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FATHER SEEKS NO SPECIFIC PARENTING ORDER FROM THE COURT

Gallea & Gallea [2020] FCCA 2602 (17 September 2020)  

This case is about a father who does not seek a particular parenting order from the court. The father in this case unilaterally withheld his child from the mother and is said to have a record of regular emotional outbursts.  

Facts:  

The Father did not seek any particular or specific Orders in relation to his young son, who lives with the Respondent Mother. He consistently stated that he would leave it to the Court to determine what Orders were in the child’s best interests.  Put another way, the Father sought no specific or defined parenting Orders for him to spend time with his son.  

In January 2020 the Father retained the child.  He expressed concerns about the welfare of his son in the Mother’s care due to the constant smoke haze that enveloped Canberra due to surrounding bush-fires. The Father provided no evidence otherwise to support his assertions against the Mother.    

The mother seeks a final order that the father obtain a mental health assessment; that he obtains a mental health Plan and comply with it and that if he does not, he can’t have even supervised time with X. The father does not consent to the orders sought by the mother.  The father told the Court he wanted Court to decide how much time X should spend in each home because of his concerns for the safety of the child.  

Issue: Should the court grant the relief sought by the mother?  

Analysis:  

Firstly, in relation to the primary considerations set out in s.60CC (2), in the court's view, the evidence clearly points to the fact that X has a good and close, but somewhat different, relationship with both parents.  This is so notwithstanding the extremely volatile relationship between the parents and the significantly unpredictable actions of his Father.    

Secondly, the priority that is required to be given under s.60CC (2A) to the protection of the child from relevant harm specified in that section is perhaps the most onerous consideration here.  Although treated later in these reasons under the principles of “unacceptable risk”, in the court's view it is clear on the evidence, particularly of the Father, that the child needs to be protected from the Father’s aberrant behavior, as referred to on numerous occasions in the course of these reasons.  

The lack of insight shown by the Father, almost desperately so, when on the two occasions he kept X from his Mother.  In January this year, as already observed, this was ostensibly on the basis of the Father’s fear for X being in the Mother’s care while smoke from bush fires circulated around Canberra.  The Father never explained how or why he could better protect the child from the risk of such smoke, or how the presence of smoke was somehow caused by, or was the fault of, the Mother.  Such claims were unfounded and bordered on the hysterical and delusional.  In the court's view, these matters also relate to the considerations set out in sub-paragraphs (f), (g) and (i) in s.60CC (3).  

Conclusion: For the reasons given, the Orders that are in X’s best interests are those proposed by the Mother. It follows that sole parental responsibility must therefore reside with the Mother who has been, and remains, the child’s primary carer.  In my view, such an Order is also in the child’s best interests.  The only qualification is that the Mother is to keep the Father informed in writing of any major long-term decisions made by her in relation to the child.  

 

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