BAILEE & MCKAYLA

In the matter of Bailee and McKayla, before Le Poer Trench J of the Family Court of Australia, the dispute concerned an application by the father for the children to reside with him. The children, aged eight, had their mother as their primary carer. One child suffered from a significant health problem requiring constant monitoring and assistance. The father sought a change of residence, supported by expert recommendations, despite the children expressing a wish not to have contact with him and the mother's unwillingness to facilitate a relationship.

The court was required to determine whether a change of residence to the father's care was in the best interests of the children, considering their ages, the health needs of one child, the children's expressed wishes, and the mother's allegations of family violence against the father. Specifically, the court had to assess the applicability of the presumption of equal shared parental responsibility under section 61DA of the *Family Law Act 1975* (Cth) in light of findings of family violence.

Le Poer Trench J found that the mother's allegations of sexual assault by the father against the children were not substantiated, with expert opinion suggesting the children's alleged memories were unlikely given their age and potentially fabricated by the mother. Consequently, the presumption of equal shared parental responsibility did not apply. The court concluded that ordering a change of residence to the father's care was not in the children's best interests, particularly given the children's expressed wishes and the mother's role as primary carer for a child with significant health needs.

The court ordered that all previous parenting orders be discharged. The mother was granted sole parental responsibility for the children, with no order for the children to spend time with the father. However, the father was permitted to send letters, cards, and presents, and the mother was ordered to provide him with regular updates on the children's progress, photographs, and school reports. The father was also to provide his contact details and notify of any changes. The court recommended therapeutic counselling for both parents and granted the father leave to seek variations of the orders upon the children turning 12.