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Principles Followed by the Court When Making Parenting Orders

Keith v Keith

 

Legislation Considered

Family Law Act 1975  (Cth), ss 4AB, 60CC

 

Cases Cited

Goode v Goode [2006] FamCA 1346

Rice v Asplund (1979) FLC 90-725

U & U [2002] HCA 36

IT IS NOTED that publication of this judgment under the pseudonymKeith & Keithis approved pursuant to s.121(9)(g) of theFamily Law Act 1975(Cth).

 

Judge Burchardt

 

The statutory pathway

55

Against this background, I turn to the statutory pathway set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65]:

 

“Summary

[65] In summary, the amendments to Pt VII have the following effect:

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child's parents has parental responsibility for the child. ‘Parental responsibility’ means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child's parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

6. The Act provides guidance as to the meaning of ‘substantial and significant time’ (s 65DAA(3) and (4)) and as to the meaning of ‘reasonable practicability’ (s 65DAA(5)).

7. The concept of ‘substantial and significant’ time is defined in s 65DAA to mean:

(a) the time the child spends with the parent includes both:

(i) days that fall on weekends and holidays; and

(ii) days that do not fall on weekends and holidays; and

(b) the time the child spends with the parent allows the parent to be involved in:

(i) the child's daily routine; and

(ii) occasions and events that are of particular significance to the child; and

(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child's best interests, then the issue is at large and to be determined in accordance with the child's best interests.

9. The child's best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child's best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

11. The child's best interests remain the overriding consideration.”

Posted in: Derek Legal Blog at 25 March 20

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