A Goode thing Cowling is dead?

By Christopher Dimock

On 15 December 2006 the Full Court of the Family Court of Australia delivered Judgment in the case of Goode and Goode [1].

The Judgment will force Family Law practitioners to change their approach to interim applications for parenting orders in both the Family Court of Australia and the Federal Magistrates Court.

Since a previous decision of the Full Court in 1998[2], the “status quo” has been a significant factor in deciding interim parenting cases. The decision in Cowling was encapsulated in the following paragraph:
    “…where the evidence clearly establishes that, at the date of hearing, the child is living in an environment in which he or she is well settled, the child's stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child's welfare to the contrary. Such indications would include but are not limited to convincing proof that the child's welfare would be really endangered by his/her remaining in that environment.”
And so it was, that “continuing the status quo” became a popular mantra for legal practitioners who sought to maintain existing arrangements for residence and/or contact, pending a final hearing.

The concepts of “residence” and “contact” were of course discarded when the Family Law (Amendment) Act came into force on 1 July 2006.

Now, in Goode and Goode, the Full Court has set a new benchmark for legal practitioners in their approach to interim parenting cases. It is important that all lawyers who appear in interim parenting proceedings under the Family Law Act(1975) (“the Act”) take the time to read this Judgment. The key points to emerge from this authority are as follows:
  • The presumption that an order for equal shared parental responsibility will be in the child’s best interests still applies in interim cases, even if neither party asks for such an order.
  • Where that presumption is applied, the Court must still, at an interim hearing, consider the practicality of the child spending equal time with each of the parents under Section 65AA of the Act.
  • Even where there is a “status quo”, or well-settled environment, this will not necessarily be continued pending a final hearing, if it is inconsistent with both parents having a meaningful involvement in the child’s life, to the maximum extent consistent with the child’s best interests.
The Full Court calls into question the applicability of the above passage from Cowling following the recent changes to the Act. The judgment of Goode makes it clear that no longer are the best interests of the child necessarily met by stability, but rather the best interests of the child are to be assessed, based on a consideration of the matters in Section 65DAA of the Act.

In summary, the importance of maintaining stability in a child’s life, by maintaining a well-settled arrangement pending the final hearing, will simply be one of a number of factors that the Court will be required to consider under Section 65CC(3) of the Act. However, even though the scope of inquiry in interim proceedings will be significantly curtailed, and generally without any cross-examination of the parties, a decision must still be arrived at only after consideration of the relevant matters in the Act.

Practitioners who run an interim parenting case must therefore be prepared to guide the Court through the legislative pathway that is conveniently set out in paragraph 82 of the Judgment. Practitioners may well find that one outcome of the decision in Goode is that it will be more difficult to predict the outcome of an interim hearing than previously.

1. (2006) FLC 93 - 286
2. Cowling and Cowling(1998) FLC 92 - 801


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