CHESTERTON & THEODORE

In a parenting application before Judge A. Kelly of the Federal Circuit Court of Australia, the applicant father sought orders concerning his children, X and Y. The dispute arose following the parties' separation, during which the relationship between the applicant and the children deteriorated significantly. The applicant had not seen the children since early 2018. The court was presented with evidence of a pattern of significant dispute post-separation, including the applicant's demands for the respondent to vacate the former matrimonial home, his introduction of new partners to the children, police involvement stemming from various incidents (including the applicant reporting his eldest child for alleged domestic violence), and a disclosure by the youngest child that led to child protection services involvement. The children expressed a clear wish not to communicate or spend time with the applicant.

The central legal issues before the court were whether the applicant had the capacity to recognise the present difficulties in his relationship with the children, and what parenting orders were in the best interests of X and Y, given the evidence of alienation by the applicant and the children's entrenched views. The court was required to consider the applicable principles of family law in determining parental responsibility, living arrangements, and the nature and extent of any future contact between the applicant and the children.

The court's reasoning focused on the preponderance of evidence, which supported the conclusion that the applicant was alienating the children, rather than the children being alienated from him. Despite extensive evidence attesting to the applicant's non-violent demeanour and undoubted love for his children, the court found that the applicant lacked the capacity to recognise the present difficulties. Applying the best interests of the children as the paramount consideration, the court discharged all previous orders and made new orders.

The final orders provided that the respondent mother have sole parental responsibility for the children, and that the children live with her. Contact between the children and the applicant father was to occur only in accordance with the children's wishes. The applicant was restrained from initiating contact or communication with the children, their school, activities, or health professionals, and from initiating contact with the respondent or attending at the respondent's or maternal grandparents' residences. Limited contact was permitted via telephone and/or video-conference at the children's request, and the applicant was permitted to send a limited number of letters and gifts annually, subject to vetting by the paternal aunt. The court also made provisions for the children's passports and travel, and directed the Independent Children's Lawyer to convey an apology from the applicant to the children and to communicate the effect of the orders. The appointment of the Independent Children's Lawyer was to be discharged within 28 days.