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Equal Shared Parental Responsibility

Cameron & Brook [2018] FamCAFC 175 is an interesting case.

There the parties had entered into Consent Orders in 2015, which provided for parental responsibility being equally shared between them. The Orders also provided for a dispute resolution assistant to resolve any dispute regarding parenting. This was to be done with the assistance of a Family Dispute Resolution Practitioner prior to commencing proceedings in a Court.

One of the children was aged 14 and attended a school that participated in an overseas student exchange program. If the student was chosen, the student would attend a school overseas for a period of between four and eight weeks. The mother wished to authorise the child’s participation in the program, but the father did not asserting that the child was insufficiently mature to do so.

The mother applied to the Federal Circuit Court for an Order that the child be permitted to participate in the program. This did not mean that she would in fact be selected for the program, but if she was, she would then be required to have schooling overseas for a period of time.

The Judge’s at first instant decided the situation was analogist to Rice v Asplund [1978] FMCA 84 where a material change of circumstances is necessary before an Order can be varied. He held that only where it was such a change of circumstances that the Court ought to intervene, or the parents or the child didn’t have capacity, or where the situation is unworkable that an existence of unacceptable risk to the child is apparent, had to be present before the Order could be made. In the event he did not make the Order.

The Full Court was not persuaded that the situation was analogist to Rice v Asplund saying, “there is here no attempt to reagitate issues previously agitated or issues addressed in civil by the Consent Orders that were made three years previously. The instant application involves a new question relating to an aspect of parental responsibility, that was not at all in the contemplations of the parties at the time of the original Consent Order”. The Court decided that there was jurisdiction and power to make the Orders sought and ordered, “Notwithstanding equal shared parental responsibility, the mother shall have sole authority and responsibility for authorising the participation of the child in the process of the selection for inclusion in the exchange program at the school”.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 26 November 18

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