Spence & Garland & Ors

This matter concerned competing applications for parenting orders in respect of three children, X, Y, and Z, brought by family members. The proceedings had a lengthy history of litigation dating back to 2007, with multiple sets of final orders having been made. The Department of Family and Community Services had intervened, at one point being assigned sole parental responsibility for one of the children. The court noted that the litigation had become entrenched in the family dynamics, with a punitive tone in parenting proposals and non-compliance with orders by all parties being central issues. Both the mother and father had partners who posed risk factors to the children, and the father and his new partner had children in foster care. The court was required to make orders that provided stability for the children, considering the separation of siblings and the presence of step-siblings in both households.

The legal issues before the court included determining the residence of each child, allocating parental responsibility, and establishing the nature and extent of time each child would spend with their parents and paternal grandparents. The court also had to consider the significant hostility between the parties, rendering them incapable of discussing child-related issues, and the need to address risk factors associated with the parents' partners. Furthermore, the court was tasked with making orders that would provide a level of stability for the children, given the ongoing and entrenched nature of the litigation and the history of non-compliance.

Cleary J reasoned that in light of the entrenched hostility and the need for stability, it was in the best interests of the children to make specific orders regarding their residence and parental responsibility. The eldest child, X, was ordered to live with the mother, who was granted sole parental responsibility. The middle and youngest children, Y and Z, were ordered to live with the paternal grandparents, who were also granted sole parental responsibility for them. The court stipulated that for long-term decisions concerning Y and Z, the paternal grandparents were to notify the mother, consider her views, and then inform her of the final decision. Specific arrangements for time and communication between the children and their parents and grandparents were detailed, with particular emphasis on ensuring the safety and well-being of the children, including restraints on the parents' partners and requirements for supervision.