Roth & Roth 2014 FamCA 207


There were two children of a relationship aged 14 and 11 years.  The mother requested that the younger child primarily live with her and that she have sole parental responsibility for him, but the father sought a shared care arrangement for the younger child.  The parties disagree about extracurricular activities for the younger child.  The ICL supported the mother’s proposal.

The younger child told an assessor,  “If I stay with Mum, Dad’d get depressed and, if I stay with Dad, Mum’d be really depressed”.  The assessor reported that the younger child presented as being emotionally mature because he understood the consequences of supporting one parent over another, but in doing so he appeared to be sacrificing himself (please both parents).  The assessor recommended that the Court not implement the child’s wishes to spend equal time with both parents.  The judge found that the younger child felt a responsibility to protect his parents, and that he acted as a peacemaker (parentified).

It was agreed that the older child was estranged from the mother.  The mother sought that the older child live with the parents as agreed between them and that the father have sole parental responsibility for her, but the father sought that the parties have equal shared parental responsibility for the older child, and that the older child live with him.  The parties had found it difficult to constrain the behaviour, school attendance, living arrangements and lifestyle of the older child as she participated in  “couch surfing” in unsuitable places.  The older child was diagnosed with severe depression.  The ICL proposed that the father have sole parental responsibility for the older child and that the older child live with the father.

The judge found that the two children had a loving relationship with each other (sibling relationship).

The judge found that at some times the parties had acted unilaterally when making decisions about the children but at other times they have acted together (co-parent).  The judge found that the father gave a greater emphasis to sporting activities at which the younger child excelled, while the mother gave a greater emphasis to educational activities.  The judge found that the parenting styles differed resulting in increasingly polarised regimes in the respective households.  The judge described the mother as having a stable, conservative, firm but loving influence on the children (parenting style authoritative), and that she may have felt she had to be more structured and restrictive because of the father’s relaxed personality and approach to parenting (parenting style permissive).  The father was described as being an enthusiastic, loving and supportive parent who prided himself on encouraging and facilitating the children.  The father took little responsibility for the predicament of financial hardship he was in.  The father did not promote punctual school attendance as well as the mother, thinking it was not a problem.

The judge found that the younger child had tolerated and accommodated the different parenting regimes but the older child had not.  The children were considered to have different temperaments, with the younger child described as sunny and the older child as combative and wilful.

The judge noted that it is not uncommon for children to be restricted in the number of different extracurricula activities in which they engage.

The judge found that the presumption of equal shared parental responsibility did not apply, and favoured the priorities expressed by the mother.  The judge noted that the age of the older child and the proven inability of her parents to constrain her behaviour make it impracticable to craft orders that directly address the concerning features of her lifestyle and living arrangements.

The judge ordered that the older child live with the father with the father having sole parental responsibility for the older child and that the younger child live with the mother and spend time with the father (sibling separation).  The mother was granted sole parental responsibility for the younger child.