Shivas & Darby 2014 FamCA 1149

The case involved a mother who was reluctant to acknowledge that her older child was exposed to a sufficiently grave risk that the mother needed to choose between protecting her child and have a continuing relationship with her new partner (capacity to protect, unacceptable risk).

The mother had a 5 year old child with her separated partner and two infant children with her new partner (re-partnered).  The father of the 5 year old applied for the child to live with him and for an order restraining the mother from allowing the child to be in contact with the mother’s new partner.

Evidence was presented that the 5 year old child had witnessed an incident of severe family violence when the mother’s new partner had tried to strangle the mother and had then tried to suicide by cutting his wrist resulting in considerable blood loss and an ambulance being called.  The new partner had participated in polysubstance abuse at the time.  The child expressed to the father his fear of being with the mother’s new partner due to the new partner’s antisocial behaviour, mood changes, and likelihood of harming the child’s mother.

The mother did not acknowledge a need to protect her 5 year old child from her new partner, and minimised the incidents that had occurred (impact on child, capacity to protect, separate from partner).   The mother prioritised her relationship with her new partner, who was father to her two younger children.  The mother was informed about her new partner’s extensive criminal history and his disturbed behaviour since his teenage years, but the mother denied any danger to herself or to her children.

The judge found that the mother’s first priority was to maintain her relationship with her new partner, and that the mother was unable to protect her older child from risks posed by her new partner.

The judge ordered that the child live with the father and that the father have sole parental responsibility.  An order was made restraining the mother from allowing the child to have contact with the mother’s new partner.