High Court of Australia overturns Family Court decision

Parenting order to work out what's best for a child in an interstate child custody battle

The long term effects of divorce on children can be significant. One of the most contentious issues is child custody. This is especially important when parents wish to live in different cities, states or even countries. Courts are now required to make decisions in the best interest of a CHILD rather than their parents. Equal access for parents may not be in the best interests of a child if it is not reasonably practical. This case highlights how to allow equal access a mother needed to live in a caravan in Mt Isa and rely on social security. This was not seen to be in the child's best interest.

This recent decision in the High Court considered new provisions inserted into the Family Law Act 1975 (Cth) in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) explains:

Section 60CA requires that the Court must regard the best interests of the child as the paramount consideration when deciding to make the particular parenting order in relation to the child. Considerations necessarily taken into account by the Court in determining what is the child’s best interests are listed in Section 60CC.

Section 65D(1) provides that the Court may make a parenting order it thinks proper but subject to the provisions of Section 61DA and Section 65DAB.

In this recent court case The High Court considered Section 65DAA which provides that:
"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."

Section 65DAA(5) includes further items the Court must have regard to in deciding whether or not an order under Sub-Section(1) is “reasonably practicable”.  

Appeal to the High Court over child custody parenting order

The High Court considered this appeal following a decision in the Federal Magistrate’s Court on 1 April 2008.  The mother appealed the Federal Magistrate’s decision to the Full Family Court which dismissed her appeal by reasons for decision published 15 May 2009.  Special appeal was granted to the wife to appeal the High Court with orders pronounced on 3 December 2009 but reasons published 3 March 2010. 

The High Court overturned the decisions of the Full Court of the Family Court and that of the Federal Magistrate’s Court and remitted the matter for hearing “de novo” i.e. a complete re-hearing.

The facts: child custody between Mt Isa and Sydney

The parents lived in Sydney from 1993 to 2007.  In January 2007 they moved to Mount Isa to facilitate the father gaining work experience as a graduate mechanical engineer.  This was for an initial period for 2 years but by the time of the hearing in the Federal Magistrate’s Court and orders on 1 April 2008 it looked like the contract would be extended. 

The child was born in August 2002.  The parents separated in August 2007. 

Following separation the mother returned to Sydney to live with her father with the child.  Following the orders of the Federal Magistrate (which required the mother to live in Mt Isa to facilitate equal and shared parenting orders) the mother returned to Mt Isa.

The Parenting Orders made by the Federal Magistrate were that the child live with each parent on a ‘week about’ basis.  The Federal Magistrate had to determine two difficult and contradictory applications.  The first was that the mother live in Sydney with the child and the second was that the father live in Mt Isa and continue his work.

In considering the sections of 65DAA the High Court noted that the terms of this section are expressed in imperative terms.  The Court noted that it only when both questions are answered in the affirmative that consideration can be given under paragraph (C) for the making of an order.

The High Court did not consider the Federal Magistrate had considered the circumstances of the parties, particularly the circumstances of the mother in determining whether equal time parenting was reasonably practical.  The mother, in Mt Isa, was required to live in a caravan park and lived with child on alternate weeks.  Rental accommodation was scarce in Mt Isa and the mother could not afford good quality accommodation and was forced to be supported on social security benefits.

In Sydney the mother had both part-time and full-time opportunities with her previous employer which also allowed flexible hours.  In Mt Isa there was no reasonable casual or part-time employment opportunities for the mother.  The disparity of the incomes between the mother and the father were not addressed in the decision by the Federal Magistrate. 

The Family Consultant acknowledged that the mother was “definitely despondent”.  The Federal Magistrate made a finding that her anguish and depression could be dealt with by counselling – but this was found not to be supported on the evidence.

The High Court found that in the absence of a finding that an equal and shared parenting was “reasonably practical” the Court could not proceed to Subsection 3 and make an order for a child to spend equal time with each parent.

Accordingly the High Court overruled the lower Court’s decisions and remitted the matter for a fresh hearing.

Comment from Mark Streeter - Sydney Family Law Lawyer

This is an important decision in that it is the highest Court of the land considering the 2006 amendments, particularly in respect of the increased focus on “equal and shared” or alternatively substantial and significant time with each parent.

Each Family Law case is specifically limited to its own particular facts, however this decision of the High Court provides useful guidance on the importance on strict interpretation of the Family Law Act and ensuring that factual findings are made at each stage in the process to support the necessary orders under the subsections of the Act.

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