Collard and Clary & Anor

This case, heard in the Family Court of Australia, concerned applications relating to the parenting of three children, L, M, and N, born between 1998 and 2000. The applicant father sought orders for all three children to live with him and his partner. The first respondent mother, whose whereabouts were unknown at the time of judgment, sought for M to live with her and for the girls to remain with their maternal grandmother. The second respondent, the maternal grandmother, sought orders for the girls, L and N, to remain living with her, but made no application regarding M. The Independent Children’s Lawyer represented the interests of the children.

The court was required to determine several complex legal issues. Firstly, it had to consider the best interests of the children, particularly in light of the father's unclear and changing proposals for their care, and the significant health difficulties experienced by the father, his partner, and the grandmother. Secondly, the court had to address the situation concerning M, whose whereabouts were unknown, and whether any orders should be made in respect of him, including whether a previously issued Recovery Order should remain in force or be discharged, especially given the mother's lack of participation in the later stages of the proceedings. Thirdly, the court had to decide whether the subject girls, L and N, who had lived with their grandmother for a significant period, should be removed from her care and placed with their father, whose ability to provide full-time care was untested and whose proposals were unsubstantiated. The court also considered the practicality of substantial and significant time for the non-live-with party and whether the live-with party should have sole parental responsibility.

In its reasoning, the court applied the paramount consideration of the best interests of the children as mandated by the *Family Law Act 1975* (Cth). The court noted the father's proposals were unclear and had changed throughout the proceedings, and that he, his partner, and the grandmother all had significant health difficulties. The court found it impractical for the father to have substantial and significant time with the girls, given the geographical distance and the existing care arrangements. The court also considered the concerning circumstances surrounding M, including his disappearance from the father's care and the mother's lack of engagement with the proceedings. The court discharged all previous orders in respect of the children and made new orders based on its assessment of the children's best interests.

The court ordered that the grandmother have sole parental responsibility for L and N, and that the children live with her. The father was granted specific time with L and N during school holidays and on alternate weekends, with detailed provisions for collection, return, and communication. The father was also to be notified of decisions affecting the long-term care and welfare of L and N, including education, religious upbringing, and health. All outstanding applications and cross-applications were dismissed, and all issues were removed from the Active Pending Cases List.