Tracey and Wilkes & Ors

In the Family Court of Australia, Cleary J considered an application by the mother for the child, B, to live with her and for her to have sole parental responsibility. The father opposed this application, proposing that earlier orders remain in place. The paternal grandmother also sought parental responsibility for the child, B, to be with her at any time the father was unavailable. The proceedings arose in a context of significant family violence between the parents, and the child had been subjected to sexual behaviours by maternal cousins, with the maternal family appearing dismissive of the associated risks. Both parents had demonstrated indifference to court orders, and the child had experienced a tumultuous period since the last orders were made due to their behaviour.

The court was required to determine the best interests of the children, B and C, in light of the history of family violence, the parents' inability to consult each other due to hostility, and the specific risks posed by certain members of the maternal family. The presumption of equal shared parental responsibility did not apply due to family violence occurring in the children's presence. The court also considered the father's capacity for long-term decision-making, his anti-social behaviour and its impact on the child, and the potential benefit of the paternal grandmother sharing parental responsibility with the father.

Cleary J reasoned that the presumption of equal shared parental responsibility was displaced due to family violence. The court found that the hostility between the parents rendered them incapable of consulting each other. While acknowledging the father's capacity for good long-term decisions, the court also noted his anti-social behaviour. The court ultimately ordered that all former orders relating to B be discharged, and the mother have sole parental responsibility for B, with B to live with the mother. However, for child C, all former orders were discharged, and the father and paternal grandmother were to share parental responsibility. C was ordered to live with the father, and at any time the father was unavailable, C was to live with the paternal grandmother. The mother was restrained from causing or permitting C to be in the physical presence of specific maternal relatives, and both parents were restrained from approaching within 100 metres of each other's residences or the children's schools. The court also made detailed orders regarding time spent with the mother, communication, and the exchange of children.