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Shared parental responsibility must be shared

By March 20, 2017October 30th, 2018No Comments

By Gianna Huesch

A former couple’s inability to communicate effectively on parenting matters has seen a father lose his shared parental responsibility for his children.

Final orders for three children were made in June last year with the consent of both parties, but the parents’ inability to communicate led a court to rebut the assumption for equal shared parental responsibility under the Family Law Act in favour awarding of sole parental responsibility to the mother.

When the orders were made, the parties willingly accepted an order for equal shared parental responsibility, but apparently have not been able to exercise it “sensibly”. The orders had provided for the parties to have equal shared parental responsibility, for the children to live with the mother, and to spend occasional time with the father. The children’s interaction with their father was necessarily intermittent at the time because he lived in rural NSW and the mother in the Newcastle region.

However, the father recently moved also to the Newcastle region but refuses to disclose his current address. “He and his partner refused to tell the police on two occasions in January 2017 and he has failed to tell the Court since this litigation started. In his affidavit, he professes his address to be care of his solicitor’s office.” The father’s failure to inform the mother of his new address was a breach of the orders.

Complicating matters, when the father last had the children for contact in December, he refused to return them. The mother then commenced further proceedings, seeking interim relief by way of a recovery order. Police intervention at the children’s school reunited the children with their mother and as such she abandoned the recovery action, but sought to alter the orders. The father then in his response sought to have the orders reversed, with the mother to only have supervised contact at a supervision centre.

The father’s case is that the children are at unacceptable risk of both physical and sexual abuse in the mother’s home, which she refutes.

The mother argues that the father is either “deliberately or inadvertently inducing the children to make false allegations against her and her current partner, just as occurred in the past”.

Various allegations of sexual and physical abuse of the children were made in the earlier parenting proceedings but no harm was substantiated by police, medical professionals or the NSW Dept of Family and Community Services and there is no ongoing investigation. At the end of the parenting ligitation, the court recorded the following notation at the parties’ request:

Pursuant to Rule 10.15A of the Family Law Rules, the parties and the Independent Children’s Lawyer mutually submit that allegations of child sexual abuse, physical abuse and family violence have been made in the proceedings by the parents but the parents now resile from any suggestion that any of the children are at risk of harm through subjection or exposure to such abuse or family violence in the future.

The Independent Children’s Lawyer supported the mother’s application and agreed there was no evidentiary basis to reasonably conclude the mother poses any unacceptable risk of harm to the children. The judge said, “Despite the litany of allegations of physical abuse, not a skerrick of evidence was placed before the Court to verify the sufferance of any physical injury of any sort by any of the children at any time.”

It was noted that the parents “are in deep conflict”.  The judge noted, “the children are most probably aware of it and are attuned to the advantage of making adverse reports about one parent to the other. The father seems posivitely eager to receive them.”

Read the case: http://www.austlii.edu.au/au/cases/cth/FamCA/2017/114.html

The judge said, “The way in which the father has conducted himself, both generally and in relation to this litigation in the past month, is such as to call into question his judgment and insight.”  In fact, the court decided that it was the father who was placing the children under threat of “emotional harm”. The court noted:

“The father’s unwillingness to share (his address) information with the mother speaks volumes about his unwillingness to courteously consult with her over matters of importance to the children and his unwillingness to genuinely try and reach consensus about any conflict that may arise. They are the minimum requirements for the parties’ exercise of shared parental responsibility (s 65DAC).”

As such, the court was satisfied s61DA(3) of the Act should apply: it would not be appropriate in the circumstances for the presumption of equal shared parental responsibility to apply.

It’s a good reminder of the need to ensure you follow through on all court orders, and if you have been granted equal shared parental responsibility, make sure you co-parent courteously and are able to reach consensus on parenting issues when necessary.

Read our recent explainer on parental responsibility: http://alliancelegal.com.au/parental-responsibility-in-family-law-what-does-it-mean/

Do you need assistance with a parenting or other family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our solicitors here at Alliance Family Law on (02) 6223 2400.

(Please note: Our blogs are not legal advice. For details about how to obtain correct legal advice please arrange a free conference with Alliance Family Law.)

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