PETCHLER & DUNKLE

In the matter of Petchler & Dunkle, Austin J of the Family Court of Australia considered a dispute between the mother and the father concerning the children B and C. The mother did not attend the final trial, and her lawyers informed the court of her refusal to participate. The father and the Independent Children’s Lawyer sought orders that were reasonably contemplated by the mother.

The court was required to determine with whom the children should live and spend time, and whether the finalisation of proceedings should be delayed due to the mother's non-attendance. The court also had to consider the welfare of the children in light of the parents' respective capacities and circumstances.

Austin J reasoned that the finalisation of proceedings should not be delayed due to the mother's failure to appear. The court found that while the father was not an optimum parent, he had the superior capacity to meet the children's needs and the child welfare authority considered the children safe in his care. Crucially, the mother had willingly cohabited with a man she knew was being prosecuted for sexual offences against other children, and who had likely sexually abused one or both of the children. The court determined that stability for the children was vitally important.

Consequently, Austin J ordered that all former orders relating to the children be discharged, that the father have sole parental responsibility, and that the children live with the father. The father was granted the discretion to decide if, when, and how the children spend time or communicate with the mother, with no specific orders made for contact. Certain restraints were also imposed on both parents and the father regarding the care of the children.