Bircher & Bircher (2019) FamCA 890
In 2006, there were major amendments to the Family Law Act.
The case of Bircher & Bircher provides a very good example of the application and expositon of the legislation.
In this case, the court provided very detailed orders (there are 41 orders) and five notations.
The children are described in the first sentence of the judgment as “B, C and D are three children who have lived their entire lives in what at least one of them has described as a war”.
There was a shared care arrangement as a result of a final parenting order made in 2014 which was amended in 2015 and in 2017.
The mother commenced proceedings in January 2018. She sought sole parental responsibility. The father also sought sole parental responsibility and different care orders.
At the end of that trial, the mother contended for a continuation of the current arrangements but pressed for sole parental responsibility.
This case provides a very good summary of the applicable legal principles. I refer you to paragraphs 36 to 50.
I am going to consider in this case note the issue of parental responsibility. Parental responsibility is defined at paragraph 45 where each parent has parental responsibility for a child subject to any order made by the court pursuant to section 61C.
Section 61DA provides that the court must apply a presumption it’s in the best interest of a child for a child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent is engaged in abuse of the child or another child who, at the time, was a member of the parents’ family or where there are reasonable grounds to believe the parent has engaged in family violence as defined in section 4AB. In addition, the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interest.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, change of living arrangements which make it significantly more difficult for a child to spend time with a parent.
The court decided to split the application of parental responsibility between the parents. The mother has been ordered to have sole parental responsibility for choosing which high school the children, C and D would attend, and the father has joint parental responsibility in relation to all health issues relating to the children and the order provided that unless he agrees in writing, the mother is restrained from making any decision relating to the children’s health or making appointments or attending appointments.
These orders in relation to parental responsibility are set out below.
(2) The parents have equal shared parental responsibility for major long term issues (as that term is defined in s 4(1) of the Family Law Act 1975 (Cth)) for the children B born … 2007, C born … 2008 and D born … 2009 (“the children”) save that:
(a) The mother has sole parental responsibility for choosing which high school C and D attend;
(b) The father has sole parental responsibility in relation to all health issues relating to the children and, unless the father agrees in writing beforehand, the mother is restrained from making any decision relating to the children’s health and from making any appointments or attending any appointments (unless the father is unable to attend) for the children with any medical practitioner, therapist or allied health professional and from taking the children (or causing the children to be taken) to any appointments with any medical practitioner, therapist or allied health professional and, in particular, the mother is restrained from taking any of the children for further assessment in relation to any health issues including but not limited to Autism Spectrum Disorder (“ASD”). This injunction against the mother does not prevent her from taking the children for treatment or assessment in cases of a genuine health emergency;
(c) Unless the father provides his written consent beforehand, the mother is restrained from administering any prescribed medication or any homeopathic treatments to the children, unless provided to her by the father, and in circumstances where the father provides medication or treatment to the mother she shall administer it in accordance with the instructions provided.
(d) Unless the father provides his written consent beforehand, the mother is restrained from commencing the children on any diet unless in accordance with written advice obtained by the father from a dietician or medical practitioner treating the children. In the event a diet is recommended, the mother shall comply with its requirements until informed otherwise.
APPLICABLE LEGAL PRINCIPLES This is extracted from the case for ease.
36. When considering what parenting order is proper I am obliged to apply Part VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.
37. A “˜parenting order’ is defined in s 64B of the Act and may deal with matters including:
a. The person or persons with whom a child is to live;
- b. The time a child is to spend with another person or other persons;
- c. The communication a child is to have with another person or persons; and
- d. The allocation of parental responsibility for a child.
38. The objects and principles of Part VII of the Act are set out in s 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
39. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
40. The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).
41. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
42. Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
43. The Court is not required to make findings of fact on every factual dispute raised by the parties. The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.
44. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
45. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).
46. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
47. Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
48. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
49. Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.
50. I turn now to consider the significant issues in the context of the evidence and applicable legal principles.