Fell & Hartnell and Ors 2014 FamCA 111

Four children were involved, born of two fathers.  The applicant was father of the youngest child aged 10 years, and he had acted as a father-figure for all four children for 7 years when the couple were together.  The applicant sought orders for all four children, and his submission that he was the psychological father-figure of all four children was supported by the mother.  For a period, the four children had lived in three different households, with the mother being restrained from approaching the schools attended by three of the children.

The third child reported being sexually abused by the mother’s new partner, her step-father, and this allegation was substantiated. The third child also reported being touched inappropriately by the son of the applicant from another relationship some years earlier, when the son was aged under 10 years, with the allegation being substantiated.  The son was a teenager at the time of the hearing and visited the applicant during school holidays.  The judge ordered that the third child live with the applicant and that contact between the applicant’s son and the third child be supervised by the applicant.

The consultant found the mother to be highly emotional on the two occasions he met with her.  On one occasion the Consultant found her “at varying times extremely upset, hostile, aggressive and demanding…openly and loudly in public areas and without regard to what effect her outbursts might have on the children who were witnessing the disturbing scenes”.  The judge noted that during the trial the mother was constantly irascible and intemperate when challenged, even mildly.  The mother acknowledged she was diagnosed with “mild bi-polar disorder” and “borderline personality disorder”, for which she was medicated and received counselling.

The mother told the family consultant she could not decide what parenting orders were appropriate because she was uncertain what the children desired, ultimately saying that she wanted “whatever my kids want”.  The judge noted that while children’s wishes are important, it is a parent’s role to lead children, not to follow them (parenting style permissive). The judge found that either the mother did not appreciate the distinction or she was unable to accept that mantle of responsibility.

The judge noted that historically the acrimony between the mother and the other parties dissuaded them from allowing the children to pass freely between their respective households, and since the children have lived separately with different parties from time to time, the impasse has impinged on the children’s sibling relationships.  No orders were made concerning contact between the siblings.