Dover and Dwight and Anor

The Family Court of Australia considered fresh proceedings concerning the living arrangements and parental responsibility for two young children, H Dwight and R Dwight. The proceedings were initiated by the paternal grandmother, Ms Dover, against the father, Mr Dwight, and the mother, Ms Elwyn. The dispute arose only months after final parenting orders were made in March 2013, with both the paternal grandmother and the father seeking to alter the existing orders and gain sole parental responsibility. The mother did not participate in these proceedings.

The court was required to determine with whom the children should live and spend time, and how parental responsibility should be allocated. Central to the determination were allegations of physical and sexual abuse made by the paternal grandmother against the father, which had led to the breakdown of the previous orders. The court also had to consider the children's best interests, including their attachment to their paternal grandmother and their relationships with their father, while assessing any unacceptable risk of harm.

Justice Austin found that the allegations of abuse against the father were not substantiated by the Department of Family and Community Services, and the court did not find an unacceptable risk of harm to the children in the father's care. However, the court noted the completely fractured relationship between the paternal grandmother and the father, and the children's primary attachment to the paternal grandmother, while acknowledging their meaningful relationships with the father. The presumption of equal shared parental responsibility was rebutted due to the acrimonious relationship between the paternal grandmother and the father.

Consequently, the court ordered that the previous final parenting orders be discharged. The paternal grandmother was granted sole parental responsibility for the children, and the children were ordered to live with her. The father was granted specific, albeit geographically limited, time with the children during school terms and holidays, reflecting the distance between their residences. The court also made orders regarding communication between the children and both parents, and imposed restraints on corporal punishment and denigration.