Yates & Yates 2010 FamCA 775

The case involved a couple who were together in a happy relationship for 18 years, with a daughter born two years into the marriage.   The wife subsequently became pregnant with twins, with one twin dying in utero, and the second twin developing epilepsy and dying of a seizure on the day before his sixth birthday.  Both parents experienced significant grief from the loss of their twins.  The wife then gave birth to another child 14 years into the marriage.  Three years later the wife contracted a cancer, was treated and went into remission.  The older daughter when aged about 17 years complained that the mother had been emotionally unavailable to meet her needs and rejected contact with the mother (reluctant to contact).  The mother then threated self-harm and threatened members of the family.  The couple separated and the father took the younger child into his care.  The wife received treatment for her mental health condition, recovered and applied for increased time with the younger child.  The father was not confident about the safety of the younger child and opposed the mother’s application.

An expert was asked to comment on recently published research about shared parental responsibility when there was ongoing conflict between parents.

The judge found that the wife had displayed a poor approach to parenting and to the responsibilities of parenthood in late 2008 and 2009, and this was explained by her psychological ill health at that time. The wife then resumed a positive and effective attitude to parenting the child and to the responsibilities of parenthood.  The wife’s health at the time of the relationship break-down had been poor and she had acted out in inappropriate ways. The wife later took serious and effective steps to address her health issues including seeing doctors, counsellors and accepting therapy (therapy for parent).

The judge was satisfied that the wife did not pose an ongoing unacceptable risk of physical or emotional harm to the care of the child, provided the wife continued in good psychological health and participated in treatment.

The judge found that the father experienced difficulty in accepting the mother’s improving health situation (capacity to change).

The judge determined that it would be in the best interests of the child to live primarily with his mother during school term.  Having regard to the evidence of the wife and the evidence of the family consultant, the judge determined that the child live with both parents for substantial and significant times.