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Fatal weaknesses of Section 65DAA

Section 65DAA, fatal weaknesses, court dependency, arbitrary subjective judgements

FAMILY LAW ACT 1975 - SECT 65DAA

Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

Equal time

(1) If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and 

© if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable. Substantial and significant time (2) If:

(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and

(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and the court must: 

© consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents. Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration. Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

(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 or 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 

© 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. (4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant. Reasonable practicality (5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:

(a) how far apart the parents live from each other; and

(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and 

© the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d) the impact that an arrangement of that kind would have on the child; and

(e) such other matters as the court considers relevant. Note 1: Behaviour of a parent that is relevant for paragraph © may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:

(a) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)©);

(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents (paragraph 60CC(3)(i)). Note 2: Paragraph 

© reference to future capacity-the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

____________________________

Weaknesses of this key Section of current legislation possibly include:

1.

Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

in certain circumstances ?



2.

(1) If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

"best interests of the child"

an extremely subjective criterion which overrides the natural rights of parents by a judge/magistrate who has little real insight into the current situation and no insight into the future.  The Family Court system has been throwing this line in our faces for the last 30 years when the irony is that they have caused an immense amount of damage to children by:

- alienating children from their dads (usually the dad)

- amplifying conflict through their inappropriate adversarial, lengthy, expensive, formal system they are now trying to fix

- amplifying conflict with prejudiced unfair judgements which has often led to irreparable damage to the relationship between the parents at great expense and damage to the children

- failing miserably in addressing inappropriate behaviour of offending parents - in the form of parental alienation and provoking conflict to gain advantage, false allegations etc with the rationale (to quote directly from a senior official of the Family Court of Australia "we can't change people's behaviour"), by simply awarding residency to one parent, usually the offending parent, sending the wrong signal entirely, in the belief that that would solve the problem !

- being a significant contributing factor to suicides and murder-suicides in this country

This legislation guarantees that couples will continue to grace the corridors of the Family Court system so that judges/magistrates can determine what they personally believe is "in the best intests of the child" - again - 40:60, 33:67, 29:71, 45.3:55.7, 65:35, 53:47 ???

3.

© the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

This means that if the mother demonstrates that she is unlikely to cooperate, then she will get full residency.  If it means that instead residency will go the father, this is just as stupid.  We need to apply penalties to parents who do not cooperate, and this range of penalties does not include restricting access which penalises the child. 

(Restricted access as a penalty should only occur in extreme cases where there is chronic and acute parental alienation constituting child abuse where all other penalties including day-time jail, have failed).

4.

(a) how far apart the parents live from each other

Need to reference from the point of the original family home.  A parent who has moved away from the other with the children should not be able to use this as a reason for majority residency.  They should not be allowed to move away more than 45 mins commuting time, and if they have, they should be ordered to move back, or have less access.

There is no mention of this, no guarantees, too general, too vague.

5.

(a) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)©);

Though it sounds like it could award majority residency to dads where mums are demonstrating chronic alienating behaviour, (or vice versa) but it could also work the other way.  But again it is stupid because it treats the symptom and does not heal the disease; it penalilses the child, and it continues to make people dependent on the subjective and arbitrary and inconsistent judgement of judges/magistrates, and continues to oblige them to fight it out in the courts.

Cheers, Geoff




Coordinator, Equal Parenting Movement

Co-director, Fathers4Equality

Some of us belong to other forums you know

So the SPCA wear rose coloured glasses do they? - and what of the others? they must be wearing very dark glasses and not able to see (or do not want to see) what is happening around them

Those posters are the ones that have had ACCORDING TO THEIR ONE SIDED VERSION OF EVENTS a bad deal

Given the choice I would not wear any coloured glasses but if pressed would go for rose coloured rather than dark, at least I could see the way ahead more clearly.

I find it hard to fathom you did not know what Section 65 was. You are this board spouting changes, supposed knowledge and suggestions and did not even know the content of the modified Act. An Act that has been in force for 11 months and available in draft for some time before July 2006 UNBELIEVABLE

Now you offer comment of what you believe are it weakness's - hey that has already been done before the Act came into force, give us some new information please, not tired old rhetoric



Court MUST make the order

FAMILY LAW ACT 1975 - SECT 65DAA

Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

Weaknesses of this key Section of current legislation possibly include:

1.

Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

in certain circumstances ?

In response to Geoff's post
……………………………………………………

Geoff, the point that SPCA lobbied hard to win was the logical progression that the judge, having become satisfied of the conditions for equal time or substantial and significant time, should then "make an order", rather than just "consider" doing so. I cannot name names but certain Liberal party politicians fought hard to have "make an order" codified into the legislation but were denied also. We need to keep pushing for rectification of this opt-out clause for judges.

Ed Dabrowski
Federal Director

Federal Director  -  Shared Parenting Council of Australia
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