As a consequence of the High Court's decision in MRR v.
GR  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:
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
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.
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.
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.
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
1. As yet unreported – decision of French CJ,
Gummow, Heydon, Keifel and Bell JJ – 3 March
2. Emphasis added – hopefully now
For further information on this topic, please contact Adam
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