MITCHELL & MITCHELL

In the matter of *Mitchell & Mitchell*, Austin J of the Family Court of Australia considered interim orders concerning six subject children. The dispute arose from differing proposals regarding the children's living arrangements and time spent with each parent. Current interim orders stipulated the children live with the father and spend time with the mother, however, the children had not spent time with the mother for nine months and had not communicated with her for two months.

The court was required to determine with whom the children should live and spend time, considering the best interests of the children. Key issues included assessing the risk of harm alleged by each party, the impact of past family violence, the children's relationships with each parent, and the views of the two eldest children. The court also had to consider the applicability of the presumption of equal shared parental responsibility, given findings of past family violence.

Austin J reasoned that neither party's household offered an entirely beneficial residential experience. While the children generally had meaningful relationships with both parents, they currently appeared to derive more benefit from their relationship with the father. The court found that both parties had been perpetrators of past family violence, but there was no evidence of family violence between them since separation. The mother had a history of physically abusing the children, and while she alleged a risk of emotional harm from the father's current relationship, the father was considered better equipped to provide for the children's physical and intellectual needs. The court noted that a change of residence would be disruptive and that the mother's proposed orders would separate the children. The presumption of equal shared parental responsibility did not apply due to past family violence, and sole parental responsibility was allocated to the residential parent.

Consequently, the court ordered that the children live with the father and spend graduating time with the mother over the following three months. Thereafter, the children were ordered to spend time with the mother every third weekend during school terms, half of the school holidays, and 10 days during the summer school holidays. The residential parent was also compelled to ensure the child with a disability received prompt access to all benefits under the National Disability Insurance Scheme.