Mother Opposes Previous Parenting Arrangement with Father
Denning & Denning [2021] FCCA 1513 (7 May 2021)
The Mother seeks an order that children aged 12, 11 & 8 cease living in a week about arrangement and live with her and spend time with the father on alternate weekends. The Mother alleges that the Father has severe mental health issues and that the father does not send the children to school regularly. The Father proposes a continuation of week about or if a change has to be made for the children live with him and spend time with the mother.
Facts:
The parties commenced a relationship in 2007 and separated on 11 September 2016. On 31 May 2018 final orders were made by consent which provided for the parties to have equal shared parental responsibility and for the children to live in the week about arrangement from Friday to Friday. At the time, the father had serious mental health issues as well as cannabis addiction. By 2019, Y had ongoing issues at school. Y had been engaging in some self-harm,have meltdowns, and is physically aggressive to siblings. In May 2019, the Mother decided to relinquish primary care of all three children to the father. The children then commenced living with the father and the mother spent alternate weekends with them. In November 2019 the mother told the father that she wanted to resume the equal time and the parties agreed to return to the 50/50 arrangement. Due to the COVID 19 pandemic, the mother suggested that the children stay with the father because of her potential exposure as a result of her work to people who might be carrying the virus. At some point prior to May 2020 the equal time arrangement resumed.
The police visited the father’s home in July 2020 arising out of the issue of the children not attending school and the mother also had some contact with the police because the Department of Education were firmly of the view the children should be attending school. The mother seeks an order that the children live primarily with her and spend time with the father on alternate weekends from Friday to Monday.
Issue:
Whether the existing equal time arrangement should remain in place or whether the children should live primarily with one of their parents.
Applicable law:
Family Law Act 1975 (Cth), s 60CC - provides that the Court, in making parenting arrangements, should treat the child's best interest as the paramount consideration.
Analysis:
The Mother's Counsel noted that the Father had had inconsistent engagement in the past with mental health practitioners. The children had told the family consultant at the Child Inclusive Child Dispute Conference that they did not want the equal time arrangement to end but said that the Mother was confident that she could manage the situation if the court made the orders she was seeking. The Father’s counsel said that changing the parenting arrangements may push the father into a mental health crisis which would not be in the children’s best interests. The family consultant provided that it is in the children’s best interest to give them some clear air and the stability of living with a parent who does not suffer from mental health issues.
Conclusion:
The Court ordered that the mother shall have shall have sole parental responsibility for the children. The children shall live with the mother. The father shall ensure that the children are delivered to the mother at 10.00am on Saturday 8 May 2021 at Coles Town B. The children shall spend time with the father from the conclusion of school on Friday until the commencement of school on Monday on two out of three weekends commencing on Friday 14 May 2021 and then occurring on 21 May 2021 with the weekend of 28 May 2021 to be spent with the mother and then continuing in a three week cycle.
