Ward and Ward (No 2)

In *Ward and Ward (No 2)*, Tree J of the Family Court of Australia considered parenting orders concerning two children, Y and X, whose parents, the mother and father, had previously shared equal parental responsibility. The mother sought sole parental responsibility and proposed that the children not communicate with the father for six months, a proposal supported by the Independent Children’s Lawyer. The father, who did not participate in the proceedings, sought to maintain equal shared parental responsibility and for the children to be free to live with either parent.

The court was required to determine whether the presumption of equal shared parental responsibility applied, given allegations of family violence and the mother's assertion that the father posed an unacceptable risk of emotional harm. Further issues included whether equal shared parental responsibility was nonetheless in the children's best interests, with whom the children should live, and with whom they should communicate and spend time, taking into account their expressed wishes and the potential impact of parental conflict and estrangement.

Tree J found that while the presumption of equal shared parental responsibility did not apply due to family violence, it was nonetheless in the children's best interests. The court determined that the risk of emotional harm from the father was not of an unacceptable magnitude, and conversely, the mother's household posed a risk of continuing exposure to parental conflict. The court considered the significant emotional impact on the younger child if forced to live with the mother, noting the father was the younger child's primary source of support and comfort, and that the younger child had not spent time with the mother for two years. The court also acknowledged a prospect of alienation from the mother if the younger child lived with the father, but a reasonable prospect of the older child being able to live with the father. The court gave some weight to the children's wishes, but reduced it due to potential influence and the burden of choosing between parents.

Consequently, all previous parenting orders were discharged. The court ordered that the parents have equal shared parental responsibility for both children. The children were to live and spend time with the parents as agreed, but in default of agreement, each child could choose to live with and spend time with either or both parents, with both parents required to support these choices. Specific provisions were made for each child if they did not express a choice, and for communication between the children and the other parent. The court also made orders to facilitate the children spending time with each other, and for a family consultant to explain the orders to the children. The Independent Children’s Lawyer was discharged upon the expiration of the appeal period or determination of any appeal.