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PARENTS WITH A HISTORY OF DRUG ABUSE FIGHT OVER THE LIVING ARRANGEMENT OF THEIR CHILD

Talley & Dale [2019] FCCA 3942

This is a parenting case where the mother seeks that the child lives with her and spends substantial time with the father while the father, on the other hand, seeks that the child continues to live with him alleging that the mother has an impaired mental capacity. Both parents in this case has a history of drug abuse.

Facts:

These are parenting proceedings in relation to a young and vulnerable child, X, born 2013. The applicant in these proceedings is X’s mother, Ms Talley.  In these proceedings, she is seeking that X live with her and spend substantial and significant time with her father. The respondent to the proceedings is X’s father, Mr Dale. He proposes that X live with him and spend limited daytime visits with the mother. His position is supported by the Independent Children’s Lawyer (“ICL”) appointed in these proceedings.

Unfortunately, the parties in this relationship both used drugs while they were together, and indeed, each of them has continued to use drugs since separation. After separation, the mother remained the primary carer of X.  However, it seems on all of the evidence that her drug use continued and to some extent spiraled out of control after the separation.

Issue: Should the child live with his mother?

Law:

Analysis:

Both parents have exposed X to family violence. The mother has exposed X to neglect. That neglect is of such a serious nature that it would constitute “abuse” under the Act, particularly having regard to the records of the daycare centres.

Until the mother can fully and properly address her drug and mental health issues, the court is greatly concerned about the risks posed by the mother to X.  The court is obliged to give greater weight to protecting X from harm than the weight to be given to the benefit of X having a meaningful relationship with both parents.

Pursuant to section 60CC(3), X is happy where she is. She is only young. Her wishes are but one consideration, and by no means are they an overwhelming consideration.  But according to the second Family Report, X is quite happy with her dad.

The court is of the view that section 61DA(2) is engaged. The court does not consider that the presumption for equal shared parental responsibility ought to be applied. The parents does not possess a sufficiently functional relationship to make equal shared parental responsibility work. The court does not think they can make it happen in X’s best interests.

In terms of the living arrangements and the parental responsibility orders, it seems to me that whoever has X in their primary care should have sole parental responsibility for making decisions about X. Of the two parents, the safer option for X is that she continues to live with the father.

This does not mean that such orders as court intends to make cannot be revisited at a future time, hopefully not by a court but rather by consent of the parties, without the need for a further hearing.  But at this time, the mother needs to complete drug rehabilitation and obtain serious assistance for her mental health.

Conclusion: Court orders that (1) That the child live with the Father and (2) that the Father have sole parental responsibility for the child.

 

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