I recently reviewed the Court of Appeal decision in Worth & Worth & Anor[1] and thought the decision with respect to parental responsibility was especially relevant in cases where children live with one parent, and especially for relocation cases.
The basic facts surrounding parental responsibility are that:
The Trial Judge afforded sole parental responsibility to the mother of two children in circumstances where they were living with her in a different country from the father.[2]
The father appealed this decision seeking sole parental responsibility himself.[3] (Page 8 para 39)
If the father had sought joint parental responsibility I doubt the outcome would have been any different.
The appeal was dismissed with the Court of Appeal finding no error of the Trial Judge and confirming the Mother should retain sole parental responsibility.
Parental responsibility is by presumption equally shared between parties. There has been recent discussion in the Australia Law Reform Commission report about whether this presumption should be removed. The presumption was found not to apply in this case and even if it did, it was found not to be in the children’s best interests for equal shared parental responsibility.
The Court said:“His Honour correctly found ([166]) that the presumption that there should be equal shared parental responsibility set out in s 61DA(1) of the Act did not apply. However, his Honour commented that even if the presumption applied, it was rebutted in this case because the parents cannot communicate with each other and they are unable to agree on decisions about major long-term issues. Thus, it was not in the children’s best interests to order that there be equal shared parental responsibility, and that is not challenged by the husband on appeal ([168]).”[4]
Further, the Trial Judge considered it appropriate that sole parental responsibility be conferred on one parent due in part to the inability of the parents to communicate with each other and the high degree of conflict.
At paragraph 183 His Honour said: "I am quite satisfied that the mother should have parental responsibility for both children solely conferred on her. The two children will be living with her and as I consider that only one parent should have parental responsibility in this high conflict co-parenting relationship, at least for the foreseeable future, I am satisfied that it should be the mother.”[5]
In relocation matters it is important to consider whether it is appropriate that sole parental responsibility confer upon the parent whom the children will live with. This is often disputed by the other parent, but in circumstances where decisions need to be made about the children and their day to day care, health, education and medical treatment it may be in the children’s best interests. This case certainly supports that argument in my view.
To discuss a specific parental responsibility or relocation issue you may be facing, contact TML Family Law for a confidential chat.
[1] Worth & Worth and Anor [2019] FamCAFC 40 (8 March 2019).
