Waring and Boswell

In *Waring and Boswell*, heard in the Family Court of Australia at Melbourne, the applicant father sought orders for the three children of the marriage to live with him, while the respondent mother sought the dismissal of his application and variations to existing parenting orders. The parties had previously separated and obtained final parenting orders by consent in 2000, which provided for the children to live with the mother and for the father to have regular contact. However, the father expressed dissatisfaction with these orders, particularly regarding the elder daughter's cessation of contact since 2003 and the non-occurrence of weekday contact.

The court was required to determine the best interests of the children in light of the father's application for a change in residence and the mother's request for variations to the existing orders. Key legal issues included whether the presumption of equal shared parental responsibility applied, and if so, whether it should be rebutted, and what parenting arrangements, including residence and time spent with each parent, would best serve the children's welfare. The court also considered the impact of the parents' ongoing conflict, the father's past violence, the children's ages and views, and the need to protect them from harm.

Justice Brown applied the principles of the *Family Law Act 1975*, emphasising the paramount consideration of the children's best interests, which encompass the benefit of a meaningful relationship with both parents and the need for protection from harm. The court found that while the father loved his children, his ongoing distress about the separation, property orders, and his inability to shield them from his anger and criticism of the mother, particularly towards the elder daughter, indicated a lack of insight into their emotional needs. The court noted the elder daughter's clear distress and refusal to see her father, and the younger daughter's occasional reluctance, while acknowledging the son's desire for more time with his father. The court concluded that a change in residence to the father was not in the children's best interests, given their settled lives, the girls' strong opposition, and the father's inchoate plans.

Consequently, the court ordered the discharge of all previous parenting orders and injunctions. It established equal shared parental responsibility for the children, with the mother solely responsible for decisions regarding their education and health. The children were ordered to live with the mother, and detailed provisions were made for the father's time with the younger daughter and son, including alternate weekends, specific weekday afternoons, and half of school holidays. The court also made orders regarding communication, parental conduct, and the facilitation of information sharing between the parents.