The Federal Circuit and Family Court of Australia often deals with complex and sensitive matters, particularly where allegations of family violence are involved. A recent case, Wells & Wells [2024] FedCFamC2F 1516, considered how such allegations should impact parenting arrangements and decision-making responsibilities.
The Background
In this case, the father had previously been charged—and later acquitted—of sexually assaulting the mother. He had not seen his children (aged 11 and 12) in person for nearly four years. Seeking to re-establish a relationship, the father applied for joint decision-making responsibility and requested that the children live with the mother but spend time with him every third weekend, with FaceTime contact three times per week.
The mother opposed this, seeking sole decision-making responsibility and requesting that the children only spend time with the father in accordance with their wishes, with FaceTime contact limited to twice per week. An Independent Children’s Lawyer (ICL) was appointed, who supported the mother’s position.
Key Legal Considerations
In making its decision, the Court was required to assess the Family Law Amendment Act 2023 (Cth), with the best interests of the children as the paramount consideration. This included:
- The history of family violence and whether the children (or the mother) would be exposed to an unacceptable risk of harm.
- The safety and wellbeing of the children as set out in section 60CC(2)(a) of the Family Law Act 1975 (Cth).
- The father’s lack of insight into his parenting deficits, as highlighted in family reports.
- The children’s own views, including their fear of being taken away from their mother.
The Court determined that while the children had expressed a desire to see their father, they also had significant concerns about their safety. The father had not engaged in any steps to address parenting concerns raised in reports and had made little effort to maintain a connection with the children over the years.
The Court’s Decision
Ultimately, the Court found that:
- The father had perpetrated family violence.
- The mother remained fearful for her safety.
- The father had not demonstrated a capacity for a meaningful relationship with the children.
- The children would be at risk if required to spend extended time with him.
While supervised visits could have mitigated physical risk, the Court was concerned about potential psychological harm. The final orders granted the mother sole parental responsibility, with the children living with her and the father permitted only to send cards and gifts—no face-to-face contact was ordered.
Interestingly, the Court stopped short of making an order for no contact at all, stating:
“An order for no time would shut the door to the children having a relationship with the father. This is not in the children’s best interests.”
Key Takeaways
This case reinforces the Court’s commitment to prioritising children’s best interests in parenting disputes, particularly where family violence is a concern. Even in cases where the benefit of maintaining a relationship with both parents is limited, the Court remains reluctant to impose a complete barrier—aiming instead to leave the door open for future connections where appropriate.
If you need legal advice regarding parenting arrangements, Spectrum Lawyers & Consultants can provide expert guidance.