Child’s protection is priority, not new relationship
Jacobs & Barnett  FamCA 82 (19 February 2016)
The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/82.html
Capacity of each parent and any other person (including grandparent or other relative) to provide for the child’s needs including emotional and intellectual needs
- This is in my view the most significant of the additional best interests considerations in the matter. While each of the parents has demonstrated a capacity to meet the child’s day to day physical needs there are some areas of significant concern about both parents’ capacity to meet other of the child’s needs. The family consultant describes the Court as being required to determine the “least detrimental parenting arrangement” for the child due to the issues of capacity and risk involved in the matter.
- The father has consistently held concerns which were expressed to the family consultant and in the proceedings in relation to the child’s hygiene, health and diet in the mother’s care. The father complained that the mother did not attend to these needs to an appropriate standard, and the paternal grandmother suggests that the mother’s hygiene standards and care of the child which had been previously high, had slipped since the mother had begun a relationship with Mr Turner and association with the Turner family. The paternal grandmother confirmed that the mother was particularly attentive towards the child prior to separation and always made sure “the little fellow was happy”. Ultimately the issue of hygiene standards and day to day care was only referred to in a fleeting manner in submissions and in my view is not a weighty issue in this matter.
- The most significant issue so far as the mother’s parental capacity is concerned relates to her inability to appreciate the risk of harm posed by Mr D Turner and the Turner family more generally and in prioritising her own relationship with her partner Mr Turner and his relationship with other members of his family over the needs of the child to be protected from harm. The family consultant said that the impression she gained during her assessment was that the mother minimised the nature of Mr D Turner’s offence and associated risk of harm to the child which “raised significant concern regarding her willingness and ability to consistently and appropriately protect the child currently and in the future”.
- Under cross-examination the family consultant remained concerned about the mother’s understanding of the nature of the risk posed by Mr D Turner. She felt that given the mother’s shifting proposal in relation to orders to mitigate this risk and her apparent realisation and understanding of the risk may be to appease the Court. The family consultant remained of the view that there was a difference between an intention to comply with court orders (which she agreed the mother had demonstrated she could do) and an understanding of the risk, about which she was still concerned.
- Although the father raised concerns to the family consultant and in these proceedings in relation to the mother’s willingness to comply with an order restraining or restricting the child’s contact with Mr D Turner, I am satisfied for the reasons given, that the mother has complied with an order in similar order terms since it was made in January 2014. Other than on two occasions where the child had very minimal contact with Mr D Turner the mother has complied with the order. Despite her openness in agreeing that there were great difficulties with the arrangement, I am satisfied that she intends to comply in the future. It was apparent in the proceedings that the mother is well aware that her capacity to protect the child from the harm posed by Mr D Turner is a critical matter in determining the child’s parenting arrangements, and she spoke of her concerns that she could lose care of the child if she did not comply with such an order. Further, according to the father’s evidence, the child himself has informed the father about occasions where such contact did occur. As time goes by and the child becomes older I am satisfied that the father would become aware if such an order was breached, which is a relevant factor in determining the mother’s likelihood to comply with it.
- The family consultant was also concerned about Mr Turner’s willingness to protect the child from any risk of harm posed by Mr D Turner and recommended consideration be given to orders restraining the child from being left in the sole care of Mr Turner or his mother. The ICL proposes an order that the mother not leave the child alone with Mr Turner for more than three hours and that she is to ensure that the child is not left alone with any other member of the Turner family at any time.
- Although the incident in which the mother placed the child in a suitcase or encouraged him to place himself into a suitcase occurred some years ago, it raises significant concern about the mother’s capacity, both in terms of the physical impact upon the child and the action she was prepared to take to retain the child in her care.
- The instances of conflict that occurred at changeover such as the incident following the family consultant’s assessment and the occasions upon which the parents have contacted police, together with the mother’s conduct in taking the child to the AVO court proceedings, indicate that both parents lack capacity to understand the impact of their conflict upon the child. The family consultant is of the view, which I accept, that it is likely that the parents will continue to be in conflict with one another and that the orders made by the Court will be “wielded against one another” and one parent will perceive the orders as “win”. Managing the changeovers in such a way that involves minimal contact between the parents, as proposed by the ICL should reduce the harm associated with the child’s exposure to conflict between his parents
- Neither of the parents also seem to appreciate for the need for the child to receive some therapeutic services to assist him in the change from his current parenting arrangements and deal with the impact of ongoing future conflict even though both proposals involve a significant change for the child and the family consultant recommended this support for the child.
- I am also satisfied that in a number of respects there are significant concerns about the father’s capacity to provide for the child’s needs. First, there appears to be no explanation as to why the child’s parenting for the past two years has been arranged to suit the convenience of the father’s work roster, when at all times the father said he was able to ask for a fixed roster. The father said he did not request a fixed roster as in his opinion “the need has not arisen”. The family consultant was concerned after assessing the family in July 2014 that this arrangement was confusing for the child and likely to be experienced by him as difficult and disruptive. No steps were taken by the father following the release of the report to seek a fixed roster. I am of the view that the father has been self-focussed rather than understanding the child’s needs for certainty and stability in his care in maintaining this arrangement.
- Concerns in relation to Mr Jacobs’ capacity also arise from his sexual conduct towards younger women. As indicated, I am of the view that his behaviour shows a poor understanding of appropriate sexual boundaries. That the nature and dynamics of these relationships may also involve an element of harm associated with a misuse of power. The family consultant also raised concern about whether the father may behave in a similar manner towards the child’s friends and may model to the child that this is acceptable behaviour.
- There are also concerns about the father’s level of drinking and capacity to care appropriately for the child if he were to drink at this level when the child was living with him. The order proposed by the ICL prohibiting the father drinking for 24 hours prior to and during the time the child is in his care would have the effect, that if the orders were made as the ICL proposes, that the father could not drink on 12 days per fortnight. This appears to me to be an appropriate way to mitigate the harm that may arise from the father’s alcohol misuse.
- In the event that the child lives with his father the paternal grandparents will have a significant role in the child’s life. When giving evidence the child’s paternal grandmother appeared to be a kind and capable family member who genuinely understood the child. The paternal grandmother was clearly appalled by aspects of her son’s behaviour especially towards young women and in his drinking habits and in my view appropriately supports the father in his care of the child.
- Due to the concerning issues about both parents’ capacity and the risks of harm posed to the child under either parent’s proposal, I am of the view that the family consultant was correct when describing the matter as one in which the Court is to make orders for the parenting arrangement which is least detrimental for the child.
- In my view, the orders proposed by the mother would result in there being an unacceptable risk of harm to the child due to contact with Mr D Turner. Even if the order prohibiting such contact is made as now proposed by the mother, I am of the view that it would be impractical and not viable in the long term and would not provide adequate protection to the child if he were to live primarily with the mother. In my view, the prohibition on contact between the child and Mr D Turner which has largely been successful in the context of a shared care arrangement, would continue to be complied with by the mother if the child were to spend time with her on a more limited basis.
- I am equally of the view that the orders proposed by the father, under which he would have primary care of the child and the child would spend no overnight time or holiday time with his mother are not in the child’s best interests. Concerns about the father’s parental capacity which arise as a result of my findings concerning his conduct towards younger women, his pattern of drinking, prioritising his own needs over those of the child and his failure to protect the child from conflict between himself and the mother are such that it would not be in the child’s best interests to have the level of care that he proposes. The orders proposed by the father also do not sufficiently promote the child’s relationship with his mother.
- The orders proposed by the ICL are in effect a middle course, which promote the child’s relationship with his mother to a much greater degree than proposed by the father. The proposal of the ICL also contains the safeguards against the risk of harm issues that arise in this matter.
- For the reasons given, it would not be in the best interests of the child for the parents to hold equal shared parental responsibility. In circumstances where the child is to primarily live with the father, it is appropriate for the father to hold sole parental responsibility.