McCarthy and Kaminski & Anor

The Family Court of Australia considered parenting orders concerning three children, B, C, and Z. The proceedings involved the children's father, Mr McCarthy (the Applicant), the children's mother, Ms Kaminski (the Respondent), and the children's maternal grandmother, Dr D Kaminski, who intervened in the proceedings. An Independent Children's Lawyer (ICL) was also appointed to represent the children's interests. The dispute centred on allegations of family violence and sexual abuse, and the primary issue was with whom the children should live and spend time.

The court was required to determine several legal issues, including whether the presumption of equal shared parental responsibility applied, given the hostility between the parents and findings of family violence. It also needed to assess the credibility and impact of allegations of sexual abuse made against the Father, particularly in light of the Mother's retraction of these allegations during the trial and the maternal grandmother's continued assertion of them. Furthermore, the court had to consider the children's best interests regarding their living arrangements, time spent with each parent, and the role and potential influence of the maternal grandmother. The court also had to address the issue of costs, specifically concerning the appointment of the ICL.

Justice Kent found that the maternal grandmother had exaggerated the Father's conduct and that his actions were a consequence of household dynamics, including significant conflict between the Father and the maternal grandmother, and an enmeshed relationship between the Mother and her mother. The court determined that the allegations of sexual abuse against the Father were groundless and that the maternal grandmother had advanced these allegations with the motivation to harm the Father, influencing other family members. Consequently, the court found no need for protection for the children in their current environments away from the maternal grandmother. The Mother was identified as the children's primary attachment figure, and the balance of considerations favoured the children remaining in her primary care. The court also found that the maternal grandmother posed a risk of emotional abuse to the children and that the eldest child was fearful of her.

The court made orders that the presumption of equal shared parental responsibility was rebutted. The Mother was granted primary parental responsibility for major long-term issues, with specific requirements for consultation with the Father. The children were ordered to live with the Mother, and detailed arrangements were made for the children to spend time and communicate with the Father. Crucially, the maternal grandmother was restrained from spending time or communicating with the children, and both parents and the maternal grandmother were restrained from speaking negatively about each other in the children's presence or discussing the proceedings or allegations. The maternal grandmother was also ordered to pay the costs of the Independent Children's Lawyer on an indemnity basis due to her pivotal role in advancing groundless allegations.