FAMILY LAW – APPEAL – CHILDREN – PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY – whether it is necessary that there be “explicit and cogent reasons” as to why the mandatory presumption of equal shared parental responsibility should be rebutted, and whether the federal magistrate erred in rebutting the presumption in favour of the mother, with regard to the evidence before her Honour – discussion of the application of the presumption of equal shared parental responsibility under s 61DA(1) and the best interests test under s 61DA(4) – re-exercise of discretion for equal shared parental responsibility in light of insufficient evidence to rebut the presumption.
Collins & Collins (1985) FLC 91-603 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 Fox v Percy (2003) 214 CLR 118 I & I (No 2) (1995) FLC 92-625
Order 2 be discharged and in lieu thereof, a new Order 2 inserted to provide that the mother and father have equal shared parental responsibility for the child E born … March 2009.
There be a further order in the following terms, to be inserted after Order 16:
Order 16A
(a)Within 14 days of the date of these orders, the mother is to advise the father of the name of her treating psychologist and further advise the father of the name of her new treating psychologist if she changes the psychologist she sees.
(b)The mother is to provide to the father or his solicitor a quarterly written confirmation by the psychologist that she has complied with Order 15, and within 14 days of these orders, provide written confirmation that she has complied with Order 16.
The respondent mother be granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the mother in respect of the costs incurred by her in relation to the appeal.
The appellant father be granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
DUNDAS & BLAKE
[2013] FamCAFC 133
Case
[2013] FamCAFC 133
Decision Date
CaseChat Overview and Summary
In the case of Dundas & Blake, the father, the appellant, challenged the decision of the primary judge in the Family Court of Australia concerning the allocation of parental responsibility for their child. The primary judge had decided against equal shared parental responsibility for the child, instead requiring the mother, the respondent, to keep the father informed about major long-term decisions and to consider his input, while retaining the primary decision-making authority. The father argued that this arrangement did not properly reflect the statutory presumption of equal shared parental responsibility and that it gave the mother an undue level of authority over less significant decisions, such as school events and sports days.
The court was required to determine whether the primary judge's orders adequately implemented the presumption of equal shared parental responsibility under section 61DA of the Family Law Act 1975, and whether the orders were in the best interests of the child. The father contended that the requirement for the mother to merely consider his views before making decisions did not sufficiently limit her autonomy and that the orders failed to appropriately balance the parents' responsibilities. The court examined whether the orders correctly applied the statutory presumption and whether they aligned with the best interests of the child.
The court found in favour of the father, concluding that the primary judge had not correctly implemented the presumption of equal shared parental responsibility. The court noted that while the mother was required to inform the father of major decisions and consider his input, this did not effectively limit her decision-making power. The court also found that the orders did not adequately balance the parents' responsibilities and did not sufficiently promote the child's benefit from the father's involvement in day-to-day activities. Consequently, the appeal was allowed, and new orders were made to reflect equal shared parental responsibility. Additionally, the court made specific orders regarding the sharing of information about the mother's psychological treatment and granted costs certificates to both parties.
Orders
Orders of the court
1.
The appeal be allowed.
2.
Order 2 be discharged and in lieu thereof, a new Order 2 inserted to provide that the mother and father have equal shared parental responsibility for the child E born … March 2009.
3.
There be a further order in the following terms, to be inserted after Order 16:
Order 16A
(a) Within 14 days of the date of these orders, the mother is to advise the father of the name of her treating psychologist and further advise the father of the name of her new treating psychologist if she changes the psychologist she sees.
(b) The mother is to provide to the father or his solicitor a quarterly written confirmation by the psychologist that she has complied with Order 15, and within 14 days of these orders, provide written confirmation that she has complied with Order 16.
4.
The respondent mother be granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the mother in respect of the costs incurred by her in relation to the appeal.
5.
The appellant father be granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the father in respect of the costs incurred by him in relation to the appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Her Honour explained her decision at [102]:I have decided it is not in [the child’s] best interests at present for the parties to have equal shared parental responsibility for [the child], although the Mother will be required to keep the Father informed about all major long term decisions and to have regard to his input into those decisions. (emphasis added)In so far as it was her Honour’s view that the father should be able to have input into all major long-term decisions, the father contends that it appears her Honour was endeavouring to limit the otherwise comprehensive powers of the mother. The father argues that the intended limitation was ineffective, because all the mother is required to do is advise the father of her intention to make major decisions and consider the father’s views before making them. It was submitted that this was no curb at all to the autonomy given to the mother because the mother could simply consider the father’s views and then reject them all. It was submitted that if her Honour intended, as [102] would suggest, that the mother should have regard to the father’s input, the orders did not reflect any capacity for that intent to be achieved. In addition, the father points to the fact that whilst the mother must keep him informed of certain medical matters (Orders 19 and 20), the orders do not promote the benefit to the child of enjoying her father’s presence at day care events or future school events. Information sharing is limited by Order 19 to serious medical issues, medication and “significant matters”. The practical effect, according to the father, is that “while being quite prescriptive in some areas”, the orders give to the mother “virtually … unadulterated authority” over “seemingly insignificant” activities “such as sports days, concerts etc” (appellant’s summary of argument filed 7 August 2012 at [7]). Perhaps more importantly, the father contended that her Honour had failed to properly consider the presumption of equal shared parental responsibility as required by s 61DA. It is useful to set out the relevant paragraphs of s 61DA:(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or(b)family violence.(3) …(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.