When will the Court Grant Sole Parental Responsibility?

When a Court makes a parenting order in relation to a child, it must apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility for the child. That presumption will not apply if the Court has grounds to believe that a parent (or someone who lives with a parent of the child) has engaged in abuse of the child or another child who was a member of the parent's family, or family violence. The presumption can also be rebutted if the Court is satisfied that it would not be in the best interest of the child for the parents to have equal shared parental responsibility.

In a recent Family Court case of Dawhurst and Tinto [2013] FAMCA 640, Judge Cleary of the Newcastle Registry held that the presumption of equal shared parental responsibility was rebutted by evidence of risk from the mother and her household, and of pathology in the relationship between the parents such that it would not be in the best interests of the child in question for her parents to have equal shared parental responsibility.

The father was awarded sole parental responsibility of the child, aged 6 years. The Court further ordered that the child live with the father and spend supervised time with the mother for at least 9 months. The supervised contact was itself conditional upon the mother committing to a course of individual therapy with a clinical psychologist to address issues relating to a suspected diagnosis of borderline personality disorder.

In this matter the mother had 4 children, each with a different father. The child the subject of the proceedings was her third child and she had lived primarily with her mother and later her mother's new husband, Mr VT, since the separation of the parties in 2009.

The Family Consultant in the proceedings had described the relationship between the parents as "destructive and co-dependant". During the relationship and after separation there were episodes of rage and uncontained behaviour on the part of the mother, which had taken place in front of one or more of her children.There was evidence that Mr VT had been extremely violent towards the mother, often when intoxicated. The Family Consultant was concerned that the mother could not protect the children from family violence and had no insight into the impact on the children of aggression or violence.

The Court acknowledged that the child had a meaningful relationship with both of her parents and that there would be a significant effect on her of separation from her mother, but that it must weigh those factors against the need to protect the child from physical or psychological harm.