MILLBANK & MILLBANK

In *Millbank & Millbank* [2021] FamCA 80, the Family Court of Australia considered an application by the father (the applicant) for orders concerning his two children, X and Y. The mother (the respondent) sought sole parental responsibility for the children, with the father having time with them in accordance with their wishes, and a non-denigration order. The father had filed a notice of discontinuance, indicating he no longer intended to participate in the litigation. The independent children's lawyer supported the orders sought by the mother.

The court was required to determine whether to grant the mother sole parental responsibility for the children, and to make orders regarding the father's time with them and a non-denigration clause. Central to the determination was the application of the principles in the *Family Law Act 1975* (Cth), particularly concerning the best interests of the children, the presumption of equal shared parental responsibility, and the impact of family violence.

Justice Wilson found that the primary consideration of family violence under s 60CC(2) of the *Family Law Act 1975* was enlivened. The evidence, including affidavits from the mother and the report of a family consultant, revealed a history of the father's concerning behaviour, including alcohol abuse, anger issues, derogatory remarks towards the mother and children, and a lack of engagement with the children since July 2020. The court noted a high likelihood that the parents would be unable to communicate or cooperate effectively for equal shared parental responsibility. Furthermore, the court entertained a "very real fear" that the father would not act protectively towards the children to prevent the risk of their exposure to family violence, particularly given the reported risk posed by his new wife's teenage son.

Consequently, the court ordered that the mother have sole parental responsibility for the children in relation to their care, welfare, and development, including decisions about passports. The children were to live with the mother and spend time with the father in accordance with their wishes and as agreed in writing. Both parents were also ordered to refrain from making critical or derogatory remarks about the other parent or their families in the presence or hearing of the children.