ARTICLE
20 December 2024

Child Custody Cases: Learning From Each Case

JS
JB Solicitors

Contributor

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Australian family law promotes equal shared parental responsibility.
Australia Family and Matrimonial

Parents who have child custody over their child means they went through child custody cases in court. Such cases are stressful and leave one or both parties on a sour note. After all, after a divorce, it's paramount that one of the parents would prefer sole custody of their children. However, Australian family law promotes equal shared parental responsibility and only opts for a sole custody option for high-risk cases.

When couples separate or divorce, this usually includes them deciding to divide their property and make financial agreements. With each legal ownership of a child comes from a child custody case. Such cases are registered in the Federal Circuit and Family Court of Australia.

Before we highlight some relevant cases, let's first discuss how Australia governs child custody cases.

What Does the Family Law Act Say?

The Family Law Act 1975 is the law that governs parenting matters in Australia and this Act highlights the child's best interests. The Act also states that separated parents should always remember to focus on the best interests of the child like:

  • Protecting them from family violence/domestic violence, child abuse, harm (physical or psychological harm), or neglect
  • Developing a meaningful relationship with the children and each family member
  • Having the responsibility for their child's welfare and the child's well-being.
  • Giving proper parenting like providing proper meals and housing, giving significant life advice, and helping with schoolwork.

Whenever parents separate, they should also go above and beyond in providing proper parenting with the absence of violence and child abuse. Parents who follow the best interests of their children result in better school performance and healthier lifestyle experiences. After all, this is the bare minimum treatment that they should receive from their parents.

However, not all parents can agree on focusing on these factors. If so, they may opt for family court proceedings to know the solution to the dispute. Below, we will highlight cases where ex-partners cannot agree on parenting arrangements after separation. Let's read them and see what we can learn from both cases.

Child Custody Cases: Case Example #1

One of the child custody cases involves Martell and Devin (2020), wherein Mr Martell (husband) and Ms Devin (wife) had a dispute over living and parenting arrangements. During the hearing, the children were living with Mr Martell and spending substantial and significant time with Ms Devin. Mr Martell wanted his children to remain with him in Sydney.

However, the mother wanted the children to live with her in the United States. Whatever the decision, this will make it hard for each child's relationship with both of their parents to foster. Likely, Ms Devin won't permit Mr Martell in the U.S. for any reason. This will result in limited contact with either one of the parents.

The Couple's History

Both Martell and Devin drank alcohol and used cocaine on a regular basis in the early days of their relationship. After Devin gave birth to their children, Martell resumed his work in the mornings and evenings. Meanwhile, the mother spent most of her days alone in her bedroom drinking alcohol. One could only imagine how lonely their children were while both parents were doing this.

Even though they had nannies who regularly took care of their children, this just made the children have a more distant relationship with their parents. The father then stated that the relationship with the mother was over around June-July 2019.

The Father's Family Violence Tendencies

The mother and the maternal grandmother found the father in his villa with another woman with drugs and alcohol everywhere. The incident broke into a fight that resulted in the father removing one of the children from the arms of the maternal grandmother. This was a clear sign of family violence from the father.

Ms Devin then called the police and the father left the villa in order to de-escalate the situation. They also went back to his villa the next day in order to get important documents like the children's birth certificates. However, the children's passports were nowhere to be found. Ever since this incident, the father has not contacted her and even blocked her on Facebook.

Disadvantages of the Children Moving to the US

In this case, the court highlighted the disadvantages of the children moving to the U.S. with their mother. Let's look at each of them:

  1. The children living with their mother in the U.S. would pose a lot of difficulties for parenting arrangements.
  2. Ms Devin was also diagnosed with Borderline Personality Disorder (BPD). This led to her self-destructive coping mechanisms whenever she felt distressed. According to her doctor, this diagnosis has consequences for her parenting abilities.
  3. Since the children also had nannies back then, the mother might also have a hard time parenting the children.
  4. The children will also grieve for losing equal time with their maternal grandmother and grandfather.

Despite these disadvantages, the mother defended that she abstained from drugs and alcohol in order to be a proper parent. The father, on the other hand, failed to abstain from his substance and alcohol use. Remember, courts will always look at how much a parent is willing to change their behaviour and patterns if they want rights over their children.

Conclusion

While the judge saw the move as difficult, this was the best way for the children to benefit in the long run. Since the mother was able to prove her abstinence and undergo treatment for her BPD, the court approved her move to the US. The father, on the other hand, agreed to get child contact through four annual visits with the children.

Child Custody Cases: Example #2

Let's look at the second case of Killam & Loeng (2015). Mr Killam (the father) appealed against Ms Loeng's (the mother) decision to move their children permanently from Australia to China. According to the father's affidavit, he proposed this move because both of their children have dual Chinese-Australian citizenship. However, the two daughters are not allowed to hold Chinese passports because they have Australian passports.

The Father's Proposal on Equal Shared Parental Responsibility

The judge then questioned the dual citizenship because the two daughters hadn't secured a Chinese passport. Mr Killam sought parenting orders that her daughters and Ms Loeng should stay in Australia and share parental responsibility. Equal shared parental responsibility enables the child's parents in making day to day decisions for their children.

Mr Killam wants this arrangement because he wants their children to live equally with them. However, he also proposed that he has sole parental responsibility/primary custody and that the mother should return to China. Sole parental responsibility enables parents to make minor and major decisions in their child's life without the other parent's input.

The Mother's Proposal

On the other hand, the mother had a different parenting plan. In contrast, Ms Loeng wanted her two daughters to return to China with her because of the elder child's school arrangements in Shanghai. She also claimed that both of the daughters had close relations with the maternal grandparents.

Considering Chinese Law in Child Custody Cases

Chinese family law only permits the guardianship of children after a divorce. However, in this case, both Mr Killam and Ms Loeng are still married. Hence, Mr Killam cannot claim the guardianship of his two daughters and rights to visit. Now, what happens if Killam and Loeng choose to divorce in China and still have disagreements about custody? This is the only time the Chinese Court will step in and make a decision with them through court proceedings.

Conclusion

The judge never found any issues or allegations of family violence or improper parenting regarding the improper care of the parents when they were living in China. Hence, the judge concluded that:

  • The children will have a meaningful relationship with both their parents if they return to their homeland in China
  • The two children may experience negative effects if they don't adapt to the environment in China, though these negative effects are not detrimental.
  • The father wasn't able to prove that it would be in the best interest of the child if they stayed in Australia.

The judge dismissed Mr Killam's appeal, but Mr Killam sought to appeal the decision. His primary concern was mainly about:

  • A competitive education system that will cause stress to his children.
  • China's air pollution
  • Long and extremely cold winters will restrict the daughters to spend time during outdoor activities
  • Other Chinese people refer to his daughters as "Westerners". Hence, other people will see them differently and may experience discrimination.

Despite the father's efforts in his appeal, the higher courts believe that the judge made the right decision to dismiss Mr Killam's appeal. However, the judge stated that the couple knew these conditions and still decided to have their second child there.

Furthermore, the judge also considered that extended family members in China would be beneficial for parenting arrangements in China. Mr Killam's appeal was once again dismissed and was ordered to pay Ms Loeng's legal costs and return to China in order to spend equal time with them.

Importance of Mediation in Child Custody Cases

The two child custody cases in this article highlight the importance presented the importance of preparing for court procedures or appealing a judge's decision. Maybe both parenting agreements would have turned out differently if both couples chose mediation. Mediation is a method that enables both parties in a divorce to work out their disagreements without court interference.

Imagine if Martell in the first child custody case agreed to go to mediation with his wife. Martell could have agreed to go to rehab for his violent tendencies. As for Devin, she could also have agreed to immediately get help for her BPD and also go to rehab for her alcoholic tendencies.

Killam and Loeng could also have opted for mediation and worked out the best parenting arrangement. As mentioned, there were no allegations of family violence and abuse in their case. However, both could not work out what they prefer for their children. Maybe they also failed to really understand what was in the best interest of their children. Mediation could help with this and saved them from costly court proceedings.

How Can Our Family Lawyers Help With Child Custody Cases?

JB Solicitors' mediation services quickly resolve parenting disputes and help parties reach a resolution that they will both agree on. Decisions in mediation will still adhere to the child's best interests. Our family lawyers have decades of experience in family law and will provide the best legal advice when it comes to family law cases involving child support and spousal support.

Contact a family lawyer today to find out the perfect parenting agreement for you.

You can also watch our video below on how to apply for sole custody of your child.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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