Anais and Anais

In *Anais & Anais* [2013] FamCA 128, the Family Court of Australia considered parenting orders concerning a child, J, born in March 1998. The applicant father, Mr Anais, and the respondent mother, Ms Anais, had a history of significant conflict since their separation in 2006. The dispute centred on where J, who was approaching 15 years of age at the time of judgment, should live and spend time, following a period where she had been living primarily with her father since an incident in August 2010.

The court was required to determine the best interests of J, applying the principles outlined in the *Family Law Act 1975* (Cth). Specifically, the court had to consider whether to make orders for equal shared parental responsibility, and if so, whether equal time or substantial and significant time with each parent was in J's best interests and reasonably practicable. The court also had to weigh the child's expressed views, the impact of parental conflict, and the potential for each parent to facilitate J's relationship with the other.

Forrest J applied the paramountcy principle of the child's best interests, considering the primary and additional considerations under section 60CC of the *Family Law Act 1975*. The court noted the presumption of equal shared parental responsibility and, given the agreement of the parties and the Independent Children's Lawyer, made such an order. However, the court found that equal time was not in J's best interests, nor was it reasonably practicable given the circumstances. Instead, the court determined that substantial and significant time with each parent was appropriate. The reasoning heavily relied on evidence from J's school counsellor and a social worker, which indicated J's strong preference to live with her father due to concerns about her mother's alcohol consumption and anger management, and her distress at the prospect of returning to her mother's primary care. Despite acknowledging the father's inappropriate conduct in involving J in the dispute, the court concluded that the risk of trauma and distress to J from a forced transition back to her mother's principal care outweighed the concerns about the father's behaviour.

The court ordered the discharge of all previous parenting orders and that J have equal shared parental responsibility with her parents. J was to live with her mother for specific periods during school holidays and every second week during school terms, and live with her father at all other times. The orders also detailed specific times for J to spend with each parent on significant days and included provisions for communication, information sharing, and dispute resolution. The Independent Children's Lawyer was discharged after conveying the outcome to J.