IN THE CHILD'S BEST INTEREST, THE COURT GRANTS SOLE PARENTAL AUTHORITY TO THE MOTHER

HOLLANDS & HOLLANDS

FAMILY COURT OF AUSTRALIA

[2020] FamCA 397

These are proceedings in relation to the parenting application filed by Ms. Hollands (the mother) for orders providing for sole parental responsibility, residence and the power to change the child’s name in respect of X (the child).

FACTS:

The parties commenced a relationship and married in about 1997. They separated in April 2019, and, relevantly, later in 2019, the mother was subjected to a terrible violent attack by the father in her home. That also involved an attack upon the one of the parties’ elder children and took place at a time when the child was at the home.

ISSUE:

Whether or not granting sole parental authority to the mother would be in the best interest of the child.

HELD:

It is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. However, this presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. [1] The section also provides that the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

In making a parenting order is prospective and involves the Courts looking at the prospective risks to a child, looking at the relationship between the child and the father, and looking at the risk to the child in the particular circumstances. In the case, there has been no challenge to the mother’s parenting of the child, and the evidence, including the conviction of the father and the circumstances and the nature of the comments on passing sentence made by the judge, causes regard and concerns about the father’s interaction with this child and with the family into the future.

The Court was satisfied that given the circumstance, that it is reasonable to make orders to make the mother have sole parental responsibility, the child to continue to reside with the mother, and the mother to have permission to change the child’s surname.

[1] Section 61DA(1) of the Family Law Act of 1975 (the Act).