BORCHARD & PORTNER

[2016] FamCA 1043

FAMILY COURT OF AUSTRALIA

BORCHARD & PORTNER [2016] FamCA 1043

FAMILY LAW – CHILDREN – PARENTING – Parental responsibility – Where the parents agree on residence – Where the outstanding issue is parental responsibility – Where the father will live in Australia – Where the mother will live in the Country C – Where the distance between parties will lead to a delay in decision making – Where that delay is not in the best interest of the child – Where both parents submit communication between them has been poor – Ordered that the father have sole parental responsibility for education and medical decisions – Ordered that the parents respectively retain all other aspects of parental responsibility

Family Law Act 1975 (Cth), ss 61B, 61C, 61DA

VR v RR (2002) FLC 93-099

APPLICANT: Mr Borchard

RESPONDENT: Ms Portner

FILE NUMBER: NCC 3224 of 2014

DATE DELIVERED: 6 December 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: Not Applicable

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Joplin Lawyers

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Georgia Seaton Family Law and Mediation

Orders

That in addition to the Orders made by consent in this Court on 7 October 2016:

1. That the father have sole parental responsibility for:

   1.1The education of the child including, but not limited to, progression to High School;

   1.2Medical treatment in Australia including, but not limited to, specialist medical advice, hospitalisation, surgery and election of medical, dental and other health practitioners for the child.

2. That in all other respects the parties each retain all the duties, powers, responsibilities and authority which by law parents have in relation to children under 18 years and shall share parental responsibility.

3. That the father shall advise the mother in a timely way of all decisions taken by him in relation to education and medical matters for the child.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Borchard & Portner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC3224/2014

Mr Borchard

Applicant

And

Ms Portner

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for orders in respect of one issue, namely the allocation of parental responsibility for one child, B, now aged 9 years.

2. On 7 October 2016, final parenting orders (“the 2016 orders”) were made by consent in respect of all aspects of parenting other than parental responsibility.

3. The child now lives with her father pursuant to the 2016 orders.

4. In the circumstances of the mother leaving Australia after orders were made to take up residence in Country C, directions were made for the filing of written submissions on this outstanding specific issue.

5. Both parties complied in a timely and thorough way.

6. The father filed his submissions on 3 November 2016 and proposed an order that he have sole parental responsibility.

7. The mother filed her submissions on 4 November 2016 and proposed the following order:

   1.That in relation to parental responsibility for B born … 2007 (“the child”):

   1.1      The father have sole responsibility for:

   1.1.1   The child’s religious and cultural upbringing;

   1.1.2   The child’s name; and

   1.1.3   Changes to the child’s living arrangements.

   Provided that the father must notify the mother in writing of any decisions made in regard to these issues.

   1.2The parties have shared parental responsibility for the child’s education (both current and future) and the child’s health.

The Law

1. Parental responsibility in relation to a child, means all the duties, powers, responsibilities and authority, which by law, parents have in relation to children (s 61B).

2. Each of the parents of a child who is not 18 has parental responsibility for the child (s 61C).

3. In this particular case, the legal position that presently prevails is that each parent has parental responsibility for the child.

4. The 2016 orders diminish the parental responsibility of both parents to the stated extent but do not extinguish parental responsibility for either parent.

5. The Full Court of the Family Court of Australia has held that orders limiting or curtailing parental responsibility should only be made where the Court is of the view that the welfare of the child will be clearly advanced by that order being made.[1]

   [1]VR v RR (2002) FLC 93-099

6. There must be a benefit to the child.

7. These parties together have made the decision with whom the child shall live, [the father], and when and where the child shall spend time with the mother.

8. It is implicit that the child will be educated in Australia and explicit that the father hold the child’s Australian passport.

Does the presumption apply?

1. When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child (s 61DA).

2. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility. In this case there is such evidence.

3. The parents have accepted through the orders made that:

   a)The child has a meaningful relationship with each of them and with her older maternal half-sister, which should be carefully preserved;

   b)The child will benefit from spending extended periods of time with her mother both in Australia, and in due course in the Country C and the United Kingdom;

   c)That each has the capacity to meet the needs of the child; and

   d)That the child lives in Australia and the mother will live in the Country C or the United Kingdom.

4. Decision making, particularly with reference to medical matters including accident, emergency and specialist advice, should not be compromised.

5. Even with ready communication electronically, there is potential for delay in urgent decisions about the child because the mother is not present and able to appraise events herself. Likewise, with education.

6. There are potential decisions to be made about any change of school, progression to High School, extra-curricular activities, excursions overnight and interstate which should be made promptly without causing the child to worry about delay and parental disagreement.

7. This is especially so as both parents submit that communication between them has been poor and minimal. I consider that it will promote the welfare of the child if parenting decisions are not protracted by difficult communication, aggravated by the inability of the mother to easily and swiftly talk to third parties involved, such as doctors, teachers, coaches and relevant others.

8. The orders provide for the child to travel out of Australia to spend time with her mother and sister.

9. In those circumstances, the mother should have unrestricted responsibility to ensure that any issue arising during such times around visas, passport, travel and accommodation can be addressed without reference to the father. Likewise, urgent medical attention whilst the child is staying with the mother. The child may need to access the foreign health care system through her mother.

CONCLUSION

1. Accordingly, I reject the submission of the mother that aspects of parental responsibility identified by her should be the ones exclusively assigned to the father.

2. Religious and cultural upbringing is not an aspect requiring urgent decision making. Each parent has a role to play in exposing the child to the faith or absence of the faith of that parent as the child matures and makes her own decisions.

3. Further, she has a primary connection with both this country and with Country C with the knowledge and cultural practices of each parent being of value to her.

4. There is no evidence before me of any issue about the child’s name.

5. The parties have agreed that the child will live with the father and that residence order in this case would be unaffected by a change of local address.

6. The issues that the mother identifies as appropriate for shared parental responsibility are the very ones which, in my view, required the authority of the father as residence parent.

7. For those reasons stated, orders are made for the father to have sole parental responsibility for education and medical/health matters dealt with in Australia.

8. The parents retain parental responsibility in respect to all other long term issues amounting to shared care in the ordinary way of the two parents of a child.

9. Orders are made accordingly.

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 6 December 2016.

Associate: 

Date:  2 December 2016