MACKENZIE & KWAN

[2012] FamCA 1135

FAMILY COURT OF AUSTRALIA

MACKENZIE & KWAN [2012] FamCA 1135

FAMILY LAW – CHILDREN – Application by father for an interim parenting order that the parties have equal shared parental responsibility – Mother seeks father’s application be dismissed – Parenting proceedings commenced in overseas jurisdiction by mother – Interim parenting Orders made in overseas jurisdiction - Hague Convention proceedings commenced in overseas jurisdiction by father – Father’s application dismissed – Reference made to section 61C(1) of the Family Law Act 1975 (Cth) conferring parental responsibility on each parent of a child under 18 years of age – No order made conferring equal shared parental responsibility on the parties

Family Law Act 1975 (Cth)

APPLICANT: Mr MacKenzie

RESPONDENT: Ms Kwan

FILE NUMBER: CAC 1127 of 2012

DATE DELIVERED: 25 October 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 25 October 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented Litigant

SOLICITOR FOR THE RESPONDENT: Self-represented Litigant

Orders

1. That I refuse to make any interim order conferring equal shared parental responsibility on the parents for any of the three (3) children. 

2. That the liberty to restore the matter to the list upon giving twenty-four (24) hours is hereby continued however I will require someone able to explain to me precisely what is sought and the reasons for same.

IT IS NOTED that publication of this judgment by this Court under the pseudonym MacKenzie & Kwan 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 PARRAMATTA

FILE NUMBER: CAC 1127 of 2012

Mr MacKenzie

Applicant Father

And

Ms Kwan

Respondent Mother

REASONS FOR JUDGMENT

Introduction & Background

1. The application of the father before me today seeks an order that the parties have equal shared parental responsibility for the three children of their relationship.

2. The children are presently in Country B, as are both parties.  Today’s proceedings were conducted by telephone with both parties in Country B.  What I understand, from what I have been told by the father, who appears for himself today via telephone, is that there are proceedings in a Country B Court pursuant to the Hague Convention for the recovery of children abroad.  I understand that those proceedings have been allocated hearing date.

3. In addition, as I understand from the father’s affidavit, which has been sworn in support of this application, the Country B Court, possibly prior to the Hague Convention proceedings being commenced, and certainly prior to any order being made in respect thereof, made an interim Order in favour of the mother.

4. As I understand the father’s position, he now seeks to have me make an order that would confer equal shared parental responsibility for the parties’ children on each of the parents.  I understand that he seeks to do this, he says, so that neither party is at a disadvantage.  However, it appears to me that his application is sought so as to offset or overcome the interim Orders made in the Country B Court.

The law to be applied

1. The father seeks no orders other than the declaration, as it were, of equal shared parental responsibility.

2. Section 61C(1) of the Family Law Act 1975 (Cth) provides that each of the parents of a child who is not 18 has parental responsibility for the child. Section 61DA, which is the section upon which the father apparently relies, states that when making a parenting order in relation to a child the Family Court of Australia 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.

Discussion & Conclusion

1. The father seeks no other orders.  He does not seek an order for the children to live with him or for him to spend time with the children.

2. Proceedings are clearly on foot in the Country B Court.  The Country B Court has made an interim Order with which the father clearly disagrees.  It may well be that the circumstances in which such an order was obtained bear examination.  That is, however, a matter for the Country B Court. 

3. In the circumstances of the matter, as I understand it, before me, I refuse to make any interim order conferring equal shared parental responsibility on the parents for any of the parties’ three children.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 25 October 2012.

Legal Associate:      

Date:    13 February 2013