Very important considerations for Judicial Officers and practitioners alike are found within sections 61DA and 65DAA of the Family Law Act.
Section 61DA imposes a positive obligation on Judicial Officers, when making a parenting Order to apply a presumption that it is in the child or children’s best interests for the parents have equal shared parental responsibility (or equal input in relation to major long term decisions relating to the child or children).
There are some exceptions to the section 61DA presumption applying which include:-
1. where there is evidence of abuse of a child or children present; or
2. where there is evidence of family violence; or
3. where there is evidence that it is not in the best interests of the child or children for the parents to have equal shared parental responsibility.
If none of the exceptions mentioned above are found to be present then equal shared parental responsibility between the parents will be ordered by the Judicial Officer making the decision.
If equal shared parental responsibility is ordered then a Judicial Officer must consider whether ordering equal time between the parents is:-
1. in the best interests of the child or children; and
2. reasonably practicable with respect to the circumstances of the case.
If those two elements are satisfied then a Judicial Officer must consider making an order for equal time between the parents.
It can be said then that what is created by section 61DA and 65DAA is a reliable expectation that in the absence of any exceptions to the presumption of 61DA being present parents can be assured that Judicial Officers will consider ordering equal time between the parents.