The Family Law Act specifically states the best interests of the child is the paramount consideration when making decisions in court. So, what happens when one parent is accused of child abuse and the other is negatively impacting the child’s emotional wellbeing?
Today’s article sheds light into the impact of the family court’s decision making and how a just conclusion can be grasped in the best interests of the child.
Most separated parents do not have a great impression of their former partners as co-parent of children of the relationship and more often than not, view them with hostility. Some may even classify certain actions of their former partners as domestic violence and would even think that certain parenting views or practices adopted by their former partner are harmful to the children. However, it is strongly advised to seek the assistance of a family therapist and an experienced family lawyer prior to writing down the exact reasons why you deserve sole custody of your children.
One mother was given the exact opposite of what she asked for recently by the Appellate Division of the Family Court in Habib & Ibrahim  Fam CA 633.This case saw to a mother who was making allegations of family violence and asserted that her child was suffering from separation anxiety when she handed the child over to the father’s care. The child, who was four years old at the time, voiced resolutely when interviewed by health professionals, that he “did not want to spend time” with his father.
However, there was evidence that the child was happy when in the care of his father. The child showed happiness when being picked up by his father from child care and that he enjoyed spending time with his father. Notably, the child occasionally stated that he would like to go home to his mum because his mum said "he could do so".
With this contradicting evidence, a deeper investigation was required to see who a greater risk was to the child. Interestingly, through expert evidence, the child had been expressing those previously mentioned views to please his mother. As a result of these findings, the court ruled that continuing to stay in his mother’s primary care would be detrimental to his emotional well-being. It was weighed up that the need to protect him from the mental stress of having to comply with his mother’s damaging views of his father was worse than the allegations she put forward.
Consequently, the court awarded sole parental responsibility to the father and ordered that the child would now live with him. The mother was refused any visitation of the child for at least 4 months. After this time, supervised visits with an agency is required before she is allowed to spend independent time with the child.
Shockingly, two years had already passed in which the father had restricted visitation to his child before the courts reached a decision. Although it took two long years, a just outcome was eventually reached. This also answers our question, that over-protective parents can have an extremely negative impact on children and their livelihood.
*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*
Special Counsel | Accredited Family Law Specialist NSW
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