BARRY.NILSSON. Lawyers

Published November 2010

As a consequence of the High Court’s decision in MRR v. GR [2010] HCA 4¹, there was a collective shudder amongst the family law fraternity. The High Court had held, seemingly axiomatically given the words of paragraphs 65DAA(1)(c) and (2)(e) of the Family Law Act 1975, that a court making parenting orders must consider an “equal time” order (or “substantial and significant time” order) only if it had first answered “yes” to whether or not such an order would be in a child’s best interest and whether such an order was reasonably practicable.² Legal philosophes and jurisprudes may pause to reflect upon the obvious mental gymnatics a court must undertake in order to [a] consider such an order (to answer whether it is in a child’s best interests and reasonably practical) and, if yes, then [b] consider making such an order, but that’s what the Act says. And now, that’s what the High Court says the Act says.

The difficulty, so inspiring the shudder, is that there may be a whole raft of decisions out there which were happily inspired by an opposite (or alternate) interpretation of section 65DAA; that is, once there was an order for equal shared parental responsibility, the court was mandated to consider an equal time order thereby “fashioning” a position by which such an order was reasonably practicable. Put simply, if mum wanted to relocate, but would not if the court made an “equal time” order, then an equal time order would be reasonably practicable. The High Court said that’s wrong.

In it’s collective wisdom, the Commonwealth Parliament is set to pass the Family Law Amendment (Validation of Certain Parenting Orders) Bill 2010. Assuming it passes, the Bill proposes the following:

1. To create a sub-species of order called an “affected order.” An affected order is an order which, as described above, was made after an order for equal shared parental responsibility was made, but for which the court, innocent of the instructions from the High Court, failed to properly consider reasonable practicability. Orders made by consent cannot be “affected orders.”
2. To then declare that the rights of the parties to an “affected order” remain as if the order had been made in accordance with the ruling in MRR v. GR.
3. To give an aggrieved party to “an affected order” the right to appeal an “affected order”, provided the “affected order” had not been amended in any way.
4. To give the parties to “an affected order” the opportunity to apply to amend the “affected order” without having to demonstrate a material change in circumstances as required by Rice v. Asplund.
5. For consent orders including an order for equal shared parental responsibility, the court may, but is not bound, to consider whether the proposed consent order is in the child’s best interests or reasonably practicable.
   

The question then begs – whether the publication of the Bill, or media interest in its contents, is sufficient to inspire a raft of new litigation from people who have been aggrieved at the making of “equal time” or “substantial and significant time” orders. One suspects it will.

¹As yet unreported – decision of French CJ, Gummow, Heydon, Keifel and Bell JJ – 3 March 2010
² Emphasis added – hopefully now unnecessarily.


For further information on this topic, please contact our Family Law team.