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DOHERTY (2016) – Dividing parental responsibility and the presumption of ESPR

Doherty & Doherty [2006] FamCAFC 182

What was the case about?

The case concerned a father who wished to re-open a parenting case where final Orders had been made 4 years prior. The father claimed there had been a significant change in circumstances since the 2012 Orders were made, alleging new facts such as: physical abuse by the mother on the child; neglect by the mother in her care of the child; failure to share information; a change of religion; poor school attendance; the mother’s suicidal tendencies, and refusal to go to mediation.

The trial Judge did not find there to have been a significant change in circumstances to justify a re-opening of the case. Despite this, the judge discharged the 2012 orders and substituted a new set of Orders which contained various “cosmetic” changes.

Issue – parental responsibility

The main issue on appeal concerned the allocation of parental responsibility. One order broadly provided the mother with sole parental responsibility for the child. However, a subsequent order provided for both mother and father to have equal shared parental responsibility for the child’s surname, and any change in living arrangements which would make it significantly more difficult for a child to spend time with either parent. That is, the parties had to jointly consult each other regarding any proposed change to the child’s name or residence, and make a genuine effort to resolve any dispute.

Regarding other issues – for example the child’s religion or her schooling – the mother had authority to make any decision she saw fit.

Legal issues

  1. Whether it is permissible for there to be an order for equal shared parental responsibility directed to one aspect of parental responsibility (e.g. education of a child), or whether equal shared parental responsibility is an absolute concept and can only be ordered as to confer every aspect of parental responsibility on two or more persons equally, and;
  2. Assuming an Order can be made to discrete aspects of parental responsibility, whether an order for parents to have equal shared parental responsibility in relation to an aspect (but not every aspect) of parental responsibility, is sufficient to trigger s65DAA?

Equal shared parental responsibility can be divided

In this case, the Judge had ordered for the mother to broadly have sole parental responsibility, except for issues relating to the child’s surname and where the child lived. For these issues, the parents would equally share parental responsibility, meaning they had an obligation to consult each other if any decision was to be made concerning these areas.

After citing the 3 different cases of Newlands (2007), Chappell (2008) and Doherty (2014), the Court held that it was possible to allocate equal shared parental responsibility to some, but not all, major long term issues.

In Newlands (2007), an order was made for one of the parents to have sole parental responsibility for education and the parties to otherwise have ‘“joint parental responsibility” (the word “equal” was not included). There was uncertainty as to the judge’s intention given the phrase “joint parental responsibility” was not referred to in the Family Law Act. Nonetheless, the important point is that shared parental responsibility could be allocated for some, but not all, major-long term issues relating to children.

In Chappell (2008), the parties had broadly been allocated equal shared parental responsibility, with the mother being granted sole parental responsibility for “management of health and education issues.” There was a confusion borne out of the terminology used in the orders, namely by the inclusion of the word “management”. Again, it was a case where parental responsibility could be divided between parties.

Therefore, it was uncontentious that one parent could be given parental responsibility for one (or a number) of issues, with both parents being given equal shared parental responsibility for others.

By granting equal shared parental responsibility for some issues, did this activate the obligation to consider equal and substantial significant time provisions?

If a Court orders parents to have equal shared parental responsibility, the Court must consider certain time-based Orders (i.e. equal time; substantial and significant time). There was a question of whether, having allocated equal shared parental responsibility regarding the child’s name and living arrangements, this activated those time-based provisions?

The answer was no.

The Court held that if the Court applied equal shared parental responsibility to all components (i.e. education, health, name, and such), then the time-based provisions would need to have been considered. However, just because equal shared parental responsibility was applied towards two issues, this did not require the Court to consider equal time and/or substantial and significant time. Those provisions were not activated at all.

Significance of the case

To me, this case is significant for a few reasons: –

  1. It matters greatly how Orders are drafted in terms of the terminology used. Phrases and/or wording used in orders should be unambiguous and as consistent as possible with the Family Law Act.
  2. Parental responsibility can be divided. A parent may be allocated sole parental responsibility for some issues, while the parents may otherwise equally share parental responsibility for others.
  3. Just because parents share equal parental responsibility on some issues will not activate the time-based provisions. That is, it will not oblige the Court to consider time-based Orders under section 65DAA.

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