MOTHER SEEKS PARENTAL RESPONSIBILITY OVER A CHILD DIAGNOSED WITH ADHD AND AUTISM
Nava & Dempsey [2018] FCCA 4040 (13 December 2018)
This is a parenting proceeding relating to the future care arrangements of a child with special needs where there is a need to determine if the presumption for equal shared parental responsibility is deemed to apply when there are no risk issues to the child in the care of either parent.
Facts:
These proceedings relate to future care arrangements for a young child, X, born 2011. X is diagnosed with and experiences ADHD and Autism Spectrum Disorder.
Both parties are now fully accepting of those diagnoses, are working together and have for some little time, in the case of Ms. Nava, since she has been permitted to engage with his treating professionals, been meeting his needs perfectly well. The parties to the proceedings are his parents, Ms. Nava, the Applicant mother and Mr. Dempsey, the Respondent father.
The Independent Children’s Lawyer proposes that the Mother be allocated sole parental responsibility for X, that X live predominantly with the Mother and spend alternate weekends, Friday to Monday as well as one night in the off week, if it might be so described, with the Father, together with half of school holidays.
The Mother adopts the Independent Children’s Lawyer’s position but tenders an alternate Minute which proposes, as already indicated, that the Father would spend three weekends out of four with X during school terms and share holidays.
The Minute proposed by the Father would see the parents have equal shared parental responsibility and for X to live in a shared care arrangement, week-about, with changeovers each Friday during school terms as well as half of school holidays and time on special occasions.
Issue: Should the mother have sole responsibility over the child?
Law:
- Family Law Act 1975 ss.60B, 60CA, 61DA, 65DAC
Analysis:
The outcome that the Court should endeavor to achieve, namely, ensuring that the child’s best interests are met by ensuring that X has the benefit of both parents having a meaningful involvement in his life to the maximum extent consistent with his best interests as well as ensuring that he is protected from physical or psychological harm, through being subjected or exposed to abuse, neglect or family violence. In this case, the latter is not in play. There is no issue of risk to this child as a consequence of subjection or exposure to abuse, neglect or family violence.
The parents sharing duties and responsibilities also speaks to the allocation of parental responsibility. The court conscious of that which has fallen repeatedly from the High Court and Full Court, that to deprive a parent of a role to play in decision-making for their child is a serious and important step which the Court should contemplate with real reservation and caution.
The court must then turn to the presumption of equal shared parental responsibility and section 61DA of the Family Law Act.
The Mother has also suggested that past consultation and discourse has typified by her “giving in” in the past. The Orders the court propose to make will empower her to express her view. It will require her to consult with the Father, who has made perfectly appropriate decisions for this child’s investigation of need and address of need, the only shortcoming being, as is conceded, that the Mother might have been included at a far earlier time and more abundantly. It will ensure that both parents have the opportunity to have input but without the potential for disadvantage through absence of decision-making.
On that basis, the court is satisfied that the presumption can and should apply, noting that reasonable practicality can be ameliorated through that step rather than through stripping one parent of any say.
Conclusion: Court orders that the parents shall have equal shared responsibility for their child.
