November 2018 Family Law Case Watch

By Lisa Wagner, Prue Hawkes & Stephanie Ordanoska

When parents disagree on a decision relating to their child, is it the mother or the father who has the ultimate say?

The answer is neither. The recent case of Cameron & Brook [2018] FamCAFC 175 provides that the Family Court has both jurisdiction and power to determine a question if the parents cannot reach an agreement themselves. Divorced parents with “equal shared parental responsibility” who disagree on a matter in relation to their child may apply to the Court to determine what is in the best interests of the child and make a decision accordingly. As such, one parent need not succumb to the wishes of the other without a Court order.

It is important to note that parents who share parental responsibility are obligated to consult with one another about “major long term issues” and to make a genuine effort to come to a joint decision about the relevant issue (s60B(2)(d) and s65DAC(1)(b) Family Law Act 1975 (Cth) (“The Act”).

Facts

The case of Cameron & Brook concerned a 14 year old child who attended a local school that participated in an overseas student exchange programme. If the child was selected, she would live and attend school overseas for a period between four and eight weeks. The child wanted to apply for selection in the programme. The mother wished to authorise the child’s application and participation in the programme whereas the father did not, asserting that the child was not mature enough to do so.

Background

Three years prior to the current Application, the parents agreed on final Orders that provided for inter alia, the parents to have equal shared parental responsibility for their children. The Consent Orders contemplated future disputes regarding parental arrangements and required the parties to attend Family Dispute Resolution in order to resolve parenting disputes before commencing proceedings in Court. The mother attempted to engage the father in Family Dispute Resolution however he did not wish to participate. The mother obtained a section 60I Certificate pursuant to the Family Law Act 1975 (Cth) and proceeded to seek Orders from the Court.

First Instance

At first instance, the primary judge ordered that the mother’s Application be dismissed as it was considered that the Court did not have the power to ultimately make a decision simply where the parents disagree and there is no significant change in circumstances following the making of final orders. This consideration stems from the rule produced in Rice & Asplund (1979) where it was found that the Court should only review Final Orders if there has been a “significant change in circumstances” since making the Final Orders. The Court noted in that matter that a child growing and the associated change is not sufficient to review existing Orders.

The primary judge adopted the father’s argument that the circumstances did not render it appropriate for the judge to make an order simply where the parents disagree. Counsel for the father argued that the intervention of the Court where there is “complete deadlock about the education of a child or the child’s need for surgery or the religion of the child then the court could and should intervene. This is not such a case”. The father’s position was that parents will often disagree, whether together or not, and one will simply prevail.

On Appeal

On appeal, the Court first considered whether the primary judge had the power to make an Order such as the one sought by the mother or more generally, whether it has the power to make a decision simply because of a failure of parents to agree.

The Court stated that The Act, particularly s60B and s65DAC does not seek to limit the kinds of Orders the Court has power to make. In fact, s61B of The Act grants the Court jurisdiction and power to make orders on parental responsibility, that is, any aspect of the “duties, powers, responsibilities and authority” which parents have in relation to their children.

The Court subsequently determined the specific question pertaining to this case so as to permit or not permit the child to apply for the exchange programme.

Conclusion

The Court took into account the primary judge’s application of the rule in Rice & Asplund and found that in comparison, in this case there was no attempt to reconsider issues previously brought to the Court’s attention and the rule in Rice & Asplund was not applicable. Rather, the current application relates to a new question of parental responsibility that was not contemplated at the time of the original Orders being made.

On appeal it was ultimately found that the primary judge erred in his decision to dismiss the Application made by the mother and proceeded to make a decision. It was found that pursuant to s61B the Court has power to hear the mother’s Application and make a decision accordingly.

In the present case the Court found that it was in the best interests of the child to apply for the programme and Orders were made accordingly. This was based on the following considerations:

  1. This decision would promote the child having a meaningful relationship with both parents where her maturity may be explored and discussed;
  2. There is no harm to the child;
  3. The experienced educators will have the opportunity to make their own assessment of the child’s suitability and level of maturity necessary for participation in the programme; and
  4. Potential emotional harm to the child not participating in the programme has been alleviated.

As it was not certain that the child would be chosen to participate in the programme, participation should be subject to future deliberations if the child is selected. In response to the father’s concern regarding the child’s maturity, steps may be undertaken such as undergoing an assessment by an independent psychologist to determine whether the child has the requisite level of maturity to participate in the programme if she is successful in her Application, and a decision can be made in light of such evidence becoming available.

In Family Law, the Court has broad discretionary power to make and review Parenting Orders. Although all Orders are made on the basis of reaching finality, Final Orders made regarding the parenting of children are not final in the same sense as Orders made in relation to a property settlement and may require Court intervention where circumstances arise that were not foreseen.

We hope that our November 2018 Case Watch has provided you with some clarity about the role of the Court where parents cannot reach agreement in relation to their children.

If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professional family lawyers available to help you.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

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