It is not uncommon for parents to have vastly different parenting styles and find it difficult to make decisions about the care of their children. In most cases these issues can be overcome with negotiation and compromise. 

However, after separation some parents find that they simply cannot come to an agreement about the care of the children and find themselves in a stalemate.

When this occurs it may be necessary for the Court to make an order that one parent have sole parental responsibility of the children to avoid an impasse on major decisions, such as the choice of school, the choice of medical intervention or arrangements for overseas travel.

In the recent case of Luu & Xia [2013] FMCAfam 35, the Federal Magistrates’ Court was asked to make a determination as to which parent would have the sole parental responsibility for making long-term decisions on behalf of the child of the relationship, in circumstances where the parents had very different parenting styles and had difficulty reaching consensus on the basis of constructive discussion in the past.

The Court does not take such a determination lightly.  Equal shared parental responsibility is presumed in all parenting matters in accordance with section 61DA of the Family Law Act (1975). The Court can only make an Order that is contrary to this presumption in the event that there are reasonable grounds to believe that there has been child abuse or family violence, or if it is inconsistent with the best interests of the child.

In the matter of Luu & Xia [2013] both the mother and father sought orders that they each have sole parental responsibility.  The father also sought orders in the alternative that the parties have equal shared parental responsibility, but in the event they could not come to an agreement, the father have the authority to make the final decision.

The father had, in the past, displayed rigid views and had shown an unwillingness to countenance any other view.  As a consequence, the mother had made decisions about the child to placate the father and avoid confrontation. Decisions were not made in the best interests of the child.

Ultimately, Federal Magistrate Sexton determined that an order for equal shared parental responsibility was unworkable and contrary to the child’s best interests. An order was made for the mother to have sole parental responsibility, with the requirement that the father be kept fully informed of her decisions and that his views be considered on any issue.

In this instance the parent’s inability to make decisions about the care oftheir child meant that decisions were made that were contrary to the child’s best interests. The Orders made by the Court will ensure that going forward decisions can be made for the long term care of the child which are in the child’s best interests and not influenced by the parent’s inability to make decisions together.

If you need any assistance with children’s matters, please contact Coote Family Lawyers on 9804 0035 to make an appointment today.

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