Tobey & Razek 2013 FamCAFC 71

A trial judge ordered that a 5 year old child live with the mother and spend time with the father.  There was a further order that if the mother’s treating psychiatrist determined that the mother was temporarily too unwell to care for the child due to a relapse of her bipolar disorder, then the child would stay with the maternal grandmother or another relative who the boy was attached to (treatment report).  The second order was issued after the mother claimed that the child spending substantial time with the father had a negative impact on the child who became more anxious due to the father’s anger.  The judge accepted evidence that the mother’s parenting was not currently affected by her mental illness, that the mother managed her illness, and that the mother demonstrated insight to try to protect the child from the effects of her illness (capacity to protect).

The father appealed the second order on the basis that the order interfered with time he would usually spend with the child.  The father’s appeal was allowed.