Sydney, NSW -- (SBWIRE) -- 10/31/2013 -- This case involves an application by the father to spend an extra night with his son and when the child commences school the father wants equal shared care arrangement. Currently the child lives with his mother who opposes the application and would like the current arrangement be continued. Lapthorn FM granted the father’s application.
The parties lived together from November 2001 until their separation in January 2007. Their son was born in 2005 and at the time of their separation was only 13 months old. Both parties are employed and have current partners. The paternal grandparents are living with the father and play a significant role in the care of the child.
The Court identified two main issues in the case. The first issue is the level of communication between the parties and how this will affect the change in arrangement concerning the child. The second is the level of animosity between the parties and the extended family and how this will affect the willingness and capacity of the parties to foster a positive and ongoing relationship in consideration of the child’s welfare.
In deciding the case, the Court looked to the provisions of the Family Law Act 1975 (FLA), specifically Pt VII which governed parenting proceedings. The FLA mandates that the paramount consideration is the best interests of the child. The law creates the presumption that it in the best interests of the child for his parents to have equal shared parental responsibility but this presumption will not apply if there is family violence, child abuse or the evidence shows that such arrangement is not in the best interests of the child.
The Court also ordered the preparation of a family report. However, the Court’s conclusions were different from those of the family report writer. The Court found that the child benefited from having a meaningful relationship with both his parents and also his paternal grandparents. He also had a positive relationship with the partners of his parents.
Contrary to the assertions of the mother and the family report writer, the Court found that based on the evidence the parties were able to effectively communicate with each other in so far as the care of the child is concerned. The Court finds that the level of communication between the parties will most likely continue and even improve in the future. As for the level of animosity between the parties, the Court finds that despite the negative feelings the parties have for each other they would still be able to focus on the child’s welfare than their own.
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