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Children – no error in vesting solicitor with parental responsibility for tort claim against mother

In Agambar [2021] FedCFamC1A 1 (2 September 2021), the Full Court (Strickland, Austin and Baumann JJ) heard a father’s appeal from a decision that vested a solicitor with parental responsibility for the limited purpose of instructing lawyers to act on behalf of the children in tort claims against their mother.

Weeks after separation, the mother lost control of her car and crashed while driving the parties’ three children. One child was killed and the other two were injured.

The children had personal injury claims against the mother.

The mother conceded that she could not act as litigation guardian and sought ‘Mr B’ to be given parental responsibility for the limited purpose of instructing lawyers to act in the tort claims.

Dealing with the father’s complaint as to the interference with the parents’ parental responsibility, the Full Court said (from [38]):

“(…) In VR & RR [2002] FamCA 320 (VR & RR) the Full Court … dismissed the aspect of the appeal which concerned the trespass upon parental autonomy by the appealed orders …

(…)

[39] The Full Court … recognised how the circumstances which are peculiar to a specific case might justify judicial interference with the parental responsibility vested in parents either by law or former court order. … [T]he primary judge’s interference with the allocation of parental responsibility was warranted because both parents desired it to resolve their impasse so the children’s welfare could be clearly advanced. Both parents sought an order interfering with their existing equal shared parental responsibility …

[40] The application of the general rule of which the Full Court spoke in VR & RR (at [29]) does not impugn the primary judge’s decision here … because any parental responsibility with which a parent is seized only exists so long as no contrary court order is made. The Act expressly envisages that parental responsibility can be vested in adults other than the child’s parents (ss61D(1), 64B(2), 64C, 65C, 65G(1A) and 65P) and it is now well established that there is no presumption in favour of parents over non-parents in the determination of proper orders to resolve parenting disputes …

(…)

[43] Since the primary judge appreciated the gravamen of the decision … and nevertheless decided to invest Mr B with the discrete portion of parental responsibility which was in dispute, the father’s complaint under this ground of appeal was all but exhausted because he was unable to contend the law necessarily precluded his Honour from giving the confined aspect of parental responsibility to Mr B … (…)”

The father’s appeal was dismissed with costs.

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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