GAINFORTH & GAINFORTH

In *Gainforth & Gainforth* [2011] FamCA 757, the Family Court of Australia considered competing interim parenting orders sought by the mother and father of four young sons. The mother sought sole parental responsibility and residence with her, while the father sought equal shared parental responsibility and a more extensive time arrangement with the children. The dispute arose following the breakdown of the parties' marriage, with an initial arrangement of equal time with each parent proving unsatisfactory.

The court was required to determine whether the presumption of equal shared parental responsibility under section 61DA of the *Family Law Act 1975* (Cth) should apply, and if not, what interim orders for parental responsibility, residence, and time would be in the best interests of the children. Key issues included allegations of family violence by the mother against the father, the father's diagnosed depression and past issues with alcohol and illicit substances, and the specific developmental needs of the younger children, particularly one with significant health issues.

Cleary J applied the principles of section 60CC of the *Family Law Act 1975* (Cth) to determine the children's best interests. While unable to make a finding of family violence based on untested evidence, the court adopted a conservative approach due to the very young age of the children and the mother's report of a deliberate assault. The court found that the mother had a greater capacity to meet the developmental needs of the two younger children, who required greater stability. The father's history of depression, past substance use, and an incident involving damage to a wall were also considered, alongside his efforts to modify his drinking and cease marijuana use.

Consequently, the court ordered that the mother have sole interim parental responsibility for the children. The children were to live with the mother and spend regular time with the father, with overnight visits to commence once the father had secured independent accommodation. The paternal grandmother was to be present during the father's initial weekend time with the children. Specific provisions were also made for Christmas, birthdays, Mother's Day, and Father's Day.