Wattel and Evans
[2010] FamCA 411
•12 May 2010
FAMILY COURT OF AUSTRALIA
| WATTEL & EVANS | [2010] FamCA 411 |
| FAMILY LAW – CHILDREN – Parental responsibility |
| Family Law Act 1975 (Cth) |
| AIF v AMS (1999) 199 CLR 160 Harris v Caladine (1991) 172 CLR 84 U v U (2002) 211 CLR 238 |
| APPLICANT: | Mr Wattel |
| RESPONDENT: | Ms Evans |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 4793 | of | 2008 |
| DATE DELIVERED: | 12 May 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 12 May 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr M.W. Sayers |
| SOLICITOR FOR THE APPLICANT: | N R Barbi Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Tulloch |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray McGuinness Eley |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr G. Andrews |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid Queensland |
Orders
IT IS ORDERED BY CONSENT THAT
Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.
IT IS ORDERED THAT
All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
The Independent Children’s Lawyer be discharged.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS DIRECTED THAT
The Minutes of Consent remain upon the Court file.
MINUTES OF CONSENT
IT IS ORDERED BY CONSENT:
That all extant orders be discharged.
That the child [T] born […] August 2002 live with the mother.
That the child spend time with the father as follows:
3.1.Commencing on Friday, 14 May 2010, on each alternate weekend during school terms from the conclusion of school on Friday until the commencement of school on Monday or Tuesday if Monday is a public holiday or pupil free day. (The said regime of weekends shall recommence on the first weekend of each new school term);
3.2.For one half of the school term holidays as follows:
3.2.1.In even numbered years from the end of school on the last day of each term until 10am on the second Saturday (being the middle weekend) of the said holidays; and
3.2.2.In odd numbered years from 10 am on the second Saturday (being the middle weekend) until the start of school at the beginning of the next term;
3.3.For one half of the Christmas school holidays as follows:
3.3.1.From the last day if term 4 until 10am on 5 January during the 2010/2011 holidays and in each alternate year thereafter; and
3.3.2.From 10am on 5 January until the start of school on the first day of term 1 during the 2011/2012 holidays and in each alternate year thereafter.
All changeovers that do no take place at the child’s school shall take place at the McDonald’s Restaurant at [L] and for such purposes each party may personally attend or have the child collected by a person to be nominated by them (save that the mother shall not nominate [R Evans]).
That until 1 March 2014, save with the prior leave of the Court, the father shall be and is hereby restrained from:
5.1.Issuing any further proceedings in any court with respect to the child under the Family Law Act 1975 (Cth);
5.2.Notifying the Department of Child Safety; Queensland Police Service (or equivalent government agency in any State or Territory of Australia) or any other government or private welfare agency with respect to the child;
and in the event that leave is sought by the father any application for leave shall be issued in the Brisbane Registry of this Court.
That until further order the father by himself and by his servants and agents shall be and is hereby restrained from:
6.1.Contacting the mother, save as otherwise provided by these orders;
6.2.Contacting [R Evans] or his family;
6.3.Disseminating or discussing any documents or other information arising from any Family Law Act proceedings involving [R Evans];
6.4.Permitting the child to come in to contact, including via telephone, with [PW].
That each parent shall do all such acts and things and sign all such documents as may be required to:
7.1.Have the child complete her primary school education at [L] State College; and
7.2.Ensure that each party shall be entitled to receive from the said school all newsletters, notices and other information provided to parents, and this order shall serve as such authority.
That each parent shall ensure that the child’s general medical practitioner shall be part of the practice known as [C Practice] or [L Practice].
Save in the event of a medical emergency that occurs during a period of time when the child is in the father’s care, the mother shall be the parent responsible for the child’s medical and dental care and the mother shall provide the father within 14 days the name and contact details of any doctor, dentist or treating professional attended by the child and this order shall authorise the said treating professional to provide any information about the child to the father.
In the event of a medical emergency that occurs in the care of either parent they shall each notify the other of the said emergency and the name and contact details of the child’s treating professionals as soon as practicable.
Each parent shall keep the other informed at all times of the current email address and further a telephone number (the telephone number being for use only in the event of an emergency).
Each parent shall be at liberty to contact the other parent via email about any issue relevant to the child provided that neither of them shall send more than one email in any two week period.
That the Independent Children’s Lawyer be at liberty to serve a copy of these orders upon Court Services of the Department of Communities (child Safety), The Queensland Commissioner of Police and the principal of [L] State College and to the extent that it may be necessary the Independent Children’s Lawyer shall be relieved of any obligation placed upon her by section 1212 of the Family Law Act.
That the Independent Children’s Lawyer shall arrange for [Ms Y] to explain these orders to the child and the mother shall make the child available for that purpose.
IT IS NOTED:
A.The parents have agreed that they shall each undertake separate personal counselling or therapy to help them address the matters raised in the report of [Ms Y] dated 26 May 2009 and the report of Dr [M] and for such purposes their treating professional may be provided with a copy of those reports and this Order, the said counselling shall be private and confidential to each of them and neither of them shall be entitled to any information about the said counselling undertaken by the other.
B.Save for what appears in order 9 herein, the parties acknowledge explicitly that they each intend that each of them is to have parental responsibility within the meaning of the Family Law Act 1975 (Cth).
IT IS NOTED that publication of this judgment under the pseudonym Wattel & Evans is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 4793 of 2008
| MR WATTELS |
Applicant
and
| MS EVANS |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The parties to this case seek competing parenting orders in respect of their child, T, who is aged now approximately seven and a half. Sadly for T, there has been extreme conflict between the parties over a long period of time.
Fortunately for T, the parties have, with the assistance of their legal practitioners and the Independent Children’s Lawyer, been able to agree upon the arrangements for the child’s co‑parenting. These arrangements are designed to not only set out in specific terms the time which the child will spend with each of them, but, importantly, to also seek to address the issue identified as central to T’s best interests by three independent experts, whose reports are before the court in evidence.
The parties have attempted to deal with what will, hopefully, be a significant diminution in the nature and degree of the conflict between them in a number of different ways in the orders, including their consent to injunctions in respect of each of them about various aspects of their behaviour.
The orders contain what might be described as a somewhat unusual provision preventing the father from issuing further parenting proceedings pursuant to the Family Law Act without prior leave of the court. That is an order which, I should emphasise, is made pursuant to the injunctive power contained in Part VII of the Act, as distinct from section 118.
The orders contain a paragraph of notations to the orders which provides that each of the parties intend to undertake separate personal counselling or therapy of a confidential nature designed to help them address matters relevant to each of them respectively, with the joint aim that any such therapeutic intervention will assist them to ameliorate the conflict between them in T’s best interests.
That orders injunctions, together with other orders, that can be seen to have a similar purpose, are, in my view, in T’s best interests in this case because of the central place of what is very long‑standing conflict between these parties.
The parties are, it need hardly be said, to be commended for the hard work, compromise and difficult decisions which needed to be made by each of them today, with the assistance of their legal practitioners in order to arrive at agreed minutes.
A difficult issue which arose, which is really a matter of law rather than an issue directly related to the concerns of each of the parties, relates to the issue of parental responsibility. I am mindful that the High Court, a few weeks ago, delivered its decision in MRR v GR (2010) 263 ALR 368. At paragraph 13 of that decision, the Court said this:
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question of whether it is in the best interests of the child to spend equal time with each of the parents [para (a)], and the question of whether it is reasonably practicable that the child spend equal time with each of them [para (b)]. It is only where both questions are answered in the affirmative that consideration may be given under para (c) to the making of an order. The words with which para (c) commences [“If it is”] refer back to the two preceding questions, and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned, much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subsection 2(a) and (b) require that the prospect of a child spending substantial and significant time with each parent then be considered. That subsection follows the same structure of subsection (1), and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. [emphasis added]
What is not said by the High Court, but which is, it seems to me, implicit is that those comments apply, bearing in mind that they pertain to the court’s power, only where section 65DAA is invoked. Section 65DAA contains within it the condition upon which it is invoked, namely, “if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child.”
Thus, it can be seen that the issue of whether the presumption of equal shared parental responsibility applies (or if same is otherwise ordered) is directly relevant to the power which the court has to make parenting orders of a particular kind.
The High Court made it clear that section 65DAA is a source of power. So too, a source of power can be seen in section 65D. The decision of the High Court in MRR v GR makes it important, in my view, for courts to make clear, and for orders made by the court to make clear, whether the presumption of equal shared parental responsibility applies, or is it rebutted in a particular case. If the presumption is not rebutted and applies (or if that order is otherwise made), then the decision of the High Court is authority for the proposition that the source of power for the court lies, not in section 65D, but in section 65DAA. That, in turn has ramifications for the process to the applied. That is so even on a consent order (see eg Harris v Caladine (1991) 172 CLR 84).
Here that issue was raised in the context of consent orders sought to be made late in the day after a long and difficult process of negotiation in this case.
Parental Responsibility
I have previously outlined in Lansa & Clovelly [2010] FamCA 80 what I consider to be the appropriate principles in respect of parental responsibility. I repeat them here.
The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order (s 61D(1) and (2)).
But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted (s 61DA(4)).
No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
“Major long-term issues” is defined in s 4:
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:
i)the child’s education (both current and future);
ii)the child’s religious and cultural upbringing; and
iii)the child’s health
iv)the child’s name;
v)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.
Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person.There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75.In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. [emphasis in original]
76.We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, 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 circumstances where there is a mandatory, statutory responsibility for parents who share parental responsibility to consult the other parent in relation to decisions to be made about “major long-term issues” and to make a genuine effort to come to a joint decision, it might be thought that difficulties potentially exist, where a lengthy history of very significant conflict attends the co‑parenting relationship.
It might be thought that those same difficulties also attend the co-parenting relationship in circumstances where each of the parties retains parental responsibility as a matter of law pursuant to section 61C of the Act. However, there seems to me to be a distinction, plain from the terms of the legislation itself, between “equal shared parental responsibility” and “parental responsibility,” although the legislature has seen fit not to define the previous term.
In this case, the distinction can be seen to be important. Understandably enough, each of the parties, in respect of a child who, the evidence reveals, loves each of them, and in respect of whom, the evidence reveals, is closely attached to each parent, seek to retain “all the duties, powers, responsibilities and authority which by law parents have in relation to children.” As I have earlier said, it seems to me that orders for “sole parental responsibility” which are frequently used in this court mean, at least, arguably, that the “other parent” has no “duties, powers, responsibilities and authority” with respect to their child.
Whilst, plainly enough, such an order might be made where the evidence before a court is to the effect that the best interests of a child require such a result, in circumstances where that evidence is not present, it seems to me to be a very significant interference with the fundamental human rights of a parent.
In this case, it seems to me that the very long‑standing conflict and, sadly, its apparent intractability, points against the duties, powers and responsibilities attaching to parental responsibility being exercised “equally,” with all that implies by reference to section 65 DAC of the Act, and Part VII generally. I find that the presumption is rebutted by reference to best interests.
There are, though, in my view, good reasons for not taking away from either parent the duties, responsibilities and powers implicit in an order that each of them retain parental responsibility.
The proposed orders make no provision for parental responsibility, save in the manner in which I have just described. The notation to the order specifically provides that the parties intend, save in a specified way, that each of them is to have parental responsibility with respect to T within the meaning of the Family Law Act. It seems to me that the manner in which the parties have attempted to achieve that in their minutes of consent, by reference to the difficult circumstances arising from the parental conflict, is appropriate and in T’s best interests.
I am satisfied, the presumption has been rebutted by reference to T’s best interests. Therefore, the requirement to deal with legislatively mandated periods of time in a legislatively mandated manner is removed.
Nevertheless, it seems to me beholden upon the court charged with the responsibility for determining whether orders are in the best interests of a child to, nevertheless, consider whether the periods of time provided for in the minutes of consent are in the child’s best interests.
I have alluded to the difficult circumstances in this case and to the fact that the parties have been in conflict in one form or another in respect of their child for virtually the whole of her life. In those circumstances, in particular, it seems to me that the orders, in terms of the quantities of time that they provide for, are in T’s best interests, and the orders represent a reasonable and appropriate means of attempting to deal with a serious and ongoing issue between the parties, namely, their conflict.
For those reasons, then, I make orders in terms of the minutes of consent signed by the parties and initialled by me.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy
Associate:
Date: 27 May 2010
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