FLAST CASE SUMMARY: Lovett & McGregor 2019: With Whom A Child Lives- Best Interests Of The Child -Parental Responsibility.
Lovett & McGregor [2019] FamCA 49 (8 February 2019)
There are competing applications for parenting orders for two children; girls aged ten and almost eight years and have remained living with the mother since separation in 2012.
Initially they spent time with their father by agreement between the parties. However, events led to the children no longer being made available by the mother for time with the father. The mother has regularly made allegations the father has sexually abused the children and then pursued the prospect of abuse through Child Abuse Services in Victoria and NSW.
There was no evidence of sexual abuse or other abuse of the children arising from interviews and the case was closed. The mother whilst she is a loving and devoted parent developed a parenting technique using a particular questioning method that was intrusive and ultimately abusive with the children.
FACTS SUMMARY:
- There are competing applications for parenting orders.
- Two children; girls aged ten and almost eight years and have remained residing with the mother since separation in 2012.
- The parties have been involved in turbulent litigation for the past four years.
- There is hostility between the parties.
- The mother has a disrespectful attitude towards the father and sees herself as the better parent; there is no evidence that supports the mother’s stance.
- The mother has made decisions in the past without discussing with the father.
- The mother has terminated time and withheld the children in the past from the father.
- The mother has regularly made allegations the father sexually abused the children.
- The mother had adult conversations about the allegations of sexual abuse in front of the children.
- The mother through Child Abuse Services in Victoria and NSW pursued the prospect of abuse.
- The investigations were commenced and neither child made any disclosures of abuse.
- There was no evidence of sexual abuse from the father or other abuse of the children arising from interviews and the case was closed.
- The mother provided disturbing recorded evidence created by herself during cross-examination.
- The mother has taken the course of attempting to diminish the children’s relationship with the father.
- The mother is a loving and devoted parent however; she engaged in a parenting technique that was encouraged by a CAV worker that involves the children in conversation by using a specific questioning method that was invasive and eventually abusive.
- The mother used this questioning method with the children until the Court ordered her to stop.
- There is a risk of the mother using this questioning method if she again became concerned again.
ISSUE:
What is in the best interest of the children for whom they should reside with?
What is the allocation of parental responsibility?
HELD:
The Judge determined the father is to have sole parental responsibility of the children, for he has the capacity to communicate about the long-term decisions he makes concerning the children with the mother.
The orders made involve a change of residence for the children where it is still important that the children have a meaningful relationship with both parents.
The children were ordered to reside with the father and to spend significant time with their mother.
The Court when deciding whether to make the parenting order in relation to the children, has to have regard to the best interests of the child as the paramount consideration. The Judge established what’s in the children’s best interests by considering the matters set out in s 60CC(2) and (3) of the Act. The Judge considered issues of parental responsibility, residence, time to be spent, and communication between child and parent as well as any other specific issues.
Furthermore, the Judge accepted evidence that the mother’s intense, repetitive questioning of the children was abusive even though that may not have been her intention; the Single Expert regarded the children at risk of psychological harm in the care of the mother. There is a risk of the mother using the questioning method if she again became concerned.
The Judge conceded that there is some risk the orders may fail; the mother may not comply with orders by failing to step back from the long-term decisions with the alteration in parental responsibility. However, if the Mother does not comply with the orders, this would be harmful to the children, and then time spent with the children would be significantly reduced for the mother when the matter arrives back in court.