FATHER WANTS MORE TIME WITH HIS KIDS. MOTHER SAYS NO CLAIMING VIOLENCE AND MENTAL HEALTH ISSUES.
Halcott & Halcott
 FCCA 2175
This is a case regarding the parental responsibility over two children. The mother wants full parental responsibility and claims that the father is violent and has mental health issues. The father wants equal shared parental responsibility and claims that his mental health issues have already been solved.
- Mr. Halcott and Ms. Halcott began living together in 2009.
- In 2012, their child, X, was born.
- In 2014, they got married and their child, Y, was born.
- In 2016, they finally separated. The father left the family home and moved in with his parents.
- X and Y remained in the care of their mother and she has been their main provider of care in the next 4 years.
- The mother is employed as a professional and has re-partnered to Mr. E. She and Mr. E had a child, F, in 2018.
- The father is employed as a professional. After the separation, he attended upon a psychologist, Dr. G, and a psychiatrist, Dr. H.
- Both parents attended a co-parenting mediation with Ms. J but failed.
The mother seeks sole parental responsibility although she is open to providing relevant information, to the father, about major long term issues to do with the children’s care, welfare and development. She alleges that there are issues concerning the father’s mental health and personality traits. She categorises him as an emotionally reactive person and therefore an individual who is likely to be an unreliable parent. She also claimed that he subjected her and the children to family violence during the parties’ relationship.
The father has been seeking to increase his time with the children. He seeks an order that the parties have equal shared parental responsibility for X and Y and to spend substantial and significant periods of time with them. He has deposed that his mental health has been restored. It is his position that the parties’ relationship was categorised by mutual incidents of poor behaviour and the mother is now attempting to restrict his relationship with the children unreasonably and in order to satisfy her own needs for control.
Issue: Should the mother have sole parental responsibility for the children or should both parents have equal shared parental responsibility for the children? Should the presumption of equal shared responsibility be applied in this case?
Whenever the court makes a parenting order, in respect of a child, it is mandatory that it consider the application of the presumption of equal shared parental responsibility be applied to the parents concerned, given the importance the legislature places on both parents being closely involved in their child’s life [section 61DA]–so long as this involvement is commensurate with protecting the children concerned from harm.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration. Section 60CC of the Family Law Act 1975 lists down the matters which the court must take into account in deciding how a child’s best interests are to be served. This section creates two classes of considerations which are relevant –primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B. There are two primary consideration:
- the benefit to the child of having a meaningful relationship with both of the child’s parents; and
- the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3).
In this particular case, sub-paragraphs (a) ;(b) ;(i);(j) ; and (k) of section 60CC(3) are relevant. These subparagraphs deal with the following issues: The views of any child concerned and any factors impacting on that view, particularly the maturity or level of understanding of the child; The nature of the child’s relationship with parents and significant other persons, including grandparents; The attitudes to the responsibilities of being a parent demonstrated by the parties concerned; Any family violence involving the child or a member of the child’s family; Any family violence order applicable; The subparagraph relevant to family violence orders, subparagraph (k), directs that the court can take into account the following matters arising from any applicable family violence order: The nature of the order; The circumstances in which the order was made; Any evidence admitted in proceedings for the order; Any findings made by the court in the relevant proceedings; Any other relevant matter.
- The family reports by Dr. D are important pieces of evidence. He was able to meet both X and Y and observe each of them interacting with their parents on two distinct occasions, separated by a period of approximately a year.
- On 26 March 2018, Dr. D observed X and Y with their father and paternal grandparents. Both children were pleased to see their father. X greeted their father with a hug. On that day, the father played with the children.Dr. D described the children as being comfortable and responsive to their father, whilst Mr Halcott was relaxed and attentive in how he interacted with them.
- In the court’s view, Dr. D was not able to observe any fear or apprehension towards their father.
- In February 2019, Dr. D interviewed X and Y. When asked if mum or dad did anything that made him upset, X said ‘that we can’t just be with each other all the time. I just want to be with dad a bit more. I only get one weekend every two; it doesn’t feel right.” When Y was asked if she liked spending time with her father, she simply answered in the affirmative, without specification. She was asked to delineate anything at her father’s house which upset her, to which she responded with a shake of her head, in a negative manner.
- Dr. D recommended that the children should spend increased time with the father.
In Deiter & Deiter, the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it. Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. Risk arises in every aspect of human endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk. In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis.
- The father submits that his previous violent behaviour was situational in nature and a response to the stresses implicit in the parties’ relationship at the time.In this context, it is important to note that the mother does not raise any recent complaints of misbehaviour and she has not recently sought any intervention from outside sources.
- it is also significant that Dr D did not characterize the current relationship between the parties as being one characterised by issues of power imbalance arising from coercion and control. Rather, the level of obvious dysfunction in the parties’ relationship appears to relate to issues of communication between them. The nature of the dispute between the parties focuses on the father’s perception that he is excluded from relevant decision making; whilst the mother perceives the father will not heed her advice and those of relevant experts.
Held: The evidence available from the father’s treating psychiatrist indicates that his mental health is well-managed and any symptoms suffered by him are in remission. Accordingly there is no unacceptable risk, arising for the children from this aspect of the father. Given the two reports of Dr. D, the Court considers that both X and Y will benefit from extending their relationship with their father. Clearly the children love their father and are each comfortable in his care. Hence, the court orders that the parents have equal shared parental responsibility.for the children, X and Y.