Elderton & Boston

In the matter of *Elderton & Boston*, Cleary J of the Family Court of Australia considered parenting orders concerning a child, X Elderton Boston. The dispute arose following the father's conviction and imprisonment for the sexual assault of the mother's daughter from a previous relationship, who was a member of the household. The child had been shielded from knowledge of these assaults. The mother sought sole parental responsibility, no time or communication with the father, and permission to change the child's surname, expressing fear of the father's punitive actions upon his release.

The court was required to determine whether the presumption of equal shared parental responsibility applied, given the father's criminal conduct. It also had to consider the best interests of the child in relation to time and communication with the father, and whether the mother should be granted sole parental responsibility, including the authority to change the child's surname. The court also had to assess the potential benefit or harm of any contact between the child and the father.

Cleary J found that the presumption of equal shared parental responsibility did not apply, pursuant to section 61DA(2)(a) of the *Family Law Act 1975* (Cth), due to the father's engagement in abuse of another child who was a member of the household. The court accepted the mother's evidence of fear and the lack of a meaningful relationship between the child and the father, who had not seen each other for several years. The court reasoned that there was no benefit to any form of time or communication, and that such contact could cause distress and emotional harm. The mother's concerns regarding the child's security, reassurance, and potential distress upon learning of the assaults were also considered significant.

Consequently, the court ordered that the mother have sole parental responsibility for the child, including the authority to change the child's surname without reference to the father. Orders were made for no time and no communication between the child and the father. Furthermore, the father was restrained from approaching or contacting the mother and the child, with specific distance restrictions from their residence and any school or extra-curricular activities attended by the child.