Tonkinson & Dallas

This case concerned parenting orders for two children, X and Z, born in 2010 and 2012 respectively. The mother, Ms Tonkinson, commenced fresh proceedings seeking to reverse the children's residence from the father, Mr Dallas, to herself. Final parenting orders had previously been made by consent. The children had been living with the father for the preceding five years and enjoyed meaningful relationships with both parents. The mother alleged the father was deliberately undermining her relationship with the children, while the father alleged the mother's partner posed a risk of harm to the children and sought an injunction to prevent unsupervised contact. The court was presided over by Austin J.

The central legal issues before the court were: firstly, whether the father's allegations of risk of harm posed by the mother's partner were substantiated, and consequently, whether an injunction was warranted; secondly, whether the father had deliberately acted to impair the children's relationships with the mother; and thirdly, in light of the paramount consideration of the children's best interests, with whom the children should live and spend time, and whether equal shared parental responsibility should be ordered. The court was required to consider the criteria outlined in section 60CC of the Family Law Act 1975 (Cth), including the importance of the children maintaining meaningful relationships with both parents and the need to protect them from harm.

Austin J found that the risks of harm alleged by the father concerning the mother's partner were not substantiated by the evidence. Similarly, the court found that the father was not deliberately acting to impair the children's relationships with the mother. The court noted that the children's best interests were served by them continuing to live with the father, given the stability and security of that household, the children's wishes to remain there, and the fact that all their physical and intellectual needs were met. The court also considered that reversing residence was unlikely to improve the prospect of future allegations regarding the mother's partner. The court determined that the children should spend substantial and significant time with the mother. The parties and the Independent Children's Lawyer mutually submitted for the allocation of equal shared parental responsibility, and the court found no reason to rebut the presumption in favour of this arrangement.

Consequently, the court ordered that all former parenting orders be discharged. The parties were ordered to have equal shared parental responsibility for the children. The children were ordered to live with the father, and each party was ordered to take all reasonable steps to ensure the children spend substantial time with the mother, with specific regimes outlined for school terms and holidays. The father's application for an injunction restraining the children from being left alone with the mother's partner was rejected. Further orders were made regarding the parties' obligations in relation to the children's care, communication, and participation in a post-separation parenting program. Costs were reserved for 28 days.