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RECENT CASE: Worth & Worth and Anor [2019] FamCAFC 40

In the recent case of Worth & Worth and Anor, the Full Court of the Family Court was asked to consider an appeal against a Trial decision made by Forrest J at first instance. The Father appealed against Orders which provided that the Mother have sole parental responsibility for the couple’s two children, M born 2008 and Y born 2011, and that the children live with the Wife.

Following the parties’ separation and sale of the matrimonial home, the Father returned to live in the United Kingdom where he was born. The Father informed the Court that this arrangement would be for approximately 1 month, at which time the previous Orders made for the children to spend time with the Father were suspended, and Orders were made for the Father to have communication via Skype, with Y. In January 2016, the Father informed the Court that he intended to remain living in the UK indefinitely.

The presumption of Equal Shared Parental Responsibility was rebutted at Trial due to the parents’ inability to communicate with each other or agree on decisions about major long term issues. It was found not to be in the children’s best interests to order that there be Equal Shared Parental Responsibility.

The Father argued that Forrest J had erred in his finding at first instance and sought an Order that the child Y live with him, and he have sole parental responsibility for her. The Father argued that Y should be removed from the Mother’s care for her own safety and protection. This argument was made on the basis of M’s diagnosis of Autism and the risk posed to Y of being subjected or exposed to trauma, mental or physical, at the hand of M, particularly as he grows bigger and stronger. The Father went on to argue that his limited relationship with Y was due to the Mother’s failure to include him in major decision making.

The Full Court rejected this argument on the basis that they were satisfied that the Mother was responding sufficiently to M’s needs and behaviour, seeking out expert assistance and respite care as needed.

The Full Court held that is was not in the best interests of the children, particularly where the Father has not seen and spent any time with M and has spent limited time with Y in a couple of years, for him now to be given sole parental responsibility for the major long-term decisions in their lives. The Court went on to state that the Father’s argument reflected poorly on his insight and understanding of the children’s interests.

The Court highlighted that the Father’s own actions and inactions in relation to returning to the UK had significantly contributed to the almost non-existent nature of the relationship he currently has with Y.

 

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