FATHER SEEKS THAT THE CHILDREN LIVE WITH HIM AND NOT WITH THE ALCOHOLIC MOTHER

Fenech & Fenech [2020] FCCA 2569 (17 September 2020)  

This case involves a father wanting his children to live with him, since the mother is alleged to have an alcohol dependency problem.   

Facts:  

The father raises in the strongest possible terms concerns about the mother’s alcohol and drug-related risks.  Nonetheless, it is his own proposal that the children live with him but spend either four or five nights with the mother in a fortnight, depending on where she lives.  

The real issue that occupied so much of the case’s time was the burning desire on the part of the husband to prove that the mother is an alcoholic who is in denial about her addiction.  The mother has an even greater determination to disprove that proposition, although she concedes some difficulties with alcohol in the past. She says she does not crave alcohol and is not an addict.  It would not be unfair to describe this aspect of the proceeding as having been conducted on a titanic scale.  It tended to obscure the attention of the parties from the substantive and real issue that the Court is required to determine, namely how the best interests of the children are to be reflected in appropriate parenting orders.  

Issue:  

 Should the children live predominantly with the father or the mother, or in an equal care arrangement?  

Law:  

• S.60CC- How a court determines what is in a child’s best interest  

Additional considerations are:  

 Any other fact or circumstance that the court thinks is relevant  

Analysis:  

The parties have written at great length and in the most derogatory terms about one another. This largely emanated from the misconceived concentration upon the ultimately non-decisive question as to whether or not the mother is indeed an alcoholic.  The proceeding was not conducted by counsel, no doubt on their instructions, without any apparent concern for the feelings of the other party.  The final submissions made by counsel for the father were lacerating for the mother to have to hear, and it is recorded that she sustained herself through the criticisms of both counsel for the father and the Independent Children’s Lawyer with some dignity.  The vitriolic way in which both parties conducted their cases will not have done anything to improve each party’s perception of the other, quite the reverse.  Having seen and heard the evidence and the submissions, it would be utterly unrealistic to assume that things will immediately start to get better.  One would hope this in a perfect world, but all the evidence and submissions point to the contrary conclusion.  An equal shared care arrangement is not, in the court’s view, desirable where the parties have such very significant interpersonal difficulties.  

Furthermore, the doctor’s report was of the view that the father, if it came to it, was the more proficient parent.  The fact is that the father has restructured his affairs to enable him to be, in effect, a close to full-time parent.  

In the ultimate, the court thinks the children’s interests would be best served by living with their father.  He is the more stable and organized of the two parents.  He has already taken positive steps to chart the children’s future, and no doubt he will continue to do so appropriately.  

Conclusion: The children will live with the father and spend time with the mother. 

#parenting