Goode [2006] FamCA 1346
What was the case about?
The case was brought by the appellant father who argued that the Court had improperly applied certain provisions of the Family Law Act, while other provisions had been ignored altogether (for example, section 60CC considerations). His appeal was ultimately successful.
At first instance, both parties had sought joint parental responsibility, though the Court had ultimately elected not to uphold the presumption of equal shared parental responsibility under s61DAA(3) of the Act. This was a result of the mother’s family violence allegations against the father not being able to be determined at the interim stage.
While the mother’s material had raised risk issues (against the father), the main issue on appeal concerned the issues of parental responsibility and the amount of time the father should spend with the children.
Issues
There were several issues considered in the appeal, most significantly: –
- Whether the Court erred in not upholding/applying the presumption of equal shared responsibility? (On the basis that, in this case, it was not appropriate to do so).
- Whether the proper legislative pathway had been followed in making parenting orders in the manner the Court did?
Issue 1 – did the Judge err by not upholding the presumption of equal shared parental responsibility?
The Court at first instance did not apply the presumption of equal shared parental responsibility. In circumstances where the mother had made unverifiable domestic violence allegations against the father, the Court chose not to apply the presumption and relied on s61DA(3). Section s61DA(3) is set out as follows: –
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order
Despite the evidence pointing to some relative stability in the parenting arrangements post-separation (where inferences of low risk could reasonably be ascribed), the Court nonetheless declined to make a positive finding of family violence. As a result, the Court found that the presumption of equal shared parental responsibility could not be applied.
While the appellate Court was somewhat critical of the Court’s consideration of family violence (as there was evidence that the arrangements were relatively stable and free of conflict post separation), this was not sufficient to qualify as an appellable error.
Issue 2 – was the proper legislative pathway followed?
Accordingly, what followed legislatively from this finding meant that the Court was not then obliged to consider the mandatory spend time provisions under S65DAA – that is, for equal time or substantial and significant time. It was however obliged to consider broadly which parenting orders would be in the best interests of the children as per section 60CC.
This it failed to do.
Rather than go through a step-by-step of all relevant factors under section 60CC, the Court relied on a prior case (Cowling). This case prioritised the stability of the children’s parenting arrangements following separation and made orders near mirroring the existing parenting regime up until that point. By following the Cowling approach, the Court effectively ignored the legislative pathway required by the 2006 amendments and fell into appellable error.
What the Court should have done was determine whether the presumption of equal shared parental responsibility applied or not. Having determined it did not apply, then consider broadly which parenting orders would be in the children’s best interests after considering the parties’ competing proposals and the relevant factors found in section 60CC.
Significance of the case
This case fell at a time when significant amendments had been made to the Family Law Act 1975 (Cth). Whereas prior to the amendments the Court sought the assistance from precedent cases to make parenting orders (i.e. principles of “stability” and “continuation of the status quo”), the legislature now clearly required a path be followed. This path was one which would try to maximise both parents’ involvement in the children’s lives to the maximum extent possible, subject to mitigating against risk factors of family violence and child abuse. The activation of mandatory spend-time based provisions confirmed this new state of affairs.
Moreover, the Court laid out a useful “cheat sheet” as to the proper approach that should be taken during interim hearings. At paragraph 82, Court laid out the best practice approach for interim hearings as follows: –
- identifying the competing proposals of the parties;
- identifying the issues in dispute in the interim hearing;
- identifying any agreed or uncontested relevant facts;
- 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);
- 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;
- if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests; 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;
- 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;
- 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;
- 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;
- 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.
Goode (2006) is then a useful reference for interim hearings, in particular for what is the proper legislative pathway to follow when making parenting orders where there exists allegations of family violence.
