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How the Family Courts are interpreting the new laws post 1/7/06

Interesting key judgements that are being used currently as reference cases

There are now a number of judgements from both the Family court of Australia and the Federal Magistrates Court which have been made under the new laws and have been published.

One of the most important to date is Goode & Goode, an appeal decision by the Full Court of the Family Court of Australia. Basicly Goode and Goode sets aside "Cowling & Cowling" and with it the status quo at interim hearings.

Today, the FCA published another decision, Skelton & Donaldson  [2007] FamCA 35. The judgement is an appeal by the mother against "50/50 Shared Care" interim orders made in the Brisbane FMC 31/10/06. The appeal was dismissed despite allegations of abuse and inadequite parenting skills.

Care should be exercised by anyone reading these Judgements though. For anyone intending to argue their case in court based upon these and other case law, it is important to remember that each case is different and supposed to be argued and decided on it's merits.




For me - Shared Parenting is a Reality - Maybe it can be for you too!
The two Judgements discussed

Goode & Goode [2006] FamCA 1346 - 15/12/2006

FAMILY LAW - CHILDREN - APPEAL - INTERIM PROCEEDINGS - Discussion of the extent to which Cowling v Cowling (1998) FLC 92-801 continues to apply after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) - Discussion of principles for the conduct of interim hearings after 1 July 2006
FAMILY LAW - CHILDREN - PARENTAL RESPONSIBILITY AND INTERIM PROCEEDINGS - Section 61DA - What is the significance of the specific references to parental responsibility and interim proceedings in the Act?
FAMILY LAW - CHILDREN - SHARED PARENTAL RESPONSIBILITY - Section 65DAC - Difference between 'parental responsibility' as set out in s 61C(1) and discussed by the Full Court in B v. B: Family Law Reform Act 1995 (1997) FLC 92-755 and 'Shared Parental Responsibility' as set out in section 65DAC
FAMILY LAW - CHILDREN - PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY - Section 61DA - No presumption as to the amount of time that a child must spend with each of his or her parents
FAMILY LAW - CHILDREN - PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY - Circumstances leading to rebuttal of presumption - Order for equal shared parental responsibility or equal time, other than by application of the presumption - Where presumption is not applied or rebutted, the Court is at large to consider what arrangements will best promote the child's best interests having regard to the objects and principles in s 60B and the primary and secondary considerations in s 60CC
FAMILY LAW - CHILDREN - EQUAL TIME - SUBSTANTIAL AND SIGNIFICANT TIME - In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order
FAMILY LAW - CHILDREN - PRESUMPTION OF SHARED PARENTAL RESPONSIBILITY - The significance of untested evidence which may be capable of affecting the presumption
FAMILY LAW - CHILDREN - APPEAL - INTERIM PROCEEDINGS - Alleged error in finding that s 65DAA did not apply - Alleged error in applying Cowling v Cowling (1998) FLC 92-801 - Alleged error in findings of fact - Alleged error in failing to address aspect of application not pressed in submission - Alleged failure to give adequate reasons

Attachment
Goode & Goode



Skelton & Donaldson [2007] FamCA 35 - 30/01/2007

FAMILY LAW - APPEAL FROM FEDERAL MAGISTRATES COURT - Children - With Whom a Child Lives - Interim Orders - Interim parenting orders were made in the Federal Magistrates Court providing, inter alia, for the child of the parties to spend equal time with each parent - The Federal Magistrate concluded that the presumption of shared parental responsibility contained in the Family Law Act applied and noted that he was obliged to consider whether the child should spend equal time with both parents - In the course of his judgment, the Federal Magistrate noted that, according to Cowling & Cowling, he also had to consider whether the child was living in a well-settled environment, which he answered in the negative - On appeal, the mother argued that the Federal Magistrate's examination of whether the child was in a well-settled environment conflicted with the principles and guidelines set out by the Full Court in Goode & Goode - While the Federal Magistrate did start down a path of enquiry now shown to be at least unnecessary, the Federal Magistrate turned off that path before reaching a result that would have constituted "error" - The "error" of considering whether the child was in a well-settled environment was without consequence as the Federal Magistrate found that the child was not living in a well-settled environment, and then went on to consider the other matters required to be considered under the Act.

FAMILY LAW - CHILDREN - With Whom a Child Lives - Interim Orders - Family Violence - In her interim application, the mother alleged that the father had abused the child - The mother led evidence regarding the father's propensity to violence due to his drug use and the father's previous incarceration for armed robbery - The Federal Magistrate expressed himself not satisfied that there were reasonable grounds to believe that either parent had engaged in family violence - The mother argued that, firstly, there were reasonable grounds to believe that the father had engaged in family violence or to find that the presumption of shared responsibility was rebutted or, alternatively, that there were such risks or concerns about the father's parenting capacity that anything beyond limited contact was not in the child's best interests - It was clearly inappropriate (and concededly so by both legal representatives at the interim hearing) for the Federal Magistrate to make findings of fact in relation to serious allegations each parent made against the other - While inferences may have been drawn from the oblique responses of the father, the Federal Magistrate was not obliged to make such inferences, especially where contrary inferences were available from other evidence.

Attachment
Skelton & Donaldson

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Thank You "Secretary - SPCA"

I am only just starting to figure out how the controls of this forum work. It took a couple of goes before I realised how to include an active link.

Thank You again

For me - Shared Parenting is a Reality - Maybe it can be for you too!
Has anyone got an update on Goode and Goode. I believe that final orders hearings are set down for June... Who is taking seating bookings?

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 

I wonder if we should run a charity auction

We could ask the judge if he would let us auction the public gallery seats with the proceeds to go to charity! Both the SPCA and SRL-R seem like worthy causes!

For me - Shared Parenting is a Reality - Maybe it can be for you too!
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