Goode & Goode

Case [2006] FamCA 1346

FAMILY COURT OF AUSTRALIA

GOODE & GOODE [2006] FamCA 1346

FAMILY LAW – CHILDREN – APPEAL – INTERIM PROCEEDINGS – Discussion of the extent to which Cowling v Cowling (1998) FLC 92-801 continues to apply after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) – Discussion of principles for the conduct of interim hearings after 1 July 2006

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY AND INTERIM PROCEEDINGS – Section 61DA – What is the significance of the specific references to parental responsibility and interim proceedings in the Act?

FAMILY LAW – CHILDREN – SHARED PARENTAL RESPONSIBILITY – Section 65DAC – Difference between ‘parental responsibility’ as set out in s 61C(1) and discussed by the Full Court in B v. B: Family Law Reform Act 1995 (1997) FLC 92-755 and ‘Shared Parental Responsibility’ as set out in section 65DAC

FAMILY LAW – CHILDREN – PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY – Section 61DA – No presumption as to the amount of time that a child must spend with each of his or her parents

FAMILY LAW – CHILDREN – PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY – Circumstances leading to rebuttal of presumption – Order for equal shared parental responsibility or equal time, other than by application of the presumption – Where presumption is not applied or rebutted, the Court is at large to consider what arrangements will best promote the child’s best interests having regard to the objects and principles in s 60B and the primary and secondary considerations in s 60CC

FAMILY LAW – CHILDREN – EQUAL TIME – SUBSTANTIAL AND SIGNIFICANT TIME – In the context of s 65DAA ‘consider’ means a consideration tending to a result, or to consider positively the making of an order

FAMILY LAW – CHILDREN – PRESUMPTION OF SHARED PARENTAL RESPONSIBILITY – The significance of untested evidence which may be capable of affecting the presumption

FAMILY LAW – CHILDREN – APPEAL – INTERIM PROCEEDINGS – Alleged error in finding that s 65DAA did not apply – Alleged error in applying Cowling v Cowling (1998) FLC 92-801 – Alleged error in findings of fact – Alleged error in failing to address aspect of application not pressed in submission – Alleged failure to give adequate reasons

Family Law Act1975 (Cth) – ss 60B, 60CA, 61C, 61D, 61DA, 64B, 65DAA, 65DAC, 65DAE
Acts Interpretation Act 1901 – s 15AB (Cth)

Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416
B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755
Chapman and Ors v Minister for Aboriginal and Torres Strait Islander Affairs and Ors (1995) 55 FCR 316; (1995) 133 ALR 74
Cilento and Cilento (1980) FLC ¶90-847
Cowling v Cowling (1998) FLC ¶92-801
Griffiths and Griffiths  (1981) FLC ¶91-064
Rainer and Rainer (1982) FLC ¶91-239
Tickner and Ors v Chapman and Ors (1995) 57 FCR 451; 133 ALR 226
U v U (2002) 211 CLR 238; (2002) FLC ¶93-112

APPELLANT FATHER: Goode
RESPONDENT…

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AGLC
Goode & Goode [2006] FamCA 1346
Case
[2006] FamCA 1346
Decision Date

CaseChat Overview and Summary

This case concerned the application of parenting orders under Part VII of the *Family Law Act 1975* (Cth), specifically in interim proceedings. The court was required to determine the approach to be taken when considering the presumption of equal shared parental responsibility under s 61DA, and how this interacted with other provisions of the Act, particularly s 60B(1)(a) and s 60CC.

The central legal issues before the court were how to apply the legislative framework for determining parenting orders, especially at an interim stage, and the significance of various factors outlined in s 60CC when assessing a child's best interests. This included determining whether the presumption of equal shared parental responsibility applied, whether it was rebutted, and if so, how to consider orders for equal time, substantial and significant time, or other arrangements consistent with the child's best interests. The court also had to consider the impact of untested evidence and the potential for maintaining a status quo versus promoting a meaningful relationship with both parents.

The court reasoned that while the legislative pathway must be followed, interim proceedings often involve conflicting facts and limited evidence. The court outlined a step-by-step process for making interim decisions, beginning with identifying proposals and disputes, then considering relevant facts and the matters in s 60CC. The court emphasised that the primary considerations under s 60CC(2) are the benefit of a meaningful relationship with both parents and the need to protect the child from harm. Additional considerations under s 60CC(3) and (4) are also crucial, including the child's views, the nature of relationships, the parents' ability to facilitate contact, practical difficulties, and the parents' past fulfilment of responsibilities. The court noted that even if neither parent seeks equal or substantial and significant time, the court may consider it if it is in the child's best interests after affording procedural fairness. If the presumption of equal shared parental responsibility does not apply or is rebutted, the court must make orders in the child's best interests, considering the factors in s 60CC.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

What is the significance of untested evidence (and more specifically of untested evidence which may be capable of affecting the presumption)? This question has been answered in the course of earlier discussion, especially at paragraph 68. If s 61DA(3) is invoked, do the other changes to Part VII of the Act nonetheless require a different approach from that taken by Cowling? We have earlier touched upon this matter. Even absent the application of the presumption and thus the requirement to consider equal or substantial and significant time where it is not contrary to the child’s best interests and otherwise practicable, the addition of sub-section (a) to s 60B(1), which is to ensure that children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests, is not necessarily consistent with a preference at an interim stage in favour of maintaining a status quo. That is not to say that maintenance of a stable arrangement will not be in the best interests of children in a particular case, but it will be one of the factors to be considered pursuant to the additional considerations in s 60CC(3) and to be determined in conjunction with the primary consideration in s 60CC(2)(a) of the benefit to the child of having a meaningful relationship with both of the child’s parents. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed. In an interim case that would involve the following:(a)identifying the competing proposals of the parties;(b)identifying the issues in dispute in the interim hearing;(c)identifying any agreed or uncontested relevant facts;(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In determining what is in a child’s best interests, s 60CC provides that, other than in considering whether to make an order by consent, the Court must consider the following matters in determining what is in the child’s best interests:Primary considerations (2) The primary considerations are:(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b). Additional considerations(3) Additional considerations are:(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;(b) the nature of the relationship of the child with:(i) each of the child’s parents; and(ii) other persons (including any grandparent or other relative of the child);(c) 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;(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:(i) either of his or her parents; or(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;(f) the capacity of:(i) each of the child’s parents; and(ii) any other person (including any grandparent or other relative of the child);to provide for the needs of the child, including emotional and intellectual needs;(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;(h) if the child is an Aboriginal child or a Torres Strait Islander child:(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and(ii) the likely impact any proposed parenting order under this Part will have on that right;(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;(j) any family violence involving the child or a member of the child’s family;(k) any family violence order that applies to the child or a member of the child’s family, if:(i) the order is a final order; or(ii) the making of the order was contested by a person;(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;(m) any other fact or circumstance that the court thinks is relevant.Section 60CC(4) provides:Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:(a) has taken, or failed to take, the opportunity:(i) to participate in making decisions about major long-term issues in relation to the child; and(ii) to spend time with the child; and(iii) to communicate with the child; and(b) has facilitated, or failed to facilitate, the other parent:(i) participating in making decisions about major long-term issues in relation to the child; and(ii) spending time with the child; and(iii) communicating with the child; and(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.Section 60CC(4A) provides:If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.