Monday, 12 October 2009

High Court gives special leave in relocation case

Justices Hayne and Kiefel have given special leave to the mother to appeal to the High Court against the refusal of the Full Court of the Family Court to overturn a decision of Federal Magistrate Coker which provided that she and the father were to have equal time of their daughter. Federal Magistrate Coker's decision was to reject the mother's application to return to Sydney with the child. The result was that the mother was unable to work and lived in Mt Isa in a caravan.

Caroline Overington in the Australian was particularly critical of the earlier decisions.

Special leave is required to appeal to the High Court: appeals are not a matter of right. Special leave is rarely given.

Justice Hayne commented that the case seemed to be one of general application as to what was meant by "reasonable practicability" contained in s.65DAA(5) of the Family Law Act, the section that deals with shared care. His Honour commented:

But a complaint made in this matter is that the Act required consideration of
reasonable practicability in circumstances where the parents of the child,
putting it as neutrally as I can, appeared likely to be living at a distance,
and reasonable practicability then injects questions about, does that mean
somebody has to move, or does it mean nobody has to move? Where does all that
take us? It seems at least at first blush to present issues of a kind that this
Court should look at...


Justice Hayne stated that the mother's case at first dealt with "reasonable practicality" and:

There are then some related issues about what might be called the process of
assessment, namely whether best interests is a matter to be considered separately from reasonable practicability, whether best interests are matters that fall within section 60CC(3)(m), any other fact or circumstance, but the central issue that [the wife] would seek to tender is this issue concerning the application of reasonable practicability.


His Honour further stated in response to the counsel for the father:

I suspect, but do not know, that that comes close to a central part of the
argument that is advanced against you, that practicability does encompass such
issues [ that the wife has to remain in Mt Isa and is on welfare] and that
it is that kind of issue which is presented by the legislation.


The mother argued that s.65DAA(1)(b), which required a consideration of whether spending equal time was reasonably practical, was a mandatory provision, which the Federal Magistrate was required but did not adequately consider.

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