PARENTS IN DISPUTE AS TO WHERE THE CHILD SHOULD LIVE ON AN INTERIM BASIS WHERE THERE ARE ALLEGATIONS OF VIOLENCE BY BOTH PARTIES
McDowell & Redfield [2020] FCCA 2670 (24 September 2020)
This case involves the parents of an eight-month old baby seeking the court’s decision as to where the child should live on an interim basis where there are allegations of violence by both parties.
Facts:
The parents are in significant dispute as to where their child should live on an interim basis. The evidence indicates that the mother has a history of depression and anxiety, that she has attempted suicide on a number of occasions, that she has had a troubled past with complex PTSD and that she is vulnerable. The mother alleges the father has been both physically and verbally abusive towards her, that he has not assisted in the care of the child, and that his action in retaining the child were done with an ulterior motive, that is to “punish her” rather than for child focused reasons.
The father has a troubling history involving drugs and possession of firearms. Until recently, he has been, on his own evidence, a recreational user of cocaine. The mother also alleges that the father is involved or has acquaintances who are involved in criminal bikie gangs.
The father was convicted for drug related offences and spent five years in jail from 2010. It appears that he was convicted for drug supply offences, including supply prohibited drug (large commercial quantity) as more than 4kg of methamphetamines were seized at the time of his arrest. He says he now leads “a completely different life.”
The father alleges that the mother started to leave the home at night and during the weekends leaving the child in his care or in the care of the paternal grandmother. The father says that during these periods he developed a close and loving relationship with the child, and that he was also involved in her care at other times after he would come home from work when the child was generally being cared for by the mother.
Issue: On an interim basis, should the child live with the father or with the mother?
Held:
At first blush, neither of these parents is particularly well placed to care for an eight-month-old baby. It is a finely balanced case, with risks weighing heavily on both sides. What tips the balance in the father’s favour for the child to live with him on an interim basis is the undertaking from the paternal grandmother as well as the support network which appears to be immediately available to the father to assist him in the care of the child.
It is also appropriate for the mother to engage in drug and alcohol counselling and for the father to engage in drug and alcohol counselling. It appears that neither of these parents truly understands the dangers their behaviours pose to their little defenceless baby.
Conclusion: The child shall live with the father and spend time with the mother.