MARSDEN & MARSDEN

In the matter of MARSDEN & MARSDEN, McClelland J of the Family Court of Australia considered applications by both the mother and father concerning the parental responsibility, living arrangements, and time spent with their three children, M, A, and V. The dispute arose following the parents' separation, with the two eldest children, M and A, residing with the father, and the youngest child, V, residing with the mother. Both parents sought sole parental responsibility for all three children and for the children to live with them.

The court was required to determine the best interests of the children, specifically addressing the separation of siblings, the parenting capacity of each parent, and the impact of parental conflict on the children. Key legal issues included the allocation of sole parental responsibility, the determination of where each child should live, and the arrangements for the children to spend time with the non-resident parent. The court also had to consider findings of family violence and the historical non-compliance with court orders by the parents.

McClelland J applied the principles enshrined in the *Family Law Act 1975* (Cth), including sections 43, 60B, 60CA, 60CC, 61DA, and 65DAA, and considered Article 19 of the United Nations Convention on the Rights of the Child. The court found concerns regarding the mother's parenting capacity in relation to M and A, while acknowledging her relationship with V as a protective factor. Conversely, the court made a positive finding of coercive and controlling family violence by the father and noted the significant impact of parental conflict on the children. The reasoning led to orders discharging previous parenting orders and establishing separate parental responsibility and living arrangements for the children. The father was granted sole parental responsibility for M and A, with M and A to live with him. The mother was granted sole parental responsibility for V, with V to live with her.

The court made specific orders for the children to spend time with the non-resident parent, allowing M and A to determine their time with the mother based on their wishes. For V, time with the father was ordered to be supervised until she reaches 13 years of age, with specific handover arrangements and a recovery order in place should the father fail to return V. The father was ordered to pay for the supervision costs. Furthermore, the court imposed restraints on both parents regarding communication and behaviour towards each other and the children, and ordered the father to pay half the costs of the Independent Children’s Lawyer.