What happened

This is an interim Family Court judgment delivered by Deputy Chief Justice Faulks on 29 January 2009 in proceedings between Ms Bastasic (the mother) and Mr Petro (the father). The hearing addressed interim arrangements for two children. The Independent Children's Lawyer (ICL) reported the children's recent wishes. The mother sought an adjournment. The Court granted a six month adjournment to 30 June 2009 and, on an interim basis, made orders that: the father have sole parental responsibility; the children live with the father; the children be free to spend such time with their mother as they wish; and the ICL's appointment be extended to facilitate contact. The Court indicated that at the adjourned hearing the matter would either proceed to finalisation or, if the mother did not participate, the Court might continue or discharge orders in light of the children's age and capacities (Orders; Conclusion [2]-[4]).

The Judge's factual findings, as recorded, included that the children enjoyed a close and satisfactory relationship with their father, while the relationship with their mother was problematic, possibly because of the mother's illness (Primary considerations [4]). The ICL's account of the children's wishes was accepted as evidence to be taken into account (Primary considerations [3]).

Why the court decided this way

The decision is grounded in the statutory "primary considerations" under the Family Law Act: the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm. The judgment opens by identifying these two considerations as the primary ones the Court must weigh ([1]).

The Court accepted the ICL's report of the children's wishes and concluded that, on the interim evidence, the children's psychological welfare required that they live with their father "for the time being" ([2]-[3]). The Judge expressly stated that this conclusion was not a criticism of the mother or a finding that she would deliberately harm the children; rather, the children's expressed views and the nature of their relationship with their mother meant it would be harmful to compel a closer residence with her at present ([2]; Primary considerations [4]).

A second statutory factor was the presumption of equal shared parental responsibility under s 61DA. The Judge considered that s 61DA(3) is engaged in interim proceedings such as these, so that the presumption may not apply to interim orders; in any event, the Judge found that the evidence rebutted the presumption on an interim basis because the children were already resident with the father in one case for some time ([Equal shared parental responsibility [1]]). For these reasons the Court concluded that parental responsibility should be vested solely in the father for the interim period ([Conclusion [1]-[3]]).

The orders were framed to be child-centred on contact: the children could spend time with the mother "as they wish", and the ICL's appointment was extended to facilitate meetings and arrange for other people to be present if the children desired (Orders (5); Conclusion [3]).

Before and after state of the law

This judgment applies the existing framework of the Family Law Act as summarised by the Court. It reiterates two points:

• The statutory primary considerations are the benefit of a meaningful relationship with both parents and protection from harm, and both must be weighed ([1]).
• The presumption in s 61DA of equal shared parental responsibility does not rigidly prevent courts from making interim orders that vest parental responsibility in one parent where s 61DA(3) or the facts justify that course (Equal shared parental responsibility [1]).

The decision does not purport to alter statutory law; rather it applies the Act to the interim factual context. The practical "after" state is that, on similar interim facts (children expressing a wish to live with one parent, concerns about psychological harm if they live with the other), a court may lawfully make interim orders giving sole parental responsibility to the preferred carer, while preserving child-directed contact with the other parent and using the ICL to facilitate safe contact.

Key passages with plain-English translation

1. "The two primary considerations ... are the benefit to the children having a meaningful relationship with both parents and the need to protect the children from physical or psychological harm." [1]

   • Plain English: The Court must weigh two main things: whether each parent should have a meaningful relationship with the children, and whether keeping the children safe from physical or psychological harm requires limiting or structuring those relationships.

2. "I am ... satisfied at least on an interim basis that it is important for their psychological and physical wellbeing to live with their father for the time being." [3]

   • Plain English: Based on the evidence available now, and only for an interim period, the Court thinks the children's mental and physical health is best served by staying with their father.

3. "There is a presumption under the Act that there would be equal shared parental responsibility ... [s 61DA(3)] does apply in that this is an interim order and it seems to me that it is not appropriate that the presumption should apply." [8]

   • Plain English: Although the law normally starts from the idea both parents share responsibility, the Court can decide that this presumption should not apply to an interim situation like this one.

4. "There should be an order that the parental responsibility for the children should rest solely with the father." [11]

   • Plain English: The Judge decided, for now, that the father should make decisions about the children.

What fact patterns trigger this precedent

From the judgment, the following fact pattern supported the orders and thus signals the kinds of situations where a similar decision may be considered:

• Proceedings are at an interim stage, not final.
• The children have expressed wishes about where they want to live, and those wishes were properly reported by the ICL and accepted by the Court as evidence to be taken into account (Primary considerations [3]).
• There is a close, satisfactory relationship between the children and one parent (here, the father) and a problematic relationship with the other parent, possibly linked to parental illness or incapacity to provide a stable, non-harmful relationship (Primary considerations [4]).
• The Court is satisfied, on the interim evidence, that requiring the children to live with the parent with whom they have a problematic relationship would expose them to psychological harm (Primary considerations [2]-[3]).
• The presumption of equal shared parental responsibility is either engaged by s 61DA(3) or is rebutted on the interim evidence (Equal shared parental responsibility [1]).

When these factors appear, the Court may lawfully make interim orders for sole parental responsibility and residency with the parent judged to better protect the children's welfare, while arranging child-centred contact facilitated by the ICL.

How later courts have treated it

This judgment itself does not record subsequent treatment by other courts. The reasons rely on statutory provisions and the particular interim facts. To determine how later courts have treated or followed Bastasic & Petro [2009] FamCA 549, a targeted case-law search (for example, in AustLII, LexisNexis or Westlaw) is required. The present judgment should be read as an application of the Family Law Act's principles to interim facts rather than as creating a novel legal test.

Still-open questions

The judgment leaves several practical and legal uncertainties where further analysis or evidence at a final hearing would be needed:

• The Court expressly limited its findings to an interim basis and acknowledged some evidential limitations, including that the father had not been cross-examined and not all relevant evidence had been heard on a final basis (Primary considerations [5]). How those evidential gaps might affect final orders is unresolved here.
• The judgment relies on the ICL's account of the children's wishes. It does not detail how those wishes were obtained, their ages, maturity, or how the Court evaluated their weight beyond accepting the ICL's evidence. That leaves open how similar expressions by children of different ages or obtained in different ways would be treated.
• The nature and extent of the mother's reported "illness" are not described. The Court notes the problematic relationship may be "possibly due to their mother's illness" and that "everyone is hopeful will change", but there is no elaboration. How medical or psychiatric evidence would bear on a final determination is not explored here.
• The Court ordered contact "as they wish" with facilitation by the ICL. This leaves open procedural questions about how the ICL is to manage and evidence such child-driven contact, especially where the child’s wishes shift or where safety concerns arise.
• The Court referenced s 61DA(3) as applying in interim contexts. The judgment does not expand on the statutory text or on what particular circumstances will usually cause s 61DA(3) to displace the presumption. The boundary between interim rebuttal and the presumption applying remains context-dependent.

Readers should note that the judgment is an interim, heavily fact-sensitive ruling. For implications in other cases, close attention must be paid to the specific evidence, ages and expressed wishes of the children, any medical reports, and the degree to which the presumption of equal shared parental responsibility is engaged or can be efficiently rebutted on interim material.

This is general legal information only, not legal advice. I can make mistakes. Before you act on this, rely on it, or use any draft or interpretation, get a qualified Australian lawyer to check it.