Moore and Murray - [2007] FMCAfam 253

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOORE & MURRAY

[2007] FMCAfam 253

FAMILY LAW – Children – interim parenting arrangements for three children aged 16, 14 and 10 – allegations of family violence – whether presumption of shared parental responsibility applies – whether presumption rebutted by family violence – whether reasonable grounds exist to support belief of the existence of such violence in context of interim hearing – whether appropriate to apply presumption at interim stage – best interests – consideration of entitlement of children to have “meaningful” relationship with both parents.

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60K, 61DA, 61DAA, 61DB, 64B, 65D, 65DAA

Goode & Goode [2006] FamCA 1346
Cowling & Cowling (1998) FLC 92-801
JG & BG 18 FamLR 255

Applicant:

MS MOORE

Respondent:

MR MURRAY

File number:

ADC 1631 of 2007

Judgment of:

Brown FM

Hearing date:

20 April 2007

Date of last submission:

20 April 2007

Delivered at:

Darwin

Delivered on:

24 April 2007

REPRESENTATION

Counsel for the Applicant:

Ms Dickson

Solicitors for the Applicant:

Norman Waterhouse

Counsel for the Respondent:

Mr Berman

Solicitors for the Respondent:

Mark Esau

ORDERS

IT IS ORDERED BY CONSENT THAT UNTIL FURTHER ORDER

The husband be restrained from altering his position as Appointor in any Trust in which he holds that position.
The husband be restrained from resigning as Director from any company in which he holds that position or from dealing in any shares in which he holds an interest.
The husband be restrained from dealing in any way with the [Murray] Superannuation Fund.
Each party be restrained from removing the children [C] born in 1992, [B] born in 1991 and [D] born in 1996 (hereinafter referred to as “the children”) from both the State of South Australia and the Commonwealth of Australia without first obtaining the other’s prior written consent.
The parties attend a family dispute resolution conference on 25 May 2007 at 2.00pm at the Family Court of Australia at Adelaide.
Each of the aforesaid children be independently represented in these proceedings and to this end the Director of the Legal Services Commission of South Australia is directed to make appropriate arrangements for the representation of the said children as soon as is practicable.
The parties jointly commission a family assessment report to be prepared by a suitably qualified expert to be agreed between the parties and failing agreement as nominated by the Independent Children’s Lawyer.

IT IS FURTHER ORDERED UNTIL FURTHER ORDER:

The children live with the wife.
The children spend time with the husband from after school on Wednesday (or 4.00pm in the event that Wednesday falls during school holidays) until the commencement of school the following Monday (or 9.00am in the event that Monday falls during school holidays) during each alternate week to coincide with the times the husband is not working extended hours.
The parties competing applications be fixed for final hearing on 6 and 7 September 2007 commencing at 10.00am.
The applicant pay the hearing fee or obtain a remission of the hearing fee within 28 days of today’s date.
The parties attend a conciliation conference with a Registrar of the Court on 15 May 2007 at 11.00am.
The matter be listed for further directions on 12 July 2007 at 9.30am when it is anticipated that the family assessment report will be to hand and when further trial directions will be made in the event that the matter requires final hearing.

IT IS NOTED that publication of this judgment under the pseudonym Moore & Murray is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 1631 of 2007

MS MOORE

Applicant

And

MR MURRAY

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern interim parenting arrangements for three children, [B] born in 1991, [C] born in1992 and [D] born in 1996.

The parties to the proceedings are the children’s parents, their mother Ms Moore and their father Mr Murray.
The parties married in December 1980. They separated, in difficult circumstances, on 17 February 2007. At that time, it is common ground between the parties that they had a physical altercation in their former family home in [omitted]. The police were called. The father has been charged with assaulting the mother. [B] and [D] were apparently witnesses to some aspects of the incident.
Since 17 February 2007, the father has lived away from the former family home. Initially he lived with his parents but now has rented accommodation of his own. It is a three bedroom home. He has not spent any time whatsoever with [D] in the period since. He has had some limited interaction with [B] and [C], but it has been limited to day time periods only on weekends.
The father is a medical practitioner. He acknowledges that, in the past, he has had difficulties arising from the self medication of prescription drugs, particularly opiates. He has also suffered from depression. He has come to the notice of the South Australian Medical Board and disciplinary proceedings have been instituted against him. They are not yet finalised.
The mother characterises the father as having been abusive during the marriage and an absent parent in respect of the children’s care, particularly because of his drug dependence. It is her position that the major responsibility for caring for all three children has fallen on her shoulders and did so for many years.
On the other hand, it is the father’s position that his drug dependence has been treated and monitored over the past twelve months. As a result, he asserts that he has resolved his difficulties in regards to substance dependence. He refutes any suggestion that he has not been an involved, competent and caring parent during the course of the parties’ marriage and certainly not in the last twelve months, during which his drug issues have been addressed and his depression treated.
It is the father’s position that the mother was, at times during the marriage, violent and abusive towards him. He acknowledges that he has been charged as a result of the incident of 17 February 2007 but asserts that the mother’s behaviour precipitated the unfortunate incident between the parties. He intends to defend the charge brought against him vigorously.
It is the mother’s position that [D] has no desire to see her father and [B] and [C] are reticent about him. The father does not accept this.

He is fearful that the mother is attempting to subvert his previously strong relationships with each of the children because of her antagonistic feelings for him, arising from the painful circumstances of the parties’ separation. It is common ground between the parties that the father has commenced a relationship with another person. He also asserts that the mother has disingenuously distorted the extent of his drug dependence to satisfy these emotional needs and to pressure the court into achieving the outcome of her preference.
Having provided this brief introductory summary, it is clear that this is a matter of some complexity. The current proceedings were commenced by the mother on 26 March 2007 against this background of urgency. At that stage, she also sought a number of orders in respect of the parties’ property, particularly to restrain the father from dealing with certain aspects of it. These issues have been resolved by consent.
However, the urgency of the situation remains in respect of the children’s issues and the positions of the parties are polarised in the extreme. They have extremely different views on a range of issues, which include the following:
·Who of them has provided the greater majority of care for the children. The mother asserts it has been she, as she has not been in fulltime paid employment. On the other hand, the father has been a busy medical practitioner. Regardless of these factors, the father describes himself as being “closely involved with caring for the children [and] the children’s schooling and sporting activities.”
·
As previously indicated, the parties have differing views as to the impact of the father’s substance abuse on the family. In the mother’s phrase it has been “significant and negative”. The father has submitted a psychiatric report from Dr D, which indicates

Dr D’s opinion that the father has insight into his past behaviour and its implications for himself and others. Evidence has also been provided by the father that he has been drug free for approximately 12 months.
·The father relies on these two reports to attack the mother’s credibility. He asserts that she has exaggerated his past difficulties because of her feelings of animosity for him.
·The mother is critical of Dr D’s opinion, which clearly came into existence for the Medical Board proceedings, rather than the present ones. Clearly she had no input into Dr D’s report and so was not able to provide him a good deal of information, which she asserts is relevant to any proper assessment of the father’s functioning as a parent.
·For her part, the mother categorises the father as being manipulative regarding his drug use and as a person who has regularly abused both alcohol and prescribed medication in the past and now. Overall, she categorises the father’s behaviour towards her and the children as being abusive in the extreme.
·As a result of these factors, she asserts [D] and [B] in particular, are estranged from their father and emotionally disturbed by his past acts of violence and instability, which have directly involved them. In particular, she asserts the children have witnessed extreme bruising on their mother’s body, which the father inflicted upon her.
·
The father denies that he has been engaged in such “violent and temperamental outbursts”. To the contrary, he ascribes such behaviour to the mother in the past. He asserts the mother instigated the violence of 17 February 2007 and indeed has assaulted him on several past occasions, most recently on

3 November 2006
, when she punched him. Needlessly to say, the mother denies these allegations.
·As a result of these factors, the parties have very different views as to what care arrangements the children would prefer, particularly in the current volatile circumstances.
·The mother asserts that [D] is adamant that she wishes to have nothing whatsoever to do with the father. [B] and [C] are willing to see him only during the day and are disturbed at the prospect of interacting with the father’s new partner.
·From the father’s perspective, given [D]’s tender years, he is dubious about any views she has apparently expressed and concerned that she is either being actively or tacitly manipulated by her mother to have a negative view regarding him. He believes that this is true to a lesser extent of the two other children. In such circumstances, he believes that it is imperative for the court to make orders which will enable the reinstatement of his previously positive relationship with each of the children concerned.
·[B] suffers from Asperger’s Syndrome. As previously indicated, [B] was a witness to some aspects of the incident which occurred on 17 April 2007. Given his age, he may be a witness in the criminal proceedings against the father. The mother believes that this places him in a particular position of vulnerability regarding spending extended periods of time with his father. The mother is fearful that the father may attempt to influence [B]’s evidence in the criminal proceedings.
·On the other hand, the father relies on a medical report from a paediatrician, Dr L, who asserts that [B] and his father appear to him (Dr L) to have a “good relationship” with one another. Dr L is concerned that [B] is likely to be “bewildered by his parents’ separation.” Accordingly, Dr L is in favour of a shared parenting regime, so far as [B] is concerned.
·The father also places significant weight on the ages of the children. In the submissions of his counsel, none of the children can be regarded as being vulnerable by virtue of their age alone. Each of them can report any concerns, which may arise with them, about the father’s behaviour, to other adults, including the mother. In such circumstances, he asserts that the mother’s calls for caution are overstated and more likely to be motivated by her current level of emotional response to the father than concerns for the children’s welfare.
One of the few areas about which the parties agree is their common view as to the utility of a family assessment report being commissioned as soon as possible. Such an assessment will provide an independent perspective on the views of the children in the matter. The difficulty is that such a report is not likely to be to hand for between two and three months. In the meantime, orders will have to be made in respect of ongoing arrangements for the children’s care. Although it would be his preference that a family assessment be prepared, the father does not speak out against the mother’s alternative proposal that the children be independently represented in these proceedings.
At this stage, the mother’s position can be summarised as follows. There should be no orders made in respect of [D] other than that she should live with her mother. [C] and [B] should spend only four hours each week with the father, on either Saturday or Sunday, between the hours of 2.00pm and 6.00pm. Up to this stage, [B] and [C] have been travelling by train to the Adelaide Railway Station to meet their father. This has avoided the necessity for the parties to come into proximity with one another, which is something prohibited by the conditions of the father’s bail. The mother says as follows in her most recent affidavit:
“I oppose the orders sought by the husband. Limited daytime contact only with the boys should occur pending a family assessment. It should be a condition of any time that he spends with the boys that he not have his new girlfriend present and that he be refrained from discussing the Family Court or the pending assault proceedings in any way with the children.”[1]
[1] See paragraph 26 of the mother’s affidavit filed in court on 20 April 2007
The father is due to appear before the Medical Board of South Australia shortly. There is a possibility that his licence to practice medicine may be suspended. Since he came to the notice of the authorities, the father has been conducting his practice under the supervision of another medical practitioner. He has been required to undergo regular psychiatric treatment and rigorous weekly drug screening tests. He does not believe that his previous drug addiction has ever exposed any of his patients to potential harm. In such circumstances, he is sanguine about the likely outcome of the proceedings.
As previously indicated, he denies precipitating the violent incident which resulted in the parties’ separation. He does however acknowledge that one of the parties’ children summonsed the police to the former matrimonial home and he was arrested there. It is the mother’s position that this child was [D]. The father does not suggest otherwise. Clearly this fact indicates that [D] at least was exposed to the unpleasant incident which occurred between the parties.
It is the father’s position that the children’s best interests dictate that they should live with him each alternate week so that they may maintain and strengthen what he characterises as their “close” relationship with him. To this end, he asserts that he has considerably reduced his working hours, since the parties separated.
It is the father’s position that he has and will be able to continue to modify his working hours so that he will only work long hours at times when the children are living with their mother. Otherwise, he will be able to tailor his work commitments to times when the children are at school. In this way, he asserts that he will be able to maintain his financial support of the children and also his emotional relationship with them. He deposes that he is not currently living with his partner but, in any event, asserts that there is no necessity for any order restraining him from bringing the children into contact with her.
In order to complement his changed working regime, the father proposes that the children live with him from 3.30pm on Wednesday until 8.30am the following Wednesday and each such alternate week thereafter. If the court accedes to this proposal, it would mean that the children would be living with each of their parents on a strictly equal temporal basis.
At the interim stage, the court’s decision is based only on a study of the documents before it and the submissions of the parties’ respective legal representatives. There is no provision, at this point, for a more exhaustive hearing, particularly the taking of oral evidence and cross-examination, which would possibly allow the court to make finding about credibility or truthfulness. As the summary of the parties’ respective positions, set out above indicates, there are many and significant disputes of fact between them at this point.
In addition, at the interim stage, it is rarely the case that any independent expert psychological evidence is available regarding such issues as the nature of the applicable child/parent relationship and the views of the children concerned. This latter consideration is likely to be important where older children are involved. Accordingly, it is difficult, if not impossible, for the court to make findings of fact about significant matters, which are in dispute between the parties, at the interim stage.
The case must be determined according to the legal principles in Part VII of the Family Law Act 1975 “the Act”. In particular, section 61DA, which is the section of the Act which deals with the concept of “equal shared parental responsibility.” Before the court makes any parenting order the court is required to apply a presumption that it would be in the best interests of the child concerned that his or her parents have equal shared parental responsibility for the child. If the presumption is not rebutted, the court is then required to consider whether orders should be made which would see the child concerned either spending equal periods of time with both of his or her parents or substantial and significant time.
It is the father’s position that the presumption applies in the case of each of the children and they should live with both their parents on an equal basis, both at the interim and final hearing stage. On the other hand, it is clearly the mother’s position that the presumption is rebutted by matters of family violence and other issues pertinent to the children’s best interests, which she has raised in her affidavit material. The difficulty of course being that the court is not in a position to determine any of these issues at the interim stage, particularly given that the father vigorously refutes the gravamen of the mother’s criticisms of him and has raised his own significant criticisms of the mother.

The legal framework to be applied

I now turn to the legal framework in which this matter must be determined. The law pertaining to the making of parenting orders is set out in Part VII of the Family Law Act 1975. The Act has been significantly amended by the provisions of the Family Law Amendment (Shared Parental Responsibility Act) 2006. Of the amendment the Full Court in Goode & Goode[2] said as follows:
“In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.”
[2] Goode & Goode [2006] FamCA 1346 at paragraph 72

No distinction is made in the application of this legal framework to decisions made in respect of children at the interim or final stage.

In this, as in all matters to do with children, the best interest of the child concerned is the court’s paramount or most important consideration.[3] However, given the abridged nature of interim proceedings, the court must be cautious about being drawn into issues of fact or matters relating to the substantive merits of the parties’ respective cases at this stage. Such matters are more appropriately left to the final hearing of the parties’ respective applications, when an exhaustive hearing can be held.
[3] See Family Law Act 1975 at section 60CA
At the commencement of Part VII is provided a list of aims and principles, which the court is directed to try to achieve to ensure that a child’s best interests are met through any parenting order it makes.

A parenting order is what it suggests – a court order dealing with such issues as: the persons with whom a child should live; spend time and communicate with; and the persons, who should have responsibility for making decisions, both significant and otherwise, about a child.[4]Obviously these persons are most usually the parents of the child concerned, but not always.
[4] See Family Law Act 1975 at section 64B(2)
The lists of objects or aims of the legislation are set out in section 60B(1). They are as follows:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in section 60B(2) and are as follows:
“(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
As is apparent, each of these objects and principles are to be applied by the court, when it makes a parenting order, in a manner which is consistent with achieving the best interests of the child concerned. The provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006 have amended the objects and principles of Part VII of the Family Law Act 1975 in a significant way.
The Family Law Act 1975 provides a list of matters or considerations, which the court is required to take into account, when determining which parenting order is likely to be in the child’s best interests.

This list is set out in section 60CC. There are two tiers of considerations, firstly matters which are considered to be “primary” and those which are described as being “additional”.
The primary considerations, as outlined in section 60CC(2), are as follows:
“(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.”
It seems clear that the overall importance of these two considerations is elevated over the additional considerations. The intention being to ensure that the focus of the court is on achieving the first two objects of the Act, namely protecting children from harm and ensuring they have a meaningful relationship with both their parents.
The two primary considerations have equal application and one is not to be considered superior to the other. However, I take it that the importance to be given to each of these considerations will depend on the particular circumstances of any given case.
In section 60CC(3) are set out the “additional considerations”.

These additional considerations are as follows:
“(a)Any views expressed by the child concerned and any factors such as the child’s maturity or level of understanding that is relevant in the circumstances;
(b) The nature of the relationship of the child concerned with the child’s parents and with other persons (including grandparents);
(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;[5]
(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or from any other person (including grandparents) with whom he or she has been living;
(e)The practical difficulty and expense of the child spending time 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 parents or any persons (including grandparents) to provide for the needs of the child, including emotional and intellectual needs;
[5] This consideration is taken up by section 60CC(4) whereby the court is required to consider the extent to which a parent has or has not failed to participate in decision making about any particular child or has or has not failed to spend time with the child.
(g) The child’s maturity, sex, lifestyle and background;
(h) If the child is Aboriginal, the child’s right to enjoy his or her Aboriginal culture and the impact of any proposed order on that right;
(i)The attitude to the child and the responsibilities of parenthood as displayed by the child’s parents;
(j)Any family violence involving the child or a member of the child’s family;
(k)Any applicable family violence orders and whether such an order is a final order or was contested;
(l)The orders which are the least likely to lead to the institution of further proceedings;
(m)Any other fact or circumstance.”
Although the additional considerations are subsidiary to the primary considerations, it seems they are to be applied in a common sense way, focusing on the child’s best interests. Accordingly, there may be some instances where one of the additional considerations or a combination of them, may outweigh the primary considerations.[6] However, it seems clear that it is the legislature’s intention that the court’s central concern should be on constructing orders which protect children from harm and ensuring that they have a meaningful relationship with both their parents.
[6] See explanatory memorandum to Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 51
Given the importance the legislation places on children having a meaningful relationship with both their parents, whenever possible and appropriate, section 61DA creates for the court a presumption or starting point, when it comes to make any parenting order in respect of a child. It is to be presumed that it is in the best interests of the child concerned for the child’s parents “to have equal shared parental responsibility for the child.”
Section 61DA(2) qualifies this presumption on a number of bases namely, it is not appropriate to apply the presumption, if there are reasonable grounds to believe that child abuse or family violence has occurred.
Section 61DA (3) applies only to interim parenting orders. It gives the court a discretion not to apply the presumption where the circumstances are such that it would not be appropriate to do so.

No criteria are provided specifically by the legislation in regards to the type of circumstances where it “would not be appropriate” for the presumption to be applied. Accordingly the sub-section is likely to be pivotal, in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
In Goode the Full Court indicated that the discretion was not to be exercised in a “broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult.”[7] By this I take it the court must find from the overall circumstances of the case, some cogent reason to exercise the discretion.
[7] See Goode & Goode (supra) at paragraph 78
Finally, pursuant to section 61DA (4), the presumption may be rebutted if evidence exists, which satisfies the court that it would not be in the best interests of the child concerned for an order for shared equal parental responsibility to be made. In the context of an interim hearing, it is likely to be often problematic for clear, uncontroverted evidence to be found, in regards to a child’s best interests, given the abridged form such interim hearings take.
The court’s consideration of a child’s best interests is governed by the matters outlined in section 60CC(2) and (3). In Goode & Goode the Full Court directed the court, at the interim stage, to consider the relevant section 60CC matters at a formative stage of its deliberation, and if possible, make relevant findings of fact about them. In the present case, where the positions of the parties are polarised in the extreme, this is a difficult task. Consideration of “less contentious matters”[8] is likely to have little utility. In addition, the Full Court in Goode has made it clear that prior care arrangements for children are a less determinative factor than they once were.
[8] See Cowling v Cowling (1998) FLC 92-801 at 85,006
However, this presumption, of equal shared parental responsibility, does not of itself determine the amount of time the child concerned spends with each of his or her parents. This issue is dealt with by section 65DAA. Pursuant to the section, if the court makes an order that a child’s parents are to have equal shared parental responsibility for their child, it must then consider whether the child spends either equal and if not equal then substantial and significant time with both his or her parents.
“Equal time” is as the term suggests. “Substantial and significant time” is defined by section 65DAA(3) and includes days that fall on both weekdays, weekends and holidays in a way which is calculated to allow the parent concerned to be involved in the child’s daily routine and other occasions which are likely to be of particular significance to the child concerned.
The clear rationale underlying section 65DAA would appear to be that children benefit, if they are able to interact with their parents, as much as possible, in a variety of environments and circumstances. The implication being that children benefit if their parental relationships are given depth and dimension by them being able to interact with their parents in a variety of roles and settings, which are not artificially confined to either weekdays or weekends or school holidays.
Clearly, there will be many cases where it is not possible for the court to consider making an order either that the child concerned lives with his or her parents for equal periods of time or for substantial and significant periods. Whether such outcomes are appropriate will depend on the court’s consideration of whether such orders are likely to be in the child’s overall best interests and the practicality or workability of such orders.
In section 65DAA(5) are listed the criteria which the court must consider in determining whether it is “reasonably practicable” for a child to spend either “equal time” or “substantial and significant time” with both of his or her parents. The criteria are as follows:
“(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
(c)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.”
It is of significance that the applicable legislation requires[9] the court to consider making either an order for equal time or substantial and significant time. The Full Court in Goode has made it clear that this is an active task, rather than a tokenistic or mechanical one, which must be undertaken within the overall legislative framework of Part VII of the Act. In Goode, the Full Court found the meaning of “consider” in section 65DAA:
“… [suggested] a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA (1)(a), being the best interests of the child, and s 65DAA (1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).”
[9] This occurs because of the use of the word “must” in the relevant part of the section.
Accordingly the intellectual process required by section 65DAA is more than an active thought process in the abstract sense. Rather it is one which is to be directed to the consideration of a specific objective, namely an order resulting in either equal time or substantial and significant time. This interpretation suggests that it is to be taken that it is the intention of the legislation that the exercise of the discretion, in the broad sense, will more often than not lead to such an outcome.
However, it should also be noted that, if the presumption is applied at the interim stage, it must be specifically disregarded, by the court, at the final stage, when a more exhaustive hearing is possible.[10]
[10] See section 61DB of the Act
Finally, it should be noted that pursuant to section 65D the court is empowered to make whatever parenting order it thinks proper, subject to the presumption of equal shared parental responsibility created by section 61DA. However, clearly this discretion is not uncontrolled and must be exercised in the light of the entire legislative structure of Part VII of the Act.
In Goode & Goode the Full Court directed that in determining interim hearings, after identifying the competing proposals of the parties; the issues in dispute; and any agreed issues; the court should:
·Consider the section 60CC matters relevant and, if possible make any relevant findings of fact;
·Decide whether the presumption in section 61DA should be applied or if it is rebutted because:
ØThere are reasonable grounds to believe child abuse or family violence has occurred;
ØOr, in interim proceedings only, it would not be appropriate to apply the presumption;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child’s best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent, unless it is contrary to the children’s best interests as result of the consideration of any relevant section 60CC matter or is impracticable in the terms of section 65DAA(5);
·If neither equal time or substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child, when considering applicable matters in section 60CC;
·If the presumption is rebutted or found not to apply then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.

Discussion

The relevant legislation places two factors in a position of pre-eminence in the determination of children’s likely best interests – the desirability of them having a “meaningful” relationship with both their parents and the need to protect them from psychological harm, as a result of exposure to abuse, including family violence. Counsel for the mother, Ms Dickson, described the circumstances of the parties’ separation, on 17 February 2007, as being “pivotal” in the determination of this matter at the interim stage. Accordingly, it seems clear that her client places great emphasis on the need to protect the children from the deleterious consequences of exposure to family violence.
It seems self-apparent that both [D] and [B] have been exposed to family violence, particularly on 17 February 2007. [B] is to be a witness against his father, a daunting prospect for any child, particularly one with special needs. It was [D] who called the police to the parties’ former matrimonial home, although precisely how this occurred and at whose instigation is unclear.
The difficulty, at this stage, is that the court cannot precisely determine what happened. There are conflicting accounts. Both parties assert that they did not initiate the violence and was at the worst, in his or her conduct, responding to the volatility of the situation. This is a fundamental issue, which I am unable to resolve at this stage.

I consider it imprudent for me to reach any conclusion that the father was more culpable in the matter merely because he has been charged with an offence by the police. I reach this view because the father asserts that he proposes to defend the charge against him rigorously.
Putting aside the issue of 17 February 2007, it is the mother’s position that she was frequently physically assaulted by the father and these assaults resulted in bruising, which the children witnessed. At this stage, apart from the mother’s assertion of the fact, there is no independent corroboration of this aspect of her evidence. Similarly, there is no independent evidence to support the father’s assertion that the mother has, in the past, physically assaulted him.
The absence of such evidence is not surprising. This is because family violence, more often than not, arises in the private confines of the family home and may evoke emotions such as embarrassment, shame and indeed fear, which render the reporting of it to appropriate authorities difficult and accordingly, its independent verification problematic.
In addition, family violence is not homogeneous in its qualities. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as relationship breakdown and is instantly regretted or it can be more systematic and deliberate and arise from a clear power imbalance between the parties concerned.[11] In this case, both parties assert that the other’s violent behaviour is endemic and so poses a threat to the children.
[11] See JG & BG 18 Fam LR 255 at 261
Pursuant to amendments made to the Family Law Act 1975 brought about by the Family Law Amendment (Shared Parental Responsibility) Act 2006 the definition of “family violence” has been changed. Pursuant to the provisions of section 4 of the Act it is defined as:
“…conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.”
The definition includes an objective level. Fear or apprehension of violence must be reasonable. It is of course not unknown for parties in acrimonious proceedings, such as these, to exaggerate unfortunate incidents which have previously occurred for tactical reasons in the ensuing proceedings.

As a result of these matters, the court must exercise caution in both too readily accepting allegations of violence at the interim stage, and on the other hand, too readily dismissing them because of a lack of corroborating evidence. It is now, I think, generally accepted that family violence is prevalent in all social settings and walks of life and constitutes a significant threat to the welfare of children. Persons who resolve conflict through recourse to violence are not appropriate role models for children. In my view, it was for reasons of this kind that the legislature saw fit to insert section 61DA(3) into the legislation.
The discretion provided by section 61DA(3) is a wide one. The court need not apply the presumption if it considers it “would not be appropriate” for it to do so. However, it seems clear that the discretion should be informed within the broad thrust of the legislature’s intention regarding the desirability of shared parental arrangements for the care of children, so long as such arrangements are concomitant with the protection of children from harm. In balancing these considerations, in the application of section 61DAA(3) it seems that the court may look at the nature of the evidence available, particularly in cases where that evidence is limited. In my view, the evidence regarding the parties’ mutually characterised abusive relationship with one another is currently extremely limited.
It seems to be for reasons of this kind that section 60K was inserted into the Act. Pursuant to this section, the court is directed to take “prompt action” in relation to allegations of family violence.

The section reads as follows:
“(1)   This section applies if:
(a) an application is made to a court for a Part VII order in relation to a child; and
(b) a document is filed in the court, on or after the commencement of this section, in relation to the proceedings for the order; and
(c)   the document alleges, as a consideration that is relevant to whether the court should grant or refuse the application, that:
(i)there has been abuse of the child by one of the parties to the proceedings; or
(ii) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(iii)there has been family violence by one of the parties to the proceedings; or
(iv)there is a risk of family violence by one of the parties to the proceedings; and
(d) the document is a document of the kind prescribed by the applicable Rules of Court for the purposes of this paragraph.
(2)     The court must:
(a) consider what interim or procedural orders (if any) should be made:
(i)to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and
(ii)to protect the child or any of the parties to the proceedings; and
(b) make such orders of that kind as the court considers appropriate; and
(c)   deal with the issues raised by the allegation as expeditiously as possible.
(2A) The court must take the action required by paragraphs (2)(a) and (b):
(a)   as soon as practicable after the document is filed; and
(b) if it is appropriate having regard to the circumstances of the case - within 8 weeks after the document is filed.
(3)Without limiting subparagraph (2)(a)(i), the court must consider whether orders should be made under section 69ZW to obtain reports from State and Territory agencies in relation to the allegations.
(4)Without limiting paragraph (2)(a)(ii), the court must consider whether orders should be made, or an injunction granted, under section 68B.
(5)A failure to comply with a provision of this section in relation to an application does not affect the validity of any order made in the proceedings in relation to the application.”
Pursuant to section 60K, the court is required to consider how evidentiary issues regarding family violence may be resolved expeditiously. In certain cases, this may necessitate a discrete hearing regarding such issues. The difficulty in this case is that there are criminal proceedings on foot in regards to the issue and it may be inappropriate for this court to embark on its own enquiry, particularly if that enquiry occurs prior to the criminal proceedings and so potential issues of self-incrimination are enlivened.
In this case, neither party sought to have such a discrete hearing regarding the family violence issues. It also seems likely that, if an independent children’s lawyer is appointed, he or she may be able to subpoena relevant documents, such as police and medical records, which may throw some light on the issue. In addition, a family assessment may be illuminating of the issues. However, these considerations do not resolve the current difficulty confronting the court in terms of the contradictory nature of the evidence regarding the issue of family violence in this case.
The major detriment of the mother’s current proposal is that it will prevent any of the children, particularly [D], having a meaningful relationship with their father. Each of the children has lived in a household, which has included their father, for all of their respective lives to date. In such circumstances, the relationship between each of the children and their father must be considered significant.
Up to this stage, the father has been integral part of each child’s life, in the sense he has been part of the same houshold. The mother asserts that the relationship between [D] and [B] in particular, is not currently significant, in a beneficial sense, largely because of what she asserts has been the father’s previous poor behaviour and lack of interest in the children, exacerbated by his volatile temperament and substance abuse. These are highly contentious issues between the parties and I cannot resolve them in these proceedings.
However, the clear thrust of the relevant legislation is that the question of beneficial relationships, for children, is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the children concerned, if their parental relationships are enhanced and extended. Again, these considerations must be balanced against the need to protect the children from psychological harm, as a result of potential abuse.
In regards to family violence, the emphasis in the legislation is also prospective, concerned with the making of orders which are protective of the children concerned. Accordingly, an allegation of family violence, of itself, will not necessarily engage the application of section 61DA(2) and so negate the presumption created by section 61DA(1). Each such allegation must be carefully examined by the court, bearing in mind the abridged nature of the hearing at the interim stage.
There is much strength in Mr Berman’s submission that the court should place greater emphasis on the desirability of the children having a meaningful relationship with their father, given their respective ages at present. It seems unlikely that the children will be exposed to any further family violence, given that their parents are now restricted in their direct interactions with one another and have been removed from the mutually stressful circumstances of their common occupation of the former family home. The children will be able to report any malfeasance on the part of either of their parents. In addition, the possibility of the father abusing prescribed drugs seems limited, given the involvement of the Medical Board in his practice and the results of the drug screening tests.
At the present time, given the father’s previous involvement in the lives of the children, four hours of interaction each week is woefully inadequate to enable [B] and [C] to maintain any sense that their father is actively involved in their lives and so has a meaningful relationship with them both. Obviously, [D] does not herself have even this meagre level of involvement. To my mind, these are significant considerations in this case. As has previously been stated, it is the father’s position that the mother is opposed to his being involved in the children’s lives because of her, as yet, unresolved feelings of hostility for him, arising from the circumstances of the parties’ separation.
There is significant controversy between the parties regarding the views expressed by the children in respect of their future living arrangements. From the mother’s perspective only [C] has maintained what she describes as “some sort of relationship” with the father.

She describes [B] and [D] as being essentially estranged from their father and so not wishing to spend time with him, particularly [D].
The father does not accept this. Given their current ages, the views of the children are likely to be significantly determinative in the outcome of this case. However, as Mr Berman points out, [D] is not as chronologically mature as either of her brothers. In such circumstances, he submits the court ought to be cautious about [D]’s proffered views in the matter, particularly given the extreme level of conflict between the parties. Both a family assessment and the appointment of an independent children’s lawyer are likely to throw some light on the children’s views in the matter but this evidence is not as yet to hand.
In her case, the mother places great emphasis on the fact that she has been each of the children’s main provider of care up until this time. For that reason, she vigorously opposes the shared care arrangement or other arrangement which would see the children spending substantial and significant periods of time with the father. The father does not accept the mother’s assertion that he was not significantly involved in the care of the children prior to the parties’ separation. This is yet another of the many areas of dispute between the parties. However, in any event, it is clear that there is now less emphasis in interim children’s cases on maintaining the status quo arrangements for children’s care prior to final hearing than there was previously.
Prior to the Full Court’s decision in Goode and the legislative changes brought about by the Family Law Amendment (Shared Parental Responsibility) Act 2006, there was an emphasis in interim children’s proceedings, on the preservation of long standing arrangements for the care of the children involved, unless there were strong indications relevant to the child’s welfare to contrary.[12]
[12] See Cowling v Cowling (1998) FLC 92-801 at 85,006
As has previously been indicated, in Goode, the Full Court has spoken of the legislature’s intent, both at the interim and final stage, to direct the court to fashion parenting orders that will favour the substantial involvement of both parents in their children’s lives, subject to considerations of the children’s overall best interests. This emphasis has led to a disavowal by the Full Court of any general principle that a status quo in respect of arrangements for the care of children should be preserved at the interim stage. The Full Court said as follows:
“This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interest concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.”
Accordingly, the court is directed to consider the application of the relevant portions of the Act to the situation of the parties and children concerned to bring about a situation which is in the best interests of each child in terms of the relevant section 60CC criteria. For example, if a parent has had only limited contact with a child, prior to the making of orders, that of itself is not sufficient justification for the maintenance of a status quo. The court is still required to consider the benefits of the child concerned having a meaningful relationship with both his or her parents.
Putting aside the parties’ mistrustful relationship with one another and the obvious difficulties they have in communicating, there are few practical difficulties in the way of the children spending significant time with both their parents. The children are of an age when they can travel independently, as they have up to this stage, by train. [B] and [C] are likely to be protective of their younger sibling [D] and the three children will draw emotional support from one another. I accept that the father’s accommodation is suitable for the children. I have also no reason to think anything other than that the father is capable of providing for the material needs of the children.
As is clear from these unfortunately somewhat extensive reasons for judgment, the parties both currently assert that the other is a poor parent and has a limited understanding of the responsibilities of being a parent. From the father’s perspective, he asserts that the mother is determined to undermine his previously positive relationship with the children. On the other hand, it is the mother’s perspective that the father has no insight into the consequences for the children of his emotional outbursts and violence towards her. Again, these are issues which cannot be definitively resolved at this stage.

Conclusions

This is a difficult case. It is difficult because it comes before the court against a background of urgency and the respective position of the parties are polarised in the extreme. As a result, it is difficult, if not impossible, for the court to make any findings of fact about the very many matters which are in dispute between the parties. I have endeavoured to outline, as best I can, the position of both the father and the mother in respect of the various applicable section 60CC factors.
It is now necessary for me to turn to the seminal issue in the case, namely whether the presumption created by section 61DA regarding equal parental responsibility should be applied at this stage.

The presumption is rebutted if the court believes on “reasonable grounds” that one of the parties has engaged in family violence. Although I am not in a position to determine who of the parties is more culpable in respect of the issue of family violence, it seems there are reasonable grounds to believe that such violence has occurred, notwithstanding the conflict between the parties’ evidence and the lack of independent corroborating evidence. It seems irrefutable that one or other of the parties, possibly both, have been violent, in the presence of the children on at least one occasion. However, I do not think this amorphous finding alone should determine the outcome of the hearing and the application of the presumption.
I now turn to consider the more difficult question of whether, in the context of this interim hearing, it would not be appropriate for the presumption to be applied. I accept that the evidence led before me, at this stage, is limited. However, to my mind, that is not of itself sufficient to engage the discretion provided by section 61DA(3).

The Full Court has indicated that the discretion is not to be exercised in a manner which is broadly exclusionary.
By this I take it, the discretion is to be engaged when potentially very serious matters of family violence or child abuse are raised, in the material, which can be neither definitively established nor definitively negated, within the context of an interim hearing but, which if true, are likely to have very serious detrimental consequences for the children concerned. In such a situation, the discretion may be engaged because of the pre-eminence required to be given to issues of child protection.
In addition, it seems to me that evidence of the nature and quality of the parental relationship between the parties concerned may lead the court to the conclusion that it is not appropriate to make an order for equal shared parental responsibility at the interim stage. Obviously there is likely to be some over-lap in this context with matters that the fall within the ambit of section 61DA(4), which deals with considerations of a child’s best interests.
As previously indicated, the emphasis the legislation places on family violence is prospective in nature, designed to protect the children concerned in the future from being exposed in future to the deleterious consequences of family violence. Given that the parties are now separated, it seems unlikely that there will be future incidents of violence between them. However, it seems clear to me that the future parenting relationship between the parties is likely to be fraught with extreme difficulty for some time to come. The children will have to cope with the regular transition between two households, which are mutually antipathetic. For obvious reasons, these are not currently good indicators for the parties to have a co-operative parenting relationship with one another, particularly in the short term. Put simply, the parties do not trust one another, as is evident by the serious allegations of misbehaviour each has made against the other.
How concerns of this type are to be accommodated within the overall ethos of the Shared Parenting Legislation is unclear. I am concerned that, as a result of the emotional topography which often prevails in children’s cases, a party who is vehemently opposed to either a shared care regime or one whereby the child involved spend substantial time with both his or her parents, for reasons perhaps relating to his or her own emotional needs or for some other ulterior motive, may be encouraged to act in a way which is contrary to the principles and objects of the amending legislation. As a result of such factors he or she may be prone to perpetuate parental conflict; may magnify the practical difficulties which exist; and intensify the level of disputation about various parenting issues; in order to defeat the application of the mechanisms provided by section 65DAA. Whether such ulterior motives are present in any given case may be difficult to ascertain, particularly at the interim stage.
It is clear from the legislation that such an approach to parenting is contrary to its intention. The optimal outcome for a child, in the making of any parenting order concerning that child, is for his or her parents to have the maximum degree of involvement possible in that child’s life. In determining issues to do with the parties’ current and future capacity to communicate with one another and resolve difficulties which may arise from a shared parenting regime, the court is required to consider the matters which arise under section 60CC(3)(c) & (i).[13] Accordingly it is the duty of the parents concerned to facilitate close and continuing relationships between the child concerned and each of his or her parents.
[13] See note 1 to section 65DAA(5)
However, regardless of these considerations, the children will still have to accommodate, in some form or other, the transition between two households which are hostile and suspicious of one another, in circumstances where there is no easy or obvious means of communication. At this stage, the father’s bail conditions preclude him from communicating with the mother directly. The children are aware of the fact of the police charges being laid against their father and indeed one of them, [B] is a material witness.
As such, it seems unlikely in the extreme that the parties will be able to engage in any consensual or consultative process regarding decision making for any of the children. These are factors, which for reasons of obvious commonsense, seem to militate against an order for equal shared parental responsibility being made in this case at this particular stage of the proceedings. Accordingly, I have come to the conclusion that it would not be appropriate, in all the circumstances of this case, for the presumption created by section 61DA(1) to be applied. As a result, the mechanisms created by section 65DAA are not engaged at this stage.

However, as has previously been indicated, it is clear from what was said by the Full Court in Goode, that the court, at the interim stage, is required to take a different approach to that previously propounded in such cases as Cowling, which emphasised the desirability of the court making orders which result in maintenance of pre-existing care arrangements for children, until final hearing. The Full Court said as follows:
“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 section 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 section 60CC(3) and to be determined in conjunction with the primarily consideration in section 60CC(2)(a) of the benefit to the child of having a meaningful relationship with both of the child’s parents.”[14]
[14] See Goode & Goode (supra) at paragraph 80
Accordingly, even after the court has determined that the presumption of equal shared parental responsibility is not applicable, it is still required to consider the relevant section 60CC factors and fashion the orders, which at this stage, it believes will serve the best interests of the children concerned. In making these orders, the court must be mindful of the prevailing ethos of the legislation, particularly the likely beneficial consequences, for the children, of both their parents being as engaged, as much as possible, in providing for the children’s care, in a variety of settings.
In determining what are the appropriate orders for the children to spend time with each of their parents, I have to consider as best I can the various section 60CC factors. In the present time, the key elements can be boiled down as follows:
·The uncertainty regarding the views of the children, particularly [D]. [C]’s relationship with his father is conceded by the mother to have endured to some degree, in spite of the difficulties which have occurred between the parties. [B] is seeing his father. [D]’s apparent reluctance to spend time with her father must be viewed from the perspective of her age. Her views are not necessarily determinative. She needs to be encouraged to have a relationship with her father.
·
What is characterised as the father’s abusive temperament, particularly in regards to his previous use of prescription drugs.

In this regard, the evidence of clear drug screen testing and

Dr D’s opinion are relevant. There is clear evidence to indicate that the father’s drug use is currently in remission.
·Family violence. As previously indicated, the scope for the children to be exposed to further episodes of family violence appears limited. That is not to downplay the potential emotional sequelae for the children, particularly [D] and [B], of being exposed to previous episodes of such violence.
Considerations of this kind, lead me to the view that the desirability of the children having a meaningful relationship with both their parents should be given some pre-eminence in this case. In my view, [B] and [C] will not be able to maintain a meaningful relationship with their father through spending four hours each weekend with him.

[D]’s relationship with her father is even more limited and I am concerned at the prospect of it withering further. It does not seem to be in the children’s best interests to have such curtailed relationships with their father.
It is the intent of the applicable legislation that parents be substantially involved in the lives of their children, following relationship failure, wherever possible. In this context the court is directed to consider not only the quantity of time involved in child/parent relationships but also its quality. The optimal outcome envisaged by the legislation is one where both the parents concerned engage with their children in a variety of settings and so provide their children with a sense that their parents are engaged in all aspects of their care.
These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting; as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in more mundane situations. In this way, the child is likely to have a more balanced and so richer relationship with the parents concerned.

The optimal outcome envisaged by the legislation is one predicated on equal time.
The children will not be able to have such a varied relationship with their father, if their time with him is confined to daytime on weekends only. In my view, there must be an extension of the time the children spend with their father to include both days and nights on weekdays and weekends, as well as during school holidays.
However, for the reasons provided in respect of my decision not to make an order for equal shared parental responsibility, I have come to the view that an order that the children spend equal time with both their parents is not likely to be in their best interests. I do not believe the mother is capable of supporting such a regime.
However there needs to be a significant extension on the mother’s proposal for the children to spend time with the father. Given the ethos of the Act and my analysis of the various section 60CC factors, I have come to the conclusion that an order that the children spend substantial and significant time with their father is likely to be in their best interests at this stage.
Accordingly, at this point, I propose to make orders that will allow the father to spend time with the children from after school on Wednesday until the commencement of school the following Monday, in alternate weeks. Essentially this time will coincide with the periods when the father has modified his work hours to accommodate the needs of the children. At this point, I propose continuing the orders throughout school holiday periods.
Considerations of the matters set out in section 60K of the Act dictate that the parties’ final applications should be heard sooner rather than later. However, at this point, there are also issues between them regarding the division of their matrimonial property. Whether these issues of property can be resolved between the parties is unclear to me. I propose at this point to allocate a time for a conciliation conference, so that the parties may explore the prospects of resolving this aspect of the case.
As is clear, I hope, from these reasons for judgment, the issue of the children’s views are a central one in the case, as is the possibility that any or all of them have suffered some level of psychological harm as a result of exposure to the obvious vicissitudes which occurred in the parties’ marriage over the last few years. The preparation of a family assessment and the appointment of an independent children’s lawyer will throw light on these complicated issues. In my view, they are an appropriate response to the issues of family violence, which both parties have raised.
It will take approximately six weeks for any independent children’s lawyer to be able to have any useful input into this case.

The preparation of a family assessment will take longer, up to approximately three months. I propose adjourning these proceedings for approximately three months, in order to ascertain what the position is at that stage, both in regards to the property issues and the ones concerning the children. However, in the meantime, I will also tentatively allocate a hearing time for the parties’ competing final applications in the latter part of this year. Such a final hearing will provide a means for the court to make findings about the competing allegations of the parties, if necessary.
These are interim proceedings. As such, no legislative status quo will arise at final hearing in regards to arrangements for the children’s care, particularly in regards of any future application of the presumption created by section 61DA. Pursuant to the provisions of section 61DB, the court is specifically required to disregard any allocation of parental responsibility made at the interim stage on the final hearing of the applications involved. Accordingly, the orders made today will remain in place for a finite period of time.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 24 April 2007