FATHER WANTS MORE TIME WITH HIS KIDS. MOTHER SAYS NO CLAIMING VIOLENCE AND MENTAL HEALTH ISSUES.

Halcott & Halcott

[2020] 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.

Facts: 

• 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?

Law:

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:

1. the  benefit  to  the  child  of  having  a  meaningful  relationship with both of the child’s parents; and 
2. 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.

Analysis:

• 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.