Wells and Anor and Delmonte (No.2)

This case involved an application before Judge B Smith concerning the parenting arrangements for three children following the death of their mother. The maternal grandparents sought for the children to live with them, while the father of two of the children sought the same. The mother and children had lived near the maternal grandparents, who were independently evidenced as having been heavily involved in the children's lives. The father, despite prior court orders for time with the children, had limited involvement prior to the mother's death. He had subsequently removed the younger child (aged 11) to another town and school, while the older child (aged 16.5) had left school and gone to live with the grandparents. A third child, from a different father, lived with the grandparents and spent time with her father under separate orders.

The court was required to determine the living arrangements for the two children whose father was a party to this application, considering the impact of the mother's death, the wishes of the older child, and allegations made by the father concerning the maternal grandfather. The father alleged the mother had told him and his family years prior that the maternal grandfather had sexually assaulted her as a child, though there was no other supporting evidence. The father also questioned the mother's honesty and the necessity of a special school stream for the younger child's autism diagnosis, and had the younger child repeatedly interviewed about his wishes.

The court found that the death of the mother met the test for reconsideration of recent interim applications, as established in *Rice & Asplund*. The court afforded the 16.5-year-old child the autonomy to live where he chose. The alleged historical allegations against the maternal grandfather were given limited weight due to the lack of corroborating evidence and the father's own admissions about the mother's potential dishonesty. The court prioritised the benefits of stability for the children, including remaining together and returning to their prior school. Consequently, the 11-year-old child was ordered to live with the maternal grandparents and return to his previous school pending further orders, with specific provisions for time with the father, including alternate weekends and half of school holidays. The court also made consequential orders regarding communication, health, and non-denigration.