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PARENTS IN DISPUTE ON THE TIME REGIME ARRANGEMENT FOR THEIR CHILD

MCAVOY & BACKERT

FEDERAL CIRCUIT COURT OF AUSTRALIA

[2020] FCCA 19

 

This case involves a parenting dispute about the best interest of the parties' child diagnosed with ADHD and has some related difficulties, including violent behavior towards his fellow students at school.

Facts:

Ms. McAvoy (mother and applicant) sought for the child to live with her and to spend time with Mr. Backert (father and respondent) from Friday to Sunday in one week and Wednesday to Thursday in the other.  It is the mother's position that it would be appropriate for the child to spend four nights per fortnight with the father. The arrangement would get the child in a routine in one house and then goes off to the other houses, and there would be a more settled regime for more of the time.  Further, the mother has concerns regarding the father's accommodation, cleanliness issues, and being disorganized.  She also opposed the presence of Ms. A (the paternal grandmother) and Mr. B (uncle) because of the prior's personality disorder and the latter's history of violence.  

The father sought that X continues to live on a week-about arrangement that has been in place since 2017.  He asserted that there was a stable structure at both homes, which should not be changed, and that the week-about worked well.

Ms. E, the Independent Children's Lawyer (ICL), supported an order for equal shared parental responsibility.  The ICL opined that the child would be more vulnerable with the father and recommended that the equal time regime cease because there would be more stability during the week. The child would be sufficiently focused to do well at school.   Further, the ICL supported the prohibition on the child being brought into the presence of the parental grandmother or paternal uncle. However, time with the paternal grandmother would be permitted if in a public place. 

Issue:

Which time arrangement would be in the best interest of the child?

Held:

The Court concluded that it is in the child's best interest that the week-about arrangements ceased and that the 10/4 arrangement sought by the ICL and the mother. 

The father impressed the professionals of being less well attuned to the interest of the child.  Given that the father's various limitations and the child's difficulties with ADHD and its concomitant difficulties, it is in the Court's opinion that the father would willfully fail to care for the child.   Under section 60CC(2A)[1], this matter requires more significant consideration in determining the best interest of the child. 

Both parents have some difficulties.  Based on the reports of experts, the mother has difficulties with speech, and the father has an intellectual disability.  However, the Court found, through evidence, that the mother is better able to cope with the child's particular problems and difficulties.  She would be able to give the child more routine in the regime for which she contended.  Also, the mother has greater maturity and more established life and routine, which are relevant given the child's ADHD and developmental difficulties.  She is well-attuned to the needs of the child than the father.

 

The ICL recommended that the child should spend the majority of his time with the parent who is best equipped to look after him.  The Court found that the mother can better do this, given the father’s laxer approach to lifestyle and control.  Even though the equal time regime may not work, there is nothing that suggest that the child would not be able to continue to have a warm and loving relationship with the father in a ten-four arrangement.

 

[1] Section 60CC(2A) In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (2)(b).

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