Branson & Fuller

This matter concerned parenting orders sought by Mr Branson (the applicant father) against Ms Fuller (the respondent mother) regarding their three children, X, Y, and Z. The proceedings were before Judge Obradovic.

The court was required to determine the best interests of the children in circumstances where both parents presented significant risks. The legal issues included assessing the probabilities of competing claims and the likely impact on the children of any decision, particularly in light of the father's history of violence and antisocial behaviour, including past alcohol and drug use, and the mother's history of drug and alcohol use and antisocial behaviour. The court also had to consider the children's prior primary care by the mother and their recent periods of time spent with the father.

The court reasoned that both households presented significant risks to the children, necessitating the selection of the "least-worst option." The court noted the father's past violence towards the mother, his arrest, custodial sentence, and the subsequent domestic violence order. It also acknowledged the mother's convictions for mid- and high-range drink driving, malicious damage, stalking, intimidation, and common assault. Despite these concerning histories, the court observed that the father had not come to adverse police attention since his release in December 2019, and the mother had no further offences after September 2019. Furthermore, recent inspections of the mother's household by the Department of Communities and Justice and the police had not raised safety concerns. The court also took into account that the children had spent increasing periods with the father since April 2021, albeit not in accordance with prior court orders.

Pending further orders, the court made extensive orders suspending prior parenting orders. The children were ordered to live with the father, with specific arrangements for the mother to deliver the children to him. The father was authorised to enrol the children in school in a new town. Detailed provisions were made for the children to spend time with the mother, including during school terms and holidays, with specific changeover locations. The orders also addressed special occasions, parental attendance at school and extracurricular events, communication protocols between parents, and provisions for obtaining medical information. Crucially, both parents were restrained from denigrating each other, discussing proceedings with the children, or permitting the children to see documentation related to the proceedings. The mother was also restrained from consuming alcohol or illicit drugs during periods the children were in her care, and the father was subject to an apprehended violence order restraining him from entering the mother's residence and from stalking or harassing her. Further orders mandated drug testing for both parents, with specific requirements regarding hair length and the frequency of testing. The father was also ordered to complete a specific course.