Tuesday, 28 October 2008

Major long-term issues decided

In the recent Family Court case of Chappell and Chappell, the Full Court considered as to what constituted "major long-term issues".

The court held:

The 2006 amendments provide no substitute for a specific issues order
to deal with arrangements for the day-to-day care, welfare and development of a
child although s 65DAE, which we will shortly discuss, makes it clear that
where parents or another person have an order for shared parental
responsibility, they do not need to confer on matters which are not major
long-term issues.

We acknowledge there are some remnants of the concept of “day-to-day
care, welfare and development” in the Act. For example, there is reference to it
in the definition in s 4(1) of a “Subdivision C parenting order”. This
definition was introduced by the 2006 amendments; however, it relates to the
registration of overseas orders concerning children.

There is also reference to the concept in s 69Z, which provides
that a medical procedure required to be carried out pursuant to an order for
parentage testing in relation to a child must not be carried out without the
consent, inter alia, of “a person who, under a parenting order, has
responsibility for the child’s long-term and day-to-day care, welfare and
development”. (Section 69Z was amended by the 2006 legislation, but only by
deleting the expression “specific issues order” and replacing it with “parenting
order”).

Otherwise, the 2006 amendments removed all reference in the legislation
to a child’s “long-term or day-to-day care, welfare and development” – see
ss 26B(1A), 37A(2A), 64B(6), 65G(1), 65P(1), 65X, 67K, 67Q, 67T, 68B, 68M,
79A(1AA), 90K(2), 92A(2)(bb) and 111B(4).
The amendments do not, however,
eschew the concept of “care, welfare and development” of children. On the
contrary, s 60B, which sets out the objects and underlying principles of Part
VII of the Act uses that formulation on three separate occasions....


As the note to s 65DAC indicates, the section must be read in
conjunction with s 65DAE, which was also inserted by the 2006 amendments.
That section indicates that there is a range of issues about which parents do
not need to consult with each other, even if there is an order for shared
parental responsibility...

(I)t will be observed from s 65DAE that in dealing with matters of
parental responsibility the legislation is now constructed around the concept of
“major long-term issues”. If an issue is a “major long-term” issue then parents
must consult and ideally reach agreement. If the issue is not a “major
long-term” issue, then consultation is unnecessary and parents may act
unilaterally.

How in practice does a parent (or ultimately a Court) determine whether
or not an issue of parental responsibility is a “major long-term” issue? It will
be noted that the s 4 definition is somewhat circular and does little to
elucidate, in particular, what is meant by “long-term”. Some clue to the likely
dilemmas of categorisation is provided by the note to s 65DAE which
indicates that decisions about such things as what a child eats or wears are
“usually not major long-term issues” (see s 15AD of the Acts Interpretation
Act 1901 and the discussion of the use of notes in Pearce, D C and Geddes, R,
Statutory Interpretation in Australia, 6th ed, LexisNexis, Australia, 2006, at
p 163). Clearly in the note it is contemplated that, for some children,
decisions about matters such as what they wear and/or what they eat can be both
“major” and “long-term”. Hence, the legislation contemplates a degree of
elasticity in determining where the line falls between those decisions that are
“major long-term” and those that are not. Such elasticity, in our view, affords
proper recognition to the almost endless variety of family
circumstances...


In order to rebut the presumption [of equal shared parental
responsibility] it is necessary for the Court to make a finding that it would
not be in the best interests of the child for the presumption to be applied. We
accept that in determining what is in the child’s best interests the Court must
take into account the prescribed matters in ss 60CC(2) and (3), one of
which requires the Court to consider whether it would be preferable to make the
order least likely to lead to the institution of further proceedings. In our
view, it would be an appropriate exercise of discretion in some cases to find
that application of the presumption would not be in the child’s best interests
because the track record of the parents would suggest a high probability of
deadlock, which would inevitably lead to further proceedings. In such cases,
however, the process of reasoning required to rebut the presumption would
involve findings related to the welfare of the child, rather than findings
concerning, for example, the likelihood that schools and hospitals would find it
easier to deal with one parent rather than two.

We can also envisage circumstances in which the Court, in the proper
exercise of discretion, might make very specific orders in relation to issues
which could be loosely described as relating to the “management” of particular
aspects of a child’s welfare. Thus, for example, in the present matter his
Honour might appropriately have made an order that the wife have responsibility
for making of appointments with the speech therapist, as this has been a point
of contention. However, where the Court proposes (as his Honour did in this
case), to give one of the parents a form of responsibility for issues as broad
as “health” and “education”, we consider this should ordinarily be done by use
of the concepts prescribed by the legislation itself.

As we have discussed above, the Act provides only one basis for the
broad categorisation of matters that require decisions to be made in the
performance of parental responsibility. That is the distinction between matters
that involve “major long-term issues” and matters that do not.
We do not, of
course, suggest it is always easy to determine whether or not an issue is a
“major long-term issue”. On the contrary, we consider the distinction between
major long-term issues and other issues is already sufficiently fraught with
ambiguity as to make it imperative that no greater degree of ambiguity be
introduced by use of other nebulous concepts that find no foundation in the
words of the legislation.

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