Michelle and Horsley

This matter concerned an application before Benjamin J in the Family Court of Australia, brought by the mother seeking orders for sole parental responsibility and the child to live with her. The Independent Children's Lawyer supported the mother's application. The parties had separated in late October 2001, with the child remaining in the mother's primary care since birth. A significant issue arose in October 2006 when the mother alleged sexual abuse of the child by the father. Following police and Department of Child Safety investigations, the allegations were not substantiated, and the Department withdrew its recommendation for supervised contact. Despite this, there was an eleven-month period where the child did not spend time with the father, followed by supervised contact until May 2006, after which unsupervised alternate weekend contact was ordered.

The court was required to determine the most appropriate parenting orders for the child, considering the history of the relationship, the separation, the allegations of abuse, and the subsequent investigations and contact arrangements. Central to the determination was the application of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), which had recently come into effect. The court had to weigh the best interests of the child in light of these circumstances and the legislative framework.

Benjamin J ultimately ordered that the mother have sole parental responsibility for the child and that the child live with the mother. The father was granted specific time with the child, including alternate weekends during school terms, half of school holidays, and specific arrangements for Christmas and Father's Day. These arrangements included provisions for collection and delivery, and changeover locations, with shared costs for a supervised centre if required. The court also made a specific order for the child to spend time with the parent not otherwise with the child between 3:00 pm on Christmas Day and 3:00 pm on Boxing Day each year.