On 15 December 2006, the Full Court of the Family Court of Australia released its decision in Goode v Goode, [2006] FamCA 1346. The case involved an appeal by the father against an interim decision made by Collier J regarding the parties two children aged eight and two. The effect of Justice Colliers orders was that the children would live with the respondent mother and spend time with the appellant father.
In coming to his decision, Collier J did not make any order for equal shared parental responsibility but he considered the provisions of ss 61DA of the Family Law Act 1975 (Cth). Collier J determined that as a result of untested allegations of family violence, it would not be appropriate to apply the presumption set out in s 61DA(1) that, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the childs parents to have equal shared parental responsibility for the child.
Justice Collier arrived at his decision as a result of the application of the principles of Cowling v Cowling (1998) FLC 92-801. He found that the arrangements between the parties since their separation a few months earlier had worked for the benefit of the children, and that there was no evidence that the arrangements were not serving the needs of the children to have both parents involved in their lives.
The father alleged that Collier J made a number of errors when applying the new legislation.
Effect of Recent Amendments
The Full Court considered the effect of the recent amendments to Part VII of the Act. The Full Court found that there was a difference between parental responsibility which existed as a result of s 61C and an order for equal shared parental responsibility, which has the effect set out in s 65DAC. Parental responsibility meant all the duties, powers and authority which by law parents have in relation to children, and the parties may exercise that responsibility either independently or jointly.
The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each parent to have equal shared parental responsibility. Once a court has made an order allocating parental responsibility, the major decisions for the long-term care and welfare of a child must be made jointly unless a court otherwise provides. Further, if a court applies the presumption of equal shared parental responsibility, the court must consider, as a starting point, making an order that the child spend equal time with each parent if it is consistent with the best interests of the child and not impracticable.
Interim ProceedingsThe Full Court considered the effect of the amendments to Part VII to the determination of interim applications. Prior to the amendments, the methodology to be adopted in interim applications was determined by case law, including the Full Court decision in Cowling v Cowling.
The Full Court noted that while some of the comments in Cowling were still apposite, many passages in the Cowling decision did not sit comfortably with the new legislation. The Full Court noted that the new Part VII demonstrated a legislative intent in favour of substantial involvement of both parents in their childrens lives, both as to parental responsibility and as to time spent with children. This meant that rather than simply preserving the status quo or a well settled environment, courts must follow the structure of the Act and consider accepting equal or significant involvement by both parents in the care arrangements for the child. Maintenance of a stable environment was one of the factors to be considered pursuant to the additional considerations in s 60CCC(3).
The Full Court found it was clear that the presumption of equal shared parental responsibility in s 61DA applied when either an interim or a final parenting order was sought.
This Appeal
The Full Court found that Collier J correctly applied the structure of s 61DA of the Act. Justice Collier had found that it would be inappropriate to apply the presumption because there were untested allegations of family violence. The Full Court upheld Justice Colliers exercise of his discretion on this issue.
The Full Court found that Collier J erred by applying Cowling and accepting that it was appropriate for the status quo to continue absent any adverse impact on the children. The Full Court found that once it was determined that the presumption in s 61DA(1) did not apply, Collier J should have addressed the matters in ss 60CC(2) and (3), including the benefit to the child of having a meaningful relationship with both parents.
The Full Court rejected the respondent mothers submission that the Court was only required to consider equal or substantial and significant time if the presumption of equal shared parental responsibility applied. Because the appellant father had sought equal time, Collier J was obliged to consider whether such an arrangement would be in the best interests of the children.
The Full Court allowed the father's appeal and found that the matter should be remitted for further hearing.