MRR v GR

Last updated

MRR v GR
Coat of Arms of Australia.svg
Court High Court of Australia
Full case nameMRR v GR
Decided3 December 2009 (reasons published 3 March 2010)
Citation(s) [2010] HCA 4, (2010) 240  CLR  461
[2010] HCASum 4
Transcript(s) [2009] HCATrans 316
Case history
Prior action(s) [2008] FMCAfam 427 (initial application); [2009] FamCAFC 81 (appeal)
Court membership
Judge(s) sitting French CJ, Gummow, Hayne, Kiefel & Bell JJ

MRR v GR was an Australian family law case concerning who the child should live with where the father wanted to remain living in Mount Isa, Queensland while the mother wanted to return to live in Sydney, NSW. The Family Law Act 1975 makes the "best interests of the child" the paramount consideration when making a parenting order. [1] The High Court of Australia decided that a Federal Magistrate erred by failing to consider the "reasonable practicability" of a parenting order with an equal time arrangement that required the mother to live in Mount Isa. The matter was decided on 3 December 2009 with reasons subsequently published on 3 March 2010. [2] [3]

Contents

Background to the case

The appellant and respondent were the mother and father respectively of a child, referred to as "M" in court documents. [4] They had become a couple in 1991, moving into a Sydney house in 1993 and marrying in 2000. [2] [5] M was born in 2002. [2] In January 2007, the family moved to Mount Isa so that the father could take up a two-year graduate work experience position with a mining business, working as a mechanical engineer. [2]

In mid-2007, the family returned to Sydney for the father to attend a graduation awards ceremony, and shortly thereafter, in August, the mother and father separated. [2] The father returned to Mount Isa, whilst the mother and M remained living in the family home in Sydney. [2]

Parenting orders

Under Part VII, Division 6 of the Family Law Act 1975, the Family Court of Australia and the Federal Magistrates Court of Australia have the power to make parenting orders in relation to a child, on the application of a parent (or both parents) of the child, a grandparent, the child itself, or "any other person concerned with the care, welfare or development of the child". [6] Parenting orders can cover such matters as custody and contact arrangements. [7]

The best interests of the child is the paramount consideration in deciding whether to make a particular parenting order. [1] Amendments to the legislation in 1995 introduced provisions to guide courts making parenting orders, emphasising the importance of the continuation of joint parental responsibility (the sharing of decisions affecting major long-term issues) following the breakdown of parental relationships. [8] In 2006, further amendments introduced a presumption that joint parental responsibility is in the best interests of the child in question (except where there is a reasonable belief that a parent or a person living with them has engaged in child abuse or domestic violence). [8]

Also among the 2006 amendments was the introduction of s 65DAA, which provides in subsection 1 that if a court makes a parenting order providing for joint parental responsibility, it must also:

"(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." [9]

Subsection 2 goes on to provide that if the court does not make an equal time order, it must consider in the same fashion whether it is in the best interests of the child and reasonably practicable that it make an order that the child spend "substantial and significant time with each of the parents". [9]

Initial application and appeal

After returning to Mount Isa, and whilst M and her mother were living in Sydney, the father applied in the Federal Magistrates Court of Australia for parenting orders under Part VII, Division 6 of the Family Law Act 1975 . [4] Interim orders were issued providing for the return of M to Mount Isa, and custody to be shared on a "week about" basis (each parent having custody, in turn, for one week at a time), and accordingly M returned to Mount Isa in October 2007, the mother returning also to be with her. [2] As rental accommodation of acceptable quality was very scarce and expensive in Mount Isa, the mother lived in a caravan park. [2] Although the mother had full-time employment opportunities (including flexible hours to facilitate caring for M) available with her former employer in Sydney, in Mount Isa she had only casual employment available to her, supplemented by social services payments. [2]

Hearings in the Federal Magistrates Court were held on 13, 14 and 20 March 2008 before Coker FM. [4] The father indicated that he did not want to leave Mount Isa, and sought orders substantially the same as the interim ones, effecting an equal time arrangement between the parents in Mount Isa. [4] The mother proposed several alternatives, including that M live with her in Sydney and visit Mount Isa several times a year, that both parents live in Sydney with M primarily living with the mother, or that both parents live in Mount Isa with M primarily living with the mother. [4]

Coker FM delivered his judgment on 1 April 2008, making several parenting orders, including an order providing for joint parental responsibility, an order that M spend equal time with both parents, on a week about basis, and an order that, should the mother leave Mount Isa, M would live with the father. [4]

The mother appealed the decision to the Family Court of Australia, arguing, among other grounds, that Coker FM had erred by failing to consider "an arrangement whereby both parties and the child would return to live in the Sydney area", by failing to consider the mother's financial situation living in Mount Isa, as well as her emotional and physical isolation in living there. [5] A full bench of the Family Court, consisting of Finn, May and Benjamin JJ, dismissed the appeal on 5 August 2008 (though they did not publish their decision until 15 May 2009). [2]

The mother then appealed to the High Court of Australia, with a hearing held on 3 December 2009. [10] The mother was represented by Bret Walker SC. [10]

Arguments

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]

Judgment

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 

Related Research Articles

Child custody, conservatorship and guardianship describe the legal and practical relationship between a parent and the parent's child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.

Child support is an ongoing, periodic payment made by a parent for the financial benefit of a child following the end of a marriage or other similar relationship. Child maintenance is paid directly or indirectly by an obligor to an obligee for the care and support of children of a relationship that has been terminated, or in some cases never existed. Often the obligor is a non-custodial parent. The obligee is typically a custodial parent, a caregiver, a guardian.

Shared residence, joint residence, or shared parenting refers to the situation where a child of parents who have divorced or separated live with each parent at different times, such as every other week. With shared residency, both parents have parental responsibility. Shared residency does not mean that the time the child spends with each parent must be equal.

<span class="mw-page-title-main">Fathers' rights movement in the United Kingdom</span>

The fathers' rights movement in the United Kingdom consists of a large number of diverse pressure groups, ranging from charities and self-help groups to civil disobedience activists in the United Kingdom, who started to obtain wide publicity in 2003. Studies show the majority of the UK population support the need for change and protection of fathers rights to meet the responsibility through 50:50 contact. The movement's origin can be traced to 1974 when Families Need Fathers (FNF) was founded. At the local level, many activists spend much time providing support for newly separated fathers, most of whom are highly distraught. Although some have been accused of being sexist by some commentators, these groups also campaign for better treatment for excluded mothers, women in second marriages, other step-parents and grandparents – all of whom suffer discrimination in respect of contact with their (grand) child(ren).

In the United Kingdom and the nations of the European Union, parental responsibility refers to the rights and privileges which underpin the relationship between the children and the children's parents and those adults who are granted parental responsibility by either signing a 'parental responsibility agreement' with the mother or getting a 'parental responsibility order' from a court. The terminology for this area of law now includes matters dealt with as contact and residence in some states.

Child custody is a legal term regarding guardianship which is used to describe the legal and practical relationship between a parent or guardian and a child in that person's care. Child custody consists of legal custody, which is the right to make decisions about the child, and physical custody, which is the right and duty to house, provide and care for the child. Married parents normally have joint legal and physical custody of their children. Decisions about child custody typically arise in proceedings involving divorce, annulment, separation, adoption or parental death. In most jurisdictions child custody is determined in accordance with the best interests of the child standard.

In family law, contact, visitation and access are synonym terms that denotes the time that a child spends with the noncustodial parent, according to an agreed or court specified parenting schedule. The visitation term is not used in a shared parenting arrangement where the mother and father have joint physical custody.

Residence may refer to various parts of English law including taxation, immigration, and family law. This article deals exclusively with English family law. See residence in English law for disambiguation.

<span class="mw-page-title-main">Family Law Act 1975</span>

The Family Law Act 1975(Cth) is an Act of the Parliament of Australia. It has 15 parts and is the primary piece of legislation dealing with divorce, parenting arrangements between separated parents (whether married or not), property separation, and financial maintenance involving children or divorced or separated de facto partners: in Australia. It also covers family violence. It came into effect on 5 January 1976, repealing the Matrimonial Causes Act 1961, which had been largely based on fault. On the first day of its enactment, 200 applications for divorce were filed in the Melbourne registry office of the Family Court of Australia, and 80 were filed in Adelaide, while only 32 were filed in Sydney.

<span class="mw-page-title-main">Internal Security Act (Singapore)</span> Statute of the Parliament of Singapore

The Internal Security Act 1960 (ISA) of Singapore is a statute that grants the executive power to enforce preventive detention, prevent subversion, suppress organized violence against persons and property, and do other things incidental to the internal security of Singapore. The present Act was originally enacted by the Parliament of Malaysia as the Internal Security Act 1960, and extended to Singapore on 16 September 1963 when Singapore was a state of the Federation of Malaysia.

The fathers' rights movement has simultaneously evolved in many countries, advocating for shared parenting after divorce or separation, and the right of children and fathers to have close and meaningful relationships. This article provides details about the fathers' rights movement in specific countries.

<span class="mw-page-title-main">Scots family law</span>

Scots family law is the body of laws in Scotland which regulate certain aspects of adult relationships and the rights and obligations in respect of children.

<i>Gronow v Gronow</i> Judgement of the High Court of Australia

Gronow v Gronow, was a decision of the High Court of Australia.

Caban v. Mohammed, 441 U.S. 380 (1979), was a United States Supreme Court family law case which argued that a New York law, which allowed unwed mothers, but not unwed fathers, a veto over the adoption of that couple's children, was discriminatory.

Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013), was a decision of the Supreme Court of the United States that held that several sections of the Indian Child Welfare Act (ICWA) do not apply to Native American biological fathers who are not custodians of a Native American child. The court held that the procedures required by the ICWA to end parental rights do not apply when the child has never lived with the father. Additionally, the requirement to make extra efforts to preserve the Native American family also does not apply, nor is the preferred placement of the child in another Native American family required when no other party has formally sought to adopt the child.

Actions for divorce in Scotland may be brought in either the Sheriff Court or the Court of Session. In practice, it is only actions in which unusually large sums of money are in dispute, or with an international element, that are raised in the Court of Session. If, as is usual, there are no contentious issues, it is not necessary to employ a lawyer.

Surrogacy is legal in New Zealand if it is performed altruistically, where the surrogate donates her services selflessly, without any compensation beyond the coverage of expenses. Commercial surrogacy, where the surrogate is paid in addition to the coverage of expenses, is not legal. There is a lack of specific legislation and regulations dealing with surrogacy, though the recent increase in surrogacy cases has led to a number of amendments. New Zealand is party to the United Nations Convention on the Rights of the Child, and ratified it in April 1993. The primary principle of this convention is that the best interests of the child are paramount, which must then encompass all surrogacy agreements and regulations. The lack of clear surrogacy legislation in New Zealand has led to many couples engaging in reproductive tourism in order to ensure the surrogacy is successful. This has the potential to significantly impact the human rights of all of the parties involved.

<span class="mw-page-title-main">Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011</span> Australian Act of Parliament that amends the Family Law Act 1975

The Family Law Legislation Amendment Act 2011 is an Act of the Australian Parliament that amends the Family Law Act 1975. It has four parts and its main amendments involve how courts define and respond to allegations of child abuse and domestic violence.

Parenting law in Australia encompasses a number of areas of law including:

References

  1. 1 2 Family Law Act 1975 (Cth) s 60CA Child's best interests paramount consideration in making a parenting order.
  2. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 MRR v GR [2010] HCA 4 , (2010) 240 CLR 461, High Court (Australia)
  3. 1 2 MRR v GR: Case summary [2010] HCASum 4, High Court (Australia)
  4. 1 2 3 4 5 6 Rosa & Rosa [2008] FMCAfam 427 , Federal Magistrates' Court (Australia)
  5. 1 2 Rosa & Rosa [2009] FamCAFC 81 , Family Court (Full Court) (Australia)
  6. ↑ Family Law Act 1975 (Cth) s 65C Who may apply for a parenting order.
  7. ↑ Family Law Act 1975 (Cth) s 64B Meaning of parenting order and related terms.
  8. 1 2 Easteal, Patricia; Harkins, Kate (2008). "Are we there yet? An analysis of relocation judgments in light of changes to the Family Law Act". Australian Journal of Family Law. Sydney: Butterworths. 22: 259. ISSN   0817-623X.
  9. 1 2 Family Law Act 1975 (Cth) s 65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances.
  10. 1 2 3 4 5 6 7 8 9 10 11 12 13 MRR v GR [2009] HCATrans 316 (3 December 2009)
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.