Vallans & Vallans [2019] FamCAFC 260
There is a presumption in family law that parents share parental responsibility for their children. Parental responsibility means all the duties, powers, responsibilities and authority which a parent has, by law, in relation to their children.
When parties are in Court and the Judge is deciding which parenting arrangements are in the best interests of the children, they will apply a presumption that it is in the children’s best interests for parents to equally share parental responsibility. Practically speaking, this means that parents then will have an obligation to consult each other on major long term issues regarding their children. Long term issues are issues such as the child’s education, religion/cultural upbringing, and where they live (if it makes it significantly harder for the other parent to spend time with them).
The presumption is the starting point.
That is, it is presumed to be preferable that parents communicate with each other about their children. Co-parenting requires mutual communication, and so this is reflected in the presumption of equal shared parental responsibility.
However, not all cases fit the bill for parents to share parental responsibility.
For example, requiring parties to make joint decisions where their relationship is marked by domestic violence would not be practically sound. In all likelihood there would be a tug-of-war between parents and the children would be wedged in between. It is likely that decisions will either be severely stalled or not made at all, and the children would ultimately suffer loss as a result. Parental responsibility in these circumstances would usually be given to one of the parents, at least for a short-term (until further, final orders are made).
But what about situations where parents cannot effectively communicate? For example, what about relationships where it is impossible to exchange pleasantries, let alone make a concerted effort to make joint decisions about a child’s health, for example.
This blog post will explore the case of Vallan [2019], a case which touched on these issues. The case shows that a Court may grant parental responsibility to one parent alone if the parties cannot communicate effectively, however it takes more than just the occasional disagreement.
Facts
The case commenced as a contravention application brought by the father alleging that the mother had breached orders in a Consent Orders agreement made by the parties 3 and a half years ago. What started as a contravention application led to a variation of the consent orders, ultimately granting the mother sole parental responsibility for the children. The father then appealed this variation to the orders and argued that giving the mother sole parental responsibility was not supported in law.
The Contravention hearing and change to the Consent Orders
During the contravention proceedings, the Court had evidence from the mother that communication between the parties was conflicting. Examples were made of the parties disagreeing over the children’s weekend extracurricular activities. This was particularly important since the parties lived 1h and 30 minutes from each other and so the children had to be transported back and forth a considerable distance between households. It became apparent that the mother was really displeased at not being able do as she pleased in terms of the children’s enrolment in extracurricular activities, given the logistical inconvenience associated with the parties’ residences.
The Court found that the mother was indeed stressed by the communication between the parties, and that the children would pick up on that stress. Moreover, reference was made to a Family Report (Expert Evidence in Family Law matters) which had been generated when the case had initially been litigated – that is, 3 and a half years ago. Relevantly, the Report noted that the parents’ “held a general mistrust for each other… used power to control each other… discredited each other’s decision making… and there was a great degree of risk that the children would be caught in the adversarial process”.
After considering these matters, the Court ultimately found that it would not be in the best interests of the children for the presumption of equal shared parental responsibility. The Court then gave the mother sole parental responsibility.
Appeal by the Father
The father challenged the Court’s decision on appeal. In particular, he challenged that there was a valid factual basis for the presumption to be overturned.
The Appeal Court turned to various examples of where the parties showed they could communicate civilly and with sufficient productivity to advance the children’s best interests. Examples such as the parties’ making arrangements for the children’s sporting events were sufficient grounds for the Court to conclude that there was some utility in the parents’ communication. Another example which highlighted that not all hope had been lost was the father asking the mother if she supported the children having their influenza shots. The mother denied the request, however the father took the denial well.
Therefore, the Court was able to find that communications between the parties had not altogether broken down. The lines were ultimately still open.
Further, the Appeal Court took issue with a historical Family Report being relied on. The evidence now before the Court, 2 years after the Family Report’s publication date, painted a different picture. The Appeal Court opined that an over-reliance on this piece of evidence was a mistake, especially when faced with a new set of facts. Moreover, it questioned the logic of the order, given that a couple involved in a power struggle (if that was still the case) meant that giving one party sole parental responsibility could be used by them to further their power agenda.
More importantly, the evidence really only centred on communication conflicts regarding short-term, day-to-day decisions. The parental responsibility the Court was concerned with related to long-term issues and, apart from the father’s request for the influenza shot, most other discussions centred around weekly travel logistics and the children’s extra-curricular activities.
Ultimately, the Appeal Court found that the Orders should not have been altered to give the mother sole parental responsibility. It found that: –
“relatively minor conflicts created by arrangements which would potentially impinge upon their children’s ordered time with the father could not, without more, constitute the requisite level of evidence to displace, in the children’s best interests, the statutory presumption” [at 49]
Significance
To me, I think this case highlights a few points: –
- The quality of parental communication can influence a conferral of parental responsibility.
- The communications must relate to major long term issues as defined by the Family Law Act 1975 (Cth), not solely matters of a day-to-day nature.
- The process of evidence gathering is important if this is the manner in which the case will be run. As the Court stated, the evidence has to be “cogent, and careful attention needs to be given to it”
In this case, it was not enough to have a few evidentiary examples where the parties did not see eye-to-eye. The parties had disagreed regarding some issues while agreeing on others. On the whole, it appeared they were relatively functional in their communication with each other. The main issue was really the logistical issue they were facing of planning the children’s extra-curricular activities around the significant geographical distance between them. That, however, was not a sufficient ground to overturn the presumption of equal shared parental responsibility, and the father’s appeal succeeded.
