CHILD REFUSES TO SPEND TIME WITH HIS ABUSIVE MOTHER
Pecks & Pecks [2020] FCCA 2511 (8 September 2020)
This case involves an application for parenting orders where the father seeks sole parental responsibility over their child alleging that the mother is abusive and that the child refuses to spend time with the mother.
Facts:
This is an application for parenting orders in respect of X who is now 15 years and eight months old. His parents are in dispute about which of them he should live with.
Mr. Pecks wants orders reflecting the current arrangements. Namely, that X live with him and that X be able to spend time with Ms. Pecks at his own volition. (At present, X wants to have no contact at all with Ms. Pecks.) According to the father, X told him that the mother physically and emotionally abused him. The mother beat X with a ladle 28 times in late 2017. She has herself conceded hitting him on one occasion and threatening to hit him with a ladle on one occasion. In addition, the mother has been emotionally abusive towards X. While professing a Christian faith, the mother has not been kind and gentle towards X, but has been punitive and severe. She has threatened him with being placed into foster care. She has lectured him at length about his failings, as she perceived them.
For her part, Ms. Pecks wants orders for equal/shared parental responsibility (so as to be able to be appraised as to the child's educational progress), she seeks orders for the child to remain on the airport watch list (believing as she does that Mr. Pecks might remove him from Australia) and also wants the passport to be kept by the Federal Circuit Court (for the same reasons) but is amenable to it being released to X once he turns 18 years of age. She wants to be able to contact the child with a view to having a casual meeting with him when she travels to Melbourne for this purpose. (It's unclear whether she will be pursuing orders in relation to the last proposal/intention.)
Issue:
Should the father have sole parental responsibility over X?
Law:
Best interest of the child- Considerations
- Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
- Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Equal shared parental responsibility
- Section 61DA of the Act provides as follows:
- 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
- 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
Analysis:
In view of the family violence perpetrated by the mother against X, the presumption of equal shared parental responsibility is rebutted in this case. The court considers that equal shared parental responsibility would not be in X’s best interests in any event. The parents are not able to deal with each other effectively and respectfully. The mother has demonstrated an inability to comprehend X’s needs, for example, by saying three times in court that she would prefer that he went into foster care than that he lived with his father. The mother appears to be unable to make decisions in X’s best interests. In these circumstances, it is in X’s best interests that his father have sole parental responsibility for him.
Conclusion: The father shall have sole parental responsibility for X and X shall spend time and communicate with his mother at his request, and such time and communication be at X’s instigation only.