Hester and West

In *Hester & West* [2014] FamCA 78, the Family Court of Australia considered an application by the father, Mr Hester, for interim parenting orders concerning his children, B and P. The father sought orders for the children to live with him and for him to have sole parental responsibility, as well as the suspension of previous interim orders made by the Local Court. The mother, Ms West, was unrepresented and had no notice of the present application due to her circumstances.

The primary legal issues before the Court were whether the children should change their residence and live with the father on an interim basis, and what order as to parental responsibility was appropriate in the circumstances. These issues were to be determined by reference to the paramount consideration of the children's best interests, as outlined in sections 60CA and 60CC of the *Family Law Act 1975* (Cth). The Court also considered the presumption of equal shared parental responsibility under section 61DA and whether it should apply in this interim proceeding.

Justice Foster applied the principles established in *Goode & Goode* [2006] FamCA 1346 and *Marvel & Marvel (No. 2)* [2010] FamCAFC 101. The Court found that the presumption of equal shared parental responsibility did not apply in these interim proceedings, given the mother's involuntary admission to a mental health unit. The Court gave significant weight to the primary consideration of protecting the children from harm, as reinforced by section 60CC(2)(b) and the amendments to section 60CC(2A). Based on the father's affidavit detailing concerns about the mother's mental health, her partner's drug use, and concerning behaviour towards the children, the Court was satisfied that it was in the children's best interests to make interim orders for the father to have sole parental responsibility and for the children to reside with him.

Accordingly, the Court ordered that pending further order, the father have sole parental responsibility for the children and that the children live with him. Interim orders made by the Local Court on 10 April 2013 were suspended. The Court also made directions for service of the orders and application on the mother, for the filing of a response by the mother, and for the issuance of subpoenas, with the matter adjourned for a further case management hearing.