Peters & March 2010 FamCA 151

The mother left the father taking two children aged 6 and 5 years.  The older child was fathered by a second man who took no interest in the proceedings.  The parents lived 180km apart.  The father had withheld the children from the mother for a period of 9 weeks. The parents then agreed to separate the children with the father caring for his biological child while the mother cared for the older child from a different father (sibling separation).  Both parents then re-partnered.  Both parents sought sole parental responsibility for the younger child.

The judge was critical of a number of aspects of the family consultant’s evidence.  The family consultant did not interview the mother’s new partner, but did comment about the children’s relationship with him on the basis of observations alone (expert evidence unsatisfactory).

The judge expressed concern that the family consultant had subpoenaed information from police and used this information to question the mother’s credibility about a matter relevant to her relationship with her own father, where the mother disputed that she had been quoted accurately.   The judge expressed concern that the family consultant had reviewed a considerable volume of material that was not available to the court.  The judge noted that the methods used by the family consultant to observe interactions in the two family groups were not even-handed and were not described accurately, concluding that the assessor used a flawed investigative approach.  The family consultant reported that there was no power imbalance between the couple, although the mother reported that she felt intimidated by the father.

The judge noted that the father had been more concerned about the rigid application of consent orders than about responding appropriately to the needs of the children, and that the father prioritised his own needs over the needs of the children in some decisions (prioritise child’s needs, personality rigid).

The judge considered that the father withheld one child from visiting the mother to pressure the mother into conceding on other requests, rather than doing what was in the best interests of the child (coerce).

The judge concluded that it was essential that the two siblings be re-united in one home.  The judge noted that the mother had been the primary carer for both children for the first two years of their lives and longer, and that the older child identified with the mother who she was biologically related to.  The judge acknowledged that the younger child was settled with his father.

The judge ordered that:

• the mother have sole parental responsibility for the older child
• the parents have shared parental responsibility for the younger child
• the children both live with the mother and spend time with the father