In a recent case of Ramsey & Hays  FamCAFC 54 (20 March 2017), the Full Court (Thackray, Strickland & Hogan JJ) heard the mother’s appeal against Foster J’s orders regarding her six-year-old daughter. The parties separated when the child was a baby. The child lived with the mother for a year until the mother was observed to be psychotic with persecutory delusions and was referred to a mental health unit. The child began living with the father and spending time with the mother. In 2011, the parties had agreed to orders but then each of them applied to vary those orders in 2013.
The 2013 Orders
Foster J ordered that the father have sole parental responsibility, that the child live with the father and spend three (3) nights each fortnight with the mother. The mother appealed.
Trial Court Analysis
Thackray J (with whom Strickland and Hogan JJ agreed) stated that although not material to the outcome of the appeal, it was necessary to make observations concerning remarks made by the trial judge concerning the relevant provisions of the Family Law Act (the “Act”).
Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where:
- there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s61DA(2)].
- in interim proceedings, where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [61(DA(3)]; and
- if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in s 61DA is to apply and the Court must make order for equal shared parental responsibility, ‘this triggers’ the operation of s65DAA of the Act which requires that the Court consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may, but is not required to, consider equal or substantial and significant time [s 65DAA(6)].
Accordingly, if section 61DA is considered not appropriate, s. 65DAA does not apply.
Full Court Analysis
According to the Full Court, the language employed by his Honour dealing with the presumption in favour of equal shared parental responsibility was not entirely accurate. The presumption always applies except in the circumstances described in 61DA(2); however, the presumption may be rebutted through submission of relevant evidence in circumstances described in 61DA(4).
The Full Court also found concerning his Honour’s paraphrasing of s 65DAA(6), which might be seen as suggesting that, in contested parenting proceedings, the court is not obliged to consider equal or substantial and significant time if the parties had consented to an order for equal shared parental responsibility. According to the Full Court, if that is what his Honour was suggesting then he has, misstated the law.
Full Court’s Conclusion
The Full Court held that His Honour stated that in light of there being an order for the father to have parental responsibility, it was not required that consideration be given as to the child spending equal time or substantial and significant time with each of the parents. His Honour overlooked the fact that it was the mother’s application that there be an order for equal time.
Accordingly, the fact that an order had been made for the father to have sole parental responsibility did not of itself lead to the conclusion that there ought not to be an order for equal time. Accordingly, other orders to be made must be considered in the light of the overriding consideration of what is in the child’s best interests.
The Court concluded, although the language of the Trial Judge was misleading, it was clear there was no ground for appeal. His Honour appropriately found that an order for equal time would not promote the child’s best interests in the present case.
The mother’s appeal was dismissed.