Castree & Moyle

[2021] FedCFamC1F 275

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Castree & Moyle [2021] FedCFamC1F 275

File number(s):	CRC 274 of 2018
Judgment of:	JARRETT J
Date of judgment:	9 November 2021
Catchwords:	FAMILY LAW – CHILD WELFARE – The Family Law Act 1975 (Cth) and related legislation – best interests of the child – where a sole parental responsibility order is sought – where there is no clear evidence that an order for sole parental responsibility will advance the best interests of the child – where there is evidence of family violence, and the presumption in s 61DA(1) is not engaged – where the application for sole parental responsibility fails for want of evidence.
Legislation:	Family Law Act 1975 (Cth), ss 61DA(1), 61DA(2), 61DA(3)
Cases cited:	Lansa & Clovelly [2010] FamCA 80
Division:	Division 1 First Instance
Number of paragraphs:	5
Date of last submission/s:	9 November 2021
Date of hearing:	9 November 2021
Place:	Brisbane
The Applicant	No appearance
Counsel for the Respondent	Mr Jackson
Solicitor for the Respondent	CB Legal Pty Ltd
Counsel for the Independent Children’s Lawyer	Mr Mueller
Solicitor for the Independent Children’s Lawyer	Bryant McKinnon Lawyers

ORDERS

CRC 274 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR CASTREE Applicant
AND:	MS MOYLE Respondent

ORDER MADE BY:	JARRETT J
DATE OF ORDER:	9 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The child X born in2011 (the child) live with the respondent.

2.The child spend time with the applicant from time to time as might be agreed between the applicant and the respondent.

3.Otherwise all outstanding applications be dismissed

4.The Independent Children’s Lawyer is discharged.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonyms Castree & Moyle has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JARRETT J:

1. The orders will be as the mother proposes.  They are consistent with her evidence as set out in her affidavit filed on 17 September this year. 

2. An issue has arisen about the parental responsibility order. Initially, the mother sought an order for sole parental responsibility. I have engaged with counsel about that and my view is that an order for sole parental responsibility is not necessary. There is Full Court authority to the effect that making an order which interferes with parental responsibility is something which only ought to be done where there is clear evidence that it will advance the interests of the child or the children concerned. Here, the presumption of equal shared parental responsibility set out in s 61DA(1) is not engaged. It does not apply because the evidence given by the mother about family violence satisfies me that there has been family violence by the respondent towards her. Section 61DA(2) is clearly engaged in this case on the evidence before me. In that event, the presumption of equal shared parental responsibility does not apply.

3. There is no obligation on the Court to make an order for parental responsibility whenever it makes a parenting order. The only obligation is for the Court to apply the presumption of equal shared parental responsibility when it makes a parenting order, subject of course, to ss 61DA(2), 61DA(3). Authority suggests that if the presumption applies, then probably the legislation requires the Court to make an order for equal shared parental responsibility. But that issue does not arise here, because the presumption does not apply.

4. In the absence of an order for parental responsibility in one form or another, the position established by s 61C of the Act remains.  That means that each parent has parental responsibility for this child.  In Lansa & Clovelly [2010] FamCA 80 there is a fulsome explanation of the position by Murphy J that discusses this issue very clearly.

5. The question before me is, is it necessary to make an order for sole parental responsibility, as the mother initially sought, to advance the welfare of this child.  In the absence of any evidence that there has been difficulty in her exercising parental responsibility for him, or there has been attempts by the father to exercise parental responsibility in ways that are inconsistent with his welfare, then the answer to the question must be no.  In those circumstances, I order.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett.

Associate:

Dated:       9 December 2021