High Court- why the Mt Isa case had been wrongly decided
In an unanimous judgment of 5 members (Chief Justice French, and Justices Hayne, Gummow , Kiefel and Bell), the High Court has now released its reasons in the Mt Isa relocation case– after it had decided last year that the decision of Federal Magistrate Coker had not taken into what was “reasonably practicable” under the provision of the Family Law Act concerning section 65DAA of the Family Law Act- the provision by which the court considers whether equal time or substantial and significant time is suitable.
To recap, the parents were in court about their daughter. They had moved from Sydney to Mt Isa for the father’s work. After their relationship broke down, the mother wanted to return to Sydney, and take the daughter with her. The father was adamant that he was remaining in Mt Isa for work. Federal Magistrate Coker made an equal time shared care order, which had the effect that because of the mother’s lack of money that the child when staying with the mother lived in a caravan.
The mother appealed to the Full Family Court. She was unsuccessful.
The mother obtained special leave to appeal to the High Court which in December upheld her appeal, and sent the matter back to the Federal Magistrates Court, to be heard again.
The High Court considered section 65DAA of the Family Law Act. This is how the court summarised section 65DAA:
Sub-section (1) of s 65DAA is headed “Equal time” and provides:
“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.” (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
“(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.”
Sub-section (3) explains what is meant by the phrase “substantial and significant time”.
These are the conclusions the court reached about section 65DAA:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences (“if it is”) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent….
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
And now for the comment about the caravan:
Had consideration been given to the question only one conclusion could have been reached, one which did not permit the making of the order. From the time that she returned to Mount Isa to the date of the hearing the mother had been required to live in a caravan park, and live there with the child on alternate weeks. Apart from the facilities being limited, it could not be said that such an environment is usually ideal for a child. The availability of alternative accommodation did not seem likely. Rental accommodation is scarce in Mount Isa and the waiting lists for it long. The mother said that she could not afford good quality accommodation in any event and the cheaper rental properties were in “rough” areas.
The mother had limited opportunities for employment in Mount Isa. When the parties lived in Sydney she had worked part-time. She had full-time opportunities available to her with her previous employer in Sydney which provided her with flexibility of hours. In Mount Isa the mother supported herself from social services payments and income from casual employment. The disparity between her income and that of the father had not been addressed by the time of the hearing. She said there was no employment in Mount Isa for someone of her experience and there were limited opportunities for flexible hours.
The evidence of the Family Consultant was that the mother was “definitely despondent” about being in Mount Isa, as her living conditions were not good and she was isolated from her family. The Family Consultant said that the mother was depressed and recommended that she attend counselling. The finding of Coker FM that “the mother’s anguish and depression in being in Mount Isa … can, to a significant degree if not in their entirety, be dealt with by … counselling”is not supported by this evidence.
The evidence before his Honour did not permit an affirmative answer to the question in s 65DAA(1)(b). It follows that there was no power to make the orders for equal time parenting. It was necessary for his Honour to proceed to consider whether substantial and significant time spent by the child with each parent was in the child’s best interests (given that equal time was not possible) and whether that was reasonably practicable. That would require consideration of the mother being resident in Sydney. But without a finding as to practicability no conclusion could be reached. (Emphasis added)