Smith & Smith

This matter concerned an application by the mother, which was dismissed by the Court. The father was granted sole parental responsibility for the two children, S and C, who were ordered to live with him. Crucially, the orders stipulated that the children were not to spend any time with or have any communication with the mother. The mother was required to keep the Court informed of her contact details, and the father was to inform the children of these details should they request them. The father was also enjoined from moving the children’s place of residence outside of Australia.

The Court was required to determine the best interests of the children in light of allegations made by both parents concerning each other's behaviour. The primary legal issue revolved around the children's wishes and their safety, particularly in relation to any contact with their mother.

Burr J found that while historical allegations of behaviour were made, they were not relevant to the current determination. The Court was satisfied that the children were secure and safe in their current environment in Darwin. Significant weight was given to the views of the children, S and C, who were interviewed by Mr R. Both children expressed a strong and clear desire for no contact with their mother, citing past experiences of sexual abuse, neglect, and a desire to maintain their current stable family life. Mr R's report indicated that the children's views were their own and not influenced by the father, who would be concerned about their safety and well-being if contact were to occur. The Court accepted the children's views as genuine, based on their experiences and the parental conflict.