Gardiner & Rivers: De facto spouse restrained from being near children

On 24 January 2014, the Federal Circuit Court handed down the decision of Gardiner & Rivers [2014] FCCA 76.

This matter involved a mother and father who separated in 2010 after three years together. They had two children, a 6-year-old and a 3-year-old.

The mother had sole parental responsibility for the children. The father spent little time with the children, and his own father was required to be present when he did have the children. The mother applied to the courts to restrain the father’s de facto partner from being present during the children’s time with the father, while the father sought substantial and significant time with each of the boys.

In this matter, Judge Lindsay was to consider whether the de facto partner could present a risk to the children.

The de facto partner, referred to in the judgment as “Ms S”, had a history of self-harm and depression. In particular, there was focus on an incident in which Ms S stabbed herself in the abdomen, but accused the mother of the incident, and maintained the accusation for four weeks after the stabbing. As a result, Ms S was convicted of perjury arising out of her false allegations against the wife.

When making decisions relating to parenting orders, Section 60CA of the Family Law Act [1975] provides that the paramount consideration must be what is in the best interests of the children.

Despite a psychiatrist and a family report writer each making recommendations that the de facto partner did not present a risk to the children, Justice Lindsay was not satisfied that this would be the case:

I am apprehensive to some degree about Ms S having an ongoing opportunity to spend time with the children… I have an apprehension about her being continuously or regularly present in the household in which the children continue to develop a relationship with their father.

His Honour continued:

The children are at some degree of risk from interacting with her. I do not want to overstate the risk but she may well again, if drinking and unsupported emotionally by the husband, self-harm or essay self-harm while the children are in her household. It is an unlikely but not a remote possibility. On the other hand, her harming the children directly is a remote possibility.

It was ordered that the children continue to live with the mother and have alternating Saturdays and Sundays spent with the father. It was also ordered that an be injunction granted, restraining the father from causing or permitting Ms S to be present at any time that the children were with their father.

Contact us

Contact us

Send us your contact details and one of our specialist family lawyers will call you today for an initial, obligation-free discussion and assessment of your circumstances at no cost.