Mother's 1998 Car Accident Leads to Family Court of Australia Custody Battle Over Children's Fear of Father
Fisher & Fisher [2022] FedCFamC1F 921 (2 December 2022)
The mother was involved in a car accident in 1998 and gave birth to her son in 1999. After a tumultuous decade including mariage to the father in 2009 and the father's diagnosis of major depressive condition in 2017, tensions in the marital relationship resulted in the mother's mental health issues and fear of the father's access to weapons. This led to a family holiday in 2018 that was the catalyst for their separation in 2019 and a subsequent custody battle.
Facts:
The mother was involved in a car accident in 1998, gave birth to her son in 1999 and then married the father in 2009. The father had been diagnosed with a major depressive condition in 2017 and that tensions in the marital relationship escalated due to the father's service in the Defence Force. The mother's mental health plan and her fear that the father had access to weapons. The mother raised her concerns to the father's superiors in the Defence Force, but these were found to be "vexatious".
The parents travelled together to S Region for a family holiday in late 2018 and that this led to an incident between Y and the father which was the catalyst for their separation in 2019. The mother applied for custody of her two children, and the father responded seeking a "week about" arrangement. The parents attended a Child Inclusive Conference, and the children expressed fear of the father and made dramatic statements.
Despite attempts to encourage the children to spend time with the father, including 7 sessions of therapy with Ms D, the children's views did not change. The matter was then transferred to the Family Court of Australia and the mother requested that the parents engage in reportable intensive family therapy. After RIFT was conducted, the parents' positions became more fixed and the trial finally commenced in October 2021, with a family report written without seeing the children or the parents.
Issue:
The mother applied for custody of the children and the father requested a "week about" arrangement. Despite attempts to encourage the children to spend time with the father, the children's views did not change and the matter was moved to the Family Court of Australia. The parents then engaged in reportable intensive family therapy and the trial finally commenced in October 2021, with a family report written without seeing the children or the parents.
Applicable law:
Family Law Act 1975 (Cth) s 61DA - where the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility.
Hickey & Hickey [2003] FamCA 395; (2003) FLC 93-143 - in a property settlement case, the Court must adopt a well-known four-step process, essentially:
(c) to identify the pool of assets and liabilities generally, and usually at the time of hearing;(d) to assess the relative contributions of both the financial, non-financial, direct and indirect nature as specified by s 79(4);
(e) to consider the factors as are relevant contained in s 75(2) of the Act; and
(f) finally, consider the ultimate analysis to determine whether the order the Court proposes to make is just and equitable to both parties.
Analysis:
The best interests of the children would be to have a meaningful relationship with both parents, but that the toxic dynamic between the parents and the mother's influence has hindered this. The children's wishes should not be ignored due to the mother's influence, but that they should be viewed with caution. The best chance for the children to have a meaningful relationship with their father was during the RIFT, but since it ended, this has not been possible.
Conclusion:
The mother has sole parental responsibility for the children, the mother should ensure that the father's current mobile telephone number and email address are displayed in the children's bedrooms, the father is allowed to send the children cards, gifts, photos and other written communications, the mother should notify the father of all medical appointments of the children, the mother and father should remove the children from the hearing of anyone discussing the court proceedings, the parents should not denigrate each other in the presence of or hearing of the children and a family consultant should explain the orders to the children.
Case: Fisher & Fisher [2022] FedCFamC1F 921
Judgment of: BAUMANN J
Counsels:
