When parents disagree on a decision relating to their child, who has the last say?

22 JAN 2019

 

Under the Family Law Act, there is a presumption that parents have equal shared parental responsibility for their child, i.e., they will both have equal duties, responsibilities and powers in making decisions about major long-term issues in relation to their child. [1] However, it is inevitable that parents will not agree on every life decision relating to their child, particularly in the case of separated or divorced parents.

So, what happens in the Family Court when parents don’t agree? Well, the recent case of Cameron & Brook [2018] gives us a pretty good indication.

In this case, Consent Orders were made on a final basis over three years’ prior which provided, amongst other things, for the parents to have equal shared responsibility of the child, who was 11 at the time. The child was now 14 years of age and wished to attend an overseas exchange programme offered by her school. This was supported by her mother but opposed by her father, who asserted that the child was not mature enough to engage in such a programme.

The parents were both adamant in their position and could not reach a mutual decision. This led the mother to make an Application to the Family Court for the child to be permitted to participate in the programme.

At first instance, the Family Court Judge ordered that the mother’s Application be dismissed for the following reasons:

  1. It is a well-entrenched principle of Family Law, flowing from the case of Rice & Asplund (1979), that unless a party can establish a significant change in circumstances since an earlier parenting Order was made, the matter should not be reopened.
  2. The Judge found that, in this case, the Court did not have the power to hear the Application where the parents simply disagreed on a matter and there had not been a significant change of circumstance.

This decision was appealed and the Full Court had to determine whether they had the power to hear the mother’s Application. The Full Court found that the mother’s Application related to a new question of parental responsibility that was not contemplated at the time that the original Orders were made. Ultimately, the Full Court held that it was in the best interests of the child to apply for the programme and made Orders accordingly.

So, what do we take away from this case?

Essentially, in situations where a new issue relating to parental responsibility arises (i.e. an issue which was not considered when finalising parenting Orders) the Family Court does have the power to determine these issues if the parents cannot reach an agreement themselves.

Of course, no one wants to go back to Court after finalising their parenting matter. This is why, when drafting your parenting agreement, it is very important to look ahead into the future and work with your Family Lawyer to create Orders which are comprehensive and take into consideration any parenting issue which may arise later down the track.

 If you require more information on the above article contact Nevine Youssef on (02) 4626 5077 or nyoussef@marsdens.net.au

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.


[1]Family Law Act 1975 (Cth) s 61B.

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