When will the Court grant one parent sole parental responsibility?

Upon two parents separating one of the first matters to be decided between the parties is who will have parental responsibility for their child/children.  That is who will make decisions regarding the child’s schooling, religion and medical treatment?

The legislation states that a presumption applies and it should be that it should be shared equally between both parents however, that presumption is rebuttable.  In a recent Judgment of Penski and Kocher (No. 2) a decision of His Honour Judge Cronin the Family Court of Melbourne there were several issues in dispute between the mother and father however the predominant issue was – whom would have parental responsibility for the child of the marriage who was aged 5?

Both the Husband and Wife made an application for sole parental responsibility based upon the following facts:

• Following separation the parties took out AVO’s against each other. The mother entered into Orders and the father provided undertakings providing for both of them to regulate their ongoing conduct towards each other.
• Earlier proceedings in the Federal Magistrates Court had identified the Mother was the primary caregiver and the child should predominately live with her and that the Father would spend time with the child.  Orders were made to that effect.
• The Wife, during the proceedings, gave evidence of having been a victim of family violence which consisted both of physical aggression and intimidating and harassing behaviour including domination and control by the Husband of her.
• She provided evidence that she was unable to consult with the Husband in making decisions regarding the child.
• The Family Reporter in the matter identified that the conflict between the parties was palpable and that each of the parties made ongoing and consistent complaints regarding the other’s conduct.
• The Wife’s evidence was that requests regarding the care of the child at changeover were ignored by the Husband and that at times he had taken to filming her at handovers, even at the Police Station.
• The conflict was so protracted that the parties resulted to placing notes in the child’s bag and making the child a “messenger”.
• The Husband also set out problems regarding negotiating with the Wife and the numerous disagreements that took place regarding the child’s care.  The Husband noted that telephone calls had been problematic and the like and he accused the Wife of terminating calls or distracting the child while he was talking to the child.  There was also a dispute as to whether to call on a mobile phone or a landline.
• The Court found that the relationship between the Husband and Wife in respect of the care of the child was completely dysfunctional.
• A Family Reporter was appointed by the Court who confirmed the Judge’s view regarding the dysfunctional relationship.
• Based on the intractable conflict between the parties, the Court made a decision that it was in the best interest of the child that the Wife should have the sole parental responsibility of the child given the extent of the conflict between the two parties and the negative affect this would have on the child.

If you have concerns regarding the parental responsibility of your child/children, please contact Kathy Matri on (02) 4322 0251.