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MOTHER WHO EXPOSED CHILDREN TO RISK OF SEXUAL ABUSE SEEKS MORE TIME WITH CHILDREN; CHILD Y FEARS ABDUCTION

GREY & BROCKWELL

FAMILY COURT OF AUSTRALIA

[2020] FamCA 517

 

In this case, the Court decides on the matters which remained in dispute between the parties.

FACTS:

Mr Grey (the father) and Ms Brockwell (the mother) commenced a relationship in November 2005 and separated on 29 October 2011. At that time X was five years of age, and Y had just turned two.  Final orders were made in the Federal Magistrates Court in Cairns, providing for the parties to share the care and responsibility for the children equally.  

The mother had relationships that appeared to have involved family violence and sexualized conduct from her former partners.  After the said relationships, the children had the benefit of psychological counselling.  X complained that the mother has exposed them to the risk of sexual abuse and prioritized her relationship over her care of the children.  The children also narrated the mother's regular nudity within the home environment.  

In 2019, interim orders were made which reduced the mother's time with the children, who after that resided primarily with the father.  However, the children's relationship with the mother has after that steadily deteriorated. X does not spend any time or communicates with the mother.  On the other hand, Y still spends one and a half hours to two and a half hours per week with the mother. However, he has demonstrated increasing reluctance to do so, in part, because he has become worried that the mother may seek to abduct him on those visits.  He has refused to travel with her in a car and insisted that they take place in public locations.

The parties agreed that both children would live with their father.  They also decided that Y would continue to spend time with the mother each week and have some electronic communication with her as well.  The matters left in dispute were the time Y should spend with the mother and restriction upon the mother from driving with Y in her car.

ISSUE:

Whether Y should spend one and a half hours, or two and a half hours, each Friday after school with the mother, and whether during the time that Y spends with the mother, she should be restrained from driving with him in her car. 

HELD:

The Court found that order as to the extent of time which Y spends with the mother on a Friday evening should be two and a half hours is in the best interests of Y.  The critical issue is that the purpose of enabling Y's relationship with the mother to at least subsist at its present level, and perhaps improve. Inevitably, if the relationship is to improve, there will likely need to be activities engaged in between the mother and Y, which are of interest to him. Given that the parties agreed that Y's time with the mother should commence at 4.45 pm each Friday, those activities are necessarily going to be limited. However, if during the argument, by extending the time until 7.15 pm, it will allow the mother and Y to share an evening meal. 

The father sought a restraint on the mother being able to drive Y anywhere during the time that he spends with her.  Y has developed a fear of driving with the mother, which is acknowledged by the mother herself. Y is troubled that the mother may, in effect, kidnap him and remove him from the father's care. The Court, however, is satisfied that there should be no order restraining the mother from driving with Y during the times that he is her care.  It found nothing in the evidence that provides any logical reason for Y thinking that, nor is there, in the evidence, any suggestion that the mother has ever intended to kidnap either of the children.

Moreover, the Court found that to require the mother and Y to spend two and a half hours in one location on a Friday afternoon and early evening is unduly restrictive. The prohibition which the father seeks would restrain her from driving even a short distance from wherever she may be spending time with Y.  It would be unfortunate if any further progress were restricted by the prohibition of any activity whatsoever that involves motor vehicle travel.




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