Nicola Berkovic | October 03, 2009
THE High Court has agreed to hear an appeal into whether it was "reasonably practicable" to force a mother to stay in a remote mining town in western Queensland so her ex-husband could have equal custody of their daughter.
The couple lived in Sydney for seven years before moving to the town in January 2007.
They separated six months later but the Federal Magistrates Court, in a decision upheld on appeal by the full Family Court, ruled the mother could not leave the mining town with her daughter because the child's father did not want to quit his job and move back to Sydney.
The High Court yesterday agreed to hear the mother's appeal against the shared parenting arrangement.
Arguing on behalf of the father, barrister Graeme Page SC said the High Court should not hear the appeal because the lower courts had already decided equal shared parenting was in the best interests of the child. This was because if the mother moved away with her daughter, she would not have promoted the child's relationship with the father.
However, the mother's barrister, Louise Goodchild, said the lower courts had failed to consider the "real nuts and bolts" of the shared parenting order, which had the effect of forcing the mother to live on welfare in a remote town where she could not find a job.
Under the Howard government's shared parenting laws, introduced in 2006, the Family Court must presume a child's best interests are served by shared parental responsibility, unless there is violence. The court must also consider whether equal or "substantial and significant" time with each parent is reasonably practicable.
In granting leave to appeal, judge Kenneth Hayne said the High Court would consider whether the trial magistrate, John Coker, properly turned his mind to whether equal parenting was reasonably practicable in this case.
Justice Hayne said the law was grey in this area and the case raised important issues about what was reasonably practicable in circumstances where it was likely a child would be "living at a distance" from one parent.
"Does that mean someone should have to move? Does no one have to move?" he asked.
"It seems at first blush to be the sorts of questions this court should look at."
Justice Hayne said the case would have implications not only for relocation cases but other cases in which a court was trying to determine whether a shared parenting order was reasonably practicable or not.
The Howard government's shared parenting laws have been criticised for making it harder for women to relocate after divorce and for putting children into damaging shared parenting arrangements. The laws are now under review.
Men's groups fear the shared parenting laws, which have given divorced fathers more time with their children, will now be rolled back. Justice Hayne urged Legal Aid to pay for the mother to be represented by a senior barrister so the issues could be properly ventilated in the High Court.