MOTHER WANTS EQUAL TIME WITH HER DAUGHTERS
Bancroft & Willard (No.2) [2020] FCCA 2798 (24 September 2020)
This is a parenting case involving the three children who are living with their father and have been exposed to the high level of conflict between parties. The mother of the children seeks an order that the father return the children and she spend equal time with her children.
Facts:
This is a parenting case concerning three children, X, who is 13, Y, who is 12 and Z, who is 10. The children live with their father in Town B. He is employed there as a public servant. The father had re-partnered and was living with his wife, who I will call Ms. E, until they separated, apparently towards the early part of last year. The mother lives in Darwin. She has re-partnered with a Mr. F. She has two children, subsequent to her relationship to the father in this matter, G.
The family consultant was of the view that the relationship between these parents was deeply dysfunctional and was unlikely to change. In both the family report and the child inclusive conference memorandum, produced in 2019 by a different family consultant, the children have consistently expressed a wish to remain living with their father in Town B and to spend time with their mother. Both the girls, Y and Z, indicated that they had been exposed to conflict between the father and his wife Ms. E but ceased because the father and Ms. E separated towards the beginning of last year.
The mother has sought an order that the father return to Darwin and the children enter into an equal time arrangement, and that, in the alternative, the children live with her
Issue: Should the court grant the relief sought by the mother?
Law:
- Family Law Act 1975 ss.60CC(3), 65DAA
Analysis:
The court is not satisfied that that is a realistic proposition because of two factors. The children have been living with the father primarily, though not solely, since the parties’ initial separation in 2011 and what appeared to be repeated and consistent expressions of the children’s wishes that they remain living with the father.
The court is satisfied that there is no real risk of the children being exposed to family violence at present, particularly as the father and Ms. E have separated, and the father and the mother appear to see each other rarely, if at all so that risk has disappeared. Nevertheless, while it does not necessarily amount to family violence, the level of conflict between these parents is at an unacceptably high level and, as I have found, is damaging for these children. Nevertheless, the children will benefit from a meaningful relationship with both parents.
Conclusion: The children shall live with the father and spend the holidays with their mother
