O’Boyle & Salt 2014 FamCA 132

Four boys aged 14, 12, 11 and 7 years had lived with the father for two years following separation.  The youngest child had moved to live with the mother for eight months while the three older children continued to live with the father, according to the wishes of all children.  The oldest child expressed a wish to remain living with his siblings to maintain the sibling relationship.  The paternal grandmother had been involved in providing daily care and management for the children while they were in the nominal care of the father.

The mother had left home with the four children after being threatened by the father who became angry after disciplining the oldest child.  The oldest child began living with his father in the following month.

The mother had introduced new partners quickly to the children and had directed her anger at the children at times.  The mother had expressed to the children some of her own hurt and distress over her separation from the children (adult topics).  The mother was in a stable relationship at the time of the hearing.  The judge found that the mother had a fiery temperament but quickly cooled down (personality emotionally volatile).  The judge found that the mother had defended herself to the children over the father’s negative comments about her.  The mother had been affronted by the children who were rude to her, and she had been either unwilling or unable to forgive the children and had been unable to embrace every opportunity simply to spend time with them and to create a relaxed and loving atmosphere for them to develop a meaningful relationship.  While the mother had taken comfort from adult relationships since the separation, she had come to understand that if her children were to return to live with her then they were entitled to her undivided attention and they should not have to compete to any extent with her current partner (child focused).  The mother had seen a treating psychologist who assessed the mother as making good progress.

The father had poor mental health and allegedly used marijuana daily.  The father had been hospitalised for five weeks to receive mental health treatment following an episode of major depression and suicidal thinking.  The mother reported that the father had been violent throughout the relationship.  The judge found that the father had relied heavily on the children for emotional support (parenting style dependent) and that the children were at risk of psychological and emotional harm if they remained in the father’s care.

The judge found that the father had relied heavily on the paternal grandmother to help care for the children. The judge found that the children had been put under intense pressure from both sides of their family and this was reflected in their behaviour and conduct from being unable to cope with that pressure.  The children had significant behavioural problems and poor school attendance while in the care of the father (child’s behaviour).  The youngest child had been bullied by his older brothers for maintaining his relationship with the mother.  The children have been disrespectful towards their mother.  The judge found that the children’s views were distorted by extreme loyalty conflicts and alienation.

The judge found that the three older children had been aligned with the father and alienated from the mother, and that the oldest child had been estranged from the mother since separation.  The mother alleged a history of assaults on her, abusive language and threats of suicide by the father episodically throughout their relationship.  Both parties referred to heavy dependence by the other on alcohol during the relationship (alcohol abuse).

The judge found that the paternal grandmother had prioritised the father over the children and had enabled the father to put his own needs ahead of the children’s needs.  The paternal grandmother had moved from assisting the whole family to becoming a guardian and a protector for her son, and had excluded the mother from the paternal family.

The judge wondered how the mother might respond to the challenge of raising the children, where the expected challenges could include absconding, explosive language and defiant behaviour by the children.

The judge ordered that the children live with the mother.  The judge ordered that the children initially spend limited time with the father supervised in a contact centre, with a graduated approach to increase the father’s supervised time, and for supervision to be eventually provided by the paternal grandmother if the father attended psychological treatment (therapy for parent).  The judge ordered that the mother have sole parental responsibility.  The judge ordered that the eldest child be given the choice to move back with father after engaging with a psychologist at the expiration of a six month period if this was still his wish (therapy for child).