Plante and Taylor

[2010] FamCA 1047

FAMILY COURT OF AUSTRALIA

PLANTE & TAYLOR [2010] FamCA 1047

FAMILY LAW – CHILDREN – whether the presumption of equal shared parental responsibility in s 61DA has been rebutted – where consent orders provide that the mother have sole care for the children – where the parties are unable to cooperatively co-parent – where it is not in the best interests for the children for there to be equal shared parental responsibility – presumption rebutted – orders that mother have sole parental responsibility

Family Law Act 1975 (Cth)

APPLICANT: Mr Plante

RESPONDENT: Ms Taylor

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 1089 of 2009

DATE DELIVERED: 15 November 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Burr J

HEARING DATE: 15 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Wardle

SOLICITOR FOR THE RESPONDENT: Ryan Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Carter Farquar Lawyers

Orders

1. That the mother have sole parental responsibility for the children K born … December 1999 and A born … October 2001.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1089 of 2009

MR PLANTE

Applicant

And

MS TAYLOR

Respondent

REASONS FOR JUDGMENT

1. At the commencement of the proceedings before me today, I was to determine an application of the father in which he sought a number of orders in relation to his two children, K, who was born in December 1999, and A, who was born in October 2001.  Thus his two daughters are respectively almost 11 years of age and 9 years of age.  The issues in dispute between the parties at the commencement of today's proceedings were quite broad and ranged across allegations of sexual abuse of the children by the father, issues of him being potentially an unacceptable risk to the children and issues of whether or not it was possible, or indeed appropriate to try and re-establish meaningful relationships between the father and the children. 

2. A number of witnesses were to be called including expert evidence from each of Ms M and Mr P, the latter of whom was the family consultant who prepared two family reports in this matter dated 19 October 2009 and 5 June 2010.  After some exploration of the issues between the parties, counsel for the mother indicated that it was the mother's case not to press for findings from this court on the issues of sexual abuse or unacceptable risk.  Thus the trial became one thenceforth as being - as to what relationship might be appropriate for the father to share with his children.  That resulted in some discussions between the parties and as a consequence of those discussions, with the assistance of the Independent Children's Lawyer and counsel for the Independent Children's Lawyer, they were able to reach final agreement on almost every issue. 

3. That final agreement is now couched in consent orders made by me today, those orders being as indicated in a minute handed to me.  That minute resolved, as I said, essentially all issues between the parties in a manner which, in my view, from the evidence that I have been able to glean from my reading of the file, represented the best interests of the children.  Whilst they are orders which I am of the view reflect the best interests of the children, I accept that it was nonetheless a difficult decision for the father to have to make.  This Court and the Federal Magistrates Court deal with thousands of cases each year which frequently involve bitter disputation between children's parents.  

4. It is a regrettably rare event that parties are unable to put aside their own differences and focus on their children's needs.  It is a credit to the father that he has been able to do so today.  It was very plain from his documentation that what he wanted was something significantly greater than he has been able to achieve through the process of negotiation and as reflected in the final orders made by me.  As I said, it is a difficult exercise not to focus on one's own individual needs and one's own hurt, pain and suffering that is generated for all parties that have to experience these sorts of proceedings.  So again I say it is a credit, particularly to the father, but also to the mother, that they have been able to put their individual differences aside and concentrate simply on what is best for their two young daughters. 

5. That said there was still one issue which still troubled them and was an area in which they were not able to reach agreement and that was as to the issue of parental responsibility. If no orders are made in relation to parental responsibility, then each would share that responsibility.  The proceedings commenced before the shared parental responsibility amendments to the Act, and along with that Act came a number of new sections, but included among them was section 61DA of the Act. The mother seeks sole parental responsibility.  The father wishes to retain equal shared parental responsibility.  I asked the parties to give very brief evidence, limited to that topic, and I also received submissions from the father, counsel for the mother and counsel for the Independent Children's Lawyer. 

6. It is the mother's position that it is appropriate that she have the sole parental responsibility for the children for a wide number of reasons, but perhaps most appropriately those summarised as follows:

   6.1. the children are in her sole care; 

   6.2. they have been in her sole care for a lengthy period of time;

   6.3. her position in that role was confirmed by earlier final orders made on 14 June 2005;

   6.4. all decisions of a nature that impact upon the children’s daily lives, and issues as to their long-term future have been hers;

   6.5. she has made those decisions and exercised that role for some years now;

   6.6. issues of long-term decisions in respect of the two girls will emerge on a regular basis, and in a practical sense it will be her role to make those decisions and undertake that responsibility.

7. Further I note that some of the areas that would otherwise be encompassed by parental responsibility have been specifically dealt with in the orders that I made earlier today.  The father will be in receipt of all relevant information as to the children’s schooling, health, and other issues identified in the minutes of order.  He will also have the opportunity of maintaining communication with them.  I accept there will be a number of practical issues that arise for the mother’s determination as the children progress through to adulthood. 

8. The mother further, I think, legitimately makes the point that the relationship between the parties is so damaged that it would not be feasible, nor probable that they could ever work together willingly and happily to arrive at a mutually concluded view and result.  She cited as an example the number of contraventions that were previously filed in these proceedings. 

9. For his part the father makes a good point that, despite the almost sole role undertaken by the mother for many years now, he has not impeded the decisions made by her and, despite the existence by dint of legislation of their joint parental responsibility, it has in no way ever impeded the children’s best interests.  The mother has been able to make all necessary decisions, and cared for the children on a day-to-day basis without interference from him. 

10. The independent children’s lawyer supported the mother’s application, and took the view, based on the evidence before the Court, that joint or equal shared parental responsibility would be unworkable in the circumstances of this matter.  I have some sympathy for the father’s position, and in fact I accept that in many instances the fact of the existence of parental responsibility exercised by both of the parties has in no way impeded the mother’s capacity to care for the children, or make decisions in relation to their wellbeing in the past. 

11. However, these two girls are now emerging into early teen years and progressing towards adulthood.  There will be a number of quite different and at times difficult decisions that will need to be made in respect of the children.  Again, to the father’s credit he acknowledged in the witness box that it would be important that there be no impediment to the making of any decisions that should reflect the children’s best interests, be it on a health basis, a discipline basis, an educational basis, or the like. 

12. It is my view that the children’s best interests would be reflected by sole parental responsibility residing in the mother who will have the at times all‑consuming task of raising two young girls and then two young women through to adulthood in circumstances where, it was the evidence of Ms M in her report provided to the Court and dated 26 March 2010, that the girls are troubled in a number of respects.  It is clear that life’s path for them will not be particularly easy and I think it appropriate that the mother be entirely unfettered in her role in endeavouring to smooth that path as much as is possible. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.

Associate: 

Date: