The Full Court of the Family Court Speaks on Shared Parenting - Goode v Goode


by Michael Brown, Browns The Family Lawyers and Sharon Payne, Browns The Family Lawyers

Released April 2007

About this Program

Has the Full Court abandoned Status Quo in Interim Proceedings?

The Full Court of the Family Court has delivered one of its first decisions on the shared parenting reforms. The Court’s decision is an important one and is likely to have a significant impact on day to day practice in family law.

In this program we cover the following:

Introduction

Since 1 July 2006, there has been one question on the lips of every Family Lawyer in the country – “Does Cowling1 still apply?”  Up until now that question has evinced a wide and irreconcilable range of answers by judges at first instance. 2  At last the Full Court has intervened and answered the question with the emphatic “sort of !”.

The decision of Goode v Goode3 was delivered on 15 December 2006 , and is the first decision of the Full Court of the  Family Court which deals in a meaningful way with the Application of the new Part VII of the Family Law Act, since amendment by the Family Law (Shared Parental Responsibility) Act 2006 It is the first indication of how significant the “most significant change to Family Law in 30 years.” really is .Has the legislative revolution heralded by the Attorney General been embraced by the people who decide real cases? Or is the third arm once again restraining the excesses of the first arm of government?

Goode is an important decision not only because it provides some guidance on these somewhat esoteric matters , but it is more important because it provides authoritative and , in the main , clear guidance on how the Court is now to determine parenting proceedings and, more particularly ,interim parenting proceedings .This is the stuff practitioners really want to know .

The Facts of Goode

The parties were married in July 1996 and finally separated in late May 2006. There were 2 children of the marriage aged eight years and  two years at the date of hearing The judge at first instance found that the husband chose to leave the matrimonial home and bring the marriage to an end. There was some dispute as to what happened in relation to the care of the children thereafter . The wife asserted that after a period of time the parties reached an agreement and the husband commenced spending time with the children on each alternate weekend. The husband said that the wife removed the children from him and made it very difficult for him to see the children other than at times that the wife said he could have. The wife was ,in general terms , more available to care for the children than the husband, since he was working full-time and the wife worked three days a week. The wife asserted that she suffered physical abuse from the husband during marriage , although this was denied by the husband.

The trial judge did not make an order for equal shared parental responsibility , applying 61DA (3) and finding that in the circumstances of these interim proceedings it was not appropriate to do so.

The trial judge went on to make orders to the effect that the children would live with the wife and spend time with the husband . Both children were to spend each alternate weekend with the husband from the conclusion of school or childcare on Friday to 4.00 pm on Sunday and the older child was to also spend time with the husband on Monday in each week during school terms from after school until 8.30 pm and on Tuesday from after school until 6.00 pm. Those times were for the purpose of attending scouts and piano lessons. The orders also provided for the children to spend time with the husband for one half of each school holiday period.

The Appeal in Goode

The husband appealed to the Full Court on 6 grounds , and in oral submissions Counsel for the husband posed 9 “discrete questions” which formed the basis of the subsequent discussion by the Full Court . Although said to be discrete , the full court did not deal with the questions discretely and the commentary below  summarises the treatment of the important issues by the court.

The Law Before Goode

Given that the Full Court was determining the extent to which the  amending act had changed the law , it is  important to reflect briefly on what the pre- amendment law was.

To begin with , before the enactment of the Family Law (Shared Parental Responsibility) Act 2006 there was no presumption of Equal Shared Parental Responsibility. As the Full Court went on to point out in Goode the concept of parental responsibility and the sharing of that parental responsibility jointly and independently was embodied in the pre- amendment law. It was the rebuttable presumption arising under section 61DA which was new . 4

Also new were the obligations of the court to consider equal time or substantial and significant time where the presumption applied. While one must infer from the decision in Goode that the court always had a general obligation to consider any proposal that  might promote the best interests of the child (which may include such a parenting regime ) 5, the specific obligation arising from the presumption was not a consideration prior to the amendments

And then there was Cowling..

 The critical passage of Cowling was reproduced at length in the Full Court decision in Goode . For present purposes it is sufficient to note that the court in Cowling had held that , in the determination of the best interests of a child in interim proceedings , as a general rule, any order made should promote stability. 6 Where the evidence clearly established that a childwais living in a well settled environment that  stability would usually be promoted by the making of an order providing for the continuation of that arrangement until the final hearing, unless there were strong or overriding indications relevant to the child’s welfare to the contrary ( such as . convincing proof that the child’s welfare would be really endangered by remaining in that environment). 7

The “Discrete Questions” summarised

The first question the court considered was “Is there a difference between parental responsibility and equal shared parental responsibility?”

Is this a trick  question , you ask ? The words “equal” and “shared” seem to be a give away.

Unsurprisingly the court found that there was difference. To be fair , the reason the question arose at all was because the phrase “equal shared parental responsibility” was novel , though “parental responsibility” was not.

The Court said :

“We therefore consider it clear that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC. In the former, the parties may still be together or may be separated. There will be no court order in effect and the parties will exercise the responsibility either independently or jointly. Once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for the long-term care and welfare of children must be made jointly, unless the Court otherwise provides.” 8

In the absence of an order, the general law prevails – parental responsibility is exercised jointly and independently. 9

The Court then went on to ask “Can one make an order for equal shared parental responsibility or equal time, other than by application of the presumption?”

The Full Court said, emphatically, “yes”:

“Even if the presumption is rebutted or is not to apply in the interests of the child, if one or both of the parties is seeking such an order, the Court would normally consider, in the making of an order, what each party was seeking when considering the child’s best interests in accordance with the objects in s 60B and the primary and additional considerations in s 60CC.

47. Similarly, even if the presumption of equal shared parental responsibility is not applied and neither party seeks an order for equal time (or by implication substantial and significant time), the Court is nonetheless required to consider, in determining what is in the best interests of the child, the arrangements that will promote the child’s best interests. Subject to according procedural fairness to the parties, this could include a proposal that neither party had advanced, if it was in the Court’s view ultimately in the child’s best interests for such an order to be made” 10

In addition to the route provided by application of the presumption , the Court can also come to that conclusion that equal or substantial significant time is appropriate by applying the objects of the Act in Section 60B and the considerations in Section 60CC 11

However this does not explain whether the manner of the consideration of equal or substantial and significant time when applying the presumption is different from the manner in which the court may consider such a proposal through the  normal application of section 60CC , where the presumption does not apply. If these are merely 2 equally valid ways of arriving at the same result then the presumption really achieves nothing . In that case the court would merely be doing what it could have always done before the amendments – that is , consider equal or substantial or significant time if in the best interests of the children. The decision in Goode simply does not tell us what section 65DAA means in practice.

The court then asked “What is the significance of the specific references to parental responsibility and interim proceedings in the Act?” Related to this question was a further question.“  In what circumstances is section 61 DA (3) properly invoked?

The court pointed out that no distinction is drawn in s 61DA between interim and final proceedings12

The trickier question in interim proceedings , however , is the application of section 61 DA (3) which seems to give the court a far greater flexibility in interim hearings to decline to apply the presumption of equal shared parental responsibility. Section 61DA (3) says :

“When the court is making an interim order, the presumption applies unless the court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order.”

The court did not say anything useful about the circumstances in which it might “not be appropriate” to apply the presumption  The trial judge had reasoned :

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. 13

The Full Court said

“We observe that his Honour did not give any consideration or weight to the surrounding circumstances; namely that it was conceded that there was no risk to the children and that both parties were seeking an order which would involve them in joint and several parental responsibility. Although considering those facts we might come to a different conclusion, given the wide discretion vested in the Court to make orders in the best interests of the children, we do not consider that his Honour erred in the exercise of his discretion in not applying the presumption.” 14

The court  asked “What does “consider” mean?”

The Court referred to case law relating to the word “consider” in an administrative law contest, particularly  Aboriginal & Torres Strait Island Affairs, Minister for & Norvill v Chapman; sub nom Tickner v Chapman (The Hindmarsh Island Bridge case). 15(cases paragraph 58).

The Court cited the decision of Black CJ in that case who said “consideration involves an active intellectual process directed at that representation or submission.”

However, while the Full Court found these decisions of “some assistance” but not “entirely apposite to the meaning of the word under Section 65DAA because the juxtaposition of ss65DAA(1)(a), 65DAA(1)(b) and 65DAA(1)(c) suggest a consideration tending to a result.” 16

This is, with respect , rather opaque. However it does seem that the Federal Court decision will be of some assistance on this point ,as opposed to the obscure comments of the Full Court of the Family Court on the subject.

Then the court went on to consider “the big one” -To what extent does Cowling continue to apply in interim proceedings?

The Court found that some of the comments of the Full Court in Cowling are “still apposite.”  17 These comments largely related to procedural matters.  The interim hearing is still an abridged enquiry.  The Court still should not be drawn into issues of facts or matters relating to the merits of the case where findings are not possible and the Court looks towards “less contentious matters” such as agreed facts and issues not in dispute and would have regard to care arrangements prior to separation, current circumstances of the parties and their proposals for the future 18

However, the Court also found that passages in Cowling did not “sit comfortably with the Act as amended” 19 This was especially true of that part of Cowling which said

“the child’s stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child’s welfare to the contrary.” 20

The Court said

“There are many elements in the Act as amended that would militate against the continued application of the principles in Cowling, and in particular the passage cited above” 21 (emphasis added)

The Court went on  to say :

“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. 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 interests 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.” 22

However the Court seems to have left some of the status quo rationale of Cowling intact in that it said

“That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A). “23

So while the status quo baby was thrown out with the bathwater , there were some misgivings. The first problem with jettisoning status quo altogether is that interim hearings are to be decided on less contentious facts , and status quo is often one of the few less contentious matters in an interim hearing. Secondly , if one accepts that stabilty generally promotes the best interests of children , then there is sense in not precipitously changing an apparently stable situation without a proper examination of the evidence

How should interim proceedings now be conducted?

Perhaps the most useful part of Goode is the neat summary the court gives of how interim proceedings should be conducted. It is destined to become the pocket guide to interim parenting proceedings.

“81.     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.
82. 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. “24

Conclusion

Goode is the new Cowling. Like Cowling , it does not provide all the answers about interim parenting proceedings , although it goes a long  way. Like Cowling , it sets out a simple step by step process to follow in interim parenting matters. While there are many who will be  critical of the state of the law post Goode , it certainly represents the authoritative , if not definitive , statement of the law as it now is. Practitioners should have it close at hand , if not close at heart.

FOOTNOTES

  1. Cowling v Cowling (1998) FLC ¶92-801

  2. See for  example , Wilkie v Wilkie SYF 2632 of 2006 ( unreported ,decision of Moore J 17 October 2006)

  3. Crowe v Crowe ( unreported ,decision of Moore J 25 October 2006)

  4. 2006 FamCA 1346

  5. Goode ( supra ) at paragraph 33 , and quoting Bv B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at 9.24

  6. Goode ( supra ) at paragraph 47

  7. Cowling (Supra ) at paragraph 21

  8. Cowling (Supra ) at paragraph 22

  9. Goode ( Supra) paragraph 49

  10. Goode ( Supra) paragraph 37

  11. Goode ( Supra) paragraph 47 -48

  12. Goode ( Supra) paragraph 46

  13. Goode ( Supra) paragraph 55

  14. Goode ( Supra) paragraph 75

  15. Goode ( Supra) paragraph 105

  16. (1995) 57 FCR 451; (1995) 133 ALR 226

  17. Goode ( Supra) paragraph 64

  18. Goode ( Supra) paragraph 68

  19. Goode ( Supra) paragraph 69

  20. Goode ( Supra) paragraph 69 quoting Cowling ( supra) at paragraph 22.

  21. Goode ( Supra) paragraph 70

  22. Goode ( Supra) paragraph 72

  23. Goode ( Supra) paragraph 73

  24. Goode ( Supra) paragraph 81-82

STUDY POINTS

  1. What principles were decided in the case of Cowling?

  2. Has the Full Court in Goode and Goode abandoned the long standing principle of preserving the status quo at interim hearings?

  3. How should interim hearings now be conducted?

  4. Does this mean that lengthy affidavits are required dealing with all of the matters in Section 60CC?