Parents Seek Equal Shared Parental Responsibility for Child, Court to Decide at Final Hearing
Danniell & Mounce (No. 2) [2021] FamCA 629 (27 August 2021)
The parents in this case were both seeking primary parental responsibility for their child, X, with the father wanting X to live with him in Sydney and the mother proposing that X continue to live with her. A final hearing has been scheduled for December 2021 and an interim hearing will take place in August 2021 to present evidence in the case.
Facts:
The mother and father were both seeking primary parental responsibility for their child, X. The father wanted X to live with him in Sydney, with the mother having alternate weekend access. Alternatively, should X continue to live with the mother, the father proposed two weekends during each school term with the choice to elect an additional weekend in City A, and for the entirety of the SeptemberOctober school holidays.
The mother proposed that X continue to live with her, but spend time with his father on two weekends during each school term with the choice to elect an additional weekend in City A, and for the entirety of the SeptemberOctober school holidays. At the interim hearing, the father was represented by his senior counsel, Mr Campton and the mother was self-represented. Both parties agreed to an order for equal shared parental responsibility and made their proposals.
However, due to the provisions of s 102NA of the Family Law Act 1975Cth), the matter was vacated and listed for final hearing before the court on 6 December 2021. An independent children's lawyer was appointed and the matter was listed for possible interim hearing at 10am on 16 August 2021. The purpose of the interim hearing was to facilitate the evidence being placed before the court.
Issue:
Whether or not there is an unacceptable risk of harm if X continues to live in his mother’s care in circumstances where the evidence establishes that the mother has struggled with the use and abuse of alcohol for many years.
Applicable law:
Family Law Act 1975 (Cth) s 60B - has the objective of ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346 - provides that where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.
Analysis:
The evidence suggests that the mother's submission to the court that she has been abstinent from alcohol since discharge is consistent with the three known CDT tests. The mother is taking medications that have been demonstrated to reduce cravings and relapse, but there is still a risk of relapse that needs to be managed. The proposed orders from both parents provide mechanisms for managing the risk, and the court believes that the grandfather and his wife would be able to provide safety for X.
Conclusion:
This order states that all previous orders are discharged, both parents share equal parental responsibility for the child, X, who will reside primarily with the mother, and the father will have visitation rights on certain days. X should communicate with the non-resident parent via video call, and the mother must not consume alcohol 24 hours prior to X entering her care and while he is there. She must also attend her current treatment team and obtain an undertaking from her father and stepmother, as well as undergo random blood tests. The cost of such tests will be divided between the parents.
There are no indicators of X showing behaviours consistent with having experienced any form of neglect or abuse. The only notable matters include one occasion where X was noted to be extremely tired having come home on a plane from Sydney, suggesting a visit with his father on the preceding weekend.
Case: Danniell & Mounce (No. 2) [2021] FamCA 629
Judgment of: ALTOBELLI J
Counsels:
Counsel for the Applicant: Mr Campton SC Solicitor for the Applicant: Lander & Rogers The Respondent: In Person