Condon-Nixon & Rivers 2012. FamCA 7.
A couple were married for 4 years before separation, with 2 children aged 10 and 7 years. Both parents had re-married.
One daughter had special needs due to a global developmental delay, and she received regular speech therapy and took ritalin (ADHD). The mother alleged that the father had no real ability to care for their child’s special needs, and did not take the child to medical appointments (competent parent).
Initially a shared care arrangement was ordered. The couple engaged in continuing high conflict, including between the mother and stepmother. The child attended the same school as a step-sibling where the mother and stepmother often met.
The mother alleged 7 incidents of child abuse by the father. The mother held ongoing concerns that the children were at risk of inappropriate behaviour from the father. The mother alleged that the father had uncontrollable outbursts when he denigrated her. The mother was concerned that the father was easily influenced by the stepmother and did not collaborate with her (co-parent, stepparent).
The mother reported a scratch on a daughter’s hand that was assessed by a doctor and police, and the mother then charged the stepmother with assault. The assault charge was dismissed in the magistrate’s court.
Each parent remained critical of the other (mutual accusations). Each parent had involved services aiming to validate their views, resulting in the children being assessed repeatedly by professionals. A consultant expressed the view that the repeated assessments of the children had been relentless and had been harmful.
Concern was expressed that the mother may have an unspecified mental illness. The mother was assessed by a psychiatrist and found to have no diagnosed psychiatric illness.
A family consultant considered that the mother’s persistent allegations against the father placed the children in an untenable position they should not have to maintain (capacity to protect). One child had become anxious.
The judge considered there was insufficient evidence to substantiate allegations by the mother, and found no basis for the mother’s allegations against the father (unsubstantiated allegation).
The judge found that the mother did not give credit for any positive contribution made by the father and stepmother to the welfare and upbringing of the children.
The judge found there had been no meaningful communication between the parents about the children for years, with most communication being via a book (communication poor). The mother asked the children to report on information about the father to her, and this was considered to have an adverse effect on the children who had become careful in what they said.
The judge considered that the children’s anxiety was related to the parental disputes as the children must tip-toe around both households to avoid upsetting the adults.
The judge found that the attitude between the parents was very hostile, and this attitude was unlikely to improve over time (capacity to change).
The judge considered the mother was obsessive in the way she conducted proceedings where she represented herself (personality rigid).
The judge found that previous orders for shared care had been to the detriment of the children.
The judge found that the mother was not likely to promote a positive relationship between the children and stepmother and that this would adversely affect the meaningful relationship the children had with their father.
The judge ordered that the children live with their father and have structured communication with the mother.