Father Opposes Mother's Application for Sole Parental Responsibility

Falko & Borchard (No 3) [2021] FCCA 1500 (2 July 2021)

The parties are in dispute over the final parenting orders for them to have an equal shared parental responsibility for their child.  The Mother seeks sole parental authority and for the Father to spend supervised time with their child.  The Father asserts that there are safety concerns against the Mother while the Mother asserts that the Father poses a risk to the child.

Facts:

The parties met in 2013 and were together for between four to twelve months.  The parties separated in 2014, the same year their child was born.  On 21 November 2014, final orders were made for the parties to have equal shared parental responsibility for the child and for the child to spend time with the Father every second week from 4.00pm on Thursday to 12.00pm (noon) on Saturday commencing 27 November 2014 and every second weekend from 4.00pm on Friday to 4.00pm on Sunday. 
The Father sought to reopen the matter by filing an initiating application seeking final parenting orders on 1 February 2019.  Interim orders provided for the parties to have equal shared parental responsibility for the child, for the child to live with the Mother and spend time with the Father weekly.  The Father had allegedly withheld the child from the Mother since January 2021 in contravention of the interim orders.  The Father asserts that there are safety concerns in relation to the child whilst she is in the care of the Mother.  In his affidavit, he gave evidence that the child was admitted to the City B Hospital by her Mother with a laceration to her left buttock, alleging that the child was hurt by the Mother.

The Mother sought for final orders declaring her the sole parental authority for the child who shall live with her and spend supervised time with the Father.  The Mother sought for an order to be made requiring the father to attend upon a psychiatrist.  The Mother  gave evidence that the Father is uncooperative with regard to changeover, holiday spend time arrangements, extra-curricular activities, the child’s medical care, and in relation to the child’s school uniform. 

Issue:

Whether or not the Mother shall have sole parental responsibility over the child. 

Applicable law:

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

Analysis:

Subpoenaed records from the F Hospital indicate that the Father brought the child into the hospital on 15 August 2014 with bruises which were said to not be enough to suggest non-accidental bruising.  The child was x-rayed and there was no evidence of any fracture of the right or left tibia bone.

While various Department of Families, Fairness and Housing reports have been critical of the Mother’s prior living arrangements, and her lack of supervision, which may have led to the child obtaining more than normal amounts of bruising, the Mother has given evidence that she is fully engaged with a psychologist and a support worker in relation to improving these matters, and the DHHS have since closed the report into those issues.

The Father, on the other hand, has a history of self-harm, and an extensive history of suicidal thoughts and ideation, which resulted in three or four attempts at suicide by way of overdoses and/or cutting.  He is diagnosed with a Social and Generalised Anxiety Disorder (“SGAD”), as well as a Borderline Personality Disorder (“BPD”) with Obsessive Compulsive Personality Traits.  Furthermore, the Father's continued assessment of the child every time she spends time with him for the purposes of having her medically examined (largely for the purposes of the proceedings rather than because the child is complaining of being harmed), are not in the child's best interests.

Conclusion:

The Court ordered all previous parenting orders to be discharged.  The Mother shall have sole parental responsibility for the child.  The Father spend time with the child supervised by the City B Children’s Contact Service (the Contact Centre) at such times as nominated by the Contact Centre.