Yorke & Saunders

This case concerned a parenting dispute between Ms Yorke (the applicant mother) and Mr Saunders (the respondent father) regarding the time, if any, the parties' two children would spend with the father. The mother alleged that the father posed an unacceptable risk of psychological harm to the children due to his engagement in particular behaviours and his association with a community of people with similar proclivities. The Independent Children's Lawyer (ICL) shared the mother's concerns regarding an identifiable risk to the children's psychological wellbeing.

The court was required to determine the parenting arrangements that were in the children's best interests. Specifically, the court had to consider whether the father posed a risk of psychological harm to the children, the extent of his involvement in certain behaviours and his association with a particular community, and whether he had an authentic willingness or capacity to disavow these behaviours and associations. The court also had to consider the presumption of equal shared parental responsibility and whether it was rebutted in this case.

Hannam J attached significant weight to the unchallenged expert evidence which indicated that the father's lifestyle and involvement with his associated community impacted his parenting capacity and was likely to cause psychological harm to the children. The court found that the father was deeply enmeshed in his lifestyle and had strong connections to his minority community. The court had significant reservations and ultimately did not accept that the father possessed an authentic willingness or capacity to disavow the behaviours in question and his connections to the community. Consequently, the court concluded that it was in the children's best interests to make orders largely in terms sought by the mother.

The court ordered that all previous parenting orders be discharged, that the children live with the mother, and that the mother have sole parental responsibility for the children. The court further ordered that the children spend no time and have no communication with the father. Additional orders were made restraining the mother from permitting the children to be present with her brother except in her presence and under her supervision, requiring each parent to advise the other of any change in telephone contact details, and mandating that the mother advise the father of any medical emergency or significant illness suffered by either child. The ICL was directed to make arrangements for explaining the orders to the children.