From Shared Responsibility to Sole Custody: The Outcome of a Parenting Dispute
Pinto & Beringer [2022] FedCFamC2F 1572 (16 November 2022)
This case deals with the determination of the best interests of a child in the context of a parenting dispute between the child's parents. The parents have a history of conflict and have previously made allegations of abuse and family violence against each other. The court must consider the relevant legal principles and apply them to the facts of the case in order to make a decision that is in the best interests of the child.
Facts
On 12 August 2016, Final Parenting Orders were made in this Court, inter alia, that the Father have sole parental responsibility for the child; the child live with the Father; that the child spend certain time with the Maternal Grandmother; the child spend time with the Mother at times agreed between the Mother and the Maternal Grandmother and failing agreement during the daytime on a certain basis (initially on Saturdays and then alternate Saturdays).
On 18 December 2019, the Mother having commenced fresh parenting proceedings on 17 October 2019, by consent, Interim Parenting Orders were made suspending certain Orders of the above Final Parenting Orders (in particular the time-with Orders between the child and the Maternal Grandmother and Mother, but not the Father’s sole parental responsibility Order); that the child spend time with the Mother each alternate weekend from Friday 3.00pm until Sunday at 3.00pm, together with half school holidays, telephone contact, and on other special occasions; and that the Maternal Grandmother spent time with the child during times of the Mother is spending time with the child.
On 29 May 2020, orders were made dismissing the Mother’s application, inter alia, that the Father cause the child to be relocated back to the Sydney metropolitan area. This application had been made by the Mother by reason of the relocation of the child’s residence to the Area B by the Father. The mother sought that she have sole parental responsibility of the Child and that the child live with the mother.
Issue
Whether or not the Father shall have sole parental responsibility for the child X.
Applicable law
Family Law Act 1975 (Cth) s 60CC - provides that the benefit to the child of having a meaningful relationship with both of the child’s parents is a primary consideration in making parenting orders.
Analysis
Since the Court’s Final Parenting Orders of August 2016, the child has been living with the Father and spending regular fortnightly time with the Mother. Over about the last year, the Court finds that during the child’s school holidays the child usually has been spending approximately equal time with each parent although there have been a few occasions where the child has spent greater time with the Mother during such school holidays by reason of the Father’s work commitments. Should the child spend time with the Mother, pursuant to the ICL’s proposed Minute of Order, and communicate with the Mother regularly (as discussed below under s60CC (3)(m)) it is likely that the child’s meaningful relationship with the Mother can be maintained. At the time of the parties’ separation in about March 2013 there was a disagreement between the parties and which led to an ADVO being made against the Father for the Mother’s protection.
It would appear that on about 24 September 2013 the Father breached this ADVO and in relation to which he was sentenced to a 12 months section 9 bond on 26 September 2013 in the Local Court. The evidence before the court does not clearly indicate the manner in which the Father breached the ADVO. There is a significant suggestion that this adverse behaviour by the Father arose from him experiencing sexual frustration although this does not excuse such behaviour. The child and the Father have a close meaningful relationship living together and there is a significant risk that that relationship will be detrimentally affected should the child now be placed in the primary care of the Mother.
Conclusion
In conclusion, the case discussed above centers around the custody of a child, X, and the determination of what parenting arrangements would be in the best interests of the child. The court applied the relevant legal principles outlined in the Family Law Act, including the paramount consideration of the child's best interests and the considerations outlined in section 60CC of the Act.
The court found that the child has a meaningful relationship with both parents and would benefit from a continuance of those relationships. The court considered the child's own views on the matter, as well as the nature of the child's relationships with each parent and extended family members. The court also took into account the extent to which each parent has fulfilled their obligations to maintain the child and the potential impact of any proposed parenting arrangements on the child.
In light of these considerations, the court determined that it would be in the best interests of the child for the child to continue living with the father and spending regular fortnightly time with the mother. The court also considered the ICL's proposed arrangements for the child to communicate regularly with the mother and found that this would likely allow the child to maintain her meaningful relationship with her.
