Wiltshire News

Friday, 9 September 2011

In December 2010 the Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Act 2010 came into effect.

These amendments clarified parenting issues, particularly in relation to shared parental responsibility and equal time orders, whilst confirming the High Court decision of MRR v GR [2010] HCA 4 (“MRR v GR”).

Prior to the amendments there was some confusion with respect to the interpretation of section 65DAA of the Family Law Act 1975 which states that, where parenting orders provide for equal shared parental responsibility, the court must then consider two things:

• If an equal time parenting order would be in a child’s best interests; and

• If an equal time parenting order would be reasonably practicable.

The predominant issue surrounding this section was what was considered to be “reasonably practicable”. For example, would it be reasonably practicable to order a parent to live in a remote community with limited employment opportunities and accommodation, so that both parents could have equal time with their child?

This issue was highlighted in the High Court case of MRR v GR. The facts of that case were as follows:

• The appellant and respondent were the parents of a child, “M”.

• The couple married in 2000 before M was born in 2002.

• In early 2007 the couple relocated to Mt Isa so the father could commence a graduate position as a chemical engineer at the mines.

• In mid-2007 the couple separated and the mother returned to Sydney with M.

• The father applied to the Federal Magistrates Court for parenting orders. Interim Orders were made which resulted in the mother and M returning to Mt Isa so that M would spend time with both parents on a week about basis.

• In Mt Isa the mother had fewer employment opportunities, working only on a part time basis and living in a caravan. This would not have been the case if she had been permitted to return to Sydney with M, where she had full-time employment opportunities, better accommodation and the support of her family and friends.

• The matter went to trial where Federal Magistrate Coker made final orders for M to spend equal time with both parents on a week about basis. He further ordered that if the mother left Mt Isa, the father would have sole custody of M.

• The mother appealed the matter to the Family Court of Australia where the appeal was dismissed. She then appealed to the High Court.

On appeal at the High Court, the court ordered that the matter be relisted in the Federal Magistrates Court for a de novo (fresh) hearing.

The court determined Federal Magistrate Coker had misinterpreted the Act and erred in his decision because he had ‘shaped’ the order in a way which he considered was reasonably practicable, despite the fact that the mother had fewer employment opportunities in Mt Isa and had no option other than to live in a caravan.

The decision in this case indicated that there may have been a number of other cases, since the enactment of section 65DAA, which were arguably determined by shaping or forcing a reasonably practicable situation in order for both parents to spend equal time with their child.

Parliament’s response to this issue was the Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Act 2010, which includes the following key changes:

• The creation of “affected orders”. Affected orders are contested orders which have provided for equal shared parental responsibility but have failed to consider the reasonable practicability of both parents spending equal time with the child or spending substantial time with each of the parents.

• The rights of any parties to an affected order are to be treated as if the court or Registrar who made the orders considered the reasonable practicability of both parents spending equal time with the child or spending substantial time with each of the parents.

• Parties to an affected order may appeal or apply for a review on the ground that the court or Registrar failed to consider whether the order was reasonably practicable.

• If parties have applied to the court for consent orders where there is equal shared parental responsibility, the court may consider whether the order is in the best interests of the child or is reasonably practicable.

Effectively, the amendments do two things:

• Affirm parenting orders which may have otherwise been defective because the court failed to consider the reasonable practicability of an order; and

• Clarifies the rights of parties that have been affected by decisions similar to Federal Magistrate Coker’s decision in MRR v GR.

If you believe your parenting matter may fall within the definition of an “affected order”, the team at Wiltshire Lawyers is more than happy to sit down with you and discuss your options.


Hollie Smith
Trainee Family Lawyer
Wiltshire Lawyers

Liability limited by a scheme approved under Professional Standards legislation.

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