Child custody is the act of legally owning and making decisions for a child. Child custody cases are registered in the Federal Circuit and Family Court of Australia. Usually, both parents of the children make decisions for their children and ensure that they have a good life ahead of them. However, not all relationships have happy endings as we see in some movies or TV shows.
When couples separate or divorce, this usually includes them making decisions about dividing their property and making financial agreements. Sometimes divorce and separation may also lead to custody disputes in the family law court. Before we highlight some relevant cases, let’s first discuss how Australia governs child custody cases.
What Does the Family Law Act Say?
The Family Law Act 1975 is the law that governs parenting matters in Australia and this Act highlights the child’s best interests. The Family Law Act also states that separated parents should always remember to focus on the best interests of the child like:
- Protecting them from family violence/domestic violence, child abuse, harm (physical or psychological harm), or neglect
- Developing a meaningful relationship with the children and each family member
- Having the responsibility for their child’s welfare and the child’s wellbeing.
- Giving proper parenting like providing proper meals and housing, giving significant life advice, and helping around schoolwork.
Whenever parents separate, they should also go above and beyond in providing proper parenting with the absence of violence and child abuse. When parents follow their child’s best interests, their children naturally perform better in school and experience a more healthy lifestyle. If parents can’t agree on focusing on these factors, they may proceed to family court proceedings to handle their custody matters.
Case Example #1
One of the child custody cases involves Martell and Devin (2020), wherein Mr Martell (husband) and Ms Devin (wife) had a dispute on living and parenting arrangements. During the hearing, the children were living with Mr Martell and spending substantial and significant time with Ms Devin. Mr Martell wanted his children to remain with him in Sydney.
However, the mother wanted the children to live with her in the United States. Whatever the decision, this will make it hard for each child’s relationship with both of their parents to foster. It is likely that Ms Devin won’t permit Mr Martell in the US for any reason. This will result in limited contact with either one of the parents.
The Couple’s History
Both Martell and Devin were drinking alcohol and using cocaine on a regular basis in the early days of their relationship. After the birth of their children, the father went out mostly on work days and evenings. Meanwhile, the mother spent most of her days alone in her bedroom drinking alcohol.
They had nannies that regularly took care of their children which resulted in the children having a weak relationship with their parents. The father then stated that the relationship with the mother was over around June-July 2019.
The Father’s Family Violence Tendencies
Then, the mother and the maternal grandmother found the father in his villa with another woman with drugs and alcohol everywhere. The incident broke into a fight that resulted in the father removing one of the children from the arms of the maternal grandmother. This was already a sign of family violence from the father.
Ms Devin then called the police and the father left the villa in order to de-escalate the situation. They also went back to his villa the next day in order to get important documents like the children’s birth certificates. However, the children’s passports were nowhere to be found. Ever since this incident, the father has not contacted her and even blocked her on Facebook.
Disadvantages of the Children Moving to the US
The family court saw that the children living with their mother in the US will pose a lot of difficulties. Ms Devin was also diagnosed with Borderline Personality Disorder (BPD) which led to her self-destructive coping mechanisms whenever she feels distressed. According to her doctor, this diagnosis has consequences for her parenting abilities.
Since the children also had nannies back then, the mother might also have a hard time parenting the children. The children will also grieve for losing equal time with their maternal grandmother and father. However, the mother defended that she abstained from drugs and alcohol in order to be a proper parent. The father, on the other hand, failed to abstain from his substance and alcohol use.
Conclusion
While the judge saw the move as difficult, this was the best way for the children to benefit in the long run. Since the mother was able to prove her abstinence and undergo treatment for her BPD, the court approved her move to the US. The father, on the other hand, agreed with getting child contact through four annual visits with the children.
Child Custody Cases: Example #2
In the case of Killam & Loeng (2015), Mr Killam (the father) appealed against Ms Loeng’s (the mother) decision to remove their two daughters permanently from Australia to China. According to the father’s affidavit, both of the children have dual Chinese-Australian citizenship. However, the two daughters are not allowed to hold Chinese passports because of their Australian passports.
The Father’s Proposal on Equal Shared Parental Responsibility
The judge then questioned the dual citizenship because the two daughters were not able to secure a Chinese passport. Mr Killam then sought parenting orders that both of her daughters and Ms Loeng stay in Australia and share parental responsibility. Equal shared parental responsibility enables the child’s parents in making day to day decisions for their children.
Mr Killam wants equal shared parental responsibility means he wants the child to live equally with them. However, he also proposed that he has sole parental responsibility/sole custody and that the mother should reside in China. Sole parental responsibility enables parents to make minor and major decisions in their child’s life without the other parent’s input.
The Mother’s Proposal
On the other hand, the mother had a different parenting plan. Ms Loeng wanted her two daughters to return to China with her because of the elder child’s school arrangements in Shanghai. She also claimed that both of the daughters had close relations with the maternal grandparents.
Considering Chinese Law
Chinese law only permits the guardianship of children after a divorce. However, in this case, both Mr Killam and MS Loeng are still married. Hence, Mr Killam cannot claim the guardianship of his two daughters and rights to visit. Now, what happens if the couple chooses to divorce in China and still have disagreements about custody? Only then will the Chinese Court make a decision through further court proceedings.
Conclusion
The judge never found any issues or allegations of family violence or improper parenting regarding the improper care of the parents when they were living in China. Hence, the judge concluded that:
- The children will have a meaningful relationship with both their parents if they return to their homeland in China
- The two children may experience negative effects if they don’t adapt to the environment in China. However, these negative effects are not detrimental.
- The father wasn’t able to prove that it would be in the child’s best interests if they stayed in Australia.
The judge dismissed Mr Killam’s appeal, but Mr Killam sought to appeal the decision. His concern was mainly about:
- A competitive education system that will cause stress to his children.
- Air pollution
- Long and extremely cold winters will restrict the daughters to spend time during outdoor activities
- Other Chinese people refer to his daughters as “Westerners”. Hence, other people will see them differently.
Despite the father’s efforts in his appeal, the higher courts still believed that the judge made the right decision in dismissing Mr Killam’s appeal. However, the judge stated that the couple knew these conditions and still decided to have their second child there.
Furthermore, the judge also considered that extended family members in China will be beneficial for parenting arrangements in China. Mr Killam’s appeal was once again dismissed and he was ordered to pay Ms Loeng’s legal costs and return to China in order to spend equal time with them.
JB Solicitors’ Family Lawyers
The two child custody cases above presented the importance of preparing rigorously before choosing to go into court procedures or appealing a judge’s decision. Maybe things would have turned out differently, if couples Martell and Devin, and Killam and Loeng chose mediation.
JB Solicitors’ mediation services quickly resolve parenting disputes and help parties reach a resolution that they will both agree on. Decisions in mediation will still adhere to the child’s best interests. Our family lawyers have decades of experience in family law and will provide the best legal advice when it comes to family law cases involving child support and spousal support.
Contact a family lawyer today.