Barton and Jermyn

In the Family Court of Australia, Mr Barton (the applicant father) and Ms Jermyn (the respondent mother) sought parenting orders concerning their two sons, D (born 1994) and J (born 1999). The court's jurisdiction was limited to D, as J was subject to existing orders from the Children's Court of New South Wales placing him in the father's care. The proceedings involved the father seeking orders for both sons to live with him and spend time with their mother, while the mother initially sought for the boys to live with her after a period. The Independent Child's Lawyer proposed specific orders for D, to which the father consented, but the mother maintained her application for D to live with her.

The court was required to determine the best interests of the child D, considering the paramountcy of this consideration under section 60CA of the *Family Law Act 1975* (Cth). This involved assessing the primary considerations under section 60CC(2), namely the benefit of a meaningful relationship with both parents and the need to protect the child from harm. The court also had to consider the additional considerations under section 60CC(3), including the child's views, the nature of relationships with parents and others, the parents' willingness and ability to facilitate a relationship with the other parent, the likely effect of any changes in circumstances, practical difficulties and expenses of spending time with a parent, and the capacity of each parent to provide for the child's needs. Furthermore, the court had to consider the presumption of equal shared parental responsibility under section 61DA, unless there were grounds to rebut it.

Stevenson J reasoned that the mother had made significant progress in addressing past difficulties that had led to intervention by the Department of Community Services. The court found that D benefited from a meaningful relationship with both parents and that there was no evidence to suggest a need to protect him from harm. The child's views, as reported by a Family Consultant, indicated a clear preference to live with his father, citing his desire to remain at his current school and his relationship with his stepmother. While acknowledging the mother's positive influence and her legitimate concerns regarding D's educational and behavioural progress, the court found that the father and his wife were taking appropriate steps to address these issues. The court also noted the stability of D's current living arrangements with his father and stepmother, contrasting this with the perceived uncertainty and potential instability of the mother's current circumstances. The significant distance between the parties' residences made shared care impractical.

Consequently, the court made orders in accordance with the Minute submitted by the Independent Child’s Lawyer. These orders discharged all existing parenting orders relating to D, established equal shared parental responsibility, stipulated that D would live with the applicant father, and detailed the mother's time with D, including alternate weekends, half of school holidays, and provisions for communication and travel. The father was also ordered to facilitate the mother's access to school reports and correspondence concerning D.