Abadi & Sokulsky(No.2)[2021] FamCa 218 (20 April 2021) Could a child be ordered to live with a parent they had not spent time with for 3 years?

This judgement concerned a father’s application to the Court for his eleven year old child to live with him.  The child had lived with the mother her entire life and had only spent supervised time with her father, which the mother had delayed and obstructed. At the time of trial, the child had not spent time with the father for 3 years.

The father sought orders for the child to live with him. The mother opposed these orders.

The mother subsequently advised that she would not participate in the Court proceedings and she withdrew from the case.

The Court noted the risks to the child of remaining with the mother, including the mother’s physical and verbal abuse of the child, neglectful nature, failing to address issues with the child’s education, and taking insufficient action when informed by the child she was sexually abused. The mother was described as having poor parental capacity and being destructive.

Conversely, it was noted that the child may also be at risk if she was relocated to live with the father.  The Court observed that the transition to the father’s household may be unsuccessful and even damaging to the child as:

•     The father had no relationship with the child and was in many respects a stranger.
•     The child had adopted the mother’s negative views of the father.
•     The transition to live with the father was contrary to the child’s expressed wishes
•     The child had an emotional attachment to the mother.
•     The father was completely untested as a parent.

Despite these concerns, the family report writer did state there was no doubt of the father’s genuine concern and regard for the child, a factor which was not present in the mother’s household.

Following the Independent Children’s Lawyer (ICL)’s cross examination of the father and consideration of all evidence, the ICL accepted the father’s position. The father and the ICL presented to the court a joint position to facilitate the child living with the father.

In determining the matter, Gill J analysed the primary and additional considerations in determining the best interests of the child. The determinative factor was the need to protect the child from being subjected to and/or exposed to abuse, neglect or family violence.

In conclusion, the family violence and developmental risks posed by the mother outweighed the risks posed by the unknown father, who was more likely to provide emotional and practical care for the child.

Outcome

The Court made orders for the child to live with the father; for the father to have sole parental responsibility for the child and to keep the mother informed of significant long-term decisions that he makes in relation to the child and actively seek the mother's input on such issues.