Family LAW - A summary into Goode v Goode PDF

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A summary into Goode v Goode...

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AMFvAI F( 1999)199CLR

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Far mervBr aml ey[ 2000]FLC93060

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MaundervMaunder( 1999)153FLR272

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TheAt t or neyGener alf ort heCommonweal t hv “ Kev i n andJenni f er ”[ 2003] FamCA94 GoodevGoode[ 2006]FLC93-286

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ReMar i on( 1992)175CLR218 Mal l etvMal l et( 1984)156CLR605

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KennonvKennon[ 1997]FLC92757

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Goode v Goode, [2006] FLC 93-286 Facts Heard in the Family Court of Australia before Bryant CJ, Finn J and Boland JJ • Appeal from first instance decision delivered by Collier J on 10 August 2006 • F (father appellant) • M (mother respondent) • During the marriage F and M had 2 children, aged 8 and 2 (at trial) • The parties separated in late May 2006. • F was also seeking orders which in effect enabled the parties' children to spend equal time with him. • M was instead proposing orders that F spend less than equal time with the children. • Collier J handed down orders that the children would live with M and spend time with F.  Both children were to spend each alternate weekend with the father beginning from the end of school or childcare on Friday to 4 pm on Sunday.  One child was to also spend time with F on Monday in each week during school terms from after school until 830pm and on Tuesday from after school until 6pm. Also provided for the child to spend one half of school holidays with F. On Appeal • F is appealing the decision handed down by Collier J. • The Court of Appeal allowed the appeal and remitted the case for rehearing. Issues of Law On appeal nine issues of law were clarified in reference to the 2006 amendments of division 2 part VII contained within the

Family Law Act 1975 (Cth) Issue 1: Is there any difference between parental responsibility and equal shared parental responsibility? • Parental responsibility means ‘all the duties, powers and responsibilities and authority which by law, parents have in relation to children' (s 61B) • s 61C states the default legal position that ‘each parent has parental responsibility for a child who is not 18 years.’ In this context the parties may exercise ‘the responsibility either independently or jointly’ [37]. • Once the court has made an order for equal shared parental responsibility (between two or more people), the major decisions must be made jointly unless the court provides otherwise [at 39]. • The parties are under a strict legal obligation to consult one another, about decisions to be made: s 65DAC. Issue 2: Does the presumption that equal shared parental responsibility is in the best interests of the child carry with it any presumption about time? • The presumption is that ‘it is in the best interests of the child for the parents to have equal shared parental responsibility’ (s61DA(1)). • The presumption relates solely to the allocation of parental responsibility as defined in s 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents. Issue 3: Can one make an order for equal shared parental responsibility or equal time, other than by application of the presumption? • A request for a parenting order invokes the presumption. This is the starting point for a consideration of the practicality of the child spending equal time with each of the parents: s 65 DAA. •The courts do not need to rely on the presumption to make these orders. If it is rebutted or if neither party has sought an order, the court will still be required to consider the arrangements that will promote the child’s best interests. If an order for equal time will achieve that objective, it should be made.

• There are instances where the presumption will not apply. The presumption will be rebutted; where there are reasonable grounds to believe that there has been abuse of the child (s 62DA(2)), where the court (when making an interim order) does not consider application of the presumption to be appropriate (s 61DA (3)), or where the court is satisfied that it’s application would conflict with the child’s best interests (s 61DA(4)). • If the presumption is rebutted, or if neither party has sought an order, the court will nonetheless be ‘required to consider… the arrangements

that will promote the child’s best interests.’ If an order for shared parental responsibility or equal time will achieve that objective, such an order should be made [46] – [47]. Issue 4: Does the presumption in s 61DA apply in the context of interim proceedings? If so, to what extent? • s 61DA draws no distinction between interim and final proceedings [55].

Issue 6: To what extent does Cowling continue to apply [in interim proceedings]? • Cowling v Cowling (1998) 22 Fam LR 776 sets out criteria for the determination of interim proceedings. • The Full Court agreed with the principle that ‘the court must regard the best interests of the child as paramount in deciding what interim parenting order to make [69].’ • Nevertheless, they concluded that Cowling must be reconsidered in light of the 2006 amendments to the Act. In Cowling , the court provided that: ‘where…the child is living in an environment in which he or she is well settled, the child’s stability will usually be promoted by…an order which provides for the continuation of that arrangement until the hearing for final orders…' [69]. This principal can no longer apply. The court held that: 'there is a legislative intent evinced in favour of substantial involvement of both parents…[t]his means where there is a status quo or well settled environment, instead of simply preserving it…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…’ [72]. Cowling Overturned • As discussed, the approach ‘to applications for interim orders was in the past to maintain the status quo if the child was settled and not at risk of harm.’ This was a principal arising from the decision Cowling v Cowling (1998) 22 Fam LR 776. In the present case, the Full Court held that such a presumption cannot survive the 2006 amendments.

• The Full Court, in overturning the Cowling decision, have effectively defined the application of the new legislation in the context of interim orders. Significantly, the case confirms that the court must, if the presumption has not been rebutted, consider accepting equal or significant involvement by both parents [72]. Issue 7: In what circumstances will s 61DA(3) of the act be properly invoked? • s 61DA(3) provides that ‘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...’ • The court held that this section ‘provides a discretion 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’ [78].

Significance!! • The Family Law Amendment (Shared Parental Responsibility) Act 2005 (Cth) came into effect on 1 July 2006, amending part VII of the Family Law Act 1975 (Cth). • Goode was the first real case to consider the new legislation and how it would apply in the context of interim orders. • As a result, the decision handed down by the Family Court of Australia on Appeal, paved the way for how the new amendments are to be applied in future matters concerning interim orders and children. Grounds of Appeal There were six grounds of appeal considered in this decision as follows: Ground 1: that his Honour erred in finding that s65DAA did not apply in the circumstances of the case, including where the wife had, herself, sought that both parties be ordered to have joint long-term parental responsibility. Found: S61DA gives a presumption of equal shared parental responsibility. When an order for equal shared parental responsibility is made and the presumption is applied, s65DAA should be considered. s65DAA requires the court to consider whether it would be in the child's best interests to spend equal time with each parent. The Court must apply the presumption in s 61DA unless: o It is not applicable due to violence or abuse o It is rebutted because it would be contrary to the interests of the child to

apply it o It is inappropriate to apply in interim proceedings. These were interim proceedings and it was within the trial judge’s discretion to find that it was inappropriate to apply the presumption.Nothing turns upon the wording of the applications. Ground 2: that his Honour erred in failing to apply Cowling appropriately. Found: At trial his honour accepted that the status quo, absent any adverse impact on the child was appropriate to continue without consideration of the factors of what was in the best interests of the child, particularly s60CC(2)(a). The maintenance of the status quo, as sanctioned by Cowling is insufficient to meet the requirements under s60CC. s60CC sets out the matters the court must consider when determining what is in the child's best interests. Ground 3: that his Honour erred in failing to apply Pt VII of the Act as it now exists Ground 6: that his Honour erred in that he made errors of law which include inter alike a failure to give adequate reasons. Found: As the father sought equal time his Honour was obliged to consider whether such an arrangement would be in the best interests of the children with regard to s60CC. His Honour erred in failing to apply s60CC. His Honour erred in failing to give reasons about the child’s best interests and s60CC. These errors probably stem from the fact his Honour applied Cowling incorrectly.

Ground 4:that his Honour erred in that he made errors of fact. F contended that his Honour erred in finding the father made no specific proposal for the care of the children and that his work hours were significantly greater than those of M. Found: • His Honour did not error – his findings were justified. Ground 5: that his Honour erred in failing to address the injunctive order sought in relation to religious upbringing. • His Honour did not err. The proceedings were truncated and no submissions were directed to it before his Honour and his Honour could

not identify evidence or assume the matters were being pursued on an interim hearing when not specifically directed to this matter by the solicitors. Legislative Pathway to be Followed in Parenting Matters • The ultimate goal of the legislation is to consider what is in the best interest of the child. • Parenting orders automatically trigger the presumption under s 61DA, 'that it is in the best interests of the child for each of the child's parents to have equal shared parental responsibility...', which must be applied in any case, including interim orders. • The presumption may not be applied if '... there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence...' (s 61DA (1), (2)). • The presumption is rebuttable if it will conflict with what is in the best interest of the child (s 61DA(4)). • When applying the presumption the court must have regard to the criteria set out under s 65DAA: o Whether the child spending equal time would be in the best interests of the child and whether that is reasonably practicable or, o Whether an order that the child spend substantial and significant time would be in the best interests of the child and whether that is reasonably practicable. • If neither of the above tests are satisfied then the court must deliver an outcome that 'promotes the child's best interests by taking into account the principles under s 60B and 60CC. Why the Decision handed down in Goode v Goode is Important to remember!!! Goode v Goode, [2006] FamCA 1346, [65] Is the Same Legislative Pathway to be Followed in Interim Proceedings? Held, '[i]n making interim decision 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.' [81] 1. Identify competing proposals, issues in dispute and agreed or uncontested facts of each party. 2. Consider what is in the best interests of the child by: o Considering the criteria set out under s 60CC o Considering whether the presumption in s 61DA applies or is rebutted 3. If the presumption in s 61DA applies, consider the criteria in s 65DAA.

4. If neither equal time nor substantial and significant time is in the best interests of the child, then an order considering only the criteria under s 60B and 60CC is made. Family Violence Facts • M made allegation of domestic violence in her affidavit. • M '... asserted that she was subjected to physical abuse [by F] after the first few months of marriage.' [105] • In her affidavit M asserted several occasions of physical abuse by F. • F had not had an opportunity to respond to the allegations at trial. At First Instance • Collier J held, ;... in so far as domestic violence was concerned, there were allegations but he was not able to rely upon them to constitute a rebuttal of the presumption of equal shared parental responsibility because he could not be satisfied on reasonable ground that such a situation had occurred.' Legislative Pathway • In considering whether the presumption set out in s 61DA applies, the question of family violence must be considered. • If family violence is determined then the presumption will not apply (s 61DA(2)) • Then the Court must consider pursuant to s 60CC what is in the best interests of the child. Held on Appeal • At appeal it was held that, there was no risk to the children. Emphasis was placed on the fact that both parties, were seeking orders which would involve them in joint and several parental responsibility [108]. • Therefore, they may have reached a different conclusion given the ultimate criteria of best interests of the child. Further Clarification of the Legislative Pathway with Reference to MRR v GR(2010) 240 CLR 461 Facts • MRR and GR were married with one child. • They originally lived in Sydney but moved to Mt Isa for the husband to work in a mine. • Shortly after, they separated and the husband asked the wife to leave the matrimonial home. • The wife was forced to live in a caravan as there was no rental

accommodation in Mt Isa, and had to rely on income from casual employment and social security as there were no jobs for her in Mt Isa. • The wife wanted to return to Sydney to live with the child were she could live in a proper house and get work. • Parenting orders were made in the Federal Magistrates Court under s65D(1) of the Family Law Act 1975 (Cth) ordering equal shared parental responsibility and that the child spend equal time with them. Contrary to the mother’s wishes the orders required her to stay in Mt Isa. On Appeal • An appeal to the Full Court of the Family Court was dismissed. • The mother appealed to the High Court. • The High Court held that the trial judge was obliged to determine whether equal time with each parent was in the best interests of the child AND whether it was reasonably practicable. The issue of the best interests of the child is not solely determinative – what is reasonably practicable must be considered. Legislative Pathway • This further clarified the legislative pathway in determining parenting orders by noting: o Consideration of s65DAA(1)(a) obliges the court to consider whether it is in the best interests of the child to spend equal time with both parents. o The matters to be considered under s60CC go towards determining what is in the child’s best interests under s65DAA(1)(a). o Even if it is in the best interests of the child that they spend equal time with both parents (s65DAA(1)(b)) the court must nonetheless consider whether equal parenting time is feasible, or “reasonably practicable”. o It is only where both questions are answered in the affirmative that an order may be made for equal time (s65DAA(1)(c)). • M filed an application on 26 May 2006 for final orders in which she sought, inter alia, an order that "both parties have joint responsibility for the decisions concerning the long term care, welfare and development of the said children" [16] • In response F on 30 May 2006 and in his application for interim orders filed on the same day sought "that each party be jointly responsible for the long term care, welfare and development of the children of the marriage" [17]

TheAt t or neyGener al f ort heCommonweal t hv “ Kev i n andJenni f er ”[ 2003] - Kevin was a transsexual - they applied to have their marriage validated - pursuant to s113 of the marriage family act – they concluded marriage was invalid. The trial judge held the marriage was valid.

Attorney general intervened AT APPEAL BEFORE FULL COURT OF FAMILY COURT what deemed kevin to be man or woman HOWARD GOVT  said marriage is between a man and a woman CORBAT AND CORBAT – this is what issued were heavily relied upon. SEX AT BIRTH WAS THE TEST April Ashley was born a man. shift in the definition

Re Patrick [2002]  relationship between sperm donor father and the mother who gave birth to the child.       

AFTER BIRTH biological father wanted contact with child weekly. mother and partner (M&P) said father should not identify himself as a biological father. M&P there were conflicting evidence where the judge described it as intrusive and not good for the child. WHETHER BIOLOGICAL FATHER IS CONSIDERED A BIO FATHER he is a parent however the commonwealth family act (Vict) said no – nothing in that effect. sperm donors aren’t parents – the bio father still saw child every second weekend  GUEST J ACKNOWLEDGES FAMILIES COME IN ALL SHAPES AND SIZES. its very open minded.  She murdered the son and murdered herself also. She had mental health issues.  THE COUPLES WERE WOMAN...