MRR v GR [2010] HCA 4
The Case
This was a High Court case that concerned parenting arrangements for an 8 year old child. The parties had been living in Mount Isa, Queensland, before and after their separation. They had originally moved there because the father obtained employment in the mining industry as an engineer. Largely due to his employment, the father wished to remain in Mount Isa, while the mother preferred to move to Sydney. She gave evidence that she could seek full-time employment in Sydney, while her employment opportunities in Mount Isa were limited. In fact, while in Mount Isa, she received government support payments and lived in a caravan park with the child. The Family Report in evidence stated that the mother was “despondent” about remaining in Mount Isa.
Lower Court rulings
The lower Courts had made orders that: –
- The parties were to equally share parental responsibility for the child.
- The parties would spend equal time with the child and, to give effect to this, it is presumed both parents would remain living in Mount Isa.
The mother’s appeal and issues
The Mother appealed to the Family Court of Australia and was unsuccessful. On her second and final attempt, the Mother appealed to the High Court and argued that: –
- The Court had improperly applied legislation considering equal & substantial and significant time.
- The Court should not have made an equal time order, given the mother’s evidence that she was unhappy in Mount Isa, and that her employment opportunities there were scarce.
Consideration of “reasonably practicable”
The provision allegedly misapplied was section 65DAA, namely: –
FAMILY LAW ACT 1975 – SECT 65DAA
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) Subject to subsection (6), 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.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the courtwill regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable
…..
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child‘s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents‘ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents‘ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The mother’s main critique of the decision made was that the Court did not consider the question of ‘practicality’ as contemplated by the legislation above. While the Court held that it would be in the best interests of the child to spend equal time with both parents (assuming the parents remained living in Mount Isa), it did not consider the question of reasonable practicality.
Not considering the reality of the mother’s situation
As the High Court said at [15], section 65DAA is concerned with the “reality of the situation of the parents and the child, not whether it is desirable that the child spend equal time with each parent”. Given this, the Court needed to have considered a few factors (in evidence) in assessing the question of whether equal time would be reasonably practicable: –
- The mother’s living arrangements. She was living with the child in a caravan park with the child, in the Court’s view “it could not be said that such an environment is usually ideal for a child”.
- The mother’s ability to obtain other accomodation. Mount Isa did not have other rental accomodation available, and/or it was generally scarce.
- The mother’s financial situation. She was receiving government support payments as she could not work while in Mount Isa, given employment opportunities were limited. However, she gave evidence that if she were able to move to Sydney, she could obtain a more flexible employment with a previous employer.
- The mother’s psychological state. The Family Report revealed that the mother was “definitely despondent” about living in Mount Isa as her living conditions were not good and she was isolated from her family. The Family Consultant opined the mother was depressed and that she should receive counselling. The lower Court’s treatment of this evidence, namely that the “mother’s anguish and depression caused by living in Mount Isa could be significantly, if not entirely be dealt with by counselling”, was not supported by evidence.
As a result of not considering the above evidence in light of the issue of “reasonable practicality”, the lower Courts committed legal error. The High Court set aside the parenting orders and ordered a re-hearing of the matter.
Significance
In this case, the mother was essentially forced to remain in an isolated location in a caravan park, without family support and the ability to seek gainful employment. This outcome had come about because it was held desirable for the child to spend equal time with both parents, only possible if the parties remained in the same locality. What the Court should have done is consider the reality of the mother’s situation. Perhaps it would have found, then, that neither equal or substantial and significant time was reasonably practicable given the Mother’s desire to relocate to Sydney. It then would have likely considered, at large, which parenting orders would best serve the child’s best interests.
This High Court case affirmed that while it desirable for a child to spend time with equal (or substantial and significant time) with both parents, this is not the only consideration. A Court must consider the reasonable practicality of these time arrangements after considering the reality of the parties’ situations Reality testing, then, is a feature of the making of parenting orders. This is especially more important, as in this case, where the residential arrangements proposed place significant distance between the parties, making equal time or substantial significant time highly impractical.
