Fuller and Tarrant and Anor

[2017] FamCA 599

FAMILY COURT OF AUSTRALIA

FULLER & TARRANT AND ANOR [2017] FamCA 599

FAMILY LAW – CHILDREN – Parenting Order – whether a parental responsibility order should be varied where one party has died – whether a further supervisor should be added to the list under previous orders – where the proposed supervisor gives evidence.

Family Law Act 1975 (Cth)

APPLICANT: Ms Fuller

1^ST RESPONDENT: Mr Tarrant

2^ND RESPONDENT: Mr Drummond

INDEPENDENT CHILDREN’S LAWYER: Mr Wilkinson

FILE NUMBER: MLC 10567 of 2011

DATE DELIVERED: 4 July 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Stanley

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

COUNSEL FOR THE 1^ST RESPONDENT: Ms Snyder

SOLICITOR FOR THE 1^ST RESPONDENT:

Susan Snyder

COUNSEL FOR THE 2^ND RESPONDENT: Ms Cooke

SOLICITOR FOR THE 2^ND RESPONDENT: Susan Snyder

Ms Cooke

Pearce Webster Dugdales

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Cooke

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Susan Snyder

Ms Wilkinson

Bowlen Dunstan & Associates Pty

Orders

1. That paragraph 2 of the orders made on 16 December 2016 are varied to provide that until further order, the time spent by the maternal grandfather of the child B born … 2019 be supervised by Ms C.

2. That the father have liberty to apply on short notice.

3. That the interim applications are otherwise all dismissed.

4. That the parties and the child attend upon and at the direction of, Ms D at their joint expense, for the purposes of an updated family report.

5. That upon the family report being completed, all parties have liberty to apply to set the matter down for trial.

6. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 10567 of 2011

Ms Fuller

Applicant

And

Mr Tarrant
1st Respondent

And

Mr Drummond

2^nd Respondent

REASONS FOR JUDGMENT

1. The two issues for determination are whether the extant order for equal shared parental responsibility should be varied to sole parental responsibility and whether to alter the operation of two of the orders of 16 December 2016 relating to Ms C becoming a supervisor of time between the maternal grandfather and D (the child). 

2. In respect of Ms C, common sense dictates that the fundamental responsibility in a supervisor’s role is to protect the child.  Protection of a child is not just looking after the child’s interests at the time, but also communicating with the parent otherwise responsible for that child if something untoward is seen or done to the child.  This Court takes that role seriously, which is the reason why I have required Ms C to give oral evidence today and be prepared to subject herself to cross-examination. 

3. All of the evidence indicates to me that, notwithstanding her partisanship approach to her partner of some years, she has the interests of the child foremost in her mind.  To the extent that there was any conflict of interest between the child and the father, I am satisfied that Ms C would fulfil her obligations and protect the child.  On that basis, there is enough evidence for me to say that the orders ought to be varied to include her as a relevant supervisor.

4. The other issue relates to parental responsibility. For reasons that remain obscure, the parties, of whom one was the mother of the child and who is deceased, agreed after a long and drawn-out dispute in the Federal Circuit Court for an order for equal shared parental responsibility. Sadly, no one turned their mind to the extent of that order. As a result, the definition of parental responsibility in the Family Law Act must be applied. All responsibilities either by order or by a matter of law fall to be shared in that particular responsibility. As the mother is deceased, there are two people to continue that equal shared parental responsibility.

5. The father’s position is that, because of an incident in which the grandmother involved herself in a television program which seems to have had some collateral damage for the child, there is justification for variation of the status quo.  In my view, that misses the point.  The whole purpose of an order for parental responsibility is to ensure the parties cooperate to decide about what is the best plan for the welfare and development of the child. 

6. Most of the things that should be contemplated, such as education, health and religion, have been ignored in this particular application and in my view, it may very well be that the complaint which founded the application today can wait until trial where the evidence can be tested.  In my view, the evidence does not justify an alteration to the existing arrangements, notwithstanding what seems to be a poor, and worsened relationship, between the two remaining persons who are responsible for decisions. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 July 2017.

Associate: 

Date:  15 August 2017