Father Opposes Parenting Orders in Favor of the Mother

Arnetts & Arnetts [2021] FCCA 1553 (8 July 2021)

The parties are in dispute over parenting orders regarding their children. The Independent Children's Lawyer proposes that the mother have sole parental responsibility over the children.  The mother, in seeking for the Court to adopt the ICL's proposal, alleges domestic violence against the father.  The father sought that two children live with him and there be an equal time arrangement with the other two children. The Court, in making parenting orders, relied upon the Family Law Act 1975 as well as the proposals made by the grandmother and paternal grandfather as interveners. 

Facts:

The parties commenced a relationship in 1999/2000, married in 2003 and separated on 30 August 2019. They have five children. Both parents were very active in caring for the children during the relationship. The paternal grandparents retired in around 2012 to assist the parents with the care of the children. The father submitted that after the parties separated, they had an informal agreement that the boys would live with the father and the girls would be in an equal time shared care arrangement.

In 2019, the mother commenced proceedings. The mother alleges serious domestic violence during the relationship. The father had supervised visits with the children with their paternal grandmother. However, he was notified that bringing the paternal grandmother and X was in breach of the "Service Agreement". 

The paternal grandmother claimed that the mother, who is a health care worker, had drugs at her home.  The Independent Children's Lawyer proposes that the mother have sole parental responsibility and that the children live with the mother. The mother adopts the ICL's proposal. On the other hand, the father sought that two children live with him and there be an equal time arrangement with the other two children. The paternal grandmother sought time with the children supervised by the paternal grandfather.

This was opposed by the mother and the ICL. The paternal grandfather appeared to adopt the ICL’s proposal for unsupervised time with the children for two (2) hours on the first Sunday of each month.

Issue:

Whether or not the Court should make parenting orders in favor of the father. 

Applicable law:

Family Law Act 1975, ss 60B, 60CA, 60CC-  provides that the Court, in making parenting orders, should treat the children's interest as the paramount consideration. The Court should also take into consideration the benefit to the children of having a meaningful relationship with both of their parents.

In determining what is in children’s best interests I must consider the matters set out in s 60CC(2), the “primary considerations”, and s 60CC(3), the “additional considerations”. There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The additional considerations are the following:

a.) the children's views;

b.) the children's relationship with significant persons; 

c.) the parenting and the discharge of parenting responsibilities;

d.) the effect of any changes in the children's circumstances; and,

e.) parental responsibility. 

Barrett & Barrett and Anor [2017] FamCAFC 4 - observed that a parent who consumes cannabis and has the responsibility of looking after children, whether or not the children are asleep when the cannabis is consumed, is placing children at risk given the parents diminished ability to respond to medical or other emergencies such as a fire, that could arise with their children.
Donaghey & Donaghey [2011] FamCA 13 - the Honourable Justice Murphy reviewed a number of authorities relative to this area and also some academic writings at paragraphs 26 – 32.
TF & JF [2005] FamCA 394 -  where Her Honour having found that the evidence in the case “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...”, then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”.
George & Nichols [2016] FamCA 519 - where the Court discusses the issue of unacceptable risk. 
Heath & Hemming (No. 2) [2011] FamCA 749 - where the Honourable Justice Kent opined that the Full Court in Sigley approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child. 
Jones v Dunkel [1959] HCA 8; 101 CLR 298 - the Court is entitled to make an adverse presumption or inference on basis of a parties failure to comply with drug testing Orders.
M v M [1988] FLC 91-979 - the High Court held that “the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk ... (and) to achieve a proper balance, the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of abuse.”
McCall & Clark [2009] FamCAFC 92 - dealt with the benefit to the child of having a meaningful relationship.
Moose & Moose [2008] FamCAFC 108; (2008) FLC 93-375 - Boland J commented on the general undesirability of long term supervised contact and expressed concern about Orders not providing for their own review.
Sigley v Evor [2011] FamCAFC 22; (2011) 44 Fam LR 439 - concluded that the preferred interpretation of “benefit to the child of having a meaningful relationship” in s 60CC(2)(a) is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, Orders can be framed to ensure the particular child has a meaningful relationship with both parents (referred to by the Full Court as “the prospective approach”). 
T and N [2003] FamCA 1129; (2003) FLC 93-172 - where it was observed that if a drug-using parent cannot be free and alert from substance abuse, they cannot properly care for young children who would rely upon them to have their needs met. 

 Analysis: 

The father has a history of drug use and his failure to provide test results to the ICL. The father’s capacity to care for the children is doubted because of his mental health problems. He also failed to provide any evidence that he has been seeking treatment from a psychiatrist. The father’s history of domestic violence and the number of times he has breached the Protection Order are likely to expose the children to a risk of domestic violence, should the father have unsupervised time with the children.

Conclusion: 

The Court concluded that there is an unacceptable risk of harm to these children being in the unsupervised care of the father. The Court ordered that all previous parenting Orders and Undertakings be discharged. The mother shall have sole parental responsibility for the major long term issues of the children who shall be with the mother. The children are to spend supervised time with the father.