A recent decision of the Full Court of the Family Court of Australia has changed the way that Courts will deal with Interim Applications for Parenting Orders taking into account the changes to Family Law that took place in July 2006.
When most Applications for Parenting Orders are filed in the Family Court of Australia or Federal Magistrates Court of Australia, there is usually an Application for Interim Orders contained with it. This is because, at the moment, it’s taking about one and a half years to two years for an Application for Parenting Orders to proceed to trial in the Family Court and about one year to one and a half years in the Federal Magistrates Court (at least in a Brisbane Registry). Steps are being taken by both Courts to try and speed that process up. But in the meantime, Interim Orders are likely to apply for a significant period of time.
Interim hearings are, by their nature, limited. There is no cross-examination of witnesses (the Court only looks at the Affidavit material provided by the parties). The hearings are limited to a maximum of two hours including reading time. Interim hearings are usually heard in the context of a number of hearings listed before a Federal Magistrate or the Judicial Registrar of the Family Court in one day.
Interim hearings are usually held about six weeks after the date of filing depending on individual circumstances. In the Family Court, a case assessment conference with a Family Consultant and a Registrar may have been undertaken and/or there may have been an appointment with a Family Consultant prior to the interim hearing.
On the 15th of December 2006, the Family Court of Australia delivered the decision of Goode & Goode FamCA1346 (15th December 2006). This was a decision on appeal from a single Judge of the Family Court of Australia in Parramatta in relation to an interim decision for two children, T (8 years of Age) and J (2 years of age). Essentially, the Court found that it should continue the existing arrangements that were in place as at the date of the interim hearing pending a final decision. Those arrangements had been that children live with the Mother and spend some time with the Father that was largely confined to the “traditional” regime of alternate weekends, school holidays and the like.
Family Law Practitioners have been using the formula that the Judge at first instance used which comes from a 1999 case called Cowling. It provided that, at an interim hearing:
a) An Order which promotes the child’s stability when living in a well-settled environment should be made unless there are strong or over-riding indications relevant to the child’s welfare the contrary???
b) In the event that the child is not living in a well-settled environment as at the day of the hearing, the Court undertake a limited examination of the relevant factors that were [then] used to determine the best interests of a child or children to ensure the result promotes the child’s best interests.
In most cases, this meant that the arrangements that had been in place since the separation would continue unless some exceptional circumstances applied, such as there being good evidence of family violence, abuse, neglect or such other similar factor.
No doubt, you will be aware that the Family Law Amendment (Shared Parental Responsibility) Act 2006 came into effect on the 1st of July 2006. Much has been said about what the amendments actually mean but, for Lawyers, the process of interpreting the amendments still underway.
In particular, the principles that were applied at an interim hearing had or should have been, up until the 15th of December, exactly the same as that applied prior to 1st of July. The decision of Goode changes the formula for use at an interim hearing.
Things that are the same about an interim hearing:
Goode’s case reminds us that interim proceedings are as they were and are unchanged. This is helpful as there are some suggestions that interim hearings would become “mini-trials” in which the substantiate Applications of parties would be heard.
However, it is still the case in interim proceedings:
- That they are limited to two hours
- That the Court can not make or should not make findings of fact in contested as a general proposition
- There will still be no cross-examination; and
- The Court will still proceed just on the Affidavit material of the parties, any documents that are tendered and the submissions of the parties or their legal representatives.
The new formula:
Goode’s case says that the “status-quo” or “stability” arguments can no longer be made. It is not good enough for a Court on an interim basis to simply make a finding based on the available evidence and the uncontested facts of certain arrangements that have taken place post-separation and merely preserve those arrangements until a final hearing. In practice, this might mean that it is more likely that the Court will make Orders for equal time on an interim basis. It is our view that it is more likely the Court will make Orders for a child to spend substantial and significant time but may be a little reluctant to Order equal time.
The Family Law Act as it is now written says that there is a presumption of equal shared parental responsibility. That presumption can usually only be rebutted if there is evidence of abuse, family violence or, in an interim case, unless the Court considers it would not be appropriate for the presumption to be applied when making that Order, or it is simply not in the best interests of the child or children.
If there is equal shared parental responsibility, then the child or children will spend either equal time with each of the parents or substantial and significant time with the person with whom the child does not live. “Substantial and significant time” means more than just alternate weekends and half school holidays but does not necessarily mean equal time.
Having taken those relevant sections into account, the Court has indicated that an interim hearing the Court should follow the following formula:
- Identify the competing proposals of all the parties
- Identifying the agreed or uncontested relevant facts (these will be given the most weight)
- Identify the issues in dispute at the interim hearing.
- Consider the matters in Section 60CC (The section deals with the best interests of the children) that are relevant and make findings about them if possible on the uncontested material (and this may not be possible)
- Deciding whether the presumption of equal shared parental responsibility applies. If it does not, finding on the available evidence that there is abuse of a child, family violence or it’s simply not appropriate to apply.
- If presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests.
- If the presumption applies and is not rebutted, considering making an Order that the child spend equal time, or substantial and significant time, with both parents.
- If equal time or substantial and significant time is not appropriate, then making such Orders are in the best interest of the child
- If the presumption of equal shared parental responsibility is rebutted and such other Orders that may be in the best interests of the child or children.
What sort of findings can the Court make on an interim basis?
It’s important to consider what sort of findings a Court can really make at an interim hearing. You will find it very unlikely that a Court will make a positive finding at an interim hearing about matters such as drug use, alcoholism or general allegations of neglect (unless really substantiated elsewhere). An example of what sort of findings the Court might make on an interim basis is provided in Goode’s case and it is as follows:
- T attends school and J attends childcare on three days a week on Monday, Thursday and Friday from 8:30am to 4:30pm when the mother works.
- Since separation, the Father has been spending time with the children each alternate weekend from Friday afternoon until Sunday afternoon and with the child T on Monday afternoon and Tuesday afternoon each week.
- The Mother proposes that T spends one half of the school holidays with the Father and J spend block periods of four (4) consecutive days with the Father including two (2) such blocks during school holidays.
- T spends one half of the July school holidays with the Father.
- The Mother lives in the former family home and the Father lives with his parents close to the school, day-care and the former family home.
- The Father has the assistance of his parents to care for the children and works in his family business with them.
- The Mother conceded that there was no issues of risk to the children, the only issue was the amount of time that the Children should spend with the Father.
Conclusion – Is this a change or not?
It will remain to be seen weather on a day to day basis the Family Court of Australia and Federal Magistrates Court will change the way the make Interim Determinations in parenting cases. While Goode’s case provides a new formula the outcome could well be exactly the same as it was under the old principals of Cowling applying the Family Law Act as it existed apply to 1 July 2006 parties coming to Family Law proceedings and Family Law practitioners will need to be aware though that if Orders are being sort that do not involve a child or children spending equal time or substantial time with both parents they will need to be a very good reason why such orders shouldn’t be made.