Background Information On The Case
This case involves a mother, father and two young children. The mother travelled overseas to attend a family funeral, and the children stayed with the father while she was overseas. Upon the mother’s return, the father locked the mother out of the home and did not permit her to see the children unless supervised by him, with no apparent reason.
Equal Shared Parental Responsibility
The mother commenced proceedings in the Federal Circuit Court Of Australia, where on the footsteps of the Court, the parents agreed to an arrangement whereby each of them would get seven nights a fortnight with the children. Following this, the Court made interim parenting orders by consent, providing that an equal shared parental responsibility arrangement was in the children’s best interests.
Our Thought Process
Both the mother and the Court were concerned about why the father prevented the mother from caring for the children for that period of two months. This revealed a concern in the father’s lack of understanding as to what the best interests of the children were. The evidence, in this case, showed that the mother was the primary caregiver of the kids. As such, by virtue of her position as the primary caregiver of the kids, any significant absence of her presence in the children’s lives would negatively impact their mental health and upbringing, especially given their vulnerable ages. This issue is further exacerbated in this scenario as the father had stipulated he will only allow the mother to care for their children in circumstances he can supervise.
The equal shared parental responsibility arrangement continued until this matter was re-heard, and the mother sought a greater degree of parental responsibility
Reasoning For The Decision
The paramount considerations in this matter were the children’s best interests, as reflected in s60CA of the Family Law Act (1975).
The case considers the factors set out in Goode v Goode [2006], which involved the children’s best interests, highlighted in section 66C of the Family Law Act (1975).
The two primary considerations in the matter are highlighted below.
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The father sought for the status-quo to be maintained, which means that he wanted the equal shared parental responsibility arrangements to remain in place. However, the Court and both parents understood that communication between the parents is poor. The Court does not like equal shared parental responsibility arrangements based on seven nights per fortnight each in such situations. This is because for such arrangements to be practical, both parents must be willing to facilitate an ongoing relationship with one another for the sake of their children, which was not the case.
The mother provided evidence the father both berated and threatened her in front of the children on multiple occasions. He also spoke about her in a despicable manner in the children’s presence. It was alleged that the father also intimidated and harassed her, and evidence showed the father had a criminal history similar to what was alleged.
A family consultant had expressed that the current equal shared parental responsibility arrangement would have a detrimental developmental impact on the children. This was also exacerbated by either parent exposing them to conflict. In line with this, the father’s belittling of the mother in the children’s presence was a significant contributor. The mother had also alleged that the children experienced anxiety during changeovers when leaving her presence. The Court acknowledged this and expressed concern that the equal time arrangement would expose the children to significant conflict. This may then lead to the children experiencing emotional harm and negatively affect their ability to have a meaningful relationship with either parent, particularly the mother.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother alleged that throughout her relationship with the father, she had witnessed the father use cocaine which made him display jealously, anxiety and paranoia. She also alleged that the father was violent and aggressive towards her, which was heightened by the cocaine use. It was found that the father had previously used cocaine; however, he no longer does, according to drug tests supplied at the time.
In return, the father alleged that the mother’s mental health condition was parlous. Upon evaluation by a clinical psychologist, it was revealed that the mother had been diagnosed with mixed anxiety and depressed mood disorder. This was, however, understandable considering the stressors of divorce, legal proceedings and the separation from her children. She was deemed not to be of any risk to herself or others and capable of caring for her children.
The mother’s mental health was not of significant concern to the Court as long as she continually engaged with a qualified therapist or counsellor.
The Decision
The Court found that primary care should be awarded to the mother and that the father should spend ‘substantial or significant time’ with the children, which was considered five nights a fortnight in this context.
The primary reasoning for the decision was for the children to continue having a meaningful relationship with their mother.
If you are interested in reading more about this case, you can find a full account of it here.
Importance of Seeking Legal Advice
When discussing parenting arrangements in Australia, it is crucial that you seek out an experienced family lawyer to aid you with your matter.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start, and we will be sure to help you out every step of the way. With years of experience under our belt, we pride ourselves on making each client’s family law experience as positive as possible.
Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
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