Father Seeks Sole Parental Responsibility Over Children Against Mother
Hallinan & Wallstone [2021] FCCA 1498 (2 July 2021)
The Father seeks to have sole parental responsibility over the children The mother seeks that the parties have equal shared parental responsibility over the children. The Father argues that the mother has history of drug use and mental health issues. The Court, in deciding the dispute, assesses whether co-parenting is a possibility.
Facts:
The parties met in 2007 and commenced a relationship soon after. The parties commenced cohabitation in 2008. In 2012, the first child X was born. In 2013, the second child Y was born. In 2016, the parties were married. The Father says that the parties separated in or around September 2019, when the Mother moved out of the matrimonial home. The Mother says that the parties continued seeing each other after she left the matrimonial home but separated on a final basis on 2 March 2020. On 10 March 2020, the Father filed an initiating application seeking final parenting orders. Orders were made for a child inclusive conference to take place, for the parties to have equal shared parental responsibility for the children, for the children to live with the Father, and for the children to spend supervised time with the Mother.
The Father seeks that he have sole parental responsibility for the children, with him to advise the Mother of the children’s school, dental and other medical appointments and extracurricular activities. The Father seeks that the children live with him. The Mother seeks that the parties have equal shared parental responsibility for the children and for the children to live with the Father. The Independent Children’s Lawyer indicated that they would support an order for the children to spend supervised time with the Mother.
The Father deposes that the Mother's drug use is long-standing as evidenced by a number of requests for drug tests to be done, which were refused by the Mother. On 28 January 2021, the Mother undertook a drug test sought by the Independent Children's Lawyer where the test results were positive for amphetamine and cannabis. The Father states that the Mother's mental health issues involve suicidal and homicidal thoughts and that in early February 2020 the Mother was taken by Victoria Police to Region L Health after threatening to jump off a bridge near the Paternal Grandparents’ home.
Issue:
Whether or not the Father should have sole parental responsibility for the children.
Applicable law:
Family Law Act 1975 (Cth) ss 60CA, 60CC, 64B, 65AA - provides that, when making a parenting order in relation to the children, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility for them.
Family Law Act 1975 (Cth) s 61DA- provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the children (or a person who lives with a parent of the children) has engaged in child abuse or family violence.
Analysis:
The Mother does not and cannot get along with the Father or his family. The Mother has historical and continued drug use, unstable housing situation and highly negative attitudes towards the Father. The Mother has significant health issues which are likely to continue for the rest of her life and the children’s best interests are served by someone who is in a position to make decisions about their health, education and other long-term matters.
In the case, it is the father who has the primary care of the children. During the proceedings, the Father gave every impression of being focused on the children and was concerned to bring this application for the safety and best interests of the children.
Conclusion:
The Court ordered that the Applicant Father have sole parental responsibility for the children. The Father is to advise the Mother of the children’s school, dental and other medical appointments and extracurricular activities. The children are to live with the Father. The Respondent Mother is to spend time and communicate with the children as agreed by the parties. Each party must notify the other party of any change in their residential address, telephone number or email address within 48 hours of any such change. The Mother is permitted to liaise with the children’s school to obtain information about the children’s progress and is at liberty to attend any significant school or extra-curricular activity to which parents are ordinarily invited. In the event a passport is required for either of the children, the Father is to provide the application form to the Mother and the Mother is to sign all documents and do all things necessary for the issuing of a passport or passports.
