Relocation: High Court rules that parenting orders must be practical

by Peter Magee on October 25, 2010

Peter Magee
A recent High Court decision about which parent a child should live and spend time with has caused some furore in the press (SMH 14/09/10).

When the Family Law Act was amended in 2006 to introduce changes to the laws in relation to parenting, many parents misunderstood those so-called “shared care” laws as meaning that children would now have to spend equal time with both parents. That is not the case. There is no presumption in favour of “shared care” or equal time. Rather, the law only requires the Court to consider equal time or that the child lives with one parent and spends substantial and significant time with the other parent in certain circumstances.

In the case of Rosa v Rosa, the High Court has clarified what are the circumstances in which the Court must consider making an order for equal or substantial and significant time. According to Rosa’s case, the Court must only consider making either an equal time or substantial and significant time order if the Court thinks that such an order is both in the child’s best interests and reasonably practicable.

In Rosa’s case, a mother had been forced to stay living in a caravan park in Mt Isa (where the father worked) because the lower court had determined that it was in the child’s best interests to spend equal time with both parents. Therefore, the mother could not leave Mt Isa with the child. The lower court did not ask itself whether it was reasonably practicable to force the mother to remain living in Mt Isa in a caravan park (as no other appropriate accommodation was available or affordable for her in Mt Isa), in order that the child could spend equal time with both parents.

On appeal, the High Court said that the court must not only consider whether such an order would be in the child’s best interests. It must also consider whether such an order would be reasonably practicable taking into account the reality of the parents’ circumstances, such as the availability of affordable and appropriate housing, employment and family support, as well as the impact of the proposed orders on the emotional and mental health and wellbeing of each of the parents.
Forcing the mother to remain living in Mt Isa was not practicable and the lower court had been in error by failing to consider the reality of the mother’s situation when making the equal time order. Ultimately, the mother was permitted to leave Mt Isa with the child and the father was ordered to spend substantial periods of time with the child during school holidays.

Relocation cases, where one parent is seeking to move with the child away from the other parent (either within Australia or overseas), are always very difficult, as it is almost impossible for the court to satisfy both of the parties. However, in light of Rosa’s case, it is now clear that when deciding such cases the court must consider not only whether the orders it proposes to make are in the child’s best interests, but also whether they are reasonably practicable, taking into account the reality of both parents’ circumstances. Whether this decision means that relocation applications are more likely to be successful remains to be seen.

Rosa’s case has been reported in the press as essentially calling into question the validity of thousands of existing parenting orders, because, in other cases, the court may not have considered whether the orders were reasonably practicable when making the orders it considered were in the child’s best interests. It may make for good press, to sensationally suggest that, as a result of this case, thousands of Family Court parenting orders could be invalid. However, I would be most surprised if the government and the courts would, in fact, allow widespread disruption to settled parenting arrangements in light of one High Court decision. Indeed, the government has already suggested that, if necessary, it will introduce laws to confirm the validity of existing parenting orders to avoid disruption to existing parenting arrangements and confusion among parents.

If you need help to negotiate or apply to modify a parenting order, talk to a family law solicitor at Armstrong Legal.

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