Sharing Time in Relocation Cases

Date: Jun 06, 2011
Document Type: Newsletter

When the Family Law Act 1975 (Cth) was amended in 2006, it introduced the concepts of “equal shared parental responsibility”, “equal time” and “substantial and significant time”. Until the High Court of Australia decision in MRR v GR, [2010] HCA 4, the relationship between these concepts was unclear in relocation cases.

One fundamental principle of the legislation is that the court must consider the best interests of children as being paramount when deciding a parenting order. The best interests of children are met in part by ensuring that they have the benefit of having both of their parents meaningfully involved in their lives.

The legislation sets out the requirements the court must follow when making any parenting order. The first step is for the court to start off by presuming that it is in the best interests of a child for each parent to have equal shared parental responsibility. This general presumption does not apply in some situations – for example, situations involving family violence, or where there is evidence that the child’s best interests would not be served by equal shared parental responsibility. In these situations, the court must then broadly consider what arrangements will best promote the child’s best interests in the particular circumstances of the case.

Where the general presumption of equal shared parental responsibility does apply, the court must consider whether or not it should make an order for the child to spend equal time with each parent provided it is consistent with the best interests of the child and is reasonably practical. If equal time is not in the best interests of the child and reasonably practical, the court must consider making an order for the child to spend substantial and significant time with each parent, once again on the basis of a consideration of the child’s best interests and reasonable practicality.

The High Court of Australia considered the application of these principles in a relocation case. In MRR v GR, [2010] HCA 4, the parties relocated with their five year old daughter from Sydney to the mining town of Mt Isa in western Queensland. The parties separated later that year and the mother initially returned to Sydney with the child.

The father applied to the Federal Magistrate’s Court. The mother proposed that she reside in Sydney with the child. However, she conceded that she would be prepared to remain in Mt Isa should the child not be permitted to relocate with her. The father indicated that he would not relocate from Mt Isa. The Federal Magistrate found that the presumption of equal shared parental responsibility applied. He then he went on to consider whether equal time with each parent would be in the child’s best interests and reasonably practical. The Federal Magistrate concluded that because the father refused to move from Mt Isa and the mother had conceded that she would remain there with the child if necessary, both parties would be in the same locality. It followed that it would be reasonably practical for an equal time order to be made.

Following this court order, the husband remained in the Mt Isa home. The mother was unemployed and lived in a Mt Isa caravan park. The child moved back and forward between them. The mother appealed, first to the Full Court of the Family Court where she was unsuccessful, and ultimately to the High Court of Australia.

The High Court rejected the approach taken by the magistrate. The error made by the Federal Magistrate was that he treated the answer to whether equal time was in the best interests of the child as completely determinative of whether an order should be made. When considering equal time and, alternatively, substantial and significant time, the questions of the best interests of the child and reasonable practicality are both important considerations. Only where each question is answered in the affirmative can the court consider making an order for equal time or substantial and significant time. The magistrate had failed to consider whether such an order was reasonably practical in the circumstances and should have considered matters such as employment, accommodation, family support, the mother’s emotional state and the disparity between the income of the parties.

The High Court found that had the magistrate properly assessed these other matters, the magistrate would have concluded that an order for equal time could not be made. Instead the magistrate should have considered whether spending “substantial and significant time” with both parents was in the child’s best interests and reasonably practicable. This process would require consideration of the mother being resident in Sydney.

This decision may have the effect of facilitating the relocation of children.

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