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RECENT CASE: Disputes between parents with equal shared parental responsibility

In the recent decision of Cameron & Brook [2018] FamCAFC 175, the Full Court determined that the principles enunciated in Rice & Asplund (1979) FLC 90 – 725 do not apply in cases which involve an issue of parental responsibility which had not previously been dealt with.

The case of Cameron & Brook concerned a 14-year-old child who wished to participate in an overseas student exchange program at her school. The Mother wished to authorise the child’s application and participation in the program, whereas the Father disagreed, asserting that the child was not mature enough to do so. Final Consent Orders had been made three years prior to the current application which provided, among other things, for the parents to have equal shared parental responsibility for their children.

The Mother’s application for an urgent interim order that the Father sign the form, failing which she be granted sole parental responsibility, came before His Honour Judge Coates. At the first instance, His Honour dismissed the Mother’s application on the basis that the Court lacks jurisdiction where the parents disagree and where there has been no significant change in circumstances since the Final Orders. The rule in Rice & Asplund is that there must be a substantial change in circumstances to warrant a review of Final Parenting Orders. His Honour held that the situation was analogous to that of Rice & Asplund, where it was said that change is ever-present as a child grows and change alone is not enough to obtain new parenting orders from a Court.

The Father made submissions to the effect that once an order for equal shared parental responsibility is made, any order about major long-term issues is left to one party’s will inducing that of the other, with no role from the Court.

However, on appeal, the Full Court of Strickland, Murphy and Kent JJ held that the rule in Rice & Asplund did not apply, as there was no attempt to re-agitate issues previously raised or settled by the Consent Orders. Rather, it involved a new question relating to an aspect of parental responsibility that was not contemplated by the parties at the time of the Consent Orders.

The Full Court observed that Final Orders made in relation to children are not final in the same sense as Orders made in relation to a property settlement and may require Court intervention where unforeseeable circumstances arise. The Full Court held that although the parental responsibility was the subject of an existing order, the Court had both jurisdiction and power to determine a question if the parties could not agree themselves.

The Court considered that it was in the best interests of the child to apply for the exchange program. The appeal was allowed, and an Order made that the Mother have sole parental responsibility for the enrolment.

By Nicholes Family Lawyers

 

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