Malcolm Hope

Ref: XXXX

8 September 2020

Dear Malcolm

RE: PARENTAL RESPONSIBILITY AND PARENTING ORDER – MOONBEAM

Thank you for coming to see me on 7 September 2020. The following is advice about the parental responsibility and parenting orders we discussed.

Family dispute resolution (‘FDR’)

You have to attend a FDR conference prior filling an application to the court.[1] The court may refer parties to family counselling, mediation and other family services.[2] FDR is a process which consists of a family dispute resolution practitioner (‘FDRP’) who is an independent party in the process and can assist you to resolve all your issues.[3] However, there are exceptions such as family violence, abuse or urgency which do not apply to your case.[4] A certificate must be obtained from a family dispute resolution practitioner and filed together with the initiating application, to show that you have made a genuine effort to resolve the dispute.[5]

If you wish to proceed further, after the Federal Circuit Court has accepted the dispute resolution certificate, you can then apply for an interim order[6] outlining both of your responsibilities which would be valid until final hearing.

Parenting plan and consent order

You and Summer are encouraged to reach agreement by entering into a parenting plan or filing a consent order.[7] A parenting plan is a legally unenforceable written agreement that sets out parenting arrangements for Moonbeam. It is different from a parenting order. The plan is worked out, agreed and dated jointly.[8] A parenting plan deals with core issues like with whom Moonbeam is to live, the time she is to spend with you or her mother, the allocation of parental responsibility for Moonbeam, or the communication Moonbeam is to have with you and Summer.[9] We enclose for your information a Family Law Courts brochure entitled Parenting Plan which would assist you in making decision.[10]

Alternatively, a consent order can be filed which is a written agreement that is approved by a court.[11] However, the court must be satisfied that the orders you ask for, are in the best interest of Moonbeam.[12] A consent order has the same legal effect as if they had been made by a judicial officer after a court hearing. For example, if you or Summer fails to uphold the terms of the consent order, then any of you could request the court to enforce the order. Moreover, you can obtain more information on these topics from Marriage, Families and Separation brochure.[13]

I would advise you to have a conversation with Summer and convince her to enter into a parenting plan which is a flexible approach for parenting arrangements if you prefer plans that are responsive to Moonbeam’s needs at different developmental stages. In addition, you can also file a consent order if you want a legally enforceable agreement and quicker results. Consent order would be beneficial for you if you are concerned that Summer will refuse to return the child after visitation or where both of you cannot agree on particular matters.

If no agreement reached on parenting arrangements:

Parental responsibility

Parental responsibility is a decision-making power which means all the duties, powers, responsibilities and authority which, by law, parents have in relation their children.[14] Each parent has parental responsibility for their children until aged 18 years after the separation, regardless of whether separated or remarry.[15] This means that you and Summer can make decisions jointly and severally for Moonbeam until she turns 18.[16]

Types of orders that can be sought are, you and Summer have equal shared parental responsibility; one of you have sole parental responsibility; or both of you have equal shared parental responsibility but either you or Summer will have sole parental responsibility for particular issue. Those who can apply for parenting order are, you, Summer, Moonbeam, the grandparents or other people who are concerned with welfare, care or development of Moonbeam.[17]

Courts to decide the child’s best interests

Section 60B contains objects and principles that provide context for considering those interests.[18] When making parenting orders, the court regards the best interests of the child as the paramount consideration.[19] The court takes into account relevant factors that are set out by the Act to determine Moonbeam’s best interests. These factors are categorised into the primary[20]  and additional considerations.[21] The primary considerations are that:

1. The benefit of Moonbeam of having meaningful relationship with both parents;
2. That she is protected from physical or psychological harm
3. the court is required to prioritise the consideration in paragraph (b)

Meaningful relationship means the importance, significance and value of the relationship for Moonbeam.[22] Moonbeam is four years old and two hours only for one parent to spend does not have any benefit for her and will not constitute having a meaningful relationship.[23] She requires both parents to spend a considerable amount of time with her. However, her relocation of five hours distance, does not satisfy the requirement of having a meaningful relationship with both parents and would not be in Moonbeam’s best interests. Nevertheless, arrangements can be made so that Moonbeam has a meaningful relationship with both parents in the future.[24]

Here, the relevant additional considerations that would be considered are, that how you and Summer maintain a healthy relationship with Moonbeam.[25] Whether, the relocation would create obstacles for both parents in fulfilling obligations towards Moonbeam, as she is being limited with the amount of time that she spends with her father.[26] Since Summer did not inform you regarding the relocation, so how likely this could impact Moonbeam’s behaviour as a result of sudden separation from you.[27] Whether, the relocation would cause practical difficulty and expense for Moonbeam to spend time and communicate with you and the effect of that difficulty on Moonbeam’s right to direct contact with both parents on a regular basis.[28] Whether, it would be preferable to make the order to minimise the chance of further proceedings, as you made a proposal to Summer entering into parenting plan.[29] However, it has been opposed to which indicates the likelihood of further proceedings. Therefore, it would not be in the best interests of the Moonbeam.

Presumption of equal shared parental responsibility (‘ESPR’)

The court has power to make a parenting order as it thinks proper.[30] The Act requires the court to apply the presumption that it is in the best interests of the child for the parents to have ESPR when making a parenting order.[31] Based on the best interest factors, the presumption would apply, as it would be in the best interests of Moonbeam to be with her both parents. However, the presumption would be rebutted if there are high level of conflict between both parents.[32]

If order is made for ESPR, then the court may consider order for equal time or substantial and significant time if its reasonably practicable and in best interests of Moonbeam.[33] What is reasonably practicable, the court will have regard to:

• The five hours distance between both parents
• Parents’ capacity to implement an arrangement for Moonbeam spending both times with each of you; parent’s capacity to communicate and resolve difficulties regarding the arrangement;
• The impact of those arrangement on Moonbeam; and
• Such other matters as the court considers relevant.[34]

On these factors, it is reasonably practicable and in best interests of Moonbeam to have equal time with both parents, as you are a university student and flexible in terms of making arrangements for Moonbeam to spend time with you. If issues arise in future regarding the arrangements, you can agree on a location convenient for you and Summer to resolve those issues. Where court orders for ESPR, both parents have to consult with each other and make ‘genuine effort’ to come to a joint decision about major- long term issues such as Moonbeam’s education, health (here immunisation) and her living arrangements.[35] Once a parenting order is made, there are no obligations to consult for day-to-day issues (e.g. what Moonbeam needs to eat, wear, activities to participate in or when to go to bed).[36] Parental responsibility ceases if Moonbeam turns 18,[37] adopted[38] or enters into marriage or de facto relationship.[39] Alternatively, you could also seek order for sole parenting responsibility for Moonbeam’s education and immunisation,[40] as per the schedule set out by the immunisation medical specialist.

Final recommended steps

• Firstly, talk to Summer and both of you enter into parenting plan or file a consent order.
• If you don’t reach agreement, so after commencing the court proceedings, the court would order for ESPR if it is in Moonbeam’s best interests.
• You can also apply for sole parenting responsibility in relation to immunisation and schooling, however evidence must be produced to show that this is in the best interests of Moonbeam.

Costs agreement

We have attached our firm’s costs agreement associated with the court proceedings,[41] as well acting on your behalf. Please, sign and date the form and return to us by email or in person.

Any questions  

Please do not hesitate to contact us on 4555 8888 should you have any queries.

Yours faithfully

Amina Zafari

Junior Solicitor

(word count-1500)

BIBLIOGRAPHY

A         Articles/Books/Reports

Harland, Alex et al, Family Law Principles (Lawbook Co. 2^nd ed, 2015).

B         Cases

Goode v Goode (2006) FLC 93, 206 [37].

Marvel v Marvel [2010] FamCAFC 101, [94].

Mazorski v Albright (2007) 37 Fam LR 518, 732-33.

G v C [2006] FamCA 994, [67]-[68] (Bennett J).

McCall & Clark (2009) FLC 93, 405.

H v H [2007] FMCAfam 27.

MRR v GR (2010) FLC 93-424.

Duke-Randall v Randall [2014] FamCA 126.

Kingsford [2012] FAMCA 889.

Godfrey v Sanders [2007] FamCA 102.

C         Legislations

Family Law Act 1975(Cth).

Family Law Rules 2004(Cth).

Legal Profession Act 2007 (QLD).

E          Other

Marriage, Families and Separation (prescribed brochure), Family Court of Australia (Web Page, 31 August 2020).

Parenting Plans, Family Court of Australia (Web Page, 31 August 2020).

LexisNexis, Principles and Practice—Parenting Orders and Agreements (online at 30 August 2020).

LexisNexis, Orders for equal shared parental responsibility (one parent responsible for educational decisions) (online at 30 August 2020).

LexisNexis, Orders for equal shared parental responsibility (one parent responsible for medical decisions) (online at 30 August 2020).

[1] Family Law Rules 2004 (Cth) r 1.05 (‘Family Law Rules’); Family law Act 1975(Cth) s 60I (‘Family Law Act’).

[2] Family law Act (n 1) s 13C.

[3] Ibid s 10F.

[4] Ibid s 60I(9).

[5] Ibid (1).

[6] In the Federal Circuit of Australia, interim orders may be sought at the time of filing an Initiating Application for final orders or during the proceedings by way of an Application in a Case. Applications for any interim orders must be supported by an affidavit with no more than ten pages in length and no more than five annexures: Federal Circuit Court of Australia Act 1999(Cth) s 51. The Judge determines whether to conduct an interim hearing on the first return date of an Initiating Application, or Application in a Case.  The Judge will also determine whether to deal with all or part of the application and/or the Response as filed: Practice Direction No. 2 of 2017 Interim Family Law Proceedings.

[7] Family law Act (n 1) ss 63B, 63DA.

[8] Ibid s 63C(1).

[9] Ibid (2).

[10] Parenting Plans, Family Court of Australia (Web page, 31 August 2020) <https://www.familyrelationships.gov.au/document/7236>.

[11] Family law Rules (n 1) r 10.15(1)(a)-(b), (2).

[12] Family Law Act (n 1) s 60CA.

[13] Ibid ss 12B, 12E; Marriage, Families and Separation (prescribed brochure), Family Court of Australia (Web page, 31 August 2020) <http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/publications/separation/marriage-families-and-separation>.

[14] Family Law Act (n 1) s 61B.

[15] Ibid s 61C.

[16] Goode v Goode (2006) FLC 93, 206[37]; Marvel v Marvel [2010] FamCAFC 101, [94].

[17] Family law Act (n 1) s 65C.

[18] Ibid s 60B; Goode and Goode (2006) FLC 93-286.

[19] Family law Act (n 1) s 60CA.

[20] Ibid s 60CC(2), (2A).

[21] Ibid (3).

[22] Mazorski v Albright (2007) 37 Fam LR 518, 732-33 (Brown J).

[23] G v C [2006] FamCA 994, [67]-[68] (Bennett J); Godfrey v Sanders [2007] FamCA 102, 18 [37].

[24] McCall & Clark (2009) FLC 93, 405; Godfrey v Sanders [2007] FamCA 102, 21 [47], 19 [41].

[25] Family law Act (n 1) s 60CC(3)(b).

[26] Ibid (c)-(ca).

[27] Ibid (d).

[28] Ibid (e).

[29] Ibid (l).

[30] Ibid s 65D.

[31] Ibid s 61DA.

[32] H v H [2007] FMCAfam 27.

[33] Family law Act (n 1) s 65DAA.

[34] Ibid s 65DAA(5); MRR v GR (2010) FLC 93-424.

[35] Family law Act (n 1) ss 65DAC; 4 (definition of ‘Major long-term issues’).

[36] Ibid s 65DAE.

[37] Ibid s s61C(1).

[38] Ibid s 61E.

[39] Ibid s 65H.

[40] Duke-Randall v Randall [2014] FamCA 126; Kingsford [2012] FAMCA 889.

[41] Legal Profession Act 2007(QLD) pt 3.4.