living arrangements for the children become an arena for bitter struggle

When parents divorce or separate, the question of where and with whom the children will live becomes an issue.

The Family Law Act directs the Family Court to consider three sides in deciding the issue:

  • the father’s side, the mother’s side and children’s side.

Often, living arrangements for the children become an arena for a bitter struggle. The family court steps in and considers the best interest of the child. Sometimes, it takes into consideration the child’s views on what is in his best interest.

The case of Sheffield & Oakes [2013] FamCA 183 (26 March 2013) tells of divorcing parents who have two sons aged 17 and 15. The parents’ litigation over the living arrangements for the children was protracted and acrimonious. The 17-year-old son decided to leave his mother’s house and stay with his father. His act was respected by the family court as his expression of his view. This ended the litigation over his living arrangements.

The living arrangements for the 15-year-old son were another matter. In 2010, the father belatedly raised the issue that his ex-wife had sexually molested the 15-year-old in 2003 so that his son will be ordered to live with him. While the allegations were still being determined, the father failed and refused to return his son to his ex-wife after a scheduled visit. The son left his father’s house and returned to his mother’s house.

On another occasion, the ex-wife brought the child to a parking lot where he will be picked up by his father but the child refused to get down from his mother’s car. The father bodily took his son and shoved him into his own car. When the police arrived, the boy told the police that he refused to stay with his father and wished to be returned to his mother.

The family court ruled that given the age and maturity of the boy, his refusal to return to his father’s house should be respected. The Family Court pointed out that the father’s actions confirmed the court’s ruling that the father desired to maintain contact with his son purely for his own personal benefit and not for the benefit of his son. This is not in the best interest of the child. 

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