Pavli & Beffa
[2013] FamCA 144
•7 March 2013
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
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)
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pavli & Beffa has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7394 of 2008
| Mr Pavli |
Applicant
And
| Ms Beffa |
Respondent
REASONS FOR JUDGMENT
What the parents ask me to do requires me to consider:
1.1.The use of the term “equal shared parental responsibility”; and
1.2.the effect of s 65DAC(2) Family Law Act 1975 (Cth)(“FLA”) which creates a statutory requirement for joint decisions if an order is made for shared parental responsibility for major long term issues.
The parents and the Independent Children's Lawyer initially sought a consent order be made, inter alia, in the following terms:
1.That the parents shall have equal shared parental responsibility for the child, [D Pavli] (“the child”) born […] March 2006 on the condition that the mother shall consult with the father with regard to matters relating to parental responsibility of the child and if no agreement is reached between the parties, then within 14 days the mother shall make the final decision and advise the father of that decision in writing.
That order is different from the recommendation in paragraph 26 of the family report dated 27 September 2012 which is in the following terms:
26. It is recommended that the parents have equal shared parental responsibility for [the child], however, in relation to her medical/allied health/education should the parents be unable to reach agreement within 14 days, then [the mother] be able to make the decision and provide [the father] with information in writing in relation to the decision made.
I will not make an order in either of these formulations because:
4.1.I find that because of the way the words “equal shared parental responsibility” are used in two important sections of the FLA, that expression should only be contained in orders that allocate parental responsibility in relation to making decisions for all, not just some, major long term issues.
4.2.I find that if one party is empowered to make a final decision about any specific major long term issue, the adjective “shared” should not be used to qualify the parental responsibility being allocated.
I shall discuss why I have made those findings.
POWER TO MAKE THE ORDER SOUGHT
The allocation of parental responsibility for a child is a parenting order (see s 64B(2)(c) FLA).
The power to make a parenting order is contained in s 65D(1) FLA and is in the following terms:
(1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
Section 61DA(1) FLA is in the following terms:
(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.
The presumption does not apply if there is abuse or family violence and can be rebutted if 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 (ss 61DA(2) and (4) FLA).
Given that I am asked to make consent orders, I am not required to have regard to any of the matters set out in ss 60CC(2) and (3) FLA (see s 60CC(5) FLA). I am satisfied that the parents and the Independent Children's Lawyer have considered the comments made in the family report. Although the parents said they wanted “equal shared parental responsibility”, after discussions with them and the Independent Children's Lawyer, it became clear that equal shared parental responsibility was not what they want to implement. As I will explain, the parents do not intend there to be equal shared parental responsibility for all decisions about major long term issues nor could all of what they intend be described as “shared”. I find that what the parents and the Independent Children's Lawyer wish to achieve is in the best interests of the child. Accordingly the presumption of equal shared parental responsibility is rebutted (s 61DA(4) FLA).
I note that even if s 61DA FLA had led to an order which triggered s 65DAA, the court is not mandated to consider ss 65DAA(1) and (2) if an order for equal shared parental responsibility is made by consent (s 65DAA(6)).
“PARENTAL RESPONSIBILITY” AND “SHARED PARENTAL RESPONSIBILITY”
Section 4 FLA defines parental responsibility (as used in Part VII FLA) as having the meaning given by s 61B FLA. Section 61B FLA provides that parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority, which by law, parents have in relation to children.
Section 65DAC FLA deals with the effect of a parenting order that provides for shared parental responsibility about major long term issues and is as follows:
(1)This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly. [emphasis added]
The phrase “major long-term issues” is defined in s 4 FLA as follows:
"major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent. [emphasis in original]
Although the definition of major long term issues is not limited to those matters listed, in reality, the list is very comprehensive and covers most of those usually encountered in practice.
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.
“EQUAL SHARED PARENTAL RESPONSIBILITY”
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)
It is not when the presumption of equal shared parental responsibility exists, but rather, only when an order for equal shared parental responsibility is made or proposed to be made, that the provisions of s 65DAA are triggered and the court needs to firstly consider equal time and if not, substantial and significant time (MRR & GR (2010) 240 CLR 461).
As I have mentioned, it is not mandatory to follow those provisions if the order is made with the consent of all the parties (s 65DAA(6) FLA).
Some cases have suggested it is permissible to use the term “equal shared parental responsibility” when only allocating parental responsibility for some, but not all, major long term issues. In Newlands v Newlands (2007) 37 Fam LR 103 at paragraphs 89 and 90 the Full Court, by way of obiter, suggested it is possible to make an order for equal shared parental responsibility in relation to specific major long term issues. The Full Court noted that they did not have the benefit of full argument on that issue. In Chappell & Chappell (2008) FLC 93-382, a different Full Court, also by way of obiter, indicated that an order for equal shared parental responsibility could be made for some but not all major long term issues.
With respect, if there can be “equal shared parental responsibility” for individual major long term issues, then there is no difference between the terms “equal shared parental responsibility” and “shared parental responsibility”. The Parliament must be taken to have meant to have qualified in some way the term “shared parental responsibility” by the addition of the word “equal” in s 61DA and 65DAA FLA (see Buchanan & Gardiner [2007] FamCA 1661 at paragraphs 14 and 15 and the discussion about expressio unius est exclusio alterius below).
Although parents may share parental responsibility in relation to some major long term issues, if one parent has parental responsibility for the rest, it is clear that when looking at the totality of major long term issues, the parents do not have equal shared parental responsibility. One parent has greater or different parental responsibility than the other. If the parents do not have exactly the same amount and type of responsibility, the adjective “equal” cannot apply.
It seems to me that this is why section 65DAC uses the broader phrase “if… persons are to share parental responsibility” rather than “if…persons are to have equal shared parental responsibility”. It must mean that shared parental responsibility encompasses situations where the parents have equal shared parental responsibility and situations where the parents and other parties do not share parental responsibility equally. The Revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) says:
207. New section 65DAC provides a rule that where parental responsibility is to be shared in relation to a major long-term issue under a parenting order, this means that decisions should be made jointly. This clarifies for parents or others who may have parental responsibility, what exercising shared parental responsibility actually involves. This will ensure that both parents have a meaningful involvement in the child's life. This does not only apply in situations where parents are sharing exactly equal responsibility. In all cases where there is some sharing of responsibility then consultation, then discussion about major long-term issues is required for those parts of responsibility that are shared. [emphasis added]
The difficulty with the notion that an order for equal shared parental responsibility can be limited to a single major long term issue can be demonstrated by considering an extreme example. Assume a court proposed to order that one parent is to have parental responsibility for all major long term issues except for decisions about the child’s surname (for which parental responsibility is to be shared). It makes little sense within the scheme of Part VII FLA, to draft that order so that the parents have equal shared parental responsibility for decisions about the child’s surname. This is because:
28.1.such an order would trigger a need to consider equal time and if equal time is not ordered, further consider substantial and significant time in circumstances where one parent had parental responsibility in relation to changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the other parent.
28.2.whilst it might be argued that parental responsibility in relation to the child’s surname is “equal” as well as “shared”, the addition of the adjective “equal” in these circumstances is otiose and leads to confusion.
In this example, the preferable course would be to describe the order in relation to the child’s surname as “shared parental responsibility”. Approaching the matter in that way is more likely to produce a result consistent with the intention and structure of Part VII FLA.
I conclude that an order for equal shared parental responsibility should not be made unless all decisions about all major long term issues are to be made jointly by parents. If only some are to be made jointly, then the preferable expression to use is “shared parental responsibility” for those decisions.
CAN THE STATUTORY REQUIREMENT FOR A DECISION TO BE MADE JOINTLY BE ELIMINATED BY COURT ORDER?
The question arises as to whether or not an order can be made for shared parental responsibility (as described in s 65DAC(1) FLA) with an order removing the requirement in s 65DAC(2) FLA that such decisions be made jointly.
Section 68B(2) FLA allows a court exercising jurisdiction under the FLA to grant an injunction (including a mandatory injunction) in relation to a child in any case in which it appears to the court to be just and convenient to do so.
The Full Court in Goode & Goode (2006) FLC 93-286 at paragraph 39 said:
[39] … Once the court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for the long-term care and welfare of children must be made jointly, unless the court otherwise provides. [emphasis added]
The meaning of the last words of paragraph 39 (as emphasised) is ambiguous. It might be thought the Full Court was saying that an order can be made which overrides the words in s 65DAC(2) FLA. For the following reasons, the better view is, the Full Court is intending to say that the provisions of s 65DAC(2) FLA apply unless the court makes an order which is not a “shared” parental responsibility order.
Section 65DAC(2) FLA does not contain the words “subject to any provision to the contrary made by a parenting order”. The lack of these words in s 65DAC FLA is to be starkly contrasted to their presence in the companion provision s 65DAE FLA. These sections are closely linked and together deal with the exercise of parental responsibility for major long term issues on the one hand, and the exercise of parental responsibility for decisions about issues which are not major long term issues, on the other.
Section 65DAE(1) FLA provides that there is no requirement for a person with whom a child is spending time to consult with a person who shares parental responsibility on issues that are not major long term issues. The note to s 65DAE(1) says:
Note: This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long-term issues.
Section 65DAE(2) FLA expressly refers to s 65DAE(1) and provides:
Subsection (1) applies subject to any provision to the contrary made by a parenting order.
No such similar provision allowing an order to override the statutory requirement exists in s 65DAC FLA. The question is whether this stark difference was deliberately intended by Parliament.
To reach a view about that question, the maxim expressio unius est exclusio alterius[3] provides assistance. This rule of statutory construction provides that an express reference in one section of the FLA excludes inferring it in another section of the FLA. This rule is to be used with caution, but the wording of sections 65DAC and 65DAE lead to its application, because:
37.1.The two sections when read together cover the whole of the subject matter.
37.2.Sections 65DAC and 65DAE not only appear in the same Part of the FLA, but appear consecutively.[4] Section 65DAC(2) specifically references s 65DAE in a note, including a reference that s 65DAE is “subject to any court orders”.
37.3.Although the FLA is regularly amended, both sections were inserted by the same amendment (see Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151 at 155).
37.4.The drafting of s 65DAE(2) is precise.
37.5.The facts are analogous to those in Tasmania v Commonwealth and Victoria (1904) 1 CLR 329 where the High Court held that an express reference in one section (s 92) of the Constitution and its omission from the next section (s 93) confirmed the expression of intent arising from the literal construction of the words of the later section.
[3] Literally meaning, the expression of one thing is the exclusion of another.
[4] There is no s 65DAD FLA because in 2006 the drafters were mindful of the debate about the amendments to parenting law between “mums” and “dads” groups and thought it would be prudent not to have a section about parental responsibility with the initials “DAD” in the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).
I conclude that if an order is made for shared parental responsibility then that order is taken to require that a decision about a major long term issue, to which that shared parental responsibility order relates, be made jointly and that it is not permissible for that order to be made so that a shared parental responsibility order operates on the basis that ultimately one parent may solely make the decision.
Chief Federal Magistrate Pascoe in Barone & Barone [2011] FMCAfam 902 made an order for joint parental responsibility attaching to it the proviso that the mother could make the final decision in relation to medical treatment. In making that order, his Honour did not use the word “equal” or the word “shared”. In relation to his Honour’s use of the word “joint”, the Full Court in Barone & Barone [2012] FamCAFC 108 referred to Newlands v Newlands and said:
29. In Newlands v Newlands (2007) 37 Fam LR 103 the Full Court said:
86.… The Act does not refer to “joint parental responsibility” but rather to “parental responsibility” and “equal shared parental responsibility”. The effect of s 61C which operates if no order is made by the court was extensively discussed in B & B: Family Law Reform Act 1995 … (1997) FLC 92-755 and further discussed in Goode…
...
92.… the Act does not speak of “joint parental responsibility”. It appears to us by not following the legislation, her Honour created uncertainty about the outcome. We cannot be certain that her Honour intended that parental responsibility (other than education) was to be shared equally and thus exercised jointly (that is, in consultation) or whether parental responsibility was to be exercised in accordance with s 61C and s 61D and exercised either jointly or independently.
The Full Court in Barone went on to remit the matter for a rehearing and made an interim order for “joint parental responsibility” (which the Full Court said at paragraph 30 of their reasons meant, in the context of that case, equal shared parental responsibility), whilst at the same time leaving in place the order that the Chief Federal Magistrate had made giving the final decision to the mother in relation to any future medical treatment. That is, the Full Court seems to have made an order for shared parental responsibility but left in place an order eliminating the requirement for a joint decision. It does not appear the Full Court’s attention was drawn to the provision of s 65DAC(2) FLA and the Full Court does not mention that section in their reasons.
I acknowledge that in Ernest & Newer [2011] FamCA 116, Cronin J made an order for equal shared parental responsibility in circumstances where he attached a condition that the mother have responsibility for making the final decisions. His Honour did not elaborate as to the basis upon which he made that order. It follows from what I have concluded that I believe there is a statutory impediment to making an order in those terms.
As the Full Court emphasised in Goode & Goode and as I have mentioned above, if no order is made at all then the provisions of s 61C FLA provide that parental responsibility can be exercised either independently or jointly. Justice Ryan in Webster & Cody (No. 2) [2012] FamCA 638 approached the facts in that case on the basis that an order was made for sole parental responsibility in relation to certain major long term issues and no order at all was made in relation to the balance of the major long term issues, leaving the situation where the parties each had parental responsibility but that it need not be exercised jointly. That is not what the parents wish to achieve in this case.
THE ORDER SOUGHT IN THIS CASE
I am mindful of what the Full Court said in Chappell & Chappell:
69. It is clearly imperative that orders relating to parental responsibility should be accompanied by as little ambiguity as practicable. This is especially so given the extent to which third parties such as schools and hospitals rely upon Court orders to satisfy themselves about the authority of parents to make decisions about their children. It could not be expected that third parties would be required to peruse the reasons for decision of a judicial officer in order to assist them to understand forms of words used in Court orders. The Full Court in Newlands and Newlands (2007) 37 Fam LR 103 at [92] pointed out the uncertainty that can be created when judicial officers use a form of words not mandated by the legislation when allocating parental responsibility.
….
76. …where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
In this case, what the parents and the Independent Children's Lawyer initially proposed was an order for “equal shared parental responsibility” but if no agreement could be reached about a major long term issue, for the mother to have the final decision.
I had a discussion with the parents about their intentions. They intended to consult one another about all major long term issues and make a genuine attempt to come to a joint decision. If the issue related to the child’s name or changes to her living arrangements that made it significantly more difficult for the child to spend the time with her father that had been agreed, then any such decision was to be made jointly. If the issue related to the child’s education, religious or cultural upbringing, health or any other major long term issue, then the mother was ultimately able to make the decision.
Given that that was the agreement of the parents, it was not appropriate to make an order for “equal shared parental responsibility” nor was it appropriate to use the adjective “shared” in the proposed order for those major long term issues where the mother has the right to make the final decision.
I accordingly declined to make an order in this case in the form originally requested. The parents indicated in those circumstances that they still want the order to be made partly for shared parental responsibility and partly for parental responsibility. The parents and the Independent Children's Lawyer consented to an amended wording for the order about parental responsibility.
I consider such an order is in the child’s best interests and I shall accordingly by consent make an order in the terms set out at the commencement of these reasons.
HOW SHOULD ORDERS ABOUT PARENTAL RESPONSIBILITY BE DRAFTED?
Drafters of orders should note that:
49.1.An order for either equal shared parental responsibility or shared parental responsibility carries with it the statutory requirement for consultation, with genuine effort and for the parties to make a joint decision concerning all major long term issues (the information attached to parenting orders pursuant to s 65DA(2) FLA reminds parties of this in relation to equal shared parental responsibility but not shared parental responsibility). Failing the ability to reach a joint decision, the ultimate recourse is to seek an order from a court to break the impasse.
49.2.In the event that an order provides that one party is to have the final decision about all or any major long term issues, then any such order should give that person “parental responsibility”. If appropriate, that order should have attached to it:
49.2.1.a requirement for consultation with the other party with genuine effort (some orders have provided that parties attend with a mediator to discuss the issue); and
49.2.2.any machinery orders in relation to notice about proposed decisions and final decisions;
49.2.3.a provision that one party is to have the final decision about all or any major long term issues.
49.3.In many cases, the fact that the order is not a “shared parental responsibility” order but rather a “parental responsibility” order is emphasised by adding the adjective “sole”. “Sole parental responsibility” is not an expression used in the FLA. “Sole” is an antonym of “shared”. Although the Full Court in Barone [2012] warned against the use of the synonym “joint”, the use of the word “sole” is permissible because it is likely to promote certainty rather than create uncertainty.
49.4.Moving from the inclusive to the exclusive, orders for parental responsibility can be drafted so that:
49.4.1.the parents have equal shared parental responsibility. The effect of an order using those words is that all decisions about all major long term issues need to be made jointly and the requirements of s 65DAA FLA are attracted; or
49.4.2.one party has parental responsibility for some major long term issues and decisions about those issues need not be made jointly, but in relation to other major long term issues, parental responsibility is shared and decisions regarding those issues need to be made jointly; or
49.4.3.there is no shared parental responsibility but parental responsibility does not rest exclusively with one person. That is, one party has parental responsibility in relation to some major long term issues, and another party has parental responsibility in relation to other major long term issues and neither party is required to make decisions jointly regarding the major long term issues allocated to them; or
49.4.4.one person has parental responsibility (sometimes referred to as “sole parental responsibility”) for all major long term issues and is not required to make decisions jointly.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 7 March 2013.
Associate:
Date: 7.03.2013
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