Interim Parenting Orders Opposed by Parties Claiming Differing Final Orders

Insley & Maidment [2021] FCCA 1399 (22 June 2021)

Interim orders were made for X to live with her mother and spend time with her father.  The mother seeks for most of such orders to remain on a final basis but the father seeks equal shared parental responsibility for X.  The Court, in deciding whether or not the parties should have equal shared parental responsibility, considers their relationship with the child as well as the child's diagnosis. 

Facts:

In 2016 the Mother and X left the former matrimonial home and moved in with the Mother’s family because of safety concerns for herself and X arising from the Father’s anger management issues and concerns relating to the Father’s care of X including leaving X in the bath unattended, leaving keys in the front door for days and leaving appliances on.  The father denies these claims and asserts that the Mother was diagnosed with depression in April 2016 and moved to her parent’s home in mid 2016 because she was struggling with X’s care.  After separation the Mother only allowed the Father to spend time with X if it was supervised by either the Father’s mother or sister.

In 24 July 2019, interim orders were made for X to live with her mother and spend time with her father each alternate weekend, Wednesday evening, on Father's day, on X’s and the Father’s birthdays and at Christmas.  X has been diagnosed with chronic neutropenia.  The Mother is seeking that many of those interim orders remain in place on a final basis.  The Father is seeking orders that the parties have equal shared parental responsibility for X, save that if there is an issue in relation to X’s medical needs he be the parent with sole responsibility for those decisions.  The father proposes orders be made for X to live with the Mother and that her time with him be increased incrementally over the next two years such that by June 2023 (when X will be halfway through Grade 1) X is spending five nights a fortnight with him.  He also seeks that X spend half of school holidays with him as well as special occasions.  The Father proposes that holiday time with him be built up in an age appropriate manner.  The Mother seeks a continuation of the order that she have sole parental responsibility for X’s medical decisions, that X live with her and spend time with the Father initially two nights a fortnight and by second term 2022 for three nights each fortnight, limited school holiday time and special occasions.  The Mother alleges the Father poses a risk to the child because of his lack of insight into the child’s medical issues as seen from his reluctance to accept the child's diagnosis and need to not immunize.  Both parties seek an order for sole parental responsibility in relation to medical decisions

Issues:

Whether or not the Father poses a risk to the child. 

Whether or not X should spend substantial and significant time with the Father on an 11/3 arrangement as proposed by the mother. 

Applicable law:

Family Law Act 1975 (Cth) ss 60CA, 60CC - provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Analysis:

The Mother provided that during her relationship with the Father she was subjected to financial, emotional and physical abuse and that for the very short time they were together after X’s birth, he was angry, careless and rough in his parenting of X.  Later on, the Mother told the Court that she no longer believes the Father would harm her or X and was able to acknowledge, albeit reluctantly, that X is no longer fearful of the Father and “appears” to enjoy spending time with him.

The Father conceded that they argued regularly about finances and observed them to be people with quite different values.  However, he denies having physically, emotionally or financially harmed the Mother during the relationship.  It is the Father’s evidence that he is fully cognisant of X’s health needs.

Conclusion: 

The Court concluded that the Father does not pose a risk to the child.  The Court ordered all previous parenting orders discharged save for injunctive orders numbered 3 and 4 of the orders made on 14 November 2019 which remain in full force and effect.  The parties have equal shared parental responsibility for the child X who will live with the Mother and communicate with the Father during ELC/school terms, school holidays, and special occasions.  X’s time with the Father pursuant to order 4 herein shall be suspended and X spend time with the Mother prior to Mother’s Day, on X’s birthday and the Mother’s birthday, on Christmas Eve to Christmas Day, and for the Mother’s family’s annual camping trip. X’s passport be held by the Mother.  The Mother may make X’s passport available to the Father for the purpose of overseas travel no later than 7 days prior to the date for departure and the Father return X’s passport to the Mother within 7 days of their return to Australia.