Mansky & Marco 2013 FCCA 60

The case involved a dispute over care of a 10 year old child who had experienced significant physical health problems before the dispute.

The mother had a previous history of depression and had expressed suicidal ideation during episodes of depression.

The father withheld the child due to concerns about the mother’s care of the child involving feeding and school attendance as the child had over three years missed school between 11 and 42 times per year.

The mother objected that the father had re-partnered and that his female live-in friend was supplanting her role of mother as the female friend took a strong interest in the child, attended parent-teacher sessions when the mother declined to attend, took the child to school, and was present at handovers (stepparent).  The school reported that the mother had left the child unsupervised before school hours.   The father reported that the child was often hungry at handovers, and the school reported that the mother often did not provide adequate lunches for the child.

The mother had made false allegations that the father had taken the child out of the country, and that the father had an extensive collection of child pornography that resulted in a police raid.

An assessor considered that the new partner’s level of involvement with the child was unusual.  An improvement in the child’s school attendance was associated with the new partner.  The judge found that the mother had failed to engage with the school.

The judge found that the child’s primary attachment figure was the mother.  The judge found that the father’s new partner was over-involved in the care of the child.  The judge found that the child’s wishes were to stay with the mother because there were more games at the mother’s house, and this reflected an immature pleasure rather than a considered view (capacity to decide).

The judge ordered that the child live with his mother and spend time with his father, that the mother provide nutritious meals, with a specific order that the father’s new partner refrain from speaking to the child’s teachers and attending parent-teacher sessions and attending changeovers (restrain stepparent actions).