Monday, 8 March 2010

High Court- why the Mt Isa case had been wrongly decided

In an unanimous judgment of 5 members (Chief Justice French, and Justices Hayne, Gummow , Kiefel and Bell), the High Court has now released its reasons in the Mt Isa relocation case- after it had decided last year that the decision of Federal Magistrate Coker had not taken into what was "reasonably practicable" under the provision of the Family Law Act concerning section 65DAA of the Family Law Act- the provision by which the court considers whether equal time or substantial and significant time is suitable.

To recap, the parents were in court about their daughter. They had moved from Sydney to Mt Isa for the father's work. After their relationship broke down, the mother wanted to return to Sydney, and take the daughter with her. The father was adamant that he was remaining in Mt Isa for work. Federal Magistrate Coker made an equal time shared care order, which had the effect that because of the mother's lack of money that the child when staying with the mother lived in a caravan.

The mother appealed to the Full Family Court. She was unsuccessful.

The mother obtained special leave to appeal to the High Court which in December upheld her appeal, and sent the matter back to the Federal Magistrates Court, to be heard again.

The High Court considered section 65DAA of the Family Law Act. This is how the court summarised section 65DAA:

Sub-section (1) of s 65DAA is headed "Equal time" and provides:

"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." (emphasis added)

Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:

"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

Sub-section (3) explains what is meant by the phrase "substantial and significant time".

These are the conclusions the court reached about section 65DAA:
 
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent....
 
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.

And now for the comment about the caravan:
 
Had consideration been given to the question only one conclusion could have been reached, one which did not permit the making of the order. From the time that she returned to Mount Isa to the date of the hearing the mother had been required to live in a caravan park, and live there with the child on alternate weeks. Apart from the facilities being limited, it could not be said that such an environment is usually ideal for a child. The availability of alternative accommodation did not seem likely. Rental accommodation is scarce in Mount Isa and the waiting lists for it long. The mother said that she could not afford good quality accommodation in any event and the cheaper rental properties were in "rough" areas.


The mother had limited opportunities for employment in Mount Isa. When the parties lived in Sydney she had worked part-time. She had full-time opportunities available to her with her previous employer in Sydney which provided her with flexibility of hours. In Mount Isa the mother supported herself from social services payments and income from casual employment. The disparity between her income and that of the father had not been addressed by the time of the hearing. She said there was no employment in Mount Isa for someone of her experience and there were limited opportunities for flexible hours.

The evidence of the Family Consultant was that the mother was "definitely despondent" about being in Mount Isa, as her living conditions were not good and she was isolated from her family. The Family Consultant said that the mother was depressed and recommended that she attend counselling. The finding of Coker FM that "the mother's anguish and depression in being in Mount Isa ... can, to a significant degree if not in their entirety, be dealt with by ... counselling"is not supported by this evidence.

The evidence before his Honour did not permit an affirmative answer to the question in s 65DAA(1)(b). It follows that there was no power to make the orders for equal time parenting. It was necessary for his Honour to proceed to consider whether substantial and significant time spent by the child with each parent was in the child's best interests (given that equal time was not possible) and whether that was reasonably practicable. That would require consideration of the mother being resident in Sydney. But without a finding as to practicability no conclusion could be reached. (Emphasis added)

2 comments:

Anonymous said...

It cannot be argued that when a judge orders a mother to remain isolated from family, particularly when the father has family support, that he/she is ordering that the mother must expect to live a life of inequality.

Depression sets in the minute the order that she must remain is given.

Around 80% of mothers are now living a lower standard of life as a result of court orders. This breaches the legislation of the Australian Constitution and the Australian Human Rights Commission.

The isolated parent must face all hardships alone including illness, surgery and extra financial costs such as babysitting. This is often impossible and many mothers become socially reclusive.

It should be noted that the mother is usually a woman of goodwill, willing to cooperate. However, the court is allowed to rule on the presumption that she may not use her goodwill or may not have any.

Depression sets in the minute the judge makes the order that she must remain. Many mothers today are now prescribed anti-depressants because of a court ruling.

Should the depression worsen the father is given the opportunity to have her declared incapable of caring for the child/ren, apply for custody and win the case.

This happens through no fault of the mother, just the extreme expectations placed on her to endure hardship without equal family support as the father may have.

As a result of a court ruling a mother to remain, the child may suffer emotionally because the court will see that after a period of time living alone the mother is not coping and must be regarded as a parent of lesser capabilities as the father who had the decision ruled in his favour and has family support.

It is known that some mothers suffer physically from having to lift heavy obstacles and there is one case now where a mother must face spinal procedures alone, due to this expectation.

Relocation should be allowed in all cases with a strict agreement signed promising cooperation. New technology allows daily contact using "virtual visitation". Combined with "real time holiday" many normal families rely on this source with great success.

It is not necessary that one parent must make all sacrifices in this day and age. Modern technology and well planned holidays for the other parent, usually fathers, to spend quality time with the child is easily possible.

Both parents will have support and their health will be shown equal priority. This is essential if the best interests of the child is to be fully protected.

Anonymous said...

Well said anonymous. You have described my life as it is right now. I have 2 small children - 3 and 1 years old and am 3000km+ away from my family/support network. I have been through the courts to relocate and i am not allowed. In addition my husband was physically and verbally abusive to me on an ongoing basis. I was depressed before we separated, am still depressed and have been on antidepressants for over 1 year. Where is the commonsense and justice in our society? I have been punished by my husband, and now by the law, and Im the one who has to make all the life long sacrifices, while my husband has not been accountable at all. I cant believe what is happening to me. I feel powerless. I feel like I am just a number to the family law system....no one cares that they're playing around with someone's life, and someone's future. Who is going to be accountable for me? Who is taking care of me? Certainly not the federal government and my husband who are putting me through this hell!