VALLANS & VALLANS
[2021] FCCA 1001
•13 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VALLANS & VALLANS | [2021] FCCA 1001 |
| Catchwords: FAMILY LAW – Parenting – consideration of the Rule in Rice & Asplund - consideration of whether presumption of equal shared parental responsibility has been rebutted – consideration of whether equal shared parental responsibility or sole parental responsibility in best interests of children |
| Legislation: Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 61B, 61C, 61DA, 65DAC |
| Cases cited: Bennett& Bennett (1991) FLC 92-191 |
| Applicant: | MR VALLANS |
| Respondent: | MS VALLANS |
| File Number: | BRC 7407 of 2013 |
| Judgment of: | Judge Lapthorn |
| Hearing date: | On the papers |
| Date of Last Submission: | 5 November 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 13 May 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ehlers |
| Solicitors for the Applicant: | Steindl Bradley & Associates |
| Counsel for the Respondent: | Ms Cullen |
| Solicitors for the Respondent: | Callaghan Legal |
ORDERS
The Application in a Case filed 28 April 2020 be dismissed.
The Respondent file and serve written submissions in relation to costs by no later than 4.00pm on 4 June 2021.
The Applicant file and serve written submissions in relation to costs by no later than 4.00pm on 18 June 2021.
The Respondent file and serve written submissions in reply in relation to costs by no later than 4.00pm on 25 June 2021.
IT IS NOTED that publication of this judgment under the pseudonym Vallans & Vallans is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 7407 of 2013
| MR VALLANS |
Applicant
And
| MS VALLANS |
Respondent
REASONS FOR JUDGMENT
Introduction
I am asked to make a determination as to whether it is in the best interests of two children, 10 year old B and 8 year old C, for their parents to have equal shared parental responsibility for them or whether their mother should have sole parental responsibility. In doing so the father submitted that the court should dismiss the mother’s application for sole parental responsibility on the basis that she has not established that a significant change of circumstances has arisen since the making of consent orders in 2015 for the parties to have equal shared parental responsibility. These issues are to be determined without the benefit of observing the parties give their evidence in court as the parties agreed that it could be decided “on the papers”. Having read the evidence filed by the parties, the family report and the written submissions I am satisfied that it is appropriate to proceed in the manner requested.
Background
The father, Mr Vallans is 38 years of age and the mother is 35. They commenced living together in 2008, were married in 2010 and separated in May 2013. B was born in 2010 and C was born in 2012. The children were very young when he parties separated, B only two and C a baby.
The mother and children live in Town A, having moved from Brisbane after separation. She has not re-partnered. The father lives in Suburb F on the north side of Brisbane with his partner Ms J, her 10 year old child, K from a previous relationship and their son L who is two and a half years old. There is a distance of about 100km between the two homes which equates to about an hour and 15 minutes travel time. The mother works part time as an allied health worker and the father derives an income from a government pension.
On 27 January 2015 the parties entered into final consent orders in relation to the children which provided, inter alia, the parents to have equal shared parental responsibility; for the children to live with the mother and for the children to spend time and communicate with the father, increasing over time to alternate weekends. The live with and spending time with orders have continued to date. Neither parent seeks to change those orders.
The father brought an Application Contravention in December 2015 but withdrew those proceedings on 22 January 2016. The parents had reached agreement as to which school B was to attend. This parental responsibility issue was the subject of the application. The parents did not remain out of court for long with the father filing a further Application Contravention on 13 May 2016, this time alleging there were breaches in the facilitation of telephone time. During the course of this litigation the mother made an oral application for her to have sole parental responsibility for the children. A family report was ordered pursuant to s.62G and was released in November 2016. On 29 November 2016 orders were made for the child to spend holiday time with the father but the issue of parental responsibility remained outstanding. The final hearing for this dispute was heard and orders made on 22 November 2018. The trial judge ordered that the mother have sole parental responsibility for the children.
The father successfully appealed the decision and the matter was remitted to the Federal Circuit Court for further hearing. When the matter was allocated a trial date the mother was ordered to file an Application in a Case and supporting affidavit material, setting out the orders she sought in relation to parental responsibility. The father was ordered to file a Response to that Application in a Case along with his supporting affidavit material. A new family report was also ordered.
The orders sought by the mother were:
1. that the Mother have Sole Parental Responsibility for the children, B born in 2010 and C born in 2012 but when making any decisions about ling [sic] term issues the mother must:
a. Inform the father in writing of the decision to be made:
b. Invite written comment from the father;
c. Take such comments into account when making decisions;
d. Inform the father in writing of the decisions.
2. That the father is to ensure that the children attend any Grand Final, grading examinations, recitals or presentation relating to the children s [sic] extracurricular activities that occurs on a weekend.
3. That otherwise the Orders of 27 January 2015 (Orders 6 to 29) remain in force.
By the time the matter was reserved for judgment the mother did not press the order in relation to the father ensuring the children attended certain activities.
The orders sought by the father were:
1. That the Application in a case filed 28 April 2020 be dismissed.
2. That in the alternative the Orders made 27 January 2015 remain in full force and effect.
3. That the mother pay the father's costs of and incidental to these proceedings on an indemnity basis.
4. Such further or other Order as this Court deems meet.
Material Relied On:
The mother relied on:
a)The Application in a Case filed 28 April 2020;
b)Her Affidavit filed 27 April 2020; and
c)The Family Report released 11 August 2020.
The father relied on:
a)The Response to Application in a Case filed 7 May 2020;
b)His Affidavit filed 7 May 2020; and
c)The Family Report released 11 August 2020.
Legal Approach
All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[1] and must consider the best interests of the child as the paramount consideration.[2]
[1] Section 60B
[2] Section 60CA
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[3] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:
a)Children have a right to know and be cared for by both their parents;
b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children; and
e)Children have a right to enjoy their culture.
[3] Section 60B lists the objects and principles for Pt VII.
The legislative framework which must be followed in all parenting cases,[4] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[5] This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child’s best interests for it to apply.[6]
[4] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[5] Section 61DA
[6] Section 61DA(2) & (4)
For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[7] Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[8] When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[9] A major long-term issue in relation to a child means an issue:
[7] Section 61B
[8] Section 61C
[9] Section 65DAC
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.[10]
[10] Section 4
The parents in this case have at times, with respect, confused parental responsibility for the major long terms issues as understood in the Act, with the decisions they have to make in the day to day care of children. I will address this later in the judgment. Firstly however I propose to address the father’s application to dismiss the mother’s case.
The Rice & Asplund[11] issue
[11] In the Marriage of Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Although the mother is the applicant, the father has sought the dismissal of her application on the basis that she has not established a significant change of circumstances warranting a revisiting of the previous orders for equal shared parental responsibility.
A court is usually reluctant to entertain a fresh application for parenting arrangements because it is rarely in a child’s best interest to have ongoing litigation about his or her care and wellbeing. The Full Court of the Family Court in Rice & Asplund held:
[The court] should not lightly entertain an application to reverse an earlier custody order. … the court would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising, or, at any rate, some factor which was not disclosed at the previous hearing which would have been material. … These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision.
It is for the court to exercise its discretion in deciding whether to embark upon a full hearing of a matter or to determine the ‘threshold’ issue as a discreet point by way of preliminary determination.[12] Warnick J in SPS & PLS[13] considered the term ‘threshold’ in this context to mean:
… ‘the first question to be determined’ and which, depending on the answer to it, may be dispositive of an application for parenting orders, irrespective of when in a hearing it is posited and answered.[14]
[12] Bennett& Bennett (1991) FLC 92-191, D & Y (1995) FLC 92-581
[13] [2008] FamCAFC 16
[14] ibid at page 13
Murphy J in the Full Court decision of Searson & Searson[15] considered a number of authorities relative to the consideration of the Rice & Asplund argument being considered as a preliminary point. It is worth repeating this analysis of these authorities:
[15] Searson & Searson [2017] FamCAFC 119 Kent and Loughnan JJ agreed with the decision of Murphy J
[8] It is well settled that the “rule in Rice & Asplund” can be applied at the outset of a hearing or proceedings or at the end of a hearing.[16]
[16] Rice & Asplund (1979) FLC 90-725; SPS & PLS (2008) FLC 93-363; Marsden & Winch (2009) 42 Fam LR 1; Miller & Harrington (2008) FLC 93-383
[9] In the important decision of SPS & PLS,[17] (“SPS”) Warnick J held that the discussion of the rule in the various authorities had “not always used consistent terminology”. His Honour noted, in particular, that the term “threshold” has had different connotations. His Honour went on to say that he would in that judgment “refer to the situation arising when the question is posed and answered at the outset of a hearing as treatment of the question as a ‘preliminary matter’”. It is in that sense that the expression is used in these reasons of mine. As it seems abundantly clear to me, the treatment of the rule in that manner is what was contemplated and undertaken by the parties and by her Honour in the proceedings below.
[17] (2008) FLC 93-363 approved in Marsden & Winch (2009) 42 Fam LR 1; Miller & Harrington (2008) FLC 93-383; Walter & Walter [2016] FamCAFC 56
[10] In SPS, Warnick J went on to hold[18] that:
[18] at [48]
… At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
…
The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
[11] His Honour went on to say this:[19]
… [I]n my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
[12] Yet, as his Honour was at pains to point out, the rule is not the application of some esoteric principle but rather, the practical application of a principle designed to avoid “endless litigation” to the detriment of the relevant children in circumstances where otherwise the principles of res judicata do not apply.[20]
[13] Thus, for example, Nygh J said in McEnearney & McEnearney:[21]
… the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
[19] SPS at [81]
[20] Rice & Asplund at 78,905 per Evatt CJ
[21] (1980) FLC 90-866 at 75,499
[14] To similar effect, Warnick J said in SPS:[22]
Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
[15] The “evil” referred to is the undoubted harm to children of “a perennial football match between parents” and the canvassing “again and again” of issues relating to their best interests. That situation can in my view be distinguished from circumstances in which the parties express their agreement about parenting arrangements in a consent order but are now no longer in agreement and where it is said that the now absence of agreement is due to circumstances that have changed since the making of the consent orders.
[22] SPS at [58]
The mother has the onus of establishing that there has been change of circumstances materially sufficient to warrant a re-consideration of the current orders for equal shared parental responsibility. In determining this issue it is important to take into account the original orders were entered into by consent of the parties without the benefit of a judicial determination and that this application to vary the orders arose out of the context of an Application Contravention filed by the father.
In the appeal judgment from which this remitted hearing flows[23] Kent J observed:
[40] An important element of the legal context in which the issue of trial fell to be determined, is that the trial judge was bound to conduct an inquiry to establish the children’s best interests in the manner prescribed by Part VII of the Act, prior to altering the parenting orders. Amendment of parenting orders pursuant to s 70NBA of the Act in the context of a Contravention Application must be effected following a consideration of each of s 60CA, the s 60CC considerations, s 61DA and in accordance with the principles enunciated in Rice and Asplund (supra). In Sandler and Kerrington[24], Warnick J, sitting as a single judge exercising appellate jurisdiction, considered an appeal by the mother from an order of a then Federal Magistrate following a contravention hearing. Warnick J, after a careful consideration of the statutory provisions concluded that these:
… have not had the result that the variation of a parenting order within the hearing of a contravention application may be properly effected in a more summary way than, or upon an enquiry abbreviated more than, is appropriate to an application for variation outside of Division 13A…
[41] At [48], Warnick J expressed the view “that a variation made pursuant to s 70NBA is to be approached no differently to any other application for parenting orders” and at [50] and following drew emphasis to the threshold question expressed in Rice and Asplund.
[23] Vallans & Vallans [2019] FamCAFC 260, (2019) 60 Fam LR 193
[24] (2007) FLC 93-323
It was the father’s case that the mother has not established to the requisite extent a material change of circumstances warranting a change in the orders and therefore her application should be dismissed.
In support of her case the mother referred to a history of family violence. The father denied the mother’s allegations. There was a family violence protection order made by consent without admissions in October 2013 which was in place for 12 months. The order was not breached. This order had expired before the mother consented to the orders that provided for the parties to share parental responsibility. There is no evidence of any further family violence protection orders having been made since the consent orders were entered into. The mother did allege that she has often been subjected to a barrage of angry messages from the father. However there was no evidence before me that would enable me make a finding consistent with her assertions. I find that there has been no change of circumstances in relation to family violence.
I indicated earlier in this judgment that the parties appear to have confused the issues that arise in implementing their day to day responsibility for the children and the parental responsibility associated with making long term decisions for them. The mother’s decisions to move to the Sunshine Coast and to enrol the children in extra-curricular activities has at times led to disagreements between the parents as and when the inevitable conflict of competing interests arise. For example the children’s attendance at an extra-curricular activity that falls on a weekend that they would be spending time with the father in accordance with the orders eats into their time with their father who lives some 100 kilometres away. When the parents have had need to discuss this the mother does not appear to appreciate the father’s position and interprets his response as being conflictual. Whilst it is important for children to have extra-curricular activities it is also important for them to spend time with their non-primary carer. Both parents mean well for their children. These sort of issues also arise in intact families when one parent wants to organise an activity for a child but the other parent has other plans. All child focused parents need to sort these issues out in a respectful and child focused manner. I have no evidence before me to suggest that these parents cannot act respectfully in addressing a disagreed approach with the only exception being the mother’s comment to the report writer that the father doesn't like being told what to do. Comments of that nature reflect badly on the mother not the father.
Notwithstanding that lack of evidence, a reading of the family report would suggest that each of the parents have found it difficult to communicate with the other at times. That was certainly the case when they entered into the consent orders. On the father’s case things have actually improved since then. The mother said that they go well or a little while and then revert to the usual conflict. The report writer noted the children are well aware of this conflict. I do not doubt the mother finds it stressful when having to communicate with the father. What I cannot find, from the evidence, is that that is as a result of anything the father has done. It could easily be as a result of the mother’s requirement that the father agree with her position on all matters. I, of course, do not make that finding as for the same reason explained above, there is no evidence of that.
The family report writer opined that the parents had a dysfunctional dynamic to their co-parenting relationship and she was concerned that it would have an impact on the children in the future. She considered that they were impacted by a dispute between the parents at the end of term one in 2020 where the parties did not agree as to when the children should be returned to the mother.
Notwithstanding that opinion the report writer held the view that if the parents were required to do so by an order of the court they could continue to exercise shared parental responsibility. She noted the parents had managed successful communication and joint decision making but she thought it highly likely that the co-parenting relationship would be marked by continuing difficulties and impasses.
From a ‘material change of circumstances’ perspective I am satisfied that the poor communication experienced by the parties was present prior to the consent orders being entered into. Nothing has changed in that regard.
In any event there is simply no evidence that the parents cannot sort out the big picture items such as the children’s schooling or religion. In the appeal judgment from which this hearing flows, Kent J said:
[45] In examining the evidence that was presented by both parties as to communication between them, an important distinction has to be made. That is, a distinction between communication about a decision concerning a major long-term issue in relation to the children (within the meaning of s 65DAC of the Act) and issues concerning the time and communication orders already in existence. As earlier noted, the geographical distance between the respective places of residence of the parents, means that difficulties are created for the father’s ordered time if the children are involved in extra-curricular or other activities taking place on weekends when the father is scheduled to have time.
Whilst not the only issue, this has certainly been a significant issue between the parents. This however is not covered by the concept of equal shared parental responsibility. Indeed the evidence suggests that the parties have been able to sort out the major issues, if not easily, certainly eventually. The father asked the mother’s permission to have the two children baptised but she refused. He did not press it. There was no dispute. They each expressed a view and in doing so exercised their equal shared parental responsibility. The mother raised an issue as to the parents having differing views as to C’s health but there is no evidence of that before the court. There are no ongoing issues between them in this regard and both parents have had involvement with C’s psychologist.
I do not accept the mother’s submission that the father having filed two contravention applications is indicative of their inability to reach agreement in their sharing of parental responsibility. An issue associated with one of the father’s contravention applications was a dispute in relation to B’s schooling. The mother submitted that this is an example of their conflict warranting a change in the consent orders. The issue arose after the mother proposed three schools to the father and he suggested a completely different three. The report writer appears to have been factually misled in paragraph 80 of her report when she suggested that the parties required a court determination as to the schooling issue. This issue was resolved by consent of the parties without the need for a contested hearing to determine the schooling issue. The mother’s submission also seemed to purport an intent to the father that cannot be gleamed from the evidence. It was suggested that his comments that he believed C would benefit from a private school were indicative of a future schooling dispute. There is no evidence of that and the inference cannot be drawn. His observation was simply that C would benefit from a private school in the context of his behaviour at his current school.
I was taken to a recent issue between the parents which arose at the beginning of the COVID restrictions in March 2020. B became distressed after the father told her she would be staying longer than planned with him. He, having regard to her distress, changed his position and returned her to the mother. They were not the only family to experience disagreements over the care of children at the beginning of the COVID period. The mere existence of a disagreement between parents is not evidence that they cannot work disputes out. They were able to do so.
The family report writer opined that the parents appeared to have never been able to establish a functional co-parent relationship where they have been able to communicate consistently. I do not accept her opinion in this regard. There is simply insufficient evidence to warrant such a view. I do not doubt the parents have had their differences. I do not doubt they have each frustrated the other. I do not doubt they have done things that the other does not support or approve of. But they have been able to make it work. I find that although there will be ongoing disagreements they will be able to make it work in the future. Whilst I accept the submission that enduring conflict is harmful to children[25] I am not satisfied, on the evidence, that this case falls into that category.
[25] See Marsden & Winch [2009] FamCAFC 152
For the reasons set out above I find that there has not been a significant change of circumstances warranting a re-opening of the question of parental responsibility. This finding is dispositive of the applications before me and Order 1 made 27 January 2015 remains. However, in case I am wrong in that finding, I will consider the submissions made by the parties in relation to the question of parental responsibility.
Parental Responsibility
Earlier in this judgment I indicated that the court must apply the presumption of equal shared parental responsibility when determining parenting cases unless the presumption does not apply because of child abuse or family violence.[26] The presumption however may be rebutted when the evidence establishes that it is not in the child’s best interests for it to apply.[27] In this case I accept the father’s submission that the presumption applies. Although a family violence protection order was made in 2013, I am satisfied that that order is historic and since the making of the court orders in 2015 there has been no ongoing issue with family violence.
[26] Section 61DA
[27] Section 61DA(2) & (4)
The parties have however had difficulties in communicating and the mother argued that the court would be satisfied that it is not in the children’s best interests for an order for equal shared parental responsibility to be made. In other words she argued that the presumption has been rebutted.
In the appeal judgment Kent J said:
[37] …… In Dundas and Blake[28] the Full Court considered a case where the appellant contended, as here, that the evidence before the trial judge about equal shared parental responsibility did not reach a level at which it could be reasonably said to have rebutted the statutory presumption. The Full Court emphasised the central importance of the statutory presumption as follows:
[28] (2013) FLC 93-552; [2013] FamCAFC 133
56. Her Honour’s discretion in determining the question of parental responsibility was not at large. Her Honour’s discretion was circumscribed by s 61DA, which requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. In this case, as we have already indicated at [34], her Honour was required under s 61DA(4) to rebut the presumption “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”.
57. In our view, her Honour was in error in making an order for sole parental responsibility. Section 61DA is mandatory in its requirement that the presumption must be applied until a level of satisfaction upon the evidence is reached that it would not be in the interests of the child for it to apply. In our view, that level of satisfaction could not have been reached in this case… Section 61DA is a significant provision of the Act and it requires, in our view, significant attention in the evidence.
58. It is not, in our view, sufficient for her Honour to point to the parties having poor communication or little confidence in each other's parenting capacity…
…
61. In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted…
[38] 38. Section 61DA(1) is expressed in imperative terms. It is properly considered within its statutory context in Part VII including by reference to the objects and principles expressed in s 60B. The references to “best interests” incorporates the paramount consideration expressed in s 60CA and the means by which a Court determines best interests as provided for in s 60CC. As observed by Mason & Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation[29]:
… The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole…
There cannot be any doubt that the legislative intent is that the statutory presumption is of central importance. The corollary of that is that there must be convincing proof as to the children’s best interests for s 61DA(4) to be activated to rebut the presumption.
[39] For the reasons discussed in Blaze v Grady[30] and following the legislative intent of Part VII of the Act is to focus upon rights of children, on the one hand, and duties, obligations and responsibilities of parents on the other. Viewed in this context, the allocation of parental responsibility by parenting orders made under Part VII does not have in focus some inchoate or accepted right of a parent to exercise parental responsibility. Rather, the focus must be on the rights of the child, that is the child’s right to have the child’s parents properly meeting their parental duties and obligations, including by their discharge of parental responsibility. That forms an important element of the child’s right to have parents having a meaningful involvement in the child’s life.
[29] (1981) 147 CLR 297 (at 320)
[30] (2015) 54 Fam LR 172; [2015] FamCA 1064 at [101]
Under the mother’s proposal she would assume responsibility for the final decision in relation to the children that falls within the ambit of parental responsibility. In Keelin v Faith[31] Baumann J when considering a case involving high conflict between parents said:
[70] The parties have had an interim Order for equal shared parental responsibility for over five years. The mother’s proposition for sole parental responsibility was in some way shaped, I think, by her desire for an Order that there be primary care to her. As it will soon become apparent to the mother, I do not support her primary position. In those circumstances where an equal time regime occurs, it is important, in my view, that both parents have the opportunity to be involved in major long-term decision-making. Lest I be accused of pulling the cart before the horse, let me make it clear that there is no principled basis, in my view, notwithstanding the high conflict, to depart from the statutory presumption of equal shared parental responsibility in this case (see the observations of Kent J in Vallans & Vallans[32]).
[71] Whilst the parties could not reach agreement as to the child’s secondary school education, a matter which I have determined to be at C School from the beginning of 2021, there is no other evidence that this healthy child, whose faith is not in dispute, where the parties do not seek to relocate or change his name, would be unable to, through proper consideration of the other party’s view, reach a decision in the interests of the child of a major long-term nature. More so, in my view, as Justice Kent in the aforesaid judgment indicated, to remove a parent with significant involvement in a child’s life from the decision-making process of a major long-term factor should not be something ordered lightly.
[31] [2020] FamCA 752
[32] [2019] FamCAFC 260
I respectfully agree. The principles set out in s 60B(2) indicate that the children have the right to know and be cared for by both their parents. The parents jointly share the duties and responsibilities concerning the care, welfare and development of the children. Making important long term decisions for children is a form of care to be provided to the children. To exclude the father from his role in making decisions for the children with the mother would deny the children their right to have him care for them in this regard. The insights and views of each of the parents are important in making decisions for the children. Although I accept the mother’s proposed orders made provision for input from the father, that is not the same as being responsible for the decision making. That is not consistent with a joint sharing of responsibility for making these types of decisions and is inconsistent with the principles set out at s.60B(2).
The principles are of course subject to the children’s best interests. There is nothing in the evidence however, that would lead me to find that the children would be exposed to harm as contemplated by s60CC(2)(b) if the mother and father were to confer and come to a joint decision on major issues for the children. Further, the children would benefit from having both their parents having a meaningful involvement in their lives by making these types of decisions together.[33]
[33] See s.60CC(2)(a)
Whilst I accept the mother has found communicating with the father difficult and she gets anxious when having to do so, she indicated to the family report writer that that anxiety is not to a level that would undermine her overall functioning. The issues that have caused the main angst between the parents have related mainly to practical issues such as getting the children to extra-curricular activities or birthday parties when they would otherwise be spending time with the father. These are not the major long term issues contemplated by the concept of parental responsibility. Major issues such as schooling and religion have been able to be resolved between the parents, although I accept an earlier schooling issue did not resolve itself until court proceedings were instituted. That however, is not sufficient in my view to warrant a finding that the presumption has been rebutted.
I am not satisfied the mother has established a case for the rebuttal of the presumption. I am also satisfied, for the reasons set out above, that it is in the best interests of the children for the parents to have equal shared parental responsibility for them. Therefore I would dismiss the mother’s application.
The father sought an order for his costs on an indemnity basis if he was successful in resisting the mother’s application. Given I have not received submissions in that regard, I will make directions for the filing of further submissions to determine this outstanding issue.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Associate:
Date: 13 May 2021
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