Case: Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225
Outcome: referred to
The second way in which the applicant sought to characterise the error was to claim that it led the Tribunal member to fail to take into account a relevant consideration, namely, the Federal Magistrates Court's views as to the best interests of Jedi. In my opinion, there are two answers to this submission. First, it is clear that the Tribunal member was in no way bound by the views of the Federal Magistrates Court. The relevant consideration was the best interests of the child, not the view of the Federal Magistrates Court as to the best interests of the child. At best, the latter was an item of evidence that may be relevant to that consideration ( Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 at 236-237). Secondly, even if the implicit view of the Federal Magistrates Court was a relevant consideration it is a consideration the Tribunal member was permitted but not bound to take into account. The Tribunal member was bound to make up his own mind about the best interests of Jedi having regard to the matters in the direction and his inquiry involved an examination of the range of matters referred to in the direction. 44 For these reasons, I reject the applicant's first submission. 45 The applicant also referred to the presumption of equal shared parental responsibility introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). He referred to ss 61DA and 61DB which are in the following terms: 61DA Presumption of equal shared parental responsibility when making parenting orders (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) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order. (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. 61DB Application of presumption of equal shared parental responsibility after interim parenting order made If there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.