Bateman & Bateman

This case involved an urgent application in the National COVID-19 list concerning the parenting arrangements for three children, X (born 2003), Y (born 2005), and Z (born 2008). The mother sought the reinstatement of previous care arrangements for the youngest child, Z, and the return of an urgent Child Inclusive Conference. The eldest children, X and Y, resided with the mother and were estranged from the father, while Z had been subject to an equal shared care arrangement that was unilaterally altered by the father, leading to the separation of the siblings and a deterioration of their relationship. Allegations of family violence, parental alienation, and coaching by the father were raised, and the mother had obtained an interim intervention order.

The court was required to determine several legal issues, including whether the presumption of equal shared parental responsibility applied to the eldest children, X and Y, given their ages and estrangement from the father. It also needed to consider the parents' inability to co-parent effectively, the father's capacity to meet the children's emotional and intellectual needs, his attitude towards the mother, and his lack of insight into his behaviour. The court had to assess the best interests of the children under section 60CC of the Family Law Act 1975 (Cth), giving significant weight to the views expressed by the eldest children.

Her Honour Judge C. E. Kirton QC found that the presumption of equal shared parental responsibility did not apply to the eldest children, X and Y. The court adopted a conservative approach, prioritising the best interests of the children. The reasoning highlighted the father's denigration of the mother and his lack of insight, which impacted his capacity to co-parent. Consequently, the court made interim orders, including granting the mother sole parental responsibility for X and Y, subject to consultation with the father on significant long-term decisions. X and Y were ordered to live with the mother and spend time and communicate with the father according to their wishes. Z was to live with the father, with specific interim time arrangements for Z to spend time with the mother. The court also ordered the father to complete a Men’s Behavioural Change Program and appointed an Independent Children’s Lawyer to represent the children. Further orders addressed communication protocols between the parents, changeover arrangements, and restraints on parental behaviour, including prohibitions on denigrating the other parent in the children's presence.