If you live in a different country from your child, can you obtain orders for equal shared parental responsibility?

The Federal Circuit Court in the case of Malone & Irwin [2018] FCCA 397 considered the question of parental responsibility.

The child concerned ([X]) was around 4 years of age at the date of the proceedings and lived with her mother in Australia whilst the father lived with his wife and child in another country. The father had never been resident in Australia.

The parties had had a relationship whilst the mother was working in another country. The father has remained living there and had re-partnered with a child to his wife, after the parties’ brief relationship had finished.

The child [X] had only ever spent time with the father when he had visited Australia and generally in the presence of the mother.

The mother argued against the parties having equal shared parental responsibility. The mother contended before the Court that she had always been primary carer for [X] and would remain so. The mother further contended that because the father lived in another country, it would be impractical for the parties to have equal shared parental responsibility and that she should have the final decision on matters involving long term decision making for the child because the child [X] lived with her.

The father submitted that the Court should make an order for the parties to have equal shared parental responsibility. He maintained that he wanted the  opportunity of having a say in long term decisions effecting the child [X], and that with his background, he could make valuable input into those decisions and give [X] opportunities that the mother could not by herself provide for the child.

The father proposed travelling to Australia two to three times per year to spend time with [X].

The mother proposed that  [X] spend time with her father on a graduated basis but initially in her presence, claiming that the child would be anxious about spending time with him as she did not know him .

The court was of the view that the mother did not understand the importance for the child [X] of a meaningful relationship with her father or how such a meaningful relationship could be best facilitated.

The reluctance by the mother to permit [X] to spend any time with the father to date without her being present was, on the evidence, not a reasonable stance for her to have taken. While the Court accepts that [X] has spent limited time with the father and that she is still very young, there is no objective evidence to suggest that the father was not capable of meeting [X]’s needs during short periods of time or that he somehow posed an unacceptable risk of harm to the child.

The Court considered that whilst there may be a period of adjustment involved for the child, so long as the relationship between father and the child was able to develop without is left to develop without improper interference or restriction, t the father would ensure that the child’s time with him was a happy and worthwhile experience. The Court also considered that the mother would facilitate the child’s time with the father once things settled down after the hearing.

The court referred to the presumption set out in the Family Law Act 1975 of equal shared parental responsibility which may be rebutted in certain circumstances. The presumption may be rebutted where there was reasonable grounds to believe that a parent has engaged in family violence or by evidence that satisfied the Court that it would not be in the best interest of the child for the parents to have equal shared parental responsibility.

In this case, the Court did not consider that the presumption of equal shared parental responsibility had been rebutted. Rather, the court found that  the child [X] would benefit from her father’s involvement in any long term decisions in respect of her welfare, health and development. Whilst the court recognised that the parents had some difficulty communicating with each other, the court took the view that the parents had the capacity to comply with their obligations under s.65DAC.

The court therefore made an order for equal shared parental responsibility will be made.

  1. Since the court made that order, the court was obliged to consider whether the child spending equal time with the parent was in the child’s best interests or reasonably practicable.. If it was found not to be so, then the court had to consider the child spending substantial and significant time with the parents under section 65DAA of the Family Law Act 195 (Cth).
  2. As the court considered that neither equal time nor significant and substantial time was practicable, the court considered that the best that could be done was orders being made which would facilitate a relationship between the child [X] and the father in circumstances where he lived in another country and would only be able to travel to Australia two to three times per year.

Contact us if you need assistance resolving parenting arrangements effecting your child.