The court must regard the best interests of the child as a paramount consideration

While this decision is guided by some factors listed in the legislation, it remains difficult to predict what parenting arrangement will best promote a child’s best interests. In some circumstances, the judiciary is presented with several imperfect proposals, and they must determine which of these will be the least detrimental.

This issue was recently considered by O’Reilly J of the Family Court. In the third trial for this matter in less than ten years, the parenting orders were again contested. While Le Poer Trench J had previously ordered that the child would live with each parent on a week about shared care basis, the mother sought sole parental responsibility.

This was in light of the father going overseas for an indefinite period, a few months before the trial, and putting the child into the mother’s care. The father sought the child to live within him; however, he did not appear at the trial, nor was he legally represented.

O’Reilly J was faced with the difficult question as to what arrangement would be in the child's best interests. The mother had made extensive allegations of emotional, verbal, physical and sexual abuse by the father of the child. While the child was fearful of the father and desired to live with her mother, the majority of the allegations were unsubstantiated and were instead predicated upon the mother’s psychological and emotional instability.

While O’Reilly J stated that it would be inappropriate to make specific findings on these issues in the father’s absence, she did conclude that looking at the evidence as a whole, and it was unlikely that there had not been at least several instances of abuse.

However, as previously noted, the mother suffered from a range of psychological and emotional issues. The mother’s inability to deal with her childhood trauma fuelled her commitment to making allegations against the father in an attempt to prohibit contact. As such, she intended to thwart any attempt by the court to foster a meaningful relationship between the child and her father.

Additionally, there were no clear indications that the mother could provide the child with a psychologically safe, child-focused and caring environment; it was suggested that the mother’s fears and anxieties would transfer to the child, causing extensive psychological harm. The effects of this were already evident at the trial, with the child displaying behaviours associated with obsessive-compulsive disorder.

O’Reilly J, therefore, had the difficult task of choosing between these two inapt proposals. After lengthy consideration of the aforementioned issues, orders were made that the mother is awarded sole parental responsibility for the child. These orders were conditional upon both the mother and the child attending psychiatric or psychological assistance. No specific orders were made regarding the father’s contact with the child, only that the mother must use her best endeavours to facilitate contact if it was sought.

Darcy v Cameron [2010] FAMCA 1102