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Sole Parental Responsibility for Child Sought by Both Parents

Arnett & Carlin & Anor [2021] FCCA 1070 (20 April 2021)

The child has lived with the father while the mother spends restricted time with the child.  Both parents seek an order for sole parental responsibility due to the question of what is in the child's best interests in consideration of change of residence, risk of harm etc. 

Facts:

X initially lived with her mother and spent time with her father, then she lived with her father and spent time with her mother, then time with her mother changed to being supervised until it was minimized to none.  In January 2019, she has been exposed to a traumatic incident where Mr.D, the mother's current partner,  came into the paternal grandfather's home and threatened everyone in the house.  The father picked X up during such incident and the latter remained with him which caused the mother to file an application seeking the return of X.  The father sought that the child remain with him. 

Issue:

Whether or not a child aged 6 should remain living with her father or commence living with her mother

Applicable law:

Family Law Act 1975 Cth ss.60CC61DA - Court orders should be determined by treating the best interests of the child as the paramount consideration. 

Mazorski & Albright (2008) 37FamLR 518 - the benefit to the child of having a meaningful relationship with both of her parents.

Analysis:

Relevant considerations include the views of the child, the nature of the child's relationship with each of her parents and any other relevant persons, the extent to which each parent has taken or failed to take the opportunity to spend time with the child, financial support, practical difficulty in maintaining personal relations on a regular basis, the child's circumstances, and any other relevant matter.  Since X has gone through many changes in the last few years which involved shifting of places to live and exposure to a traumatic incident, to impose another change on her would not be in her best interests.  

While it would be beneficial for X to have a meaningful relationship with both of her parents, her relationship with her father might be at risk if she lived primarily with her mother who is evidently antagonistic of her father. 

Conclusion:

The court ordered that the father shall have sole parental responsibility as it was not found that he has drug or alcohol issues and no criminal record.  Through this order X gets to remain in City B where the maternal grandmother also lives.  Since the father is not hostile to the mother, he can be depended on to comply with court orders about X spending time with the mother or the maternal grandmother. 

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