McVeigh and McVeigh

[2013] FCCA 1623

FEDERAL CIRCUIT COURT OF AUSTRALIA

McVEIGH & McVEIGH [2013] FCCA 1623

Catchwords:
FAMILY LAW – Children – parental responsibility – equal shared parental responsibility – where parties agreed on further interim parenting orders.

Legislation:
Family Law Act 1975 (Cth), ss.61DA, 61DB

Applicant: MS MCVEIGH

Respondent: MR MCVEIGH

File Number: CRC 237 of 2010

Judgment of: Judge Scarlett

Hearing date: 17 September 2013

Date of Last Submission: 17 September 2013

Delivered at: Coffs Harbour

Delivered on: 17 September 2013

REPRESENTATION

Solicitor for the Applicant: Ms Harding

Solicitors for the Applicant: Michelle Harding Lawyer

Solicitor for the Respondent: Ms Tanner

Solicitors for the Respondent: Coffs Coast Family Law

Solicitor for the Independent Children’s Lawyer: Ms Steiner

Solicitors for the Independent Children’s Lawyer: Burridge Harris & Flynn Solicitors

ORDERS

1. BY CONSENT UNTIL FURTHER ORDER The Minute of Interim Consent Order will be marked as Exhibit 2 and I make orders in accordance with paragraphs 2 through to 8 inclusive. 

2. UNTIL FURTHER ORDER the Applicant and the Respondent are to have equal shared parental responsibility for all long-term matters involving the health and education of the children X born (omitted) 2000, Y born (omitted) 2002 and Z born (omitted) 2006.

3. The parties are to attend upon a family consultant at the time, date and place set by the Director of Child Dispute Services for the preparation of a Family Report under section 62G of the Family Law Act.

4. The Application is adjourned to Friday 29 November 2013 at 9:30am for further mention before Judge Kemp in Court 1A, level 1, Coffs Harbour Registry, 26 Gordon Street, Coffs Harbour.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT COFFS HARBOUR

CRC 237 of 2010

MS MCVEIGH

Applicant

And

MR MCVEIGH

Respondent

REASONS FOR JUDGMENT

1. The matter that is in contention between the parties at this stage is whether the parents should have equal shared parental responsibility for the children – X born on (omitted) 2000, Y born on (omitted) 2002 and Z  born on (omitted) 2006. 

2. The earlier Interim Orders provided that the parents should have equal shared parental responsibility.  Those orders were made on 16^th July 2013.

3. However, the Mother who is the Applicant now seeks an order that until further order, she have sole parental responsibility.  The Father wishes to stick with equal shared parental responsibility. The Independent Children’s Lawyer does not support the Mother’s proposal, noting that the orders for equal shared parental responsibility were made by consent on 16^th July 2013.  She submitted to the Court that nothing new had been presented.

4. It is the view of the Independent Children’s Lawyer that the children have a good relationship with the Mother and have enjoyed spending time with their father.  Why then, one asks rhetorically, should the order for parental responsibility be varied to provide for sole parental responsibility? 

5. The Mother says that it is because the Father has been constantly in contact with her by text and other means.  She considers that what he is doing is attempting to control her and that his communication with her is not so much, the communication about the welfare of the three children, but in some attempt on his part to actually control her activities.  She does not find that particularly helpful.

6. What one has to do is look at the law. The presumption of equal shared parental responsibility is set out in section 61DA of the Act, subsection (1) provides that:

   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. 

7. However, subsection (2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of a child or another person has engaged in abuse of the child or another child or family violence.

8. Subsection (4) says that:

   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. 

9. Interim proceedings, such as is this are covered or specifically referred to in subsection (3), which says:

   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. 

10. That indeed is the position that the Mother takes, that it is not appropriate to apply the presumption for the reasons that have been set out. It is relevant and I did advert to this in discussions with the parties’ solicitors that section 61DB provides that:

    If there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.

11. Thus, an order for parental responsibility in interim proceedings has by definition a limited life because parental responsibility must be considered afresh when the Court is making final orders.  Whilst I understand the position that the Mother is putting forward, it does not appear to me that there is any particularly strong evidence in support of an order at this stage for sole parental responsibility.  Certainly, it is the case as the Independent Children’s Lawyer pointed out, that when the earlier interim orders were made by consent, equal shared parental responsibility was agreed.

12. One would have thought that if the situation had deteriorated since 16^th July, that there would be specific evidence in that regard.  I am not able to see any.  Accordingly, I am not satisfied that it is inappropriate when making interim orders, to apply the presumption of equal shared parental responsibility.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  15 October 2013