To some extent, the allegations of violence were reduced in significance by the concession by the mother that although she did not step back from any of her allegations of serious assaults on her by the father over the years they were together, that he had never represented a threat to the child, was not violent or abusive towards him and was not in her view, a source of risk to the child.
The mother asserted that she was frightened of the father and had been throughout the relationship. That may have been the case. But she did not give that impression during the proceedings; staring and glaring at the father when he was in the witness box until the matter was drawn to her attention. I formed the impression that the mother was affronted by the father’s attitude towards her. She was entirely dismissive of his allegations that she had attacked him on one occasion, kicking him in the face; although I have concluded that she probably did. I have no doubt in concluding that it was a volatile relationship and that the parties did lay hands on each other, but I am unable to determine exactly what happened on each occasion.
In April 2010 the father commenced a relationship with Ms B and in April 2011 they began living together. Soon after or about that time, the mother began living with her current partner.
Head injury sustained by the child in 2011
In October 2011 the child was seriously injured. He fell and hit his head on concrete. He fractured his skull and was in hospital for about a week.
This incident has led to a significant loss of trust by the father for the mother. The mother did not contact the father to let him know that the child had been taken to the hospital. The maternal grandmother telephoned the father the following day and gave him a version of events of children playing in the back yard, the child having fallen and hit his head and “that it wasn’t serious and that he was fine.” When the father questioned the maternal grandmother she advised him that the child had been transferred to hospital in Sydney. The father left the central coast immediately to be with the child in hospital. The maternal grandmother did not provide an affidavit or give evidence, although she was present as the mother’s McKenzie Friend throughout the trial.
Of that incident, the mother gave more than one version. In her affidavit for these proceedings, she said that the child’s injury was a result of a horrible accident, which took place in the home of her partner’s brother; that the child was playing with her partner’s older child and they were being supervised by her partner’s nephew, “The children were playing and [the child] fell and hit his head”.
In her oral evidence, the mother said that she and her partner and the two children had called in on her partner’s brother and that the children were clinging onto her partner’s brother, “[A] on the front, [J] on the back and [J] slipped onto his head.” She said she did not see the incident; she was up on the verandah. She denied that any adult present had been drinking, although it was a Sunday afternoon barbeque. It seems unlikely. The mother and her partner freely concede social drinking at such occasions.
This account is inconsistent with the social history provided by the Consultant Paediatrician who saw the child for a follow-up in July 2012. The father had arranged and paid for that follow-up.[3] The mother and the child attended upon the paediatrician. In that report the doctor says this:
[The child] was a previously well boy who fell from the shoulders of a friend onto a concrete slab in October 2011.
[3]Affidavit of father filed 04/08/2014, par 50, Annexure B
What I draw from this incident is that it is certain that no one intended to harm the child and that his injury was accidental. However, the mother did not behave in a straightforward and candid way. She did not make immediate contact with the father. She herself, or through the maternal grandmother, initially minimised the injury which she must have known immediately was a serious one. She did not tell the whole truth.
Head injury sustained by the mother’s daughter
On 13 July 2012 the mother gave birth to the first child of her current relationship. When that child was six months old she too suffered a fractured skull whilst in the care of her mother. The mother gives an account of her and a friend having been grocery shopping, that as she gave the child to the friend so as to put the groceries in the car, the child fell out of the friend’s arms, hit the ground and injured her head.[4]
[4]Affidavit of mother filed 11/09/2014, par 31 and affidavit of mother filed 26/06/2013, par 68
Again the picture is very similar. There is no doubt that no adult present intended to hurt this child; it was an accident. However the version of events in her affidavit does not sit well with what the mother reported on the day to the hospital.[5]
[5]Exhibit 7, first orange tag marked ‘F’
She reported that she had been with friends at an Australia Day barbeque at the waterfront; that the baby was with her; the subject child spending the weekend with the father. She reported that she and friends had had “a few beers throughout the day; however were not at all drunk.” The mother went on to say that she had arranged a friend to drive herself and the baby home as the other friends were continuing on to the pub. The mother made a point of reporting at the hospital that she had checked the friend she was handing her child to before handing her over and that the friend was “not drunk and was willing to hold her.” The mother said the baby vomited and she then heard a thud, turned around and saw the baby on the ground.
The mother had the benefit of reading relevant hospital notes before the trial began. During her oral evidence the mother said that she and her friends had both had a couple of wines and that they had been shopping. However, the incident happened in the evening and they had clearly been out all day. The mother’s evasive conduct about this incident inspired the same lack of confidence as in relation to the subject child’s accident. The possibility exists that adults in charge had been drinking, or at least that there was inadequate supervision, and that the mother was failing to accept responsibility for that situation. It was unimpressive.
Attack on the mother by her partner
In March 2013, two months after the injury to the mother’s daughter, an extremely dangerous episode unfolded in the mother’s home. On that occasion the subject child was home and said by his mother to be asleep. The mother’s baby daughter was also home and said to be asleep. The mother was three months pregnant with her second child who is now one year old. The report the mother gave to the hospital of what unfolded on that night is as follows:
That her partner was extremely intoxicated and they had an argument; that her partner attempted to assault her by choking her; that he threatened to cut his wrists.
The mother advised that she had removed the children from the house and went to neighbours and that when she returned to the house she found that her partner had cut his wrists and there was a great deal of blood. She then rushed back to the neighbours to call an ambulance and that this was when ‘he used a dressing gown cord to hang himself.’ Her partner was unresponsive when her neighbours found him.
The mother reported that her son was awake during all of the incident and has questioned his mother about the blood presence.
The children were, at the time of report on 22 March 2013, staying with the maternal grandmother who had travelled to assist the mother.
The mother did not refer to the incident in her trial affidavit.
In his affidavit, the father referred to the child as sometimes being quiet and reserved, so much so that the father realised that something was upsetting him. The child then referred to incidents in the mother’s home such as the partner dragging his mother by the hair down to the ground, hitting her and hitting her in her stomach.[6]
[6]Affidavit of father filed 04/08/2014, par 43
The father also referred to the suicide attempt by the mother’s partner, which he believed took place in front of the child.
When she was cross-examined about it, the mother acknowledged the incident as she had to, by then having read the subpoena material from the hospital. She denied reporting at the hospital that the child had been awake through the incident, “No, I know I didn’t say that”. She conceded that the child had asked about the blood in the yard and that she had told him that the dog had cut itself as an explanation.
Despite the fact that she had two children in the house and was pregnant with a third one, the mother denied that the children were in any way at risk on that night. Subsequently, she agreed with me that it was simply chance that neither of the children had been drawn into the violent scene in the backyard of their home and of course, the mother herself was injured; her partner having tried to strangle her in their argument just prior to his suicide attempt. The mother also downplayed that, “It was a one off, he was upset; he’d been drinking.” It was an extraordinarily dangerous set of events, but the mother would not concede the danger of it.
She repeatedly said that her partner had sought help since then; he was attending counselling, was taking medication and had taken the steps so there were no longer any risks. She then went on to concede that he had not told her about his criminal history, which she had read for the first time at Court. The mother did not step back to any extent from her commitment to him, despite his concealment of those matters and the nature of the offences themselves, which are set out in careful detail in the Family Report.
The mother was prepared to say that, even though she now knew that her partner had been attempting suicide since at least the age of 14 and perhaps as early as six or seven, and had had a dangerous and violent childhood which had left him damaged, anti-social and aggressive, that there was no danger for her or the child. The mother was in very deep denial indeed.
Her partner was in hospital for two weeks and had follow-up counselling for two weeks. During that period, he went out drinking and became engaged in a violent clash at a hotel. The mother’s partner was more willing to concede that he has a very long way to go to overcome the damage and destructive behaviour of a lifetime than the mother was.
In May 2013 the father filed his first application in the Court asking that the child come to live with him. The father had concluded that the child was at risk of exposure to family violence in the mother’s household, particularly attacks on the mother. It was a reasonable view to come to. The father became concerned that he was not being told the whole truth about anything, which is also a reasonable view to come to. Although he has amended aspects of his application since May 2013, the father has been pressing for the child to live with him since that time.
On 28 June 2013 the parties and the child were seen for an assessment by a family consultant. The family consultant observed the child to be:
… a happy well cared for child, with no behavioural or developmental issues. He did not present as a traumatised child who had been exposed to family violence, abuse or neglect. The child’s day-care teacher reported him as gentle and caring with exemplary behaviour. The child reported favourably on his mother’s partner although on occasions when he was in bed at night he had heard them arguing. He said he was not scared and didn’t think anyone would get hurt.
The father raised with the family consultant the suicide attempt and associated violence of March 2013. At that point, the mother denied that the child was exposed to that incident to any extent, “He knows nothing of what happened that night.” It is now apparent that the mother was lying when she made that statement.
She also asserted that her partner had long ago addressed issues of childhood trauma and a history of alcohol and drug abuse in long term rehabilitation. At that time, the mother was asserting that she and her partner had separated in or around March 2013.
The family consultant recommended that the criminal history and mental health of the mother’s “former” partner be assessed, in order to determine risk to both the child and the mother’s daughter.
On 5 July 2013 interim orders were made by consent for the child to live with the mother and spend time with the father each Thursday during the day and each alternate weekend from 4.00 pm Friday to before school Monday.
On 24 October 2013 the father filed an Amended Application seeking orders for week about equal time.
In late 2013 the mother gave birth to the second child of her relationship with her current partner.
On 13 December 2013 a Family Report was ordered.
In February 2014 the father and his former partner, Ms B separated. Subsequently the father began his new relationship with his current partner.
Concerns raised in the Family Report
In April 2014 the mother’s partner and the child were interviewed by the Family Report writer. The father reported what the child had said to him about continuing family violence in the mother’s household; not physical attacks but rather he “yells so loudly it hurts [my] head.”[7]
[7]Family Report dated 14/05/2014, par 29
The family consultant reported to the mother that:[8]
[The child] had expressed feeling fearful and was concerned about arguments in her home with [her partner].
The mother minimised the significance of that information:
One time it got a bit heated but [the child] wasn’t worried. We were both just trying to get [our] point across.
[8]Family Report dated 14/05/2014, par 51
The family consultant expressed concerned that the mother had given up community supports through Brighter Futures, despite her own history of criminal conduct and mental illness. She was at the time of the interview still taking anti-depressants, but no longer felt the need for counselling. The mother has suffered from depression and severe anxiety and has been impacted by violence, including sexual violence in her childhood. She had been a user of cannabis.
The family consultant asked the child if he liked the mother’s partner:[9]
[The child] stopped playing with blocks, looked at the family consultant and shook his head [No].
When asked why, he said it was because:
[He] fights with my mum.
and further on:[10]
[The child] denied that there was any hitting, pushing or items being thrown; he said: ‘No I just don’t like it when [he] fights with my mum. They yell a lot! It makes my head hurt’ and he agreed that the yelling scared him; ‘Yes. I get a little bit scared’.
When asked what he wanted the Judge to know about living with his mother, he said he ‘likes living with the mother and likes to spend time with his father has a good time at both households; however, he does not like [the partner] and is scared of him.
[9] Family Report dated 14/05/2014, par 68
[10]Family Report dated 14/05/2014, par 69 and 71
The family consultant identified great concern about the protracted history of violent behaviour by the mother’s partner commencing in primary school, continuing throughout his adolescence and into adulthood, escalating to extraordinary proportions involving “multiple assaults occasioning actual bodily harm; attempted homicide; malicious damage; aggravated robbery; and multiple driving offences”.
The family consultant noted that alcohol and illicit poly-substance abuse was a contributing factor to his anti-social behaviour.
In March 2013 when the mother’s partner attempted suicide, he tested positive for a variety of illicit drugs including methamphetamine and benzodiazepines. The family consultant expressed strong concerns about the child and she issued some guidelines for the mother about the need to protect the child and not to choose to continue in a relationship with her partner; to give the child’s safety and wellbeing priority and to take up the responsibility for protecting the child and his infant sisters.
The family consultant expressed the view that if the mother did not protect herself and the three children, then she may well find that her mental health would be impacted upon, which would then affect her capacity to parent. I accept that that risk exists in this case.
There was some explicit explanation by the family consultant of the impact on children of witnessing family violence and the risk that they may learn that violence can be used to dominate interpersonal relationships.
The ultimate recommendation of the family consultant was that the child should stay living with the mother, provided that an injunction be included to prevent the mother from bringing the child into contact with her partner and if she did not, that the child instead live with the father.
In May 2014, soon after the release of the Family Report, the mother read it. In my view she has never accepted the significance of the information provided by the family consultant, which was carefully and deliberately included in the report.
As had become clear by the end of this trial, the mother wants nothing more than a committed relationship with her partner, possibly marriage. She does not wish to give him up; she does not consider that she has to. She does not consider that all her children, and in particular the subject child, are at risk. It is a limitation of some significance on her capacity as a parent.
On 27 May 2014 the matter was listed for final hearing.
On 24 June 2014 the father filed a Second Amended Initiating Application seeking sole parental responsibility, residence with him and time with the mother as agreed. The father had become increasingly concerned about reports by the child of fighting in the mother’s home between the mother and her partner.
This hearing commenced on 15 September 2014 with the mother still asserting that the relationship between herself and her partner was over; that they had separated; that he only stayed with her in order to have time with his two young daughters facilitated.
In fact, I came to the conclusion that the mother and her partner have done their best to stay apart as much as possible, by the father working away from home, until these proceedings are complete. They have a deep commitment to each other and to the relationship and in my view, have maintained it despite physical separation and are determined to continue it into the future.
The evidence
The parties relied on the following documents:
Father:
a)Second Amended Initiating Application filed 24 June 2014;
b)Notice of Child Abuse, Family Violence or Risk of Family Violence filed 31 May 2013;
c)Affidavit of father filed 4 August 2014;
d)Affidavit of Mr S filed 31 July 2014
e)Affidavit of Mr W filed 1 August 2014
Mother:
f)Mother’s Response to Initiating Application filed 26 June 2013;
g)Affidavit of mother filed 26 June 2013;
h)Affidavit of mother filed 11 September 2014;
i)Affidavit of Ms K filed 16 September 2014;
j)Affidavit of Mr V filed 13 September 2014
Independent Children’s Lawyer:
k)Family Report of Ms R released 16 May 2014.
The applicant father
The father is a specialist tradesman by training; he is presently doing part-time work as a labourer, but there is no doubt he will return to fulltime work when he is able to after the conclusion of these proceedings.
The father was not complimentary about the mother, stating firmly on more than one occasion that in his view, the mother put herself first and the children second. As an example, he said:
By the way she’s always groomed; hair and make-up and the kids aren’t.
This is consistent with material in his affidavit where he referred to regularly picking up the child in the morning to find that he had not had breakfast, had not cleaned his teeth and his hair was not brushed. Although, it has to be said that the father had a very limited experience of living in a household with a young child, given that the parties separated when the child was about six or seven months old.
The mother has three young children to care for. Given that the Family Report states that all the children appear to be well developed and well cared for, the father’s complaints are more likely related to a difference in personal attitudes and parenting styles than a reflection of the mother being an inadequate parent.
The father is also genuinely concerned about the child’s safety in the mother’s household and is focused on having the child come to live with him. That is the probable explanation for his response to the question:
Q: Did the mother have any good qualities as a mother?
A: No, none at all.
It is apparent that he has given up on the idea of there being a working relationship between himself and the mother.
However I take into consideration that the father has not obstructed the good relationship that the child has developed with the paternal grandmother. The father remained loyal to his mother, but it became apparent that he and his siblings have their difficulties with her on account of her behaviour at times, but he was well able to separate his own feelings about his mother’s conduct from what he perceived to be a benefit for the child in spending regular time with the paternal grandmother.
Family Violence
The father was questioned in some detail about violence in the relationship with the mother. He referred in his affidavit, and was asked about, an incident where the parties had an argument and the mother was staring at the father and stubbed out her cigarette on her own arm. The father appeared to be horrified in recollection of the event and I accept that when he said he would never forget it, that that is true.
The father described an incident where the mother came home from a hotel after drinking to find him and his sister and brother in the home; that she had become angry, or as the father described it, “she wanted a fight”. He moved a mattress into the lounge room to sleep on that night and the mother kicked him in the face. Probably that occurred. Probably he reacted angrily.
Whilst he denied pulling the mother’s hair or physically hurting her other than by pushing her out the door on one occasion, I consider it likely that there were regularly episodes where the parties physically pushed and shoved each other in anger, yelled, shouted and used insulting language to each other.
In relation to an incident in 2006, the mother says that the father punched her in the face causing severe facial injury.
The mother’s sister introduced photocopied photographs of the mother with a very badly bruised and swollen eye. The mother’s sister did not see the event and relied on the mother’s statements to her when she arrived at her house, injured in that way, and saying that the father had caused her injuries.
Both the mother and her sister were clear to say that the injuries were caused by the father. Neither of them reported the incident to the police then or at any time since.
Either the mother did not attend on a doctor or hospital for treatment or she did but chose not to produce records.
The parties had only been living together for a year by 2006 and there were no children. It was the only time, on the mother’s evidence, that the father has caused her injury, especially such serious injury. The father resolutely denies doing any such thing.
I am unable to make a finding based on that evidence that the mother was injured in the way depicted at the hands of the father. It is very likely that the mother was injured by someone, but I cannot be sure how and when the event occurred or at whose hands.
The new child for the father in 2015
The father frankly answered that his partner’s pregnancy was not a planned one; that he and his partner have discussed the situation and agreed to move in together after the conclusion of these proceedings. I formed the impression, confirmed by the evidence of the father’s partner, that they have been quite mature and considered about this pregnancy, and have definitely formed a commitment to each other for the future, including the subject child and the child to be born early next year.
Impact on the child of a change of residence
The father appeared to understand that the child would be distressed and disrupted by a change of residence, having lived with the mother all his life and being used to living with his two younger sisters. He was asked whether the two sisters could stay with him sometimes and his spontaneous answer was, “They’d be more than welcome; I often look after my sister’s children”.
The father readily conceded that the longest period he had had the child in his exclusive care was a week. However he has regularly had the child in his care throughout his life and there is no doubt on the evidence of both parties and the family consultant, that the child is closely and lovingly attached to both his parents.
Concerns of the father about the mother’s partner
I accept that the father is genuinely worried about what the child has told him regarding what he has seen and heard in the mother’s home. I was impressed by the fact that the father did not blame the mother’s partner, or his brother who was holding the child at the time he was injured in 2011, for that accident. He was very firm in his belief that it had been an accident. Indeed I accept that the father has been civil, as has the mother’s partner, on the rare occasions they have spoken to each other on the phone.
I am satisfied that the father is genuinely concerned that the child will be exposed to or involved in violent incidents in the mother’s home. I consider it likely that had the mother really given up her relationship with her current partner, as she said she had, the father may well have been satisfied with spending substantial and significant time with the child. I am also satisfied that if the child lives with him, he will maximise the amount of time that the child can see the mother and his sisters. His proposals in that regard were quite thoughtful; every second weekend once the child was at school, from Friday after school until Monday before school, also for training and games in the event that the child started playing football. Further, the father proposed that the child might also become involved in gymnastics by choice and that might be something his sisters did that the child could join in with.
When cross-examined by the mother, the father stated that the child wakes up screaming about the night the mother’s partner was taken away in the ambulance. My overall impression was that the father has thought through the implications of taking on the fulltime care of the child and has given the child’s safety priority.
The paternal uncle
The paternal uncle is the father’s older brother. He has two boys himself aged 10 and six. He spoke affectionately of the father and the child. The mother freely conceded that the child enjoyed playing with his cousins and that she saw contact with the family of the paternal uncle as a benefit for the child. I am also confident that the paternal uncle and his wife will offer and deliver all the assistance that the father asks for in the day to day care arrangements for the child if he lives with the father.
The paternal uncle by marriage
Mr W is the husband of the father’s sister. They have two children together aged six and one and there is an older boy who is the child of the paternal aunt by an earlier relationship. That child divides his time between their household and his father’s household.
My impression is that Mr W, although not quite so close to the father as the paternal uncle, is part of the extended network of paternal adult siblings who are strongly supportive of each other and that that support has strengthened even more since the death of the paternal grandfather and the subsequent difficulties experienced by the paternal grandmother.
The father’s partner
The father’s partner is 26 and is a Student Nurse. She impressed as a mature and steady person. She gave careful consideration to the unplanned pregnancy with the father and decided to continue to live with her father until these Court proceedings were concluded. She has no other children and on her own freely given admission, has minimal experience with child care. She agreed that it would be challenging to have a new baby and a five year old child who had previously lived with the mother. She has given consideration to what she is contemplating committing to; has spoken to her father and step mother who are in their late forties and is confident of their assistance if needed.
The father’s partner did not attempt to minimise the situation she is heading into. She thought the impact of change of residence for the child would be very distressing, both for him and his sisters and has considered if the child would need some counselling if he did come to live with them. She agreed she did not know the mother, but expressed the hope that they would achieve “a nice relationship.” Although a fairly reserved young woman, I formed the impression that there would be security and warmth for a child in her care.
The respondent mother
The mother, it must be said, was not a reliable witness.
Her cross-examination commenced with events of the first day of trial.
On the first day of hearing, the family consultant was called by me to give evidence about the preparation of a supplementary report in the event that the matter was adjourned.
The mother took up the opportunity afforded to ask the family consultant a question. She directed her questions to the recommendation by the family consultant that there be a restraint on the child being brought into contact with her partner.
In particular the mother asked whether the fact that her partner was getting psychological help and taking medication would make a difference to her recommendation.
The mother became emotionally distressed by the reply which was, given her partner’s history of violence and drug use, there would need to be evidence of substantial change in behaviour.
It was an early indication that the relationship between the mother and her partner was by no means a “former” one.
That proposition was put to the mother in cross examination, that they were not really separated. The mother insisted in response that they were. When asked why she had pressed the issue if they were separated, the mother said:
He’s the father of my children and he’s taken steps. He’s got a mental illness but not a major one.
It was a response similar to many that followed; defensive of her partner whilst denying the truth of a matter.
The mother denied having had any conversation with her solicitor about the injunction recommended by the family consultant and raised as an issue by the Legal Aid Commission in the context of a refusal to extend aid. The mother denied that she had any knowledge of her refusal to accept the recommendation for an injunction was a reason for that refusal by the Commission, “I thought it was all about the de facto relationship which there never was.” Again the answer was disingenuous. The mother had relied heavily on the fact that the parties did not live together to establish there was no relationship. However it was clear that they lived together as much as they could, consistent with the partner working away from the area.
The mother went on to say that although she had read the Family Report by the end of May 2014; that she did not know what an injunction was and did not ask her solicitor about it. I cannot accept that evidence. My impression is that the mother knew only too well that what was being recommended was that the child be kept away from her partner. To the extent that she had not known the exact legal meaning of an injunction, she was not answering candidly by saying she did not know what it meant; she understood the impact of the recommendation.
When pressed about evidence for the rehabilitation of her partner, the mother said her solicitor had his prescription and the name of his psychologist. Ultimately the evidence of her partner was that he has seen a psychologist once. He was a more candid witness than the mother.
When the mother was again pressed about hoping to restore her relationship with her partner, she answered, “No I’m not” and again under further questioning, she said that previously their relationship had not been in a good state. By saying “no I’m not”, what she was really referring to was that she wanted a new relationship that was much better than the one they had previously had, but gave an ambiguous answer to suit her own case.
The safety of the child
The mother stoutly asserted that the child was not at harm with her partner, “He never was, I always intervened when necessary.” That latter statement was not explored but it is certainly a matter for concern.
The mother referred to the night when her partner attacked her and then attempted to commit suicide. She referred to it as “his cry for help.” Their relationship began in mid-2011. Their first child was born in mid-2012 and the mother was pregnant with their second child at the time of this event.
During the course of her cross-examination the mother’s evidence about her relationship with her partner changed again and again. She said they had separated in March 2013, but were still dating. She said that she was not in a relationship with him, but she did want a relationship with him. She said that she still loved him, but because of her children she had had to cease her relationship with him.
The mother denied that she had applied through the Child Support Agency for an assessment of child support for her two daughters, in order to establish separation.
Q:Was it because it would make a wonderful record of not being in a de facto relationship?
A: No, that’s not right.
The mother was entirely unconvincing on that point.
Criminal record of the mother’s partner
The criminal record of the mother’s partner was set out in detail of the Family Report, which the mother had read. On the afternoon of the first day, she had the opportunity to read directly the subpoenaed material and had access to all documents. It was apparent that her partner had minimised his criminal history. When she was asked about what he himself had told her about his criminal past when they got together, her answer was, “I’ve read his criminal past”.
The mother conceded that she had gone to court with her partner on one occasion, probably in relation to a charge of aggravated robbery. She said that he had told her he was “taking a rap for a friend” and she accepted that. When asked whether she was trying to minimise his criminal history, the mother’s surprising answer was, “Everyone’s got a record.” Whilst it is true that the mother, the father and the mother’s partner do have criminal records, I consider it likely that what the mother was expressing was that a criminal record was not a matter for concern.
When the mother conceded that it was only a matter of chance and luck that neither of the two children in the home in March 2013 had been exposed or tangled up in that violent incident, the mother was tearful and appeared conflicted. It seems to me she has persuaded herself that she can and should be allowed to reconcile the two things she wants; her relationship with her partner and her relationship with the child.
This was also reflected in her responses to the fact that the child had told the family consultant that he was frightened of the mother’s partner, didn’t like him, and that he wanted the Judge to know that he was scared. The mother said that she had a good relationship with the child; they were able to talk about things and to confront concerns and that he had never mentioned his fear. The mother was not willing to concede that the child may have been able to work out how important the partner was to the mother and therefore said nothing.
The mother agreed that she had read in the hospital records the fact that her partner had been attempting suicide since childhood and that his own mother had reported to the hospital that he had a long history of violence and aggression. She said that her partner did not have a close relationship with his mother; apparently she has not questioned him about why that might be.
The mother vacillated between tearfulness and distress and a kind of stubborn insolence when challenged with risk associated for the children and her partner. The mother was at her most defensive in relation to her partner testing positive for a range of illicit drugs when he was hospitalised after the suicide attempt. She agreed she knew about the positive drug screen and immediately said, “He’d broken his arm and couldn’t work and support us and he went downhill.” In this way she was quick to offer explanations, excuses and defences, to avoid conclusions unfavourable to her in that relationship.
Relationship with the child
I am satisfied that the mother deeply loves the child and has provided a reasonably good level of physical care. However, although she denied that she was choosing her partner over the child, she agreed that it looked like that. It may be the case, although I could not find that it was, that part of the reason that the mother and her partner have stayed apart is to ensure that there could be no untoward incident which would affect these proceedings.
By the conclusion of her cross-examination, I was satisfied that the mother intends to live with her partner, together with the three children if she can, but with the two children if she cannot, as soon as reasonably possible. She is deeply committed to her partner and hopes to marry him. Despite her denials, in my view, that relationship is her first priority.
The maternal aunt
The maternal aunt was supportive of the mother and also quite positive about her partner. My impression is that the latter was due to loyalty to her sister rather than the extent of her knowledge of the partner.
At one point in her evidence the maternal aunt, referring to the mother and her partner, said, “They’ve had a good run of late.” When asked about that she said she believed that the partner had been on anti-depressants and they might be rekindling their relationship. She denied witnessing any fighting or trouble between them. She was immensely critical of the father, who she described as a violent, aggressive and a negative role model for the child. Her affidavit had photographs of the mother, said to have been injured by the father in 2006. She had done nothing with them but keep them for the eight years since.
There was no reference to the mother seeking treatment, either in her own affidavit or that of the maternal aunt. The maternal aunt did not suggest that she had observed the father injure the mother. Her obvious desire was to assist the mother, and as a consequence of that, I cannot place too much weight on her evidence. For instance, when asked whether she knew that the mother’s partner had tried to choke her, she said, “I’m aware he put his arms around her throat” followed by, “I don’t know him well”.
She apparently does not have a close and confiding relationship with the child, on the basis of her evidence that she had not known that the child told the family consultant that he was frightened of her mother’s partner. I do not place much weight on the evidence given by the maternal aunt.
The mother’s partner
The mother’s partner is the father of the mother’s two younger children. He was a candid witness. He had read the Family Report and conceded the summary of his criminal history as accurate. He immediately conceded that he was in a domestic relationship with the mother.
There was a moment when he was being cross-examined about injuries he received during a fight in April 2013. He was given a direction by counsel for the father in these terms, “There is no need to look at your partner each time you give evidence.” The response was immediate, quietly but aggressively delivered, “I’ll look at her if I want to.” He readily accepted the information provided by me that the evidence witnesses give is diminished in significance if they look to anybody for assistance in how to answer. I consider that the immediacy of the response is a reflection of the central problem that the partner conceded he has, which is an inability to accept being told what to do. The anti-social conduct revealed in his criminal record is compelling evidence of it.
In any event, he conceded that his injuries in the fight in 2013 were sustained at a time when he had only been out of hospital after his suicide attempt for about three weeks and was still accepting counselling assistance from the mental health team. His response to those facts was that he was in the wrong place at the wrong time, but it is a significant piece of evidence that if there has been a change in his behaviour, it had not commenced at that time.
In his affidavit the partner said in relation to the mother, that they had separated in March 2013 and no more. During cross-examination he said that “they were not in a formal relationship” but were trying to make it work. He agreed that they were unable to see themselves not being together.
In an open way, he conceded that he did not know how his household could work, with an injunction on him being brought into contact with the child, that it really would be impossible given his two daughters were members of the household, in combination with his wish that they live together as a family.
Psychological assistance
At its highest, the evidence of the mother’s partner, in terms of seeking professional intervention in his life, was that he had seen a psychologist once about a month previously, and had been prescribed some medication, also about a month previously. He openly conceded that it would be hard for the Court to place much weight on those steps, no matter how genuinely taken.
In relation to the drug use which was reflected in the screen in March 2013, he said he had been given those drugs by a friend.
My overall impression of the mother’s partner is that he is a man who is damaged and at risk of harm to himself. The evidence supports that. He was not able to explain why he had attempted to strangle the mother in March 2013, especially in the knowledge that she was pregnant with his child. He agreed that he had no history of controlling himself in difficult situations.
He was thoughtfully cross-examined, but nevertheless should be given credit for his honest responses. Unfortunately, the picture that emerged is of a man badly damaged by a destructive and disrupted childhood, who has been unable to achieve a stable emotional life.
Family Consultant
The Family Consultant was not extensively cross-examined; she did not resile from her position which was that the child should live with the mother unless the mother was unwilling to accept an injunction on bringing him into contact with her partner, in which case he should live with the father.
Having heard the evidence about the extent of the mother and her partner being very much together in a relationship and hoping for a future together, the family consultant was definite that there should be a change of residence. The family consultant had made a report to the Department of Family and Community Services as a result of her concerns for the two younger children as well. She said this:
The past can’t be ignored. There is long standing violence, anxiety and alcohol abuse (in relation to the mother’s partner).
Worryingly, she said that it was possible that the child could be affected not only by his present fears, but by beginning to use the mother’s partner as a role model as he grew up.
The family consultant was clear to say that in her view the mother took good care of the children and that her mothering was not the problem; it was her inability to protect the children from what should have been an obvious source of risk that reflected on her capacity.
A more complex area was the evidence elicited from the family consultant that if the Court believed that the mother would not comply with the injunction while she was spending time with the child, then her time should be supervised. When questioned further she said that supervision in a centre or an acceptable civilian supervisor might be necessary.
On another topic she said there would likely be separation anxiety between the child and his sisters and that time spent together as a sibling group, independent of relationships with parents, was quite imperative. The family consultant stated and I easily accept that it must be true, that the child would miss his home, the mother and his sisters.
When cross-examined by the mother, the family consultant quite sensitively told her that she was not the problem, that she was a good mother and that her partner was a product of his childhood; that adults have drug and alcohol abuse problems, mental illness and other consequences as a result. She quite gently said to the mother, “You surely don’t want that for [the child]”.
My impression of the evidence of the family consultant was that in her view, the child would have done best in the care of the mother in the company of his sisters, but the mother, not being prepared to give up her relationship with a dangerous partner, meant that the safety of the situation required a change of residence and protective measures. I agree. The evidence overwhelming supports that conclusion.
The law
The objects of the Act in relation to parenting Orders are to ensure that:
a) Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b) Children are protected from physical and psychological harm;
c) Children receive adequate and proper parenting to help them achieve their full potential;
d) Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Family Law Act 1975 (Cth) (‘the Act’). In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration. The way a Court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order, that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
Both these parents are very much interested in the welfare and development of the child. However, they presently have a poor level of communication and disagree fundamentally on the child being brought into contact with the mother’s partner. Their history suggests that even now disagreement leads to flaring conflict between them and the child should not be exposed to anymore of that. The preferable course is for one parent to have sole parental responsibility for the long term decisions of childhood, such as education, religious education and serious matters of health. Accordingly, whoever the child lives with should have sole parental responsibility.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.
Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents
The child does have a meaningful relationship with each of his parents. His mother has cared for him all his life and it seems likely his primary attachment is to her. However he is securely attached to both his parents and is a well loved child.
Section 60CC(2)(b) – the need to protect the child from physical or psychological harm, from being subjected or exposed to abuse or family violence
The child has been exposed to family violence and there is a need to protect him from both physical harm and psychological harm arising from that situation. He was exposed to family violence as an infant before his parents separated. More recently, he has been exposed to the violent and unpredictable relationship between the mother and her partner. He was present in the home when the mother’s partner tried to strangle her and then kill himself. It could hardly be more serious.
The child does not like the mother’s partner and is frightened of him. It seems likely that the child has not fully confided in the mother the extent of his fears, but has done so with the father. Unfortunately, this has contributed to mistrust between them.
Section S60CC(2A) – in applying the considerations set out in subsection (2) the Court is to give greater weight to the consideration set out in paragraph (2)(b)
I am obliged to give greater weight to the consideration of keeping a child safe at the expense of a child maintaining meaningful relationships with both parents. I do give greater weight to the need to keep the child safe and to protect him from future exposure to family violence. However I am satisfied that it is possible for the child to maintain relationships with both parents, despite a change of household in order to protect him in future.
Section 60CC(3)(a) – any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views
The child is five and a half years old and has not yet started school. He loves his parents and his two younger sisters. He has quite an affectionate relationship with the older child of the mother’s partner. He does not like the mother’s partner, mainly because of his fear that he will hurt the mother, but he also independently feels frightened of him.
Section 60CC(3)(b)- the nature of the relationship of the child with each of their parents and other persons
The child enjoys living with the mother, enjoys spending time with the father and has many deeply satisfying relationships across both families, including both maternal and paternal grandmothers and his paternal aunt, uncle and cousins.
Section 60CC(3)(c) – the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child
Each parent has been engaged in spending time and communicating with the child and has taken up the opportunity to participate in decision making as much as possible.
Section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
Both parents have taken a responsible attitude to maintaining the child financially.
Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
There will undoubtedly be an adverse impact, at least initially, on the child in being separated from the mother and his sisters. The mother describes the relationship between the child and his sisters as beautiful and I have no reason not to accept what she says. The mother is acutely aware of how the child will feel living separately from her and the two little girls.
I consider that the father also understands, as does his partner, that an adjustment for the child will take time, may be difficult and will require counselling.
A change of circumstances such that the child is living with his father will also have the effect of removing him from face to face contact with the mother’s partner and eliminating the risk of being exposed to the partner’s anti-social conduct and mood changes.
Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent
This too is a consideration. The proposal has been made that the child should spend supervised time with the mother, given her reluctance to acknowledge the need not to bring the child into contact with her partner. This would put a time limit on periods of time the child could spend with the mother and his sisters. I consider the emotional damage likely to follow from limited supervised time is a very serious consideration and most difficult to balance against the need to keep the child safe.
However, I do consider that the mother understands the implications of not complying with an order restraining her from bringing the child into contact with her partner and would comply with it no matter how reluctantly, for a short manageable period of time.
Accordingly, extended weekends from Thursday afternoon until Monday morning will be appropriate whilst ever the mother’s partner is working away and in the event that he returns to form a relationship, weekends should reduce to Friday after school until Monday before school, provided that the mother does not bring the child into contact with her partner. That will require the mother and her partner to cooperate in his remaining away whilst the child is in the household.
Section 60CC(3)(f) – the capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
Each of the parents has the capacity to meet all of the needs of the child with this exception. The mother has a restriction on her capacity. She is unable to reconcile the need to protect the child by giving up the ongoing partnership with the father of her two younger children.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
The child is a five and a half year old boy with a gentle nature. He loves his mother and has been upset and frightened by what he has seen between her and her partner.
Section 60CC(3)(i) – the attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
One of the responsibilities of parenthood is to give priority to the needs of children. The mother has put her need for an ongoing relationship with her partner ahead of her responsibility to ensure the safety of all of her children.
Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family
There has been family violence between these parties in the presence of the child as an infant. There has been family violence between the mother and her partner, which the child has been exposed to.
Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
The family consultant could not have made the position clearer in the Family Report, that the needs of the child would best be met if he remained in the care of the mother, in the company of his younger sisters, with regular alternate weekend and holiday time with the father, provided that the relationship between the mother and her partner ceased.
No doubt it appeared to be intolerable to the mother that her partner, the father of her two younger children, should be excluded from her life and theirs. She attempted to achieve both goals by denying the relationship whilst in fact continuing it. The mother put physical distance between herself and her partner and pretended that the relationship was over and that he merely visited his children. This was a manipulative and dishonest course for the mother to take with the potential to put all of her children at risk.
In those circumstances, the safest course is for the child to live with the father and spend regular time with the mother and his sisters, provided he is not brought in contact with the mother’s partner. This has the potential to create some real difficulties for the child in relation to the mother and his sisters, but represents a balance between his emotional needs and his physical and psychological safety.
Accordingly orders have been made for the child to live with the father and for him to have sole parental responsibility, whilst reporting and consulting with the mother. There will be an order restraining the mother from allowing the child to come into contact with her partner.
I certify that the preceding one hundred and seventy-seven (177) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 2 October 2014.
Associate:
Date: 2 October 2014
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Family Law
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