Mazurka & Mazurka

The appeal in this matter concerns interim parenting orders made by a Family Law Magistrate in relation to a child, with the father seeking increased time with the child. The appeal was heard by the Family Court of Australia. The central issue was whether the Magistrate erred in failing to apply the presumption of equal shared parental responsibility in section 61DA of the Family Law Act 1975 (Cth) and whether the Magistrate provided sufficient reasons for increasing the father’s time with the child. The court also considered whether the presumption should be applied in interim proceedings, given the absence of arguments from counsel but the presence of the issue in the parties' applications.

The court found that the Magistrate erred by not applying the presumption of equal shared parental responsibility as required by section 61DA(3) of the Family Law Act. The court emphasised that the presumption should apply unless it is inappropriate in the circumstances, and that this should be considered even in the absence of arguments from counsel. The court further found that the Magistrate did not provide adequate reasons for increasing the father’s time with the child, which was a critical error given the importance of the child’s best interests in such decisions. The court noted that the Magistrate did not follow the guidelines set out by the Full Court in Goode’s case, which should have been applied to ensure the presumption was considered.

The appeal was allowed, and the orders made by the Magistrate on 17 December 2009 were discharged. The case was remitted to the Magistrates Court of Western Australia to be listed for trial before a different Judicial Officer. No order for costs was made in relation to the appeal, but costs certificates were granted to both parties pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). This allows the Attorney-General to authorise payment of costs incurred by the appellant and the respondent in relation to the appeal.