Fox & Nevin

In the matter of *Fox & Nevin*, heard by McClelland DCJ, the applicant mother sought parenting orders concerning the parties' three children. The dispute arose following the respondent father's conviction for the sexual abuse of the children. The proceedings were undefended, with the court proceeding on the basis of the mother's unchallenged affidavit evidence.

The court was required to determine whether to grant the mother sole parental responsibility for the children, order that the children live with the mother, and that the children spend no time with the father. Further, the court considered whether it was in the children's best interests to change their surname to 'Fox' and whether to make orders restraining the father from certain behaviours towards the mother and children, consistent with an existing Family Violence Order. A key legal issue was the application of the presumption of equal shared parental responsibility under s 61DA of the *Family Law Act 1975* (Cth) and whether it was rebutted by evidence of abuse.

McClelland DCJ reasoned that the father's conviction for sexual abuse of the children constituted abuse within the meaning of s 61DA(2)(a) of the *Family Law Act 1975*, which meant the presumption of equal shared parental responsibility did not apply. The court found there was an "unacceptable risk" of harm to the children if they were to spend time with or communicate with the father. Applying the best interests considerations under s 60CC of the Act, particularly the protection from harm caused by abuse or violence, the court concluded that a relationship with the father would not be "healthy, worthwhile and advantageous" for the children. The court also noted the father had not engaged with the proceedings since his release from gaol.

Consequently, the court ordered that the applicant mother have sole parental responsibility for the children, that the children live with the mother, and that the children spend no time with the respondent father. The court also ordered that the mother could apply to change the children's surnames to 'Fox', with the father to facilitate this. Pursuant to s 68B of the *Family Law Act 1975*, the father was restrained from various actions, including being on the mother's and children's premises, being within 100 metres of them, locating or contacting them except through a legal practitioner or with the mother's consent for counselling or mediation, and engaging in family violence. These restraining orders were made for the personal protection of the mother and children and were consistent with an existing Family Violence Order.