Burton and Burton

[2010] FamCA 860

FAMILY COURT OF AUSTRALIA

BURTON & BURTON [2010] FamCA 860

FAMILY LAW – CHILDREN – Parental responsibility

Family Law Act 1975 (Cth)

APPLICANT: Mr Burton

RESPONDENT: Ms Burton

FILE NUMBER: MLC 8580 of 2010

DATE DELIVERED: 15 September 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 15 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Korfiatis

SOLICITOR FOR THE APPLICANT: Webb Korfiatis

Orders

1. That Mr Burton have sole parental responsibility for the children M born … May 1994 and H born … March 1998.

AND THE COURT NOTES

A.Parental responsibility in relation to the children means all the duties, powers, responsibilities and authority which by law parents have in relation to children.

IT IS NOTED that publication of this judgment under the pseudonym Burton & Burton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8580  of 2010

MR BURTON

Applicant

And

MS BURTON

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by Mr Burton on 13 September 2010, in which he seeks sole parental responsibility for M who was born in May 1994, and H who was born in March 1998.  It is obvious that those children are both under the age of 18 years.

2. The mother of the children, Ms Burton, died in 2002.  Both of these children are the lucky beneficiaries of money from an estate of an Italian relative, but because of some problems with the distribution of the estate, they are unable to access the funds, and nor is their father, without some evidence of him being in a position to make decisions on their behalf. 

3. Notwithstanding, under Australian law, a parent has parental responsibility until a court orders otherwise, the Italian authorities seem to want some order from a “judge of minors”, to use their expression, to show that they can then (presumably) absolve the responsibilities on the executors and pay out the funds.

4. It is a fairly simple solution, but I think the question still has to be determined according to law.  Section 61C provides that each of the parents of a child who is not 18 years of age has parental responsibility for that child.  It must follow that, upon the death of their mother, Mr Burton is the only person who could be said to have parental responsibility.

5. Section 61D provides that a parenting order confers parental responsibility for a child upon a person, but only to the extent to which the order confers on the person, duties, powers, responsibilities or authority in relation to the child. 

6. Section 65D provides that in proceedings for a parenting order, the Court may, subject to the presumption of equal share parental responsibility, as well as parenting plans provisions, make such parenting order as it thinks proper.  In this case, the question of equal share parental responsibility cannot apply because of the death of the children’s mother.

7. Notwithstanding the fact that the law in Australia provides that the father has already all of the necessary responsibilities in relation to the children, the father has applied for a parenting order.  Section 69E provides that in proceedings instituted under this Act, they can only be heard on the basis that a child is present in Australia on the relevant day, that being the day upon which the proceedings are instituted.

8. The evidence seems clear from the affidavit of the husband that, on the day that he filed the application, the children were in Australia.  It seems therefore appropriate to say that the Court has jurisdiction to hear the matter.

9. What I am asked to do is to make a parenting order.  A parenting order includes the question of who should have responsibility for the children.  It seems that that is the issue that the Italian authorities want to hear.  In this case, looking at the material provided by Mr Burton, I am satisfied that it is in the best interests of the children, having regard to all of the matters set out in the affidavit that a parenting order be made.  It follows that Mr Burton has all of the powers, duties, responsibilities and authority to make decisions in relation to the children until they turn 18 years.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 September 2010.

Associate: 

Date:  28 September 2010