HEMMINGWAY & HOLMES

This case concerned a dispute between a mother and father regarding the parental responsibility and living arrangements for their two children. The children had been living with the mother since the parties' separation, though they had also spent significant time with the father. The proceedings were brought before Austin J in the Family Court of Australia.

The court was required to determine several critical issues, including whether the presumption of equal shared parental responsibility applied, given allegations of past family violence perpetrated by the father against the mother, and allegations of physical and sexual abuse of the children by the father, as well as sexual abuse of the children by the mother's partner and a friend of the mother's partner. The court also had to decide with whom the children should live and the nature and extent of the time the children should spend with each parent, considering the children's relationships with both parents and the mother's partner, and the parties' inability to communicate effectively.

Austin J found that the presumption of equal shared parental responsibility did not apply due to the past family violence. The court determined that the father did not pose an unacceptable risk of sexual abuse or physical harm to the children, and that the mother's partner also did not pose an unacceptable risk of sexual abuse. However, the court noted high inter-parental conflict and the parties' unsuitability for a shared parenting arrangement. Consequently, the court allocated sole parental responsibility to the mother and ordered that the children live with her. The court also reduced the children's time with the father from four days and nights per fortnight to two days and nights per fortnight, and restrained the father from discussing the mother's partner in the presence or hearing of the children.

The court made detailed orders regarding the children's time with the father, including specific arrangements for school terms and holidays, and daily communication. Further orders included restraining the father from entering school grounds without the mother's consent, requiring a communication book, and prohibiting denigration of the other parent. The court also ordered both parties to complete a post-separation parenting program.