Potter & Ross 2015 FamCA 26
Parents had disputed custody of their child aged 10 years over 8 years, with 4 family reports having been obtained. Both parents alleged that the child was at risk of harm while in the care of the other parent.
The mother had a new partner and the father reported that the child complained both that there was domestic violence between the new couple and that the child had experienced physical harm from the new partner (re-partnered). The father alleged that the mother failed to protect the child from likely harm caused by the new partner (capacity to protect). Police interviewed both the child and new partner about the child’s reports that the new partner had hit him and pulled his ears, and concluded that it was highly unlikely that an assault had occurred. The judge found that the mother did not present an unacceptable risk to the child.
The mother submitted that the father had exposed the child to emotional abuse because of the father’s inability over many years to refrain from asserting that the child was at risk of exposure to violence while in her care, and the father coached the child to make false reports about the mother.
The mother and new partner confirmed to the assessor that they had argued and that this included yelling and swearing, but overall the assessor concluded that they were a mutually supportive couple and that there was no indication of power imbalance in their interactions (adult disputes).
The judge accepted a report that the father was prepared to conclude from an absence of complaint by the child that the child was too intimidated to make complaint, and the father was prepared to ignore the child’s positive information that nothing untoward happened whilst in the care of his mother in favour of his own strong belief that was unshakeable that the child was in fact being harmed (personality suspicious).
The judge accepted evidence that the parents were unable to co-parent and to make joint decisions in the best interests of the child. The father had proposed that the child be enrolled in different schools while in the father’s and mother’s care.
The judge ordered that the child live with the mother and that the mother have sole parental responsibility.
