MRR v GR

MRR v GR [2010] HCA 4 (3 March 2010)

Summary

Majority: French CJ, Gummow, Hayne, Kiefell and Bell JJ (unanimous)

Decision: Appeal allowed

Parents separated shortly after moving to Mt Isa. Father had good job prospects and comfortable residence in Mt Isa. Mother had few job prospects and needed to live in a caravan park. Mother wanted to move back to Sydney. Parenting orders were made under s 65DAA of the Family Law Act 1975 (Cth) that parents spend equal time with the child and reside in Mt Isa. The High Court said that consideration of the ‘best interests of the child’ and of the ‘reasonable practicability’ of an order are both prerequisites to an order under s 65DAA. The Court found that the judge did not give adequate consideration to whether an order requiring both parents to remain in Mt Isa was ‘reasonably practicable’.

Facts

The mother and father of M moved from Sydney, where they had lived for 14 years, to Mt Isa for the purpose of a new job for the father. However 7 months after the move, the parents’ relationship broke down.

Although the father had an expectation of ongoing employment, the mother had limited job opportunities in Mt Isa compared with Sydney. Also, due to the lack of affordable rental properties in Mt Isa, the mother had to live in a caravan park following the separation.

Unsurprisingly, the father wanted to stay in Mt Isa and the mother did not.

The first instance judge ordered, pursuant to the Family Law Act 1975 (Cth) (“the Act”), that it was in the best interests of the child that both parents remain in Mt Isa in order to allow for equal shared parental responsibility as well as equal time spent with each parent.

Legislation

If a court has ordered ‘equal shared parental responsibility’ then s 65DAA requires a court to make orders as to the amount of time the child spends with each parent. An order can be made for equal time (sub-s (1)) or substantial and significant time (sub-s (2)). Section 65DAA relevantly provides:

(1) If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

(2) If:

(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

the court must:

(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

Decision

The Court found that the Judge had failed to give adequate consideration to s 65DAA(1)(b), namely that an order of equal time was ‘reasonably practicable’.

The two criteria of s 65DAA(1) and (2), that is, ‘best interests of the child’ and ‘reasonable practicability’ of the order are both necessary preconditions to the exercise of power under s 65DAA. The Court found (at [14):

[The Judge at first instance] treated the answer to the firstmentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made. His Honour did not consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances.

This was found to be so, notwithstanding the stated paramount importance in the Act of the ‘best interests of the child’, notably in ss 60B(1), 60CA and 61DA, as well as in s 65DAA itself.

Their Honours concluded that (at [16]):

Had consideration been given to the question [of reasonable practicability] only one conclusion could have been reached, one which did not permit the making of the order.

Accordingly, the appeal was allowed, the parenting order set aside and the matter remitted for rehearing.

Comment

The Court tries to put this case as a mere illustration that a court must have regard to the ‘reasonable practicability’ of a ‘time spent’ order. But really this case goes to the definition of ‘reasonable practicability’. In reality there is no doubt that the initial Judge believed that the order was reasonably practicable. It wouldn’t have been ordered otherwise. The point of this case is that the HCA found that the order was not ‘reasonable practicability’ within the meaning of s 65DAA.

It would have been helpful if the Court had more clearly confessed this as the objective of the decision, so that it could provide a better indication of what factors will be relevant to the ‘reasonable practicability’ of a ‘time spent’ order. From this case we can only infer the relevance of a few salient characteristics of this family’s situation, for example, that one parent’s comfortable position will not prevail over the other’s when there are better opportunities in another town. It also seems that one cannot always regard the status quo, prior to separation, as determinative as to what will be ‘reasonably practicable’ for the purposes of the Act.