Elspeth & Peter

This case involved parenting orders sought by Elspeth ("the mother") and Peter ("the father") concerning their three children, L, J, and C. The father sought orders for the children to live with him and for equal shared parental responsibility, along with orders restraining both parties from denigrating each other or their religious beliefs. The mother sought dismissal of the father's application, sole parental responsibility, and no orders for the children to spend time or communicate with the father. The proceedings were heard in the Family Court of Australia.

The central legal issues before the Court were: the presumption of equal shared parental responsibility under the *Family Law Act 1975* (Cth) and whether it should apply or be rebutted; the paramount consideration of the children's best interests, assessed through the primary and additional considerations outlined in section 60CC of the Act; the impact of the Exclusive Brethren faith on the children's welfare and their relationships with their parents; the capacity of each parent to promote a relationship between the children and the other parent; and the children's expressed wishes and the weight to be given to them. The Court also considered the practicalities of implementing any orders, including the distance between the parents' residences and the potential for conflict arising from the parents' differing religious beliefs and lifestyles.

The Court's reasoning focused on applying the principles of the *Family Law Act 1975*, particularly the presumption of equal shared parental responsibility and the paramountcy of the children's best interests. The Court found that the presumption of equal shared parental responsibility should apply, as there were no reasonable grounds to believe abuse or family violence had occurred. While acknowledging the mother's strong religious convictions and the children's deep connection to the Exclusive Brethren faith, the Court determined that the children's best interests required them to maintain a meaningful relationship with their father. The Court found that the children's expressed wishes against contact were significantly influenced by their family and community, and that continuing contact, free from undue influence, would ultimately benefit them. The Court also considered the need to protect the children from psychological harm, noting that the emotional removal from the father was considered a form of psychological abuse by an expert witness. The Court ultimately concluded that while the children should continue to live with the mother, they should spend time with the father, with specific orders designed to facilitate this contact and prevent denigration of either parent or their beliefs.

The Court made orders for equal shared parental responsibility for the children L, J, and C. The children were ordered to live with the mother. Specific arrangements were made for L to spend time with the father on alternate Saturdays during school terms, for the first two days of each Tasmanian school holiday period, on Father's Day, and any further agreed time. J and C were ordered to spend time with the father on alternate weekends during school terms, for the first week of mid-term school holidays, from 14 January each year, and on Father's Day if not otherwise scheduled. The orders also included provisions restraining both parents from discussing or denigrating the other's faith or lifestyle in the presence of the children, and requiring both parents to encourage positive communication between the children and the other parent. Further orders facilitated the father's access to school information and mandated the use of a communication book.