The Full Court set out the legal principles applicable to interim parenting proceedings in Goode & Goode.
Goode & Goode was an appeal by the Father from the interim orders made by Judge Collier, which provided that the children live with the Mother and spend time with the Father every alternate weekend (plus every Monday for the older child).
The relevant background to the matter was as follows. The Mother and Father were married in 1996 and separated on a final basis in 2006. At separation, there were two children of the marriage, aged 8 and 2 years old. After separation, the parties reached an agreement whereby the Father would spend time with the children each alternate weekend.
Judge Collier's decision placed reliance on the current agreeded regime, and sought to preserve the status quo and ensure stability for the children.
On appeal, the Court held that Judge Collier's reliance on the current regime was misplaced and that his honour had failed to apply the applicable provisions of the Family Law Act.
The Legislative Pathway
The Court in Goode & Goode set down the following legislative pathway which should be followed in interim parenting proceedings:
1. Best Interests
The court must consider the child's best interests when making any order, and the child’s best interests should be ascertained with reference to the primary and additional considerations outlined in section 60CC.
2. Presumption of Equal Shared Parental Responsibility
The court should apply a presumption that each parent should have equal shared parental responsibility unless the presumption is rebutted on the grounds of family violence, child abuse or otherwise on the facts of the specific case.
3. Equal Time/Substantial and Significant Time
If the presumption is applied, the court must consider whether equal time or substantial and significant time is in the child’s best interests and whether it is reasonably practicable in the circumstances.
Nothwithstanding the above, the court should also have regard to the suitability of equal time or substantial and significant time, if one of the parties has sought.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.