Parties Seek Equal Shared Responsibility Over Child

Preston & Darville [2021] FCCA 1535 (7 July 2021)

The parties seek equal parental responsibility over their child aged 7 with special needs.  Both parents have mental health vulnerabilities.  The Court, in deciding which parent will be better able to facilitate the other’s relationship with the child, refers to how each addresses his or her mental health. 

Facts:

X, who is 7 years old, has been diagnosed with autism spectrum disorder and ADHD.  The parties both want X to live primarily with them and spend time with the other parent.  The father asserts that the mother is unable to provide for X's needs.  X came into the father’s care after the Department of Families, Fairness and Housing (“DFFH”) removed X from the mother’s (who was at the time suffering from poor mental health) care.  DFFH noted that the Mother attempted to commit suicide in March 2013.  The Mother argued that she has addressed her very serious mental health issues through support services and is better able to look after X and facilitate the father’s relationship with X.  The Independent Children’s Lawyer (“ICL”) and the mother sought orders for the parties to exercise equal shared parental responsibility, for X to live with the mother and spend time with the father four nights a fortnight, from Thursdays to Mondays during school terms and for school holidays to be shared.  The Father, similarly with the Mother, has mental health issues due to him having had a difficult childhood with a grandfather who was violent.

Issue:

Whether or not an equal time arrangement would be in X’s best interests.

Applicable law:

Family Law Act 1975(Cth), Part VII, ss 60B(1), (2), 60CA, 60CC(2), (3), (2), (4), and, 64 - provides that parenting orders should take into consideration what's in the best interest of the children. 

Family Law Act 1975(Cth) 61DA(1) - provides for the presumption of equal shared parental responsibility when making parental orders.

Family Law Act 1975(Cth) 65D, 65DAA(1), (2), (3) - requires a Court to consider both whether the best interests of a child are served by an order for equal time and that it is reasonably practicable for children to spend equal time.

Analysis:

During the course of the proceedings, the mother demonstrated insight into the benefit of completing a parenting course and was able to reflect on her learnings.  The father did not show the same insight into his mental health or the mother’s and did not show a capacity to facilitate the mother’s relationship with X.  In addition to the professional support the mother has in place to assist with her mental health, she also has the support of the maternal grandmother.  The maternal grandmother gave evidence that she would make the appropriate reports if the mother became unwell and X was at risk.

Conversely, the father only has partial insight into any need for treatment or help for himself.  During the proceedings, the father is misleading with respect to his treatment.  While very devoted to X and with X forming the central part of the father’s life, the father could run into difficulties as X gets older.

As provided by Ms Q, X's psychologist, any change is difficult for a child with ASD.  X will need support strategies to adjust to those changes.  One of those strategies would be using a social story to prepare him for the change.  Both parents have shown great interest and commitment to ensuring X’s needs are met.  Both parents still have their vulnerabilities.  For the best interests of X, the parties can improve their working relationship, including their communication, through counselling.

Conclusion:

The Court ordered all previous orders discharged. The parties are to exercise equal shared parental responsibility for the child. The ICL is to be discharged in 60 days of the date of these orders. Within 48 hours from the orders, the parties are to contact Ms Q to arrange for Ms Q to work with X, the mother and the father should create a social story to explain to X the changes to his living arrangements set out in these orders. From 4 August 2021 the child should live with the mother and spend time and communicate with the father each alternate week from after school on Thursday (or from 3:30pm on non-school days) until the commencement of school on Monday (or 9:00 am on non-school days).