Mother Applies for Sole Parental Responsibility Over Child with Father's Cannabis use a major consideration

Wallace & Marriner [2021] FCCA 1452 (3 June 2021)

The Mother applied for sole parental responsibility over the child aged 3 as well as an order for the child to spend no time with his father.  The Court, in deciding whether or not the Father should spend time with the child, examines the Father's history of cannabis use, mental health, and alleged family violence.

Facts:

X has always lived with his mother and he has spent no time with his father since he was returned to his mother following a recovery order being made when he was 10 months old.  A final order for parenting arrangements was made for the child to live with the mother, the paternal grandparents (who were joined as parties) consented to the order and the father did not oppose it.  An order was also made for the paternal grandmother and step-grandfather to spend time with X.

When the mother initially filed her application for sole parental responsibility, she was proposing no time.  During the family report interviews she said that she was proposing supervised time at a contact centre.  At trial she was proposing no time.  The mother alleged that the father had serious mental-health issues, had committed serious acts of family violence against her and had been violent to a previous domestic partner and posed a significant risk of harm to the child.  The father said that his mental-health issues were under control and that he was a changed man.  The father sought an order for equal shared parental responsibility and for time with X.

Issue:

Whether an order should be made for a child aged 3 to spend time with his father. 

Applicable law:

Family Law Act 1975(Cth) s 60CC - the Court, in making parenting orders, should treat the child's best interest as the paramount consideration. 

Analysis:

The mother has always been X’s primary carer and has a very limited criminal history.  It was not alleged that she had a problem with alcohol or was a drug user.  While it is impossible to say that she will not face parenting challenges in the future which may impact adversely on her children, she does not appear to be in a violent relationship at present and she has a job.

The father not only has spent very limited time with X because of his own criminality but also has a lengthy history of cannabis use that it cannot be said that all risk of him resuming using cannabis is behind him.

Conclusion:

The Court ordered that the mother shall have sole parental responsibility for the child X, who shall live with the mother.  The father shall spend no time with and have no communication with the child.  The father is restrained and an injunction is granted restraining him from removing the child from any school, day care centre, extra-curricular activity or from the care of any person in whose care the mother has placed him.  He is likewise prohibited from coming within 200 metres of the mother and or the child and approaching or attempting to contact the mother or the child except through a legal practitioner.