Father Opposes Mother's Application for Sole Parental Responsibility
Rickard & Rickard [2021] FCCA 1628 (9 July 2021)
The mother seeks orders that she have sole parental responsibility for her children X and Y and that they live with her and spend no time with the father. The father sought an order that would provide for X to live with, spend time with and communicate with his parents as he may initiate. He sought an order that Y commence living with him. The Court, in adjudicating the issues presented in this case, relied upon relevant jurisprudence as well as the children's best interests.
Facts:
X and Y live with the mother and they have spent no time with their father since December 2018. The parents separated following an incident of family violence in December of 2018. The mother alleges that the father suffered from significant mental health issues for a continuous period of about four years and drinking heavily in the year prior to separation. The mother seeks orders that she have sole parental responsibility for the children and that they live with her and spend no time with the father.
It was submitted on the mother's behalf that if an order was made for the children to spend time with the father there was a risk that it would have a serious adverse impact on her parenting capacity. The father sought an order that would provide for X to live with, spend time with and communicate with his parents as he may initiate. He sought an order that Y commence living with him. In the alternative he sought an order that Y spend alternate weekends and half school holidays with him and live continuously with him if the mother was hospitalised.
Throughout the trial the father was seeking equal shared parental responsibility for Y but in closing submissions his counsel said he was no longer seeking that. The Independent Children’s Lawyer handed up a Minute of Order at the end of the trial in which it was proposed that the mother have sole parental responsibility for Y and that Y live with her. The orders proposed that X spend time with the father in accordance with his wishes and that the father commence spending supervised time with Y. The Solicitor Advocate for the Independent Children’s Lawyer submitted that there would be a benefit to Y in being able to spend time with a parent whose mental health issues were in remission and that this benefit outweighed the detriment which would arise if the mother’s mental health decompensated as a result of the order being made.
Issues:
I. Whether or not the father's application should be granted.
II. Whether or not the case should be re-opened.
Applicable law:
Family Law Act 1975,ss 60CC, 61DA, 65LA - any orders the Court shall make about the children must be determined by treating their best interests as the paramount consideration.
(a) the further evidence is so material that the interests of justice require its admission;
(b) the further evidence, if accepted, would most probably affect the result of the case;
(c) the further evidence could not, by reasonable diligence, have been discovered earlier; and
(d) no prejudice would ensue to the other party by reason of the late admission of the further evidence.
Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 - the High Court of Australia stated that in such a situation it was difficult to see why "the primary consideration should not be that of embarrassment or prejudice to the other side."
Analysis:
The father submitted that he had overcome his mental health issues while the mother had suffered some acute episodes of mental illness in the last two years which had required inpatient treatment, and that he was in a better position to provide the children, or at least Y, with a stable life going forward. The father made no mention of the impact on Y of being separated from his brother X and provided no information about the nature of his relationship with Y historically or indeed about whether they had ever had a positive relationship. The father’s failure to address these issues could be indicative that he had no insight and no capacity for empathy, was seeking to gloss over the realities of the past and hide his failings if he could and had no firm plans for the future. The father solicitor did not file an affidavit by Ms A, the father's supposed witness.
He simply attached to his affidavit a document which was not sworn or affirmed by Ms A although signed by her, and said that a full affidavit could be provided in due course. If the father is allowed to re-open his case the court and the mother might be confronted with a situation where Ms A went on to give a whole lot of additional evidence which had not been disclosed during the application to re-open. There is a considerable risk that if the judgment is delayed the strain on the mother could result in a relapse in relation to her mental health and that will have an impact on the children. There would be prejudice to the mother if the father was permitted to re-open his case. It is not in the children's best interests that their mother has another episode of acute mental ill health.
Conclusion:
The Court concluded that it is not in the interests of justice require this case to be reopened. The Court ordered that the application in a case filed by the father on 5 July 2021 be dismissed. The mother shall have sole parental responsibility for the children. The children shall live with the mother. The mother is not obliged to facilitate any time or communication between the father and the children. The father is restrained and an injunction is granted restraining him from approaching the mother and initiating any contact or communication with the children. The mother shall inform the father as soon as reasonably practicable in the event the children or either of them are involved in an accident or medical emergency.