Lay and Isbister

In the Family Court of Australia at Sydney, O'Ryan J presided over proceedings concerning parenting orders between Mr Lay (the Applicant Father) and Ms Isbister (the Respondent Mother) regarding their child, W. The dispute centred on the arrangements for W's time with each parent, particularly the commencement and nature of overnight stays with the Father. The proceedings were initiated by the Father's application in May 2006, with the Mother filing a response and amended response thereafter.

The court was required to determine the most appropriate parenting orders for W, considering the paramountcy of her best interests. This involved assessing the primary considerations under section 60CC of the *Family Law Act 1975* (Cth), namely the benefit to W of a meaningful relationship with both parents and the need to protect her from harm. The court also had to consider the thirteen additional factors listed in section 60CC, including the child's views (though deemed immaterial due to her age), the nature of her relationships with each parent, and each parent's willingness and ability to facilitate a relationship with the other. Furthermore, the court had to apply the presumption of equal shared parental responsibility under section 61DA and consider whether it applied, was rebutted, or if orders for equal or substantial and significant time were in W's best interests and reasonably practicable.

O'Ryan J applied the principles of the *Family Law Act 1975* (Cth), emphasising the best interests of the child as the paramount consideration. The court found that the presumption of equal shared parental responsibility applied and was not rebutted. However, after considering the child's developmental stage, the parents' history of conflict, and the need for a graduated approach to overnight stays, the court determined that neither equal time nor substantial and significant time with each parent was appropriate at that stage. The court accepted the Family Consultant's recommendation for an increase in time spent with the Father over a period, but did not agree with the specific regimes proposed by either parent or the consultant. The court also ordered that both parents attend family counselling and placed W on the airport watch list, restraining either parent from removing her from Australia without consent or court order.

The court discharged all previous parenting orders and made new orders establishing equal shared parental responsibility for W. The orders detailed a phased approach to W's living arrangements with her Father, commencing with shorter periods and gradually increasing to alternate weekends and significant portions of school holidays from February 2008 onwards. The Mother retained the primary residence for W, subject to the Father's periods of residence. The orders also included provisions for communication between parents regarding W's health and education, and mutual restraints against denigration of the other parent.