SMYTHE & BANKS

This case concerned a dispute between Smythe and Banks regarding the residence and parental responsibility of their three children, B, C, and D. The children's living arrangements were divided between the parties, with the two older children living with the father and the youngest child living with the mother. Both parties were found to be in contravention of interim orders.

The court was required to determine the children's best interests, specifically considering the wishes of the two older children, who were aged 16 and 15 and expressed a desire to live with their father. The court also had to assess allegations of family violence made by the mother against the father, and evidence of family violence perpetrated by the father against a subsequent partner, for which he had been convicted of assault. The court needed to evaluate the impact of the father's alleged undue influence on the older children's expressed wishes and the potential for the children to be exposed to family violence in the father's household.

Austin J concluded that the father had unduly influenced the older children's wishes, regardless of whether this influence was intentional or inadvertent. Furthermore, the court found that the father had perpetrated family violence, and there was no reliable evidence that his mental health issues, which he attributed the violence to, would improve. Both the father and his current partner minimised the seriousness of the family violence. Consequently, the court determined that the children would likely be exposed to family violence in the father's household.

The court ordered that the children live with the mother and that she have sole parental responsibility. The children are to spend supervised time with the father on four occasions per year. The father is restrained from contacting the children other than in accordance with these orders and is prohibited from having the children at his residence. The parties are also restrained from denigrating each other and from inflicting corporal punishment.