MRR v GR

In the High Court, the mother argued primarily that in making the order for equal time, Coker FM had failed "to observe discretely" subsection (b) of s 61DAA(1), that is, the question of whether the child spending equal time with both parents is "reasonably practicable", and had simply treated the question of whether equal time was in the best interests of the child as determinative of the matter.^[10] She further argued that Coker FM did not consider matters such as her financial and emotional well-being in Mount Isa, that they were mentioned by Coker FM but not actually addressed, instead "simply outflanked".^[10]

The mother argued that the Full Court of the Family Court, in the appeal, had failed to correct these errors by Coker FM.^[10] The Full Court had, she argued, "not [appreciated] the incompleteness, the skewed or unbalanced nature of simply taking the father's position as a given and treating the mother's position as something that would, as it were, appropriately move to meet without asking about the reasonable practicability of the mother's position."^[10] Indeed, she argued that the Full Court had brushed over Coker FM's errors by saying that "there would have been no point in his Honour's giving any consideration to a proposal whereby both parties would live in the Sydney area."^[10]

The mother also argued that order 8 – the order which provided that M live with the father should the mother leave Mount Isa – particularly illustrated "to what an extent there had been a failure to consider reasonable practicability" in relation to M spending equal time with both parents.^[10]

The father argued that Coker FM had in fact considered the reasonable practicability of an equal time arrangement, but prefaced this by noting that by the time it came to consider reasonable practicability, Coker FM had already determined that it was in the best interests of M that the parents live in proximity to each other, that M live in Mount Isa and that M spend equal time with the parents.^[10] During this argument, Justice Kiefel questioned whether the court had any statutory power to make a decision as to where the parents should live.^[10]

The father also argued that factors set out by the legislation which could be considered in relation to the question of reasonable practicability needed to be "touched on", but that "there is no necessity for a judge to direct his attention to each and every one specifically as they are set out or in the order that the legislation provides", and as such there was no error arising merely from Coker FM not expressly considering every factor.^[10]

The Court adjourned to consider the matter at 4:02 PM.^[10] On returning at 4:16 PM, the Court ordered that the mother's appeal against the orders of the Federal Magistrates Court be allowed, and that the orders be set aside, and remitted the matter to the Federal Magistrates Court for a de novo hearing.^{[2]: at para 2 [10]} On 3 March 2010 the Court published a unanimous judgment setting out the reasons for its decision,^[2] together with a summary of those reasons.^[3]

The Court discussed the legislation, identifying the question of reasonable practicability as a discrete one, and holding that "[i]t is clearly intended that the Court determine that question."^{[2]: at para 9} Indeed, the Court held that a finding that an equal time arrangement is reasonably practicable "is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind."^{[2]: at para 13} Characterising the question of reasonable practicability, the Court said that it "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."^{[2]: at para 15}

The Court went on to say that Coker FM had treated the question of whether an equal time arrangement was in M's best interests "as determinative of whether an order should be made", and that he had failed to consider reasonable practicability.^{[2]: at para 14}

In this case, the Court held, an equal time arrangement would only be possible if both parents were to live in Mount Isa, and therefore in assessing reasonable practicability Coker FM "was obliged to consider the circumstances of the parties, more particularly those of the mother".^{[2]: at para 15} If he had actually considered her circumstances, the Court held, he could only have reached the conclusion that the arrangement would not be reasonably practicable.^{[2]: at para 16} Thus, the power to make an equal time order was not available to Coker FM, and he ought to have proceeded to consider whether spending "substantial and significant time" with both parents was in M's best interests and reasonably practicable, a process which "would require consideration of the mother being resident in Sydney". The Court indicated their anticipation that the new hearing will make "the necessary determinations... on the evidence as to the practicability of such orders".^{[2]: at para 19}

Finally, the Court addressed the order that, should the mother leave Mount Isa, M would live with the father, observing that "[n]o reasons were given concerning the order". The Court speculated that it may have been intended as an interim order; it was not, the Court held, a valid parenting order, as the various statutory criteria had not been addressed.^{[2]: at para 20}