MOTHER WITH DELUSIONAL DISORDER SOUGHT FOR EQUAL SHARED PARENTAL RESPONSIBILITY FOR THE CHILD

PULLMAN & GARAFOLO

FAMILY COURT OF AUSTRALIA

[2020] FamCA 3

In this case, the Court determines whether equal shared parental responsibility would be in the best interest of the child.

Facts:

In an Amended Initiating Application, Mr. Pullman sought sole parental responsibility for the child, for the child to live with him, and for the mother to spend time with the child subject to her engagement with a mental health professional to receive appropriate treatment. On the other hand, Ms. Garafolo sought sole parental responsibility for the child and for the child to live with her. She maintained her allegations of serious sexual impropriety against Mr. Pullman, seeking orders that the child has no time with the father if the Court determines that the father was an unacceptable risk to the child.

The focus of the trial was on the allegation of sexual misconduct against Mr. Pullman and the state mind of Ms. Garafolo. Dr. C, a psychiatrist, gave evidence about an assessment that he had made of the parties. Dr. C concluded that Ms. Garafolo was likely suffering from a postnatal depressive illness and a delusional disorder and did not consider that the father had a personality disorder, nor that he represented any risk to the child from a psychiatric perspective. Dr. H, a forensic psychologist, reported the same finding. Ms. Garafolo then changed her position and no longer pursued that Mr. Pullman posed as an unacceptable risk to the child and no longer pressed allegation of sexual impropriety. However, she maintained that she should remain the primary carer of the child. Her position then changed to the child to continue living with her, and spend gradually increasing time with the father, and that there should be shared parental responsibility.

Issue:

Is it in the best interests of the child for the parents to have equal shared parental responsibility?

Held:

The Court held that the statutory presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility (s 61DA(1))[1] does not apply: s 61DA(2).[2]  The Court regarded the bitter relationship between the parties and considered that it would not be in the best interests of the child for her parents to have equal shared parental responsibility. Based on the evidence of Dr. H, the parties are not capable of the level of communication and cooperation, which would allow joint parental responsibility. Hence, the Court gave sole parental responsibility for the child to Mr. Pullman and ordered for the child to live with him.

A parenting order[3] may deal with matters including with whom a child is to live, the time a child is to spend with another person, and the allocation of parental responsibility for a child. The paramount consideration when making a parenting order is the best interests of the child or children.  

[1] (1) When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

[2]  The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

      (a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

      (b) family violence.

[3] Defined in 64B of the Act.