Fray and Round

In the Family Court of Australia at Sydney, Mr Fray (the applicant father) sought parenting orders in respect of his two-year-old child, A, against Ms Round (the respondent mother). The proceedings were undefended, with the mother having been served with notice of the father's application and the orders sought, but failing to appear or be represented. The father sought sole parental responsibility for the child and an order that the child live with him.

The court was required to determine whether to grant the father's application for sole parental responsibility and residence for the child, considering the paramountcy of the child's best interests. This involved assessing various factors under section 60CC of the Family Law Act, including the child's relationship with each parent, the child's age, the parents' capacity to provide for the child's needs, the need to protect the child from family violence, and the mother's past conduct and current circumstances. The court also considered whether the presumption of equal shared parental responsibility under section 61DA of the Act was rebutted.

Justice Rose reasoned that the child's best interests favoured the father having sole parental responsibility and residence. This conclusion was based on the father's demonstrated capacity to provide for the child's physical, emotional, and intellectual needs, the child's stable living environment with the father, and the child's positive progress. Crucially, the court noted disturbing evidence of the mother's abusive and threatening conduct towards the father, evidenced by an apprehended violence order and other police complaints, which raised concerns about her unstable lifestyle and health. The court found that the presumption of equal shared parental responsibility was rebutted due to the child's best interests and findings of family violence. The mother's lack of counter-proposals, her failure to acknowledge past behaviour, and her current circumstances meant the court was not satisfied that orders for contact between the mother and child were in the child's best interests at that time, though parties remained free to make their own arrangements.

The court ordered that the father have sole parental responsibility for the child and that the child live with the father. The previous order for a single expert report was discharged, and the father's oral application for costs was dismissed, with the notation that the independent children's lawyer no longer sought costs against the mother and the Legal Aid Commission had waived its potential fees from the father.