Holman & Bailie & Anor

FAMILY COURT OF AUSTRALIA

HOLMAN & BAILIE AND ANOR

[2012] FamCA 827

FAMILY LAW – CHILDREN – Shared Parental Responsibility – where mother of children has died – where children live with friends of the mother – where father of one of two children seeks shared parental responsibility for both children – where respondents are not ‘parents’ under the meaning of the Act – where one child has no known biological parents – whether respondents and father can have shared parental responsibility

Family Law Act 1975 (Cth)

Aldridge & Keaton [2009] FamCAFC 229
Dunstan & Jarrod & Anor [2009] FamCA 480
B and B [Access] (1986) FLC 91-758
Fennick & Fennick (No.2) [2008] FamCA 908

APPLICANT:

Mr Holman

FIRST RESPONDENT:

Mr Bailie

SECOND RESPONDENT:

Ms Spencer

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

4266

2010

DATE DELIVERED:

2 August 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Le Poer Trench

HEARING DATE:

25-27 June 2012

REPRESENTATION

THE APPLICANT:

Mr Holman in person

COUNSEL FOR THE
FIRST AND SECOND RESPONDENT:

Ms Mesner

SOLICITOR FOR THE FIRST AND SECOND RESPONDENT:

Pearson Family Lawyers

SOLICITOR AND ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Karagiannis

Orders

That all previous parenting orders in relation to the children M born … May 2000 and S born … February 2005 be and are hereby discharged.
That the children live with the respondents Mr Bailie and Ms Spencer.
That the respondents, on the one part, and the father, on the other part, have equal shared parental responsibility for the children.
That during the children’s school holidays (noting the children attend school in the ACT) for the holidays following the first, second and third school terms:
(4.1)the parties shall take turns at selecting which half of the school holiday period the girls shall reside with them;
(4.2) Such selection is to be made no later than one term in advance;
(4.3) It is noted that the applicant father has the selection for the holidays commencing at the conclusion of term 2 in this year.
The children are to spend time with the father for the second half of the end of year school holidays.
During each school term time the children are to spend three weekends in Sydney with the father, such weekends to commence on Friday afternoon and conclude on Sunday afternoon or Monday afternoon in the event of a long weekend. Those weekends are to be the third, sixth and ninth weekends of each term where the father has had the children with him for the second half of the school holidays immediately preceding the subject school term and for the first, third and sixth weekends where the father had had the children with him for the first half of the school holiday period immediately preceding the subject school term.
In addition to the weekend time in Sydney during school term the father may spend time with the children for up to two non-consecutive weekends in the ACT during school term time. The father is to give not less than 14 days notice of his intention to spend weekend time in the ACT with the children. In the normal course those weekends are to commence with the father collecting the children from school on Friday and conclude at about 5pm on Sunday.
It is noted that in the event of either child’s birthday falling on a weekend when the children are scheduled to spend time with the father in Sydney or in the event of other key events then the scheduled weekend may, upon notice being given by the respondents to the father which outlines the event which prevents the children spending the weekend time with the father in Sydney, that the subject weekend will be moved to the following weekend. In relation to any such alteration the respondents are to give as much notice as possible in order to allow the father to make travel arrangements for the children for the changed dates.
The children are to spend Mothers Day with the respondents and Fathers Day with the father.
The children are to spend such other time with the father as may be agreed upon between the respondents and the father from time to time.
The children are to travel between the ACT and Sydney and return by air at the cost of the father.
In relation to travel between the ACT and Sydney for term weekend time the children are to leave the ACT on a scheduled flight not earlier than 5.30 p.m. and are to return from to Sydney to the ACT on a scheduled flight no later than 5.35 p.m.
The father is to have telephone time with the children every Wednesday at 8.30 p.m. or at such other time as the parties may mutually agree upon from time to time. The respondents are to ensure that the children’s telephones are charged so that they may participate in that phone call each week. It is noted that the respondents will make available for the children a wifi connection so that they may use their telephones to make a video call with the father.
The children are to be permitted by the respondents to communicate with the father by email from time to time and to that extent the respondents are to facilitate the children having access to email in their household.
The respondents, the father and the father’s partner (should she agree to do so) are to forthwith contact Ms Ms J, psychologist, for the purpose of making appointments to discuss how each parent parental group may best present to the children the agreement they have reached. Any expense associated with the services of Ms J are to borne by the father. The respondents are to participate in counselling with Ms J by telephone. The father is to cause a copy of Dr C’s report to be provided to Ms J prior to her meeting with the parties as required herein.
The respondents are to ensure that the father in informed about any school event of the children’s to which parents are invited or expected to participate in.
Each party is restrained from causing or allowing the children to be known by any other surname other than T.
The respondents are to hold the children’s passports. All parties are to cooperate in ensuring the children have current passports at all times. This to include giving all necessary consent in a timely manner.
Each of the parties is permitted to remove the children from Australia for the purpose of holidaying in any country which is a signatory to the United Nations Convention of the Civil Aspect of International Child Abduction, or any other country where consent is given by all parties, even in circumstances where that country is not a signatory to the aforementioned United Nations Convention. The children are only to leave Australia during the course of school holidays unless consent of all parties is otherwise given.
Each party is to give the other not less than 28 days notice of intention to remove the children from Australia. Such notice is to include a copy of any proposed itinerary together with contact details during that trip.
It is noted that for the purpose of these orders the children’s school holidays are deemed to commence at 5 p.m. on the last day of school and conclude at 5 p.m. on the day before the first day the children are required to attend at school in the new school term thus any pupil free days which precede the children’s obligations to attend school for the commencement of a school term are to be treated as school holidays.
Each of the parties are to ensure that the children are to be encouraged to call the father either “dad” or “father”.
Each party is to provide the other with information about special events associated with either of the children’s extra curricular activities. The purpose of such notification is to ensure that each of the parties is able to attend at any such activity should they be otherwise available to do so.
Each of the parties is to keep the other apprised of relevant information in relation to the children’s health and medical needs.
That the parties shall do all things to ensure that the children continue to attend upon Ms Y, child psychologist or such therapist as Ms SY may nominate at such times as she may require and direct and that costs of Ms Y shall be borne equally between the parties.
That the parties be restrained from denigrating the other party or members of the other party’s family within the hearing or in the presence of the children and shall not permit any other person to do so.
That the parties be and are hereby restrained from discussing these proceedings within the hearing or in the presence of the children and from showing the children any document pertaining to these proceedings and they shall use their best endeavours to ensure that no other person does so.
That each party shall keep the other advised of their current residential address, contact mobile telephone number and email address and advise of any change to such contact details within 48 hours of any change to those contact details.
In the event that the children suffer any illness requiring medical attention or hospitalisation during any period the children are spending time with the applicant, the applicant shall notify the respondents of such illness and the name of the medical practitioner or hospital to which the children have been taken as soon as is practicable.
That the respondents shall:
(a)      Notify the applicant as soon as possible of:
(i)       any major illness suffered by the said children;
(ii)      any hospitalisation of the said children;
and
(b)Make available to the applicant copies of any medical report or reports that may be sent to the respondents in connection with such illness or hospitalisation;
and
(c) Authorise:
(i) any hospital in which the said children may be admitted; and
(ii)any medical practitioner or mental health practitioner under whose care the said children may be
to give such information to the applicant as he may request.
The respondents shall within 7 days sign all documents and do all things necessary to authorise the school which the children may from time to time attend:
(a)to provide the applicant with copies of all school reports, notices and advices concerning:
(i)the said children; and,
(ii)any activity involving the said children;
and
(b)to make available to the applicant copies of any school photographs of the said children at his expense.
That each party shall ensure that any variation or change that they propose to make with regard to these arrangements shall be made directly with the other party and not by way of the children.
That the parties contribute towards the costs of the Independent Children’s Lawyer in the following amounts:
(a)As to the father – the sum of $4,495.50. I note that the father has paid funds towards this in excess of the ordered amount.
(b)As to each of the respondents, the sum of $2,845.50 (It is noted that the respondents have already made a payment of $1,650 towards this cost)
(c) Such payment to be made within three months of the date of these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Holman & Bailie 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 SYDNEY

FILE NUMBER: SYC 4266 of 2010

Mr Holman

Applicant

And

Mr Bailie

1^st Respondent

And

Ms Spencer

2^nd Respondent

REASONS FOR JUDGMENT

Introduction

M and S are aged 12 and seven respectively. At the time of the commencement of the hearing in this matter they were predominantly residing with Mr Bailie and Ms Spencer (a married couple, both approximately 48 years of age) in the Australian Capital Territory (“the ACT”). Mr Holman, who is 48 years of age, is the biological father of M. S’s father is unknown.
On 24 April 2010 Ms T, the children’s mother, died. She had a long illness during which she knew that illness was to be terminal. She, in consultation with her family, requested that the respondents, who she had known for a considerable period of time whilst living in South East Asia, become the guardians of her children. Mr Bailie and his wife have one child, F, who is almost nine years of age.
After three days of hearing, and particularly after hearing the oral evidence of the single expert Dr C, the parties were able to reach an agreement in respect of all aspects of the parenting of M and S with the exception of whether parental responsibility should be shared equally between them or repose exclusively in Mr Bailie and Ms Spencer.
Exhibit X2 is a chronology prepared by the Independent Children’s Lawyer (ICL) and agreed to by each of the other parties. That chronology provides, inter alia, the following background information.
In about 1994, the father and mother met and commenced to cohabit in South East Asia. At about that same time, Ms Spencer also lived in South East Asia. In about mid 1996, Mr Bailie commenced living in South East Asia. After about a year of working in the ACT and Brisbane the father returned to live in South East Asia in November 1996. He remained there until April 1998. He lived there during that time. Between April 1998 and April 2001 the father resided in the United Kingdom (“the UK”). During that time the father paid the mother to fly to the UK to visit him on a monthly basis.
On 15 May 1998 Mr Bailie and Ms Spencer married. In June 1999 the father and the mother participated in a marriage ceremony which was not registered with civil authorities.
In September 1999 the mother was pregnant with M.
It appears the father and the mother separated finally towards the end of 1999. At that time the mother was living in South East Asia and the father in the UK.
M was born on 22 May 2000. At the time she was born the mother and father were separated.
In the affidavit prepared by the mother whilst she was alive she said that she had contacted the father when M was seven months of age and invited him to meet her while the mother was visiting Sydney. He did meet her on that occasion.
Between 2000 and 2007 the father said he saw M every Christmas and usually at Easter time. He claimed he maintained telephone contact and sent birthday presents. The mother said that the father had seen M only once a year on occasions when she brought M to Australia to visit her family. She conceded the father had given M birthday and Christmas presents. She said it was irregular until about 2008. She claimed he rarely wrote or called M at other times during the year.
In February 2005, S was born. In that same year the father and his partner, Ms G, began to live together.
In February 2006 the mother was diagnosed with inflammatory breast cancer and began a course of chemotherapy. The mother was advised that she had a life expectancy of about 12 months. In that year, the mother relocated to Sydney with both children. In about May 2006, the respondents relocated from the ACT to Sydney and lived about five kilometres from the mother. Ms Spencer and the mother renewed their friendship during this period and saw each other frequently.
On some occasion during 2006 the father visited the children in South East Asia while the mother was staying at a resort.
In late 2007 the father was told for the first time the mother was sick. This information came from his sister. He said he offered the mother assistance however she declined his offer. In September 2007, it seems clear, the mother and children were living back in South East Asia. In December of that year the father spent some time with M, although it was day-time visits only.
In December 2007, Mr Bailie received a posting to South East Asia. During that time the mother was also residing in South East Asia and Ms Spencer and the mother continued their friendship.
In about October 2008, Ms Spencer and Mr Bailie made an offer to the mother that they would be guardians for M and S. This was in the context that she was very ill and was not expected to live for very long. The respondents say that in November 2008 the mother took up their offer to be guardians for the children upon her demise. They consequently increased their involvement in the children’s lives.
In December 2008 the mother advised the father that her diagnosis was terminal and that she intended to leave the children in the care of the respondents.
By 2009 the mother was spending lengthy periods of time in hospital and the children spent longer periods of time staying with the respondents. In about March 2009, M was attending counselling with Ms F, a psychologist in South East Asia.
In about March 2009, the father sent a letter of complaint about Mr Bailie to the Defence Minister Ombudsman and Foreign Minister. This letter of complaint caused Mr Bailie considerable embarrassment and he clearly considered the complaint without justification or basis. The letter of complaint clearly caused Mr Bailie to view the father in a very poor light before any relationship between them was able to commence.
In early to mid-2009 the father attempted to mediate with the mother about his role in M’s life. He was able to have some telephone time with M and was able to visit her in South East Asia. There came a time when he lost contact with M and the mother. His attempts to find the whereabouts of M through the maternal family in Sydney were unsuccessful.
In about mid-2009, the children were predominantly living with the respondents while the mother received treatment. The mother instructed the respondents not to be involved in any correspondence about the children while she was still able to make arrangements. In June 2009, Ms Spencer was able to re-establish regular contact between M and her father by telephone.
On 18 June 2009 the mother signed a will appointing the respondents as guardians of the children in the event of her death.
In June 2009 the father was searching for the children and unable to find them. He made enquiries with DFAT and was advised the mother did not wish to see him or provide him with her contact details. He attempted to contact the respondents unsuccessfully. At some part of June 2009 he was able to have telephone contact with M.
It is acknowledged in about mid 2009 the father visited South East Asia on eight occasions and saw M although he did not have any overnight time with her. Overnight time for M with the father occurred for the first time in July 2010. In about November 2009, Ms G was introduced to M on a visit to South East Asia.
Between November 2009 and April 2010 (when the mother died) the children predominantly lived with the respondents. The maternal grandparents also spent time living with the respondents and the children.
As stated earlier, on 24 April 2010 the children’s mother died in South East Asia.
Following the death of the mother, the father travelled to South East Asia and met with the respondents. The father saw M on that occasion. Thereafter he was in communication with M via Skype, however, he alleged that those calls were monitored by the respondents who stayed out of his vision. That allegation is denied by the respondents.
The respondents acknowledged that on 1 June 2010 the father’s lawyer wrote to them advising that the father would be in South East Asia that weekend and requested time to see M. The respondents say that the notice was too short to be able to accommodate the request, and that there were other plans made for the children at that time. The respondent sought that they be given three weeks notice prior to any visit by the father. During June and July 2010 there were complaints by each of the respondents and the applicant about the nature of the time the father spent with M and its affect on her.
On 7 July 2010 the father instituted proceedings in this Court. The respondents filed their response on 6 August 2010. The first orders were made on 11 August 2010 for the father to spend time with the children for two hours supervised for four periods in August 2010. An order was further made that M not attend upon Ms F (psychologist). On 6 September 2010 further orders were made by the Court for the father to spend time with the children from 10.00 a.m. until 3.00 pm on Saturday and 10.00 a.m. until 3.00 p.m. on Sunday every third week. The respondents were to have sole parental responsibility pending further order.

On 26 August 2010, Ms F provided a psychological report in respect of M. This report appears to have been prepared at the request of the respondents. In December 2010 further orders were made by the Court providing for the father and the respondents to have joint parental responsibility for the children. The children were to live with the respondents and spend time with the father on alternate weekends during school terms and for time during the school holiday. The children were to see a child psychologist.
In January 2011, the respondents moved to the ACT.
In February 2011 the father alleged that he returned the children to the respondents’ home after having spent time with them. He had provided them with a bag of gifts. He said he had observed Mr Bailie remove each item one by one from the bag onto the front driveway. Mr Bailie’s wife denied that ever occurred.
In March 2011 the father and his partner, Ms G, purchased a four bedroom home in Sydney.
In March 2011 the children commenced seeing Ms Y, psychologist. In about the middle of 2011 the father withdrew his consent to the children continuing to see Ms Y.
In November 2011 a second Court expert was appointed, being Dr C. Dr C provided his report in February 2012. The matter was listed for hearing for 5 days commencing 25 June 2012.
The hearing proceeded for three days. At the conclusion of the evidence of Dr C the parties had further discussions, where it appears there was significant common ground between them in relation to the orders that the Court should make. As it transpired, all bar one of the aspects of the future care of the children are agreed between the parties and I was able to make orders by consent reflecting that agreement. The one matter which remained outstanding was the aspect of parental responsibility.

The submissions on behalf of the Independent Children’s Lawyer

The Independent Children’s Lawyer (“ICL”) provided Exhibit ICL 1. In that document it is proposed that the respondents have parental responsibility for the children, including the responsibility for obtaining passports and other travel related documents for the children. Such an order would exclude the father from being able to have any meaningful input into decisions relating to the long term welfare of the children.
As a consolation, the ICL seek an order that the respondents keep the father advised of all decisions they make in relation to the long-term care, welfare and development of the children. In support of those orders being made the ICL submits that it is not appropriate to include Ms G as having parental responsibility with the respondents and the father as she is not a party to the proceedings. It is further submitted that the children will be living, with the consent of the father, with the respondents. Both girls are emotionally vulnerable following the loss of their mother. M is vulnerable to conflict between the respondents and the father.
The ICL submits that the father had shown his ability to be difficult and not to put the best interests of the children in front of any dispute he might have had with the mother or the respondents in refusing to sign the consent form for M’s passport in about 2009. Further, the father had refused to consent to M having therapeutic interventions. She said that on 11 August 2010 orders were made for M not to be allowed to attend upon Ms F, a psychologist she was seeing in South East Asia. On 20 December 2010, orders were made for the children to see Ms Y, a psychologist in the ACT. The children attended upon Ms Y until the father withdrew his consent in about the middle of 2011. Then again on 30 November 2011 a consent order was made for the children to attend on therapy.
The ICL drew the Court’s attention to paragraphs 162 and 163 of Dr C’s report. Those paragraphs appeared under the heading “Parenting Capacity”. I will not set out here verbatim those two paragraphs of the report however, inter alia, they report an opinion by the expert that the father was seen to be primarily occupied with the importance of the establishment of his relationship as M’s biological father, to the exclusion of other factors. This raised questions about his ability to truly prioritise the children’s needs. The reports provided to Dr C from the respondents and the maternal grandmother and the father’s sister highlighted his volatile and inconsistent behaviour which futher questioned his ability to prioritise the children’s developmental needs. Dr C further questioned the father’s ability to take personal responsibility for his actions.
The ICL submitted that the father seemed to lack insight into the impact of his actions on other people. He appeared to lack impulse control. He appeared to not have the capacity to focus on what is in the girls’ best interest.
The ICL submitted that s 64B(2)(c) gave the Court the power to make an order granting parental responsibility for the children to persons who were not natural parents. It was submitted the section should be read in conjunction with s 65D.
I asked each of the ICL and the respondent’s counsel to address s 61DA and its application to a case where there was one natural parent and other persons seeking parental responsibility for the children. I asked whether there were any cases, which the Court could be referred to, where such cases consider whether a natural parent should be ordered to have parental responsibility in preference to, or possibly in conjunction with, persons who were not natural parents to a subject child. The question really raises the possibility that a natural parent should, in circumstances where the best interests of the child would not dictate otherwise, be given preference as against a non biological parent. Neither the ICL nor counsel for the respondents was able to direct me to any decision of the court which may assist.

Submissions of the respondents

The respondents seek orders as set out in paragraphs 3, 4 and 5 of Exhibit ICL 1.
Given the concessions made by the father, in particular that the children should live in the ACT with the respondents, the manner in which the submissions made on behalf of the respondents were presented and the content of the same were, to say the least, insensitive and in the Court’s view unlikely to assist in the relationship between the father and the respondents into the future. Although I raised my concerns with the respondents counsel about the manner in which she was delivering her submissions it appeared to have no impact at all. Given the Court’s options of preventing the respondents from making any further submissions (and consequently lessening the damage to the relationship between the respondents and the father into the future) or allowing the submissions to continue so that no complaint about lack of procedural fairness or natural justice could be made, I elected to allow the respondents to continue their submissions.
The respondents submissions then proceeded to attack the credit of both Ms G, the father’s partner, and also the father. The respondent’s counsel drew my attention to page 56 of Ms Spencer’s affidavit. This contains three emails between the father and Ms Spencer. The subject is M’s Encopresis. The email commences with the father raising concerns, based on his experience, about the competence of South East Asian doctors. He asked for M to see an Australian specialist as soon as possible. He used the words “it is inhumane not to do so”. The respondent’s counsel took exception to those words and forcefully submitted that the father’s use of them is somehow indicative of an attack upon the respondents.
Ms Spencer responded to the email in a most appropriate manner. She finalised by saying that M is now seeing an Australian doctor. The father responded with a short email again in a most appropriate form. I can see nothing in the exchange of emails which supports the attack which the respondents through their counsel seek to make on the father resulting from same.
The respondent’s counsel submitted that the father is aggressive, erratic and not always truthful in his communications. The respondents referred to page 53 of the father’s affidavit. On that page is a heading “What statements of fact in the affidavit of [Ms F] are incorrect and what he says the correct statement of fact is.” In particular, the respondents focussed on the word “struck off” as used by the father and also the word “grooming” as used by the father.
As can be seen by the subject entry in the father’s affidavit, he was opposed to Ms F acting as a therapist for M and an expert witness in the case. He accused her of being unprofessional and opined that she would have been struck off as a registered psychologist in Australia, America or the UK had she behaved in that manner (as he saw it) in any of those countries. It needs to be remembered that the father’s mother was a registered psychologist in the United Kingdom for many years. No doubt the father’s belief has been influenced by his knowledge of his mother’s practice and or something that she may have said to him.
The father set out the basis for his assertions. They include that Ms F was incapable of being objective because of her relationship with Ms Spencer. He was critical because she had been engaged as a pro bono grief counsellor for M and had then become an expert witness for the respondents. He suggested that by her grief counselling with M at a time when she was also a close friend of Ms Spencer’s and potentially a witness in their case she could have been influencing M’s opinions, no doubt in relation to the father and in relation to the respondents. The father used the word “grooming”, however, I do not see there was anything malevolent in the use of that word.
The respondents’ counsel made submissions about the father causing the counselling, which M was having with Ms Y, to be concluded. Counsel pointed out that the appointment of Ms Y was pursuant to a consent order. This submission ignores the oral evidence of the father that his withdrawal of consent to Ms Y continuing to act as a counsellor for the children was on legal advice. He said that Ms Y was apparently not carrying out the task that he and his lawyers considered she was asked to undertake. No challenge to that position was put to the father.
It was submitted that the father had enrolled the children in a Sydney school as a tactic in the proceedings. This again ignores the evidence of the father or, alternatively, is a submission that he was untruthful in that evidence. The respondents rely upon a letter from the father’s solicitor which indicates that the father deliberately enrolled the children in the school. The father’s evidence was that he sought information from the Sydney school about places for the children should he be successful in his application that the children live with him. He completed forms which he understood secured places for the children but was not formally enrolling the children. The school understood that an enrolment was sought and wrote to the children’s school in the ACT seeking records be sent to them. This then sparked a chain of events which the father clearly by his evidence had not intended. On this matter I do accept the evidence of the father that he was attempting to secure places for the children rather than enrolling them. The evidence as to what actually occurred suggests that the only way to secure a place for the children was to, in fact, enrol them in the school.
The respondents raised a concern of how resolution may be achieved if a dispute arises as to the children’s future schooling. The children’s schooling was a matter raised in the body of the Court. The respondents named the school they wished M to attend for her high school education. The father raised no objection to her attending that school. That potential issue thus disappeared.
The respondents complained that the father had been paying voluntary child support for the children but ceased to pay some months ago. They acknowledged that the father had ceased paying because Mr Bailie had said to Dr C that he was not using the funds supplied by the father to support the children, rather he was putting that money in a savings account for the children at a later time. The father took the view that this gave an anti-father message to the children. Clearly the message the father perceived was “we don’t need support from your father to be able to look after you.” No recognition on the part of the respondent, at least though their submissions, indicated they had any understanding that the father may see their actions in that light. In my opinion, the possibility of the father receiving such a message, even if it was unintended, displayed lack of insight and sensitivity.
The respondents sought to rely upon evidence of a statement made by the father’s sister to the maternal grandmother. It was submitted that an email sent to the maternal grandmother stated that the Holman family was very conflicted. That evidence was in conflict with the evidence of the father and his mother about the family history recited to Dr C. It was submitted that the evidence of Ms J Holman (“the paternal grandmother”) should not be accepted in relation to the personality of Ms Y Holman (“the paternal aunt”). The evidence of the paternal aunt was not before the Court. However, she assumed great significance because of what she told Dr C which is reported in his report. Clearly Dr C had relied upon what the paternal aunt had told him in formulating his opinions. This is not to suggest that it was the only material he relied upon in reaching that opinion or that his opinion might have been different had the paternal aunt not spoken to him at all. Given that the paternal aunt did not give evidence in the proceedings the court cannot give weight to her view of how things were in her family during her childhood nor could the court take into account any opinion she may now hold of her brother.
It was suggested by the respondents that the children might need orthodontic treatment in the future and that the father might not agree to it.
It was submitted that negotiation between the respondents and the father about matters relating to the long term welfare of the children may be problematic. It is submitted that the past behaviour between the father and the respondents would indicate that this is probable rather than possible. Such a submission ignores the evidence of Mr Bailie in the witness box to the effect that he hoped and anticipated that after the Court proceedings were concluded there would be a different emotional environment operating between the different parenting groups which might make negotiations and communication better. He acknowledged that in recent times the communication had improved and the ability to reach agreements seemed to be improving.
The respondents submitted that if they were forced to negotiate with the father then exchanges may well increase their anxiety levels and therefore impact upon the ability to parent the children. The respondents referred to the evidence of Dr C that what the children needed most at this time was stability. It was submitted that stability should not be undermined by any conflict about their arrangements.
Finally the respondents submitted there may be difficulties in negotiating agreements between the respondents and the father in relation to matters of health. The correspondence which the respondents drew my attention to in relation to M’s Encopresis would indicate that is unlikely.
During the submissions made on behalf of the respondents, I asked for submissions on the impact upon the children of the father being disenfranchised in relation to parental responsibility.
Counsel for the respondents submitted that the word “franchise” or “disenfranchise” is not in any section of the Act relative to parental responsibility nor is it in the Act in any other place. As a clear statement of fact, that submission was correct. However, it has been acknowledged by the Court and must be acknowledged as a reality, that a parent who is prevented from being able to participate in making decisions on matters of the long-term welfare of his or her children, would feel disenfranchised. There may well be more appropriate words to use than “disenfranchised”, however, for my part it clearly conveys the feelings I would anticipate such a parent to hold. The respondents’ counsel appeared not to acknowledge that was a possibility and played down the potential impact upon the father of the determination the respondents were seeking. For his part, the father, made it clear in his submissions that being excluded from decision making in respect to the children’s long term welfare and important aspects of life, he would feel “disenfranchised”.
In my view, the impact upon the father and or the respondents of any order which the Court makes is not a matter to be ignored. It is a matter which appears to me to impact upon the ultimate determination of the best interests of the children. This Court has acknowledged over years that the impact on a parent of particular orders, which are sought, may impact on the ability of that parent to act to the best of their parenting capacity (see B and B [Access] (1986) FLC 91-758; and Fennick & Fennick (No.2) [2008] FamCA 908). I raised that matter in discussion with the respondents’ counsel during her submissions.

Further aspects in relation to the submissions of the respondents

I referred earlier to the manner in which the respondents made their submissions. By way of assistance to the legal representatives of the respondents, and to practitioners in this court generally, I provide the following.
Division 12A of Pt VII of the Family LawAct came into force in 2006 and therefore has been operational for nearly six years. The provisions of this division should be well known to practitioners appearing for parties or acting for parties in parenting cases conducted under the Family Law Act.
Subdivision B of Div 12A is titled “Principles for conducting child related proceedings”. Section 69ZN(1) provides, as a mandatory requirement, that the Court must give effect to the principles set out in that section. Effect must be given to those principles not only by the Court in performing duties and exercising its’ powers but also in making determinations in relation to the conduct of the proceeding.
There are five principles. Of those the following are of particular relevance to this case.
a)The first is as follows “the first principle is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.”
b)The second principle is “that the Court is to actively direct, control and manage the conduct of the proceedings.”
c)The fourth principle is “the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child focussed parenting by the parties.”
The above stated principles have relevance to the matters I raise here. The submissions on the part of the respondents were made in circumstances where the father had conceded that the subject children should live predominantly with the respondents in the ACT. The manner and tone in which the submissions on the part of the respondent were delivered, on the one outstanding issue of parental responsibility, suggest that there was no other available outcome which the Court could have reached on the issues of where the children should predominantly live and also the time they should spend with the other parental group. If that assumption was made by the respondents then in my view they were misled.
The report provided by Dr C clearly supported an outcome that the children predominantly lived with respondents in the ACT. It was reasonable for the respondents to predict that the evidence of Dr C would be given considerable weight. It was reasonable for the respondents to conclude that in many parenting cases the orders of the Court do largely reflect the recommendations of the expert witness. It was not reasonable for the respondents to predict that it was the only outcome available.

When Dr C gave his oral evidence the witnesses which the Court had heard included the father, his partner Ms G, his mother, and Mr Bailie (to a small extent), one of the respondents. The Court had not had the opportunity to see Ms Spencer as a witness in the witness box.
I was most impressed with Ms G, as a witness and a person. She appeared to me to have genuine concern for the children and to want to promote a healthy and cooperative relationship between each of the parenting groups. In my view, the father did not present as an inherently untruthful witness. I could see, having read all the affidavit material, that it was reasonable to predict there would have been attacks on his credit, by the respondents, had we reached final submissions.
Mr Bailie presented as an honest but very rigid person. His presentation was consistent with his history of having been a colonel in the regular Australian Army. As a person who deserved and received respect in his career and as a person who was used to giving orders and having those orders obeyed immediately. He appeared to me to show traits of being intolerant to his being questioned in respect of any decision he may have made in relation to the children. I emphasise at this stage that the hearing had not concluded and I had not heard any submissions in relation to the presentation of Mr Bailie or the way in which his evidence should be considered or the weight that should be given to it.
I mentioned the above matters only for the purpose of illustrating that at the point of the hearing concluding with the father retreating from his claim for residence of the children, the case could not be said to be one in which the outcome could have been confidently predicted. The submissions on the part of the respondent gave me the impression that the respondents considered that the father had given nothing away by agreeing to the children living with the respondents because, in their view, he was never going to achieve an order that the children live with him.
In making the above statements I acknowledge that I had a responsibility under Div 12A to control the submissions being made by the respondents’ counsel. Whilst having that ability judges of this court have to tread a fine line between., on the one side, complying with the provisions of s 69ZN of the Act and on the other side of not giving the appearance of being unreceptive to arguments which a party may have wished to have put before the Court. I acknowledge that, to a large extent, judges of the Court must rely on the sensitivities of experienced counsel being in tune with the aforementioned sections of the Act and being aware that submissions made in hearings can have far reaching consequences which are not confined to the case itself.
In my view, the submissions made by the respondents could have been delivered in a far more sensitive and subtle manner without losing any meaning or influence which the submissions were intended to make.

The submissions made on behalf of the father

The father sought the position that there should be four persons involved in the parental decision making for the children. Those four persons are each of the respondents, the father and his partner, Ms G. After some discussion with the father about the involvement of Ms G, he relented in relation to her involvement and pursued an order which would see himself and the respondents collectively making those decisions. He acknowledged in the making of his decisions he would certainly take counsel from Ms G.
In submissions I asked the father “what confidence could I have that you will correspond and or communicate with the respondents in a conciliatory, cooperative manner which might indicate that you have a clear intention of wishing to be able to reach an agreement in respect of any aspect of the children’s parenting in the future?” The father submitted that there was evidence of his behaving in that manner already. He said that he had made the very emotionally challenging decision to give up residence in respect of the children and to allow them to live in the ACT.
On the day of the submissions, the father had readily agreed to the children attending the high school nominated by the respondents. There was no indication that he had any reservations about the choice. Further, the father submitted that he has been ready at all times to involve himself in mediation to try and resolve matters, firstly with the mother and then with the respondents. The father relied on two mediation certificates he had received. Those certificates were marked as Exhibit F2. One of the certificates, dated 11 May 2010, attests that the father could not attend on family dispute resolution with the counsellor due to the refusal or the failure of the respondents to attend. The other certificate was dated 22 June 2009 and attests to the fact that the father and the mother attended family dispute resolution and all attendees made a genuine effort to resolve the issues in dispute.
The father insisted that he had agreed with the respondents about all major issues in the proceeding and that agreement was embodied in what are effectively consent orders in respect of most of the arrangements of the children. Another example of the father being able to correspond with and have input to the children’s health can be seen in the correspondence between the father and Ms Spencer in relation to M’s Encopresis. That correspondence was drawn to my attention by the respondents in their submissions.
The father submitted that the proceedings had been initiated between himself and the mother prior to her death. He submitted that the mother had never sought a sole parental responsibility order. He said the mother had asked the respondents to take over her role as carer of the children. There was no evidence to show that the mother wanted to exclude the father from any aspect of decision making.
The father in his submissions told the Court he was surprised by the ferocity of the submissions made against him by the respondents’ counsel. He said that if he was not permitted to have a role in the decision making of the children, in relation to their long-term welfare, he would feel disenfranchised. He pointed to the fact that Mr Bailie in his oral evidence told the Court that he had confidence that things would change in the relationship between the respondents and the father once the proceedings were concluded. The father said it would have a psychological impact on him if he was excluded from decision making. He said “I am a loving father. I made a real effort to bring the proceedings to a close.”
The ICL made a further submission in relation to mediation which was proposed to be conducted shortly before the hearing listed in this Court. The ICL tendered correspondence which was marked as Exhibit ICL 2.
The email communication starts on 12 June 2012 by emails sent from Noni Croudace from Legal Aid NSW to the father. It provided him with confirmation of a conference to be held on 14 June 2012 at 10 a.m. The father responded that same day by advising that because the matter (of a settlement conference) had been left so late in the day he had booked time off work to attend at court and had an additional workload to make up for that. He had many critical work meetings scheduled on the particular day. He had initially kept 14 June free and accordingly must have had some forewarning of it. The father was effectively complaining that to wait until two days before 14 June to confirm that there would be a settlement conference on that day was, in the circumstances, too late.
The response from Noni Croudace on the same day is as follows “As previously stated, you confirmed your attendance to the conference on 24 May. The ICL will be informed of your failure to participate in the conference.” The father returned an email the same day which confirmed he had asked for mediation and he confirmed his attendance on 24 May. Subsequently, he said the Legal Aid office had informed him that they were arranging for a panel of five or more people to represent the other party. He had not heard anything back from the Legal Aid office until 12 June to advise him that the meeting/settlement conference would take place. As far as the father was concerned, during the period 24 May to 12 June he had no information that the respondents had agreed to the mediation. He advised that between 24 May and 12 June his availability to attend on 14 June had changed.
In the response to that last email, the writer, Noni Croudace, apologised for the lack of contact in the last two weeks advising that she had been away ill and had just returned that day. The father then responded raising his concerns about the fairness and impact of mediation taking place in the manner proposed. He confirmed advice which Ms Croudace had given him that the respondents refused to participate in mediation without their lawyers.
In my view, Exhibit ICL 2 does not illustrate that the father has been unreasonable in his approach to mediation. To the extent that Exhibit ICL 2 raises concerns about the father, it equally raises concerns about the respondents. There may or may not have been reasonable grounds for the respondents requesting that their legal representatives be present at any mediation.

The law in relation to shared parental responsibility

Section 61C provides that each of the parents of a child who is not 18 years of age has parental responsibility for the child. That position is to prevail unless and until there is any order to the contrary. Thus, unless and until there is any order to the contrary, the father has parental responsibility for M. In this case, as stated earlier, there have been orders made previously in relation to parental responsibility.
Section 61D(2) provides:
A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
Section 61DA is as follows:
(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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) 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 for the child.
Section 61DA(1) on its face applies only to a child’s parents.
The word “parent” as used in s 61DA is not specifically defined in the Act and therefore must have its ordinary meaning applied. To understand that meaning the provisions of s 60B should be considered, those being the objects of Pt VII and the principles underlying it. The way in which the word “parent” or “parents” is used in s 60B suggests that the meaning attributed to those same words in s 61DA is intended to apply to natural parents, adoptive parents, or persons who become parents by operation of a specific section of the Family Law Act.
The question arises, therefore, as to whether s 61DA has any application or import when the Court is dealing with a circumstance where there is only one parent or where there are no parents alive or known in respect of a subject child.
This matter was addressed by Justice Murphy in the decision of Dunstan & Jarrod & Anor [2009] FamCA 480 delivered on 5 June 2009. In that matter, a child, whose mother was deceased, was the subject of litigation between the father and foster parents to a child of aboriginal heritage. The father sought sole parental responsibility in that case, the Independent Children’s Lawyer and the respondents sought shared parental responsibility between the foster parents and the father. His honour justice Murphy said in that decision:
62.The thrust of the submissions made by the Independent Children’s Lawyer and Mr and Mrs Jarrod is to suggest allocation of parental responsibility between the Jarrods and the father. I took the father to be seeking an order that he have, in effect, sole parental responsibility (although he was at pains to point out that he considers the input of the Jarrods to decisions about the child to be important).
63.An issue is raised about the nature of “parental responsibility” as that term is defined and understood in the Family Law Act, particularly as it concerns the allocation of parental responsibility between people, some of whom are not “parents”.
64.In that context, I repeat that, although the child has lived with the Jarrods since very shortly after birth, and although some steps were initially taken for her to be formerly adopted by them, she has not been formally adopted. As a result, they are not her “parents” within the meaning of the Act (See the definition in s 4). Mr Dunstan is the child’s “parent” as that term is understood in the Family Law Act (as is the child’s mother who has absented herself from the child’s life).
65.I addressed the issue of non-parents and parental responsibility in a decision reported as Carlson v Bowden (2009) 40 Fam LR 327 to which counsel for the Independent Children’s Lawyer referred. Because the father represents himself I think it is important that I set out my earlier reasoning with respect to this issue in these reasons so as to avoid the necessity for the father to refer to a decision other than this one.
66.Parental responsibility is defined in the Act to mean “… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Save for the court orders, each of the father and mother has parental responsibility for the child. A parenting order does not derogate from that save as is expressly ordered.
67.But, the Act requires something that appears, at least in terms, different: the rebuttable presumption in that situation is that the parents have “equal shared parental responsibility”. That phrase is not separately defined. Here, the question arises as to whether the presumption should be applied in proceedings between a parent and non-parents.
68.Not only is the phrase “equal shared parental responsibility” not defined in the Act, it might be thought to involve a concept different to that which guides the practicalities of co-parenting of children in either intact families or in arrangements where high levels of co-operation, respect and agreement attend consensual post-separation co-parenting arrangements.
69.In those situations, there can be little doubt that, appropriately, parents share parental responsibility (as defined). Yet, common experience shows that parental responsibility (or, at least, aspects of it, for example, responsibilities and duties) is - for a variety of reasons, some born of necessity, others not - by no means always, or even frequently, shared equally.
70.The Act (s 65DAC) makes it clear that sharing parental responsibility in respect of “major long-term issues” is not a passive activity; it requires those sharing parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.
71.Equally, though, an order for “sole parental responsibility” in favour of a party means, as it seems to me, that the other party has no rights, responsibilities and authority in respect of “major long term issues” for the children save as expressly ordered. (Decisions in respect of day to day issues are specifically provided for: Note to s 65DAE(1)).
72.The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for a child - particularly when, as here, the child is young – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
73.There is no doubt that the exercise of that discretion ought to be resolved in favour of an outcome which is seen to be in the best interests of the child. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration, nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
74.At first blush the Family Law Act would appear to not require the application of the presumption when non-parents and parents were seeking competing parenting orders. Further, it would appear the Act gives no powers to make an order for non-parents to receive the benefit of an order sharing parental responsibility equally.
75.First, s 61DA – the section containing the presumption - speaks only of “parents” having equal shared parental responsibility. The power to make parenting orders (s 65D) is made subject to s 61DA. And, s 65DAA, which mandates the consideration of equal time upon the application of the presumption, applies when an order provides that “the child’s parents” are to have equal shared parental responsibility.
76.But, the picture is not that simple. Section 64B defines parenting orders to include orders whereby the court allocates parental responsibility. Section 64B(2)(d) contemplates, in terms, the possibility of “two or more” people sharing parental responsibility and also refers to “persons” sharing parental responsibility (as distinct from parents).
77.Further, an application for a “parenting order” which, by definition, can include an application for an order for parental responsibility by “two or more persons”, can be made not only by a parent, but by any person concerned with the care, welfare and development of the child” (s 65C) and can be made in favour of a parent or “some other person”.
78.The position is, then, it seems to me, that an order allocating parental responsibility can be applied for by a non-parent concerned in the care welfare and development of the child and an order can be made between two or more persons including persons who are not parents. However, the presumption of equal shared parental responsibility applies only as between parents.
79.Further, where an applicant, or applicants, other than the parents apply for a parenting order allocating parental responsibility, the presumption would (unless rebutted) operate such that it would be presumed that the parents would have equal shared parental responsibility to the exclusion of the non-parents.
80.Expressed another way, the presumption that the parents share parental responsibility equally would need to be rebutted by reference to the matters enumerated in s 61DA(2) or (4) before an order allocating parental responsibility to non-parents could be made.
81.It seems to me, then, to be erroneous to seek an order that a number of persons which includes one or more non-parents, have “equal shared parental responsibility”.
82.Equally, though, it would be open for any party to argue that s 61DA(2) or (4) applied so as to rebut the presumption of equal shared parental responsibility, and to then contend for an order that parental responsibility be allocated equally between the parties.
83.Whilst that might seem to be sophistry, it seems to me that this is what the application of the Act requires.
84.Here, I have no difficulty in concluding that the presumption of equal shared parental responsibility (as between the child’s mother and father) is rebutted by reference to the child’s best interests. Her mother gave her up for adoption, she admitted she could not care for her and has shown little, if any, interest in her since.
85.The question in this case is, then, to what extent should parental responsibility – or aspects of parental responsibility – be allocated as between the father and Mr and Mrs Jarrod. That issue, too, is to be determined by reference to the child’s best interests and raises important questions, not the least of which is the importance to her of her right to her cultural identity.

In the case of Aldridge & Keaton [2009] FamCAFC 229 the Full Court considered an appeal which raised as a fundamental issue whether it was appropriate for a person with no biological connection to a child to have a parenting order made in his or her favour under Part VII of the Act in respect of that child. The issue arose as a result of the breakdown in a same sex relationship between the mother and her partner. The mother, Ms Aldridge, is the biological parent of the child. Her former partner had no biological connection to the child. The Full Court reviewed the relevant sections of the Act which identified “parents” as being the subject of a particular provision of the Act.
At paragraph 75 the Full Court concluded their analysis of the relevant sections and earlier decisions of the Court. The following appears then between paragraphs 75 and 79 inclusive:
75.While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
·    the unaltered provision dealing with best interests (s 60CA) and the positioning of the section in the Act;
·    the recognition in s 65D(1) that ultimately a court should make such parenting order as it thinks proper; and
·    that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
76.Experience and common sense demonstrates that the vast majority of applications for parenting orders will be brought by one of a child’s biological parents, with the other parent the respondent to the application. But there are also situations where one or both parents are deceased or otherwise unavailable or unsuitable to fulfil the duties of parenthood. Often in the latter circumstances a relative of the child will appropriately seek parenting orders.
77.Further, just as in 1976 Stephen J in Gronow v Gronow (1979) 144 CLR 513 recognised changing societal “norms” in rejecting the notion of a presumption in favour, or any preferred role, of a mother to have custody of a child, particularly of a female child, the Act in its present form enables a court dealing with a parenting application the flexibility to recognise and accommodate “new” forms of family, including families with same-sex parents, when making orders which are in the best interests of a child who is part of such a family.
78.Children who have been brought up in these new forms of family may be children who fall within s 60H. There will also be children who, while not conceived with the consent of the co-parent (or as described in the legislation the “other intended parent”), have effectively been treated as a child of the relationship of a same-sex couple. Such children may be the biological child of one parent born, before the same-sex relationship commenced, but whose substantial parenting experience has been from each of the same-sex “parents”. More commonly, they may have been conceived as the result of a private agreement with a known donor and without formal consent documentation. These children’s best interests are the paramount consideration to be taken into account, not the circumstances of their conception or the sex of their parents.
79.In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Part VII to determine whether making (or not making) a parenting order would be in the child’s best interests.
As a consequence of the above referred to cases, in particular the authority flowing from the Full Court, the Court is not to elevate the position of a natural parent above the requirement to make an order which is in the best interests of the child.
It is trite to say that parents, like all human beings, vary in their parenting capacity or incapacity and it is therefore a requirement, under the Act, that the Court consider the capacities of each of the competing parental groups or persons as one of the matters to be taken into account when determining what is in the best interests of a child.
In this case the question which falls for determination is why it might be in the best interest of the subject children for an order to be made reposing in one of the parental groups or persons the sole responsibilities to the exclusion of the other, for making decisions for the long term and welfare of the subject children. In order to determine that, on the evidence available at the time the hearing concluded, the exercise which I consider should best be undertaken is to look at the advantages and disadvantages for the children of each of the proposed positions.

Advantages and disadvantages of reposing sole parental responsibility, including responsibility for renewal of the children’s passports, in the respondents.

The advantages of sole parental responsibility being granted to the respondents are as follows:
a)It would be more convenient for the respondents to be able to make decisions in respect of long-term welfare of the children without having to consult with the father.
b)Not having to consult with the father to make such decisions would avoid any possibility for conflict in relation to such matters.
c)Given the complex facts and circumstances surrounding this case, marginalising the father from decisions in relation to the children may have less impact on S who has no biological connection to the father than it may have on M.
d)If the respondents are relieved from the stress that they may experience in negotiating with the father, it may mean that the emotional environment in which the children predominantly live will be healthier for them.
e)Given that the respondents would not have to consult with the father in relation to these decisions the children would be less likely to be exposed to conflict between the two parenting groups.
The disadvantages of sole parental responsibility being granted to the respondents are as follows:
a)Given all the evidence which has been read and provided in the case to the point where the case was adjourned, it is reasonable to predict that the father will be significantly psychologically impacted upon by such a determination. The father has said that he will feel disenfranchised. It would be reasonable for the father to conclude that there was no appreciation by the respondents of the ground he gave in agreeing to the children residing with them in the ACT.
b)It is possible that the children, in the future, will see the father as having been marginalised by the respondents and accordingly they may be placed in emotional turmoil and/or conflict with loyalty to the respondents on one hand and sympathy with the father’s position on the other. This might reasonably be predicted to be particularly so in relation to M as the father is the only biological parent she has.
c)It would appear to be contrary to the general thrust of the Family Law Act Pt VII which provides that (in the absence of concluding it would be in the best interests of the children) to have a natural parent of the children not involved in making decisions about their long term welfare.
d)It is reasonable to predict that the circumstance of sole parental responsibility to the respondents is likely to generate resentment on the part of the father and thereby add to conflict between the parenting groups, rather than an abating of conflict.

Conclusion

On balance I do not conclude there are sufficient negatives to the children’s best interest by making an order for parental responsibility to be shared between the father and the respondents in this case. Whilst acknowledging that the respondents can point to behaviour on the part of the father from the time of their involvement in the care of the children, which has caused them considerable embarrassment and placed them under considerable stress, it is acknowledged that in recent times there has been an improvement in the father’s interaction with them. Reading recent emails passing between the father and the respondents there are good indications that each is making a real effort to change things for the benefit of the children and no doubt for the benefit of their own wellbeing.
It cannot be the case, with respect, that difficulty with being able to communicate between parents or parenting bodies for the purpose of making agreements about long-term welfare aspects of the children, of itself, should give rise to the Court making an order for sole parental responsibility in favour of one parent or one parental group. Each of the parties to this case bring to the parenting their own personalities. In this case each of the father and the respondents potentially have a great deal to offer these children as parents and role models. There are aspects of the behaviour of the father and the respondents which in isolation would illustrate poor role-modelling for the children. In each case, each of those persons would claim justification for their actions arising from the actions and/or reactions of the other party.
It is reasonable to conclude that the relationship between the respondents and the father was not grounded on a good foundation. The respondents were exposed to the mother and her family’s views and perceptions about the father well before they ever met him. They were of the understanding that the father showed little interest in M and no interest in S before the proceedings were commenced in this Court. The father, for his part, considered that the respondents were involved in an action by the mother and her family to marginalise the father and defeat him in being able to have a proper and appropriate relationship with his daughter and S.
Those basic beliefs are difficult to set aside during the course of litigation, however, considerable time has passed and the parties have each spent considerable amounts of money on legal proceedings in relation to the children. They all subscribe to a desire for things to change and to settle into a proper working relationship. Each of the parties have very proper and acceptable reasons for seeking to parent the children. The father is the only biological parent available to M. S is inexorably connected to M as her closest relative. The parties, to their credit, have subscribed to the opinion and view that the children should be treated as members of one family for the purpose of their parenting.
The respondents have no biological connection at all to the children. They did, however, have a close connection to the children’s mother. The mother chose them as the parents for her children when she knew that she was dying. They had given an undertaking to the mother before her death that they would take on the role of parenting the children. This was clearly a solemn undertaking on their part and the Court recognises their dedication to that undertaking and the good role modelling that presents for the children.
In my view, the scales are not tipped to a point where it could be said that the best interests of the children require the respondents to have sole parental responsibility. Accordingly, I will order that the respondents and the father have equal shared parental responsibility for the children.
To the extent which it has been necessary to do so I have addressed the provisions of section 60CC of the Act without mentioning a particular sub-section at the time of considering a particular argument of piece of evidence in the reasons set out in this judgment.
The orders I propose to make will be firstly consistent with all those provisions of the agreement reached between the parties and the ICL during the last portion of this hearing. Secondly I will make an order for shared parental responsibility for the children to repose in the respondents and the father equally.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 2 August 2012.

Associate:

Date: 2 August 2012

[2012] FamCA 827

2 August 2012

Key Legal Topics

Areas of Law

Family Law