MOTHER WANTS SOLE RESPONSIBILITY OF THE CHILDREN, THE FATHER DISAGREES SUBMITTING THAT THERE IS NO SIGNIFICANT CHANGE OF CIRCUMSTANCES WHICH WARRANTS THE RELIEF SOUGHT BY THE MOTHER
Vallans & Vallans [2021] FCCA 1001 (13 May 2021)
The court is asked to make a determination as to whether it is in the best interests of two children, 10 year old B and 8 year old C, for their parents to have equal shared parental responsibility for them or whether their mother should have sole parental responsibility.
Facts:
In doing so, the father submitted that the court should dismiss the mother’s application for sole parental responsibility on the basis that she has not established that a significant change of circumstances has arisen since the making of consent orders in 2015 for the parties to have equal shared parental responsibility.
The father, Mr Vallans is 38 years of age and the mother is 35. They commenced living together in 2008, were married in 2010 and separated in May 2013. B was born in 2010 and C was born in 2012. The children were very young when he parties separated.
On 27 January 2015, the parties entered into final consent orders in relation to the children which provided, inter alia, the parents to have equal shared parental responsibility; for the children to live with the mother and for the children to spend time and communicate with the father, increasing over time to alternate weekends.
The mother sought by an order to have Sole Parental Responsibility over the children. Although the mother is the applicant, the father has sought the dismissal of her application on the basis that she has not established a significant change of circumstances warranting a revisiting of the previous orders for equal shared parental responsibility.
In support of her case, the mother referred to a history of family violence. The father denied the mother’s allegations. There was a family violence protection order made by consent without admissions in October 2013 which was in place for 12 months. The order was not breached. This order had expired before the mother consented to the orders that provided for the parties to share parental responsibility. There is no evidence of any further family violence protection orders having been made since the consent orders were entered into. The mother did allege that she has often been subjected to a barrage of angry messages from the father. However, there was no evidence that would enable the court to make a finding consistent with her assertions.
Issue: Should the mother have sole responsibility over the children?
Law:
- Family Law Act 1975 S.60B(2)
Analysis:
The principles set out in S.60B(2) indicate that the children have the right to know and be cared for by both their parents. The parents jointly share the duties and responsibilities concerning the care, welfare and development of the children. Making important long term decisions for children is a form of care to be provided to the children. To exclude the father from his role in making decisions for the children with the mother would deny the children their right to have him care for them in this regard. The insights and views of each of the parents are important in making decisions for the children.
Whilst the court accepts the mother has found communicating with the father difficult and she gets anxious when having to do so, she indicated to the family report writer that that anxiety is not to a level that would undermine her overall functioning. The issues that have caused the main angst between the parents have related mainly to practical issues such as getting the children to extra-curricular activities or birthday parties when they would otherwise be spending time with the father. These are not the major long term issues contemplated by the concept of parental responsibility. Major issues such as schooling and religion have been able to be resolved between the parents. That, however, is not sufficient in my view to warrant a finding that the presumption has been rebutted.
The court is not satisfied that the mother has established a case for the rebuttal of the presumption. It is in the best interests of the children for the parents to have equal shared parental responsibility for them.
Conclusion: There has not been a significant change of circumstances warranting a re-opening of the question of parental responsibility. Therefore, the application filed by the mother is hereby dismissed.
