Goode & Goode

[2006] FamCA 819

[2006] FamCA 819

FAMILY LAW ACT 1975

IN THE FAMILY COURT

OF AUSTRALIA

AT PARRAMATTA                   No. PAF. 7969 of 1999

BETWEEN:

Goode   Applicant Father

AND

Goode   Respondent Mother

CORAM:  The Honourable Justice D Collier

DATE OF HEARING:         10 August 2006

DATE OF JUDGMENT:     10 August 2006

JUDGMENT OF THE COURT

APPEARANCES:               Mr Dowd, instructed by Watts McCray, Solicitors, DX 8224 Parramatta, appeared on behalf of the Applicant Father.

Mr Brown, instructed by Browns the Family Lawyers, DX 5038 Liverpool, appeared on behalf of the Respondent Mother.

Catchwords: CHILDREN – With whom a child lives – With whom a child spends time – Interim orders

CHILDREN – Shared parental responsibility

Introduction and Background

1. This matter comes before me today in respect of the father's application for orders that in effect give him equal time with the parties' children, T, who was born in November 1997 and J, who was born in April 2004.  From those dates it is obvious that there is some seven years difference in age between the children.  The mother in a response to that application seeks orders that the father spend time with the children each alternate weekend, and in respect of T for two additional days during the week, and in respect of school holidays, half of school holidays so far as T is concerned.  The regime proposed in respect of the child J is slightly different and involves lesser periods of time.

2. The brief history of the matter is to be found in the affidavit of the husband which was sworn on the 7th and filed on 7 August, that of his mother also sworn on the 7th and filed on the 7th and in the mother's affidavit which, in her case, was sworn on the 4th and filed on 7 August. 

3. It is clear that the parties were married in July 1996.  There was some separation in December 1999.  Clearly the date of final separation was in May 2006.  The circumstances of that separation are in some dispute, however, what can clearly be understood is that the husband chose to leave the matrimonial home and bring the marriage to an end.  Indeed, this is largely borne out by the letter that he wrote to the wife at that time which is annexed to his affidavit as annexure A.

4. There is dispute as to what happened in respect of the parties care of the children thereafter.  The mother says after a period of time the parties reached an agreement and the father commenced to spend time with the children on each alternate weekend.  The father's case is that the mother removed the children from him and made it very difficult for him to have contact other than contact that the mother said he could have.  I have read the letter that the husband wrote with some care.  In it he makes no specific proposals for the care of the children.  I infer from that, that when he left the marriage, as he was perfectly entitled to do, he was not concerned for the care of the children in the mother's care.

Discussion

1. This is a somewhat difficult matter. The law has recently changed. Both parties have addressed me on various sections of the new amendments and also addressed me, as they are entitled to do, on the basis of the decision of Cowling & Cowling (1998) FLC 92-801[1] dealing with interim applications.  What is put to me clearly by each of them is that section 61DA is of particular significance because that is the section that says that 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.  Sub-section (2) of course says that the presumption does not apply if there are reasonable grounds to believe that either of the parents is engaged in abuse of the child or family violence, and I will return to that shortly.

   [1] Cowling & Cowling (1998) FLC 92-801

2. There is of course the further sub-section that says 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 the order. There are no guidelines to be found in that sub-section as to what is to be taken into account by a Court in considering whether it would not be appropriate in the circumstances for that to be applied. The significance, as I understand the structure of the new Act, of the presumption of shared parental responsibility is that it is in effect the key, or the threshold, that must be passed if the Court is to consider making an order for shared time between the parents of the child. That, of course, is the subject matter dealt with in section 65DAA(1) of the Family Law Act.

3. As Cowling (supra), and other cases concerned with interim applications have made it clear, it is not possible in the circumstances of a case such as this for me to say that I am able to accept the assertions of either party.  The allegations, if I can call them that, that each party makes against the other are untested.  Mr  Dowd says that on that basis they are no more than allegations insofar as domestic violence is concerned, family violence is concerned, to use the wording of the section, and therefore I am not able to rely upon them to constitute a rebuttal of the presumption for equal shared parental responsibility.  The section talks about being satisfied on reasonable grounds to believe that such a situation occurs.

4. To my mind, perhaps the very difficulty of doing those things, that is making a determination as to who was telling the truth in that regard, may well have been what led the draftsmen to insert sub-section (3). Sub-section (3) says that in the case of an interim order, the presumption applies unless the Court considers it would not be appropriate.  Where there is such dispute in a matter such as this about whether there has been action or activity on the part of the father that would constitute family violence so as to not trigger the presumption is something of real difficulty.  In the circumstances of this case, I have come to the conclusion that I should rely on sub-section (3) and find that the presumption has no application in this case.  That of course means that the immediate trigger to which I have referred, or section 65DA, is not in place.

5. I turn to look at the arrangements that are in place.  They are certainly those that have been in place since June.  Once again, I am left with a conundrum.  Do I accept the evidence of the wife that these arrangements seem to have been put in place by agreement, or can I say that they are matters in respect of which the husband had no choice and was compelled to acquiesce, in the terms referred to by their Honours in Cowling when they speak of conducting the examination of the circumstances in which the existing arrangements came into force.

6. In the circumstances of this case, what I am prepared to find is that those arrangements have been in place since June and nothing that I have seen has indicated to me that they are other than serving the needs of the children to have both parents involved in their lives.  In the circumstances of this case, it seems to me that the arrangement has worked for the benefit of the children.  I am satisfied that the mother has been the person who has been principally concerned when the children, for example, have been sick and I am satisfied that her hours of work are significantly less than the husband's at the present moment, without making any specific finding as to what those particular hours are, on the material that I have before me.

7. In my view, this matter will come on for hearing moderately quickly and in the meantime there needs to be in place some structure whereby the children will spend time with each of their parents.  In the circumstances of this case, I am of the view that the present arrangement of each alternate weekend with some mid-week time with the oldest of the parties' child, T, is appropriate.

Orders

1. The orders that I make are these:

   (1)That pending further order the children, T, born in November 1997 and J, born in April 2004, live with the mother.

   (2)That the children spend time with the father as follows:  each alternate weekend from the conclusion of school or childcare on a Friday to 4 pm on Sunday.  In addition in relation to the child, T, on Monday in each week during school terms from after school to 8.30 pm for the purpose of attending scouts, and on Tuesday from after school until 6 pm for the purpose of piano lessons.  The next weekend of contact shall be in accordance with the present arrangement of weekends.

   (3)That the children spend time with the father during each school holiday period for one half of each period in respect of each child being, if the parties cannot agree, the first half in years ending in an odd number, and the second half in years ending in an even number.

   (4)I grant liberty to either of the parties to restore the matter upon 72 hours notice in respect of any implementation or further orders required to do justice to the situation.

   (5)I stand this matter over to the Registrar's duty list on Tuesday, 29 August next for directions.

   (6)I direct that Mr Brown file any amended application in respect of parenting and/or children's issues within seven days of today's date.

I certify that the 12 preceding

paragraphs are a true copy of the reasons for
judgment herein of
His Honour JUSTICE COLLIER

Associate