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Family Law

Mother lost primary custody of child – in child’s ‘best interests’

By January 12, 2016No Comments

In a recent case which highlights ‘be careful what you wish for’ a mother who had disagreed with a judge’s decision on where her daughter should go to school has lost primary custody of the child altogether.

In interim Family Court proceedings the mother had been granted equal shared parental responsibility for her young daughter who had been living with her since birth.

[For information, Equal shared parental responsibility gives both parents a say in the ‘bigger picture’ items, usually around long term matters such as health, education, religion and so forth. Before parents go to court, they automatically share this. Once they go to court, they can ask a judge to order that it continue to be shared, or that one parent has it all (sole parental responsibility) or that variations are ordered (eg mum must consult with dad about schooling, but if they can’t agree, mum  many have sole decision making power, or Dad must keep Mum informed about a child’s therapy, and invite her to appointments, but if they disagree on care, Dad has the sole responsibility to make health care decisions)].

In this case, under interim orders, the child was to spend four nights per fortnight with her Dad instead. The court also made a schooling order.

The mother then appealed the order regarding the schooling arrangements, but when the matter went to final hearing around a year later, the trial  judge reversed the child’s residence and granted the dad sole parental responsibility. The mother then appealed all orders. While the schooling order was ultimately set aside, this would be small comfort to the mother, as she lost her appeal regarding custody of the child.

The appeal court found that the trial judge had in fact considered a range of other factors in determining the best interest of the child. Though not the only factor, the mother’s credibility played a big role at trial and was regarded as impacting on her parenting ability and her ability to provide for the child’s psychological needs. While there was no outright unacceptable risk of harm to the child, it was the mother’s conduct which came under scrutiny and ultimately let her down in the proceedings.

The mother had repeatedly made allegations against the father that were found to be unsubstantiated and vexatious, including eventually applying for a domestic violence order in the Magistrates Court, which was dismissed.  In the Family Court, she made a large number of claims of being stalked by the father, which were all contradicted by “incontrovertible documentary evidence” provided by the father and his partner. Yet when confronted with this, the mother stubbornly maintained that she “saw what she saw”. She made numerous claims of email and SMS hacking by the father without providing “a jot of evidence”.

On the other hand, there was plentiful evidence of the mother’s dishonesty and tendency to make false, misleading and self-serving claims. For example, in her hearing at the Magistrates Court she told the court the father had never had the children overnight despite there being much evidence to the contrary. She also told that court there were no parenting orders in place, a claim she knew was false. When these issues were raised in the Family Court trial, she instructed her lawyers to inform the court that the transcript of the Magistrates Court was incorrect and that she had never made the statements it stated she had. Unfortunately for her, however, the trial judge obtained and played an audio file of that hearing, which demonstrated that this was in fact patently untrue.

The court had found that the relationship between the parents had become “severely fractured and poisoned” and completely lacking in trust. The mother and father were simply unable to communicate adequately and therefore it would be impossible to effectively make shared decisions. Being able to consult and make long term decisions together is a major part of sharing that parental responsibility. This couple was unable to do so.

Due to the issues concerning the mother’s conduct and its effect on her parenting abilities, sole parental responsibility was granted to the father.

The trial judge’s reasoning regarding the mother’s conduct and character outweighed her complaints that enough weight had not been given to various other factors. For example, the mother argued that it had not been adequately acknowledged that she had been primary and sometimes sole carer of the girl since birth (the police officer father having frequently been away from home). She further argued the father had made no criticisms of her care of the child since birth. She also felt the trial judge hadn’t properly considered the impact on the girl on being separated from her half-brother. The mother had also expressed concern about the father’s new partner playing a significant role in the care of the child—but unfortunately for the mother, the trial judge found the father’s new partner credible, in fact being “highly impressed” with her.

While the new orders were seen as likely to have a “significant impact” on the girl and her relationship with her mother, brother and maternal grandmother, the Family Consultant had found these relationships to be “secure” and therefore regarded as strong enough to withstand the disruption. Both the Independent Children’s Lawyer and the Family Consultant had supported the change of residence for the child.

In contrast, the court had found there was a clear risk to the father’s relationship with his daughter while she remained living with her mother. Despite the mother arguing she had “clearly encouraged” the relationship between the child and father and that the father continued to have a “good and close” relationship with the child, the court found it was clear that she had not involved the father in a number of significant decisions relating to the child, for example taking her to see a psychologist; despite many requests, the mother had simply refused to provide relevant information regarding this engagement of a health care professional.  

Given these factors, the appeal judges acknowledged the “somewhat surprising orders involving a change of residence for a six year old child from the parent with whom she had always previously lived”, but affirmed the trial judge’s decision to be appropriately in the best interests of the child.

This case really highlights the need for individuals to be utterly straightforward and honest when before the courts. To attempt to manipulate the facts greatly risks both someone’s credibility with the court, and, in the end, the court’s view of their ability to be a good parent, with potentially drastic consequences. There are so many extra sources of information which can be presented to the court by way of evidence (Facebook, Instagram and email trails by way of example), that a witness can very easily be ‘caught out’ lying to the court. Once that happens, the case can go downhill fast.

Do you wish to consider non-court solutions, to avoid this type of situation? Alliance Family Law specialises in collaborative practice, where parties sit down in round-table settings with lawyers and manage their conflict in a way which is designed to keep the discussion positive, future-focussed and productive.

Or do you need help with a parenting or other family law matter generally? Please call Cristina Huesch or one of our solicitors here at Alliance Family Law on (02) 6223 2400 for confidential and compassionate advice.

(Source: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCAFC/2015/248.html?stem=0&synonyms=0&query=court)

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