Pavli & Beffa

Case [2013] FamCA 144

FAMILY COURT OF AUSTRALIA

PAVLI & BEFFA [2013] FamCA 144
FAMILY LAW – CHILDREN – consent order sought for equal shared parental responsibility with mother to be able to make the final decision about any major long term issue – discussion about when an order for “equal shared parental responsibility” should not be made – the effect of s 65DAC(2) Family Law Act 1975 (Cth) considered – where it was not appropriate for the word “equal” to remain in the order as drafted – where it was not appropriate for the word “shared” to remain as part of the order - amended consent order made – discussion about how parental responsibility orders should be drafted
Family Law Act 1975 (Cth) ss 4, 60CC, 61B, 61C, 61DA, 64B, 65DAA, 65DAC, 65DAE, 65D, 65DA, 68B
Barone & Barone [2011] FMCAfam 902
Barone & Barone [2012] FamCAFC 108
Buchanan & Gardiner [2007] FamCA 1661
Carlson and Ors v Bowden (2008) 40 Fam LR 327
Chappell & Chappell (2008) FLC 93-382
Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151
Dunstan v Jarrod and Anor (2009) 41 Fam LR 535
Ernest & Newer [2011] FamCA 116
Goode & Goode (2006) FLC 93-286
MRR & GR (2010) 240 CLR 461
Newlands v Newlands (2007) 37 Fam LR 103
Tasmania v Commonwealth and Victoria (1904) 1 CLR 329
Webster & Cody (No. 2) [2012] FamCA 638
APPLICANT: Mr Pavli
RESPONDENT: Ms Beffa
INDEPENDENT CHILDREN’S LAWYER: Mr Christaki
FILE NUMBER: SYC 7394 of 2008
DATE DELIVERED: 7 March 2013
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Watts J
HEARING DATE: 1 March 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person
SOLICITOR FOR THE RESPONDENT: Litigant in person
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

  1. Parental responsibility will be allocated between the parents in the following manner:

    1.1.The parents shall have shared parental responsibility for D Pavli born … March 2006 (“the child”) in relation to major long term issues about:

    1.1.1.The child’s name;

    1.1.2.Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

    1.2.The mother shall have parental responsibility for the child in relation to all other major long term issues including:

    1.2.1.the child’s education (both current and future);

    1.2.2.the child’s religious and cultural upbringing;

    1.2.3.the child’s health;

    On the conditions that:

    1.2.4.the mother will contact the father in writing and provide her views about any such issue;

    1.2.5.The mother shall consult with the father with regard to any such issue;

    1.2.6.The mother and father will make a genuine effort to come to a joint decision about any such issue; and

    1.2.7.if no agreement is reached between the parties, then within 14 days the mother shall make the final decision and advise the father in writing of the decision about any such issue.

(Balance of consent orders not reproduced)

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AGLC
Pavli & Beffa [2013] FamCA 144
Case
[2013] FamCA 144
Decision Date

CaseChat Overview and Summary

This matter concerned the allocation of parental responsibility between the parents of a child, D Pavli, born in March 2006. The decision was made by Watts J.

The court was required to determine how parental responsibility for the child should be allocated between the parents, particularly in relation to major long-term issues. This involved considering the meaning and application of "shared parental responsibility" and the statutory requirements associated with such orders under the *Family Law Act 1975* (Cth) (FLA).

Watts J explained that "shared parental responsibility" under s 65DAC of the FLA imposes three statutory requirements: consultation, a genuine effort to reach a joint decision, and joint decision-making. The court noted that the phrase "equal shared parental responsibility" is not defined in the FLA, but it signifies that each parent equally possesses all the legal duties, powers, responsibilities, and authority concerning their children. The FLA creates a presumption of equal shared parental responsibility when making parenting orders, unless it is rebutted because it would not be in the child's best interests.

The court ordered that the parents would have shared parental responsibility for the child in relation to the child's name and changes to living arrangements that significantly impede time with a parent. For all other major long-term issues, including education, religious and cultural upbringing, and health, the mother would have parental responsibility, subject to specific conditions. These conditions required the mother to consult with the father in writing, make a genuine effort to reach a joint decision, and if no agreement was reached within 14 days, the mother would make the final decision and advise the father in writing.

Orders

Orders of the court

1.

Parental responsibility will be allocated between the parents in the following manner:

1.1. The parents shall have shared parental responsibility for D Pavli born … March 2006 (“the child”) in relation to major long term issues about:

1.1.1. The child’s name;

1.1.2. Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

1.2. The mother shall have parental responsibility for the child in relation to all other major long term issues including:

1.2.1. the child’s education (both current and future);

1.2.2. the child’s religious and cultural upbringing;

1.2.3. the child’s health;

On the conditions that:

1.2.4. the mother will contact the father in writing and provide her views about any such issue;

1.2.5. The mother shall consult with the father with regard to any such issue;

1.2.6. The mother and father will make a genuine effort to come to a joint decision about any such issue; and

1.2.7. if no agreement is reached between the parties, then within 14 days the mother shall make the final decision and advise the father in writing of the decision about any such issue.

(Balance of consent orders not reproduced)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As can be seen, s 65DAC FLA provides that any “shared parental responsibility” order about major long term issues creates three statutory requirements: 15.1.Consultation (s 65DAC(3)(a) FLA);15.2.Genuine effort to come to a joint decision (s 65DAC(3)(b) FLA); 15.3.Decisions to be made jointly (s 65DAC(2) FLA). The solution to any ultimate impasse between parties who share parental responsibility is for the parties to seek an order about a particular major long-term issue from a court. Although the FLA defines the terms “parental responsibility” and describes what “shared parental responsibility” requires, the phrase “equal shared parental responsibility” is not defined. That is because the word “equal” does not really require further definition.[1] Equal is a word like “unique” or “pregnant”. Something is either equal or it is not equal. As I have said earlier, parental responsibility is defined as all the duties, powers, responsibilities and authority by which, by law, parents have in relation to children. Equal shared parental responsibility means that each parent equally has all of those things. [1] If it did, it means “being the same in quantity, size and degree or value; having the same rights” (Oxford Dictionary of English 2nd edition) Section 61C FLA provides if there is no contrary court order, each parent has parental responsibility. When that type of equal parental responsibility is exercised, it need not be described as “shared”, as decisions about major long term issues can be made either jointly or independently. “Equal shared parental responsibility” can only be created by court order. The expression “equal shared parental responsibility” is prone to being used loosely when orders are framed. It is important to understand the work that the phrase “equal shared parental responsibility” does in the FLA when considering using those words in an order. The expression only appears in Part VII FLA in ss 61DA, 61DB, 65D and 65DAA. Of those provisions, s 61DA and 65DAA are of most relevance in this discussion. Section 61DA FLA creates a legal presumption that applies when making a parenting order (most relevantly an order for the allocation of parental responsibility). In cases where a parent of a child has not engaged in abuse of a child or family violence, s 61DA FLA provides that when making an order dealing with the allocation of parental responsibility between parents,[2] the court must apply the presumption of equal shared parental responsibility. The application of the presumption would lead the court to make an order for equal shared parental responsibility, unless the presumption is rebutted because the court was satisfied that it would not be in the child’s best interests to order that each parent have equal shared parental responsibility for decisions about all major long term issues. [2] The presumption of equal shared parental responsibility applies only to parents. It would be possible however to contemplate a situation where the presumption was rebutted in circumstances involving parties, some of whom are non-parents, and to make an order that parental responsibility be allocated equally between the parties. (See Murphy J in Carlson and Ors v Bowden (2008) 40 Fam LR 327 and Dunstan v Jarrod and Anor (2009) 41 Fam LR 535)

Ratio Decidendi

Legal Principle Established

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