FATHER WANTS HIS CHILD TO LIVE PREDOMINANTLY WITH HIM

Marcom & Hackworth [2020] FCCA 3182 (29 July 2020)

This case involves the Interim parenting arrangements of a child wherein the father seeks that the child live predominantly with him alleging that child is at significant risk while in the mother’s care.

Facts:

The child concerned is born in 2017. The parties to the proceedings are X’s parents: his mother Ms Hackworth and his father Mr Marcom.

The father’s position is that the mother has subjected X to neglect. He alleges the child has suffered a number of significant injuries in his mother’s care and is at risk of suffering serious harm if he (X) remains in his mother’s predominant care.

The mother’s position is that the father has exaggerated the health problems suffered by X and has misconstrued the child’s medical records.  By necessary implication, she submits that the father has some form of ulterior agenda, which is not necessarily child-focussed. It is also her position that the accommodation proposed by the father for X, if there should be a change in his living arrangements, is unsuitable and dangerous because the home concerned, which is one owned by the paternal grandmother, is also utilised by her to breed dogs and this is potentially dangerous for X. The mother also contends that there are question marks surrounding the father’s medical condition and whether he is physically capable of parenting X safely.

The mother opposes overnight time but is open to the child spending daylight periods with his father.  For his part, the father seeks that X live predominantly with him and spend two weekly periods of overnight time with his mother, it being his position that this was earlier agreed between the parties.

Issue: Should the court order that the child live predominantly with the father and spend two weekly periods of overnight time with his mother?

Law:

• Family Law Act 1975 ss.4, 60CC, 67Z, 68LA
• Slater & Light [2013] FamCAFC 4

Analysis:

In this case, although it may well prove to be the case that X has had skin rashes and asthma and so on and so forth, the only significant injury he has received is the broken arm, which resulted in medical treatment but did not of itself result in the involvement of Child Protection.  X himself appears to have some special needs, which have impacted on his behaviour presentation.

The court is not persuaded that the risk is so great as to be one which must be considered unacceptable for the Court to take, that being the test that was expressed in the case of Slater & Light. In terms of the other section 60CC(2) factors, clearly, X is likely to benefit from having a meaningful level of relationship with each of his parents. It is notable that X was very happy to see his father, that being noted by the paediatrician.

The matter, no doubt, has a long way to go and the next step, of course, is to have a more thorough investigation.  This will occur through the mechanism of the family report.  In the meantime, the Court must construct the orders which it considers will best serve X’s interests.

Conclusion: So until further or other order, the child X, will live with the mother and spend time with the father each week from 10.00am Monday until 4.00pm the Tuesday and from 10.00am Friday until 4.00pm Saturday. 
The Court also ordered that the parties utilise a communication book, electronic app or other electronic format to exchange information in writing regarding the child’s education, dietary, medical, extracurricular, behavioural needs, and any appointments the child has with professional people as they are scheduled to occur, with such information to include the child’s mealtimes, nap sleep routines, what the child has eaten and any medication prescribed for him.
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