MRR v GR [2009] HCATrans 316 (3 December 2009)

Last Updated: 3 December 2009

[2009] HCATrans 316

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B44 of 2009

B e t w e e n -

MRR

Appellant

and

GR

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 DECEMBER 2009, AT 2.16 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MS L.A.R. GOODCHILD, for the appellant. (instructed by Neisha Shepherd Solicitor)

MR G.K.W. PAGE, SC: If the Court pleases, I appear with my learned friend, MR T.D. BETTS, for the respondent. (instructed by Rod Madsen)

FRENCH CJ: Yes, Mr Walker.

MR WALKER: Your Honours, the point in our case arises from the relationship between several of the divisions, principally six, with the other divisions of Part VII of the Family Law Act, Part VII relating to children. It arises in the context of a case where the following can be set as the platform. There was by concession no attempted rebuttal, indeed acceptance as appropriate, of the presumption, as it is called, of equal shared parental responsibility – a statutory matter to which I will be going when I come to the statute almost immediately.

There was consideration, as then required by the statute, of what length of time – I should say also quality of time but particularly what length of time – there being a primary recourse required by the Act to consideration of equal time for parents for whom equal shared parental responsibility was the governing regime.

There was, we submit, an error at first instance not corrected, wrongly not corrected, on appeal by a failure to observe discretely, as required by the amended form of the provisions, what I have called in our written submissions the reasonable practicability requirement, which I will explain by reference to the statutory provisions to which I will come.

In the upshot it meant that a mother and father, parents of the child, are left with a regime by way of parenting orders that conclude with the order 8 that your Honours will see in the appeal book at page 483, line 40. Your Honours will not have seen much attention paid to the justification for that order at first instance or in the Full Court. There is none, but it is a particularly stark, indeed, drastic way of underlining what we submit were the unexplored and inappropriate assumptions that would not have been left unexplored and would not have been left so inappropriate had the reasonable practicability requirement been properly observed.

Order 8, as your Honours will see, posited on the fact that the mother was prepared to live in Mount Isa if she had to in order to be with her child, but the father was not prepared to leave his job in Mount Isa even if that meant being separated from his child, was resolved as the latter being treated as a given tested and unexplored – I do not mean as to sincerity, I mean as to practicability in relation to equal time – with the result that though these are parents with equal shared parental responsibility, not by bare presumption but by a concession to that effect, and though there be in the best interests of the child equal time determined with both parents, under paragraph 8, if the mother is not living in Mount Isa, then the child lives with the father and the mother spends time with and communicates with the child at all reasonable times as may be able to be agreed and facilitated.

In our submission, on a number of different levels, including the practicability requirements which involve communication questions, that order really demonstrates the very significant yawning gap in the considerations of the learned federal magistrate and of the failure to correct that in the Full Court.

Now, your Honours, I must take you straight to the statutory scheme. We think there is very little dividing the parties as to either what the relevant provisions are or what they mean, but it may be that at the end there is one twist that separates us. Part VII has right at the beginning in Division 1, section 60B which sets out what are called objects and what are called the principles underlying those objects. In those, I would draw to attention in particular the familiar, indeed one can say in these provisions the pervasive, explicit expression of “the best interests of children” as being a guiding or paramount principle. You see it in section 60B(1) in the chapeau. Subsection (1)(a) is of particular moment for this case. The objects:

are to ensure that the best interests of children are met by:

(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives –

and then, as it were, full circle:

to the maximum extent consistent with the best interests of the child -

In subsection (2):

The principles underlying those objects –

Again, one has the emphatic linguistic gesture concerning best interest –

(except when it is or would be contrary to a child’s best interests) -

One of the principles:

(a) children have the right to know and be cared for by both their parents . . .

(b) children have a right to spend time on a regular basis with . . . both their parents –

et cetera.

I now take your Honours, still in Division 1, to section 60CA. Parenting orders are the kind of orders, as we will see, that were made in this case. In relation to parenting orders there is a command to the court, like the provisions of 65DAA which are at the heart of our argument, this is a legislative provision directed in terms to how a court conducts itself. It says:

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

One sees that that is a provision in a subdivision which the next section, section 60CB, goes on to apply:

to any proceedings under this Part in which the best interests of a child are the paramount consideration.

That will be caught up in due course in Division 6. Section 60CC is a very important provision in the case, as your Honours will have seen from the written submissions and the form of expression, to put it in one sense, of the learned federal magistrate. It stipulates, “How a court determines what is in a child’s best interests” and it involves mandatory considerations in accordance with what are called the “Primary considerations” and the “Additional considerations” respectively dealt with in subsections (2) and (3) and there is some repetition or overlap, obviously, and for obvious reasons between some of those and the objects and principles to which I have already referred.

In relation to the “Additional considerations” could we simply flag – we will come back to them in the argument – in particular, the provisions of paragraph (c), paragraph (d)(i), paragraph (e). I do not suggest others are irrelevant but those are of particular significance in this case, and, of course, there is the catchall or residuary category, paragraph (m).

Could I then take your Honours to section 61B. This is in Division 2 which concerns parental responsibility. Section 61B defines parental responsibility in an unremarkable way and refers off to law. Section 61C stipulates that each of a minor’s parents has parental responsibility and subsection (2) that that is unaffected by the alteration of the parent’s relationship. Section 61D imports the relation between a parenting order and parental responsibility and makes the parenting order that which defines the extent of parental responsibility conferred by it. It leaves unaffected other affects of parental responsibility in subsection (2).

An important section for our case, though not contested in its application at all, was section 61DA. Again, it is a provision that is directed in terms quite explicitly to the process of exercising judicial power. It starts in subsection (1):

When making a parenting order –

That cannot be taken literally. It must mean when considering whether and if so, how to make a parenting order –

the court must apply a presumption that it is in the best interests –

The same phrase comes through, the same concept –

of the child for the child’s parents to have equal shared parental responsibility –

One sees that there are obvious unfortunate cases where that presumption does not apply, subsection (2) of no application in this case.

Subsection (4) permits rebuttal by evidence, which is against the standard of whether the court would be satisfied that it is not in the best interests of the child for that to be so.

The next provision I would like to take your Honours to is section 64B, which is to be found in Division 5, which concerns parenting orders. In the definition of “parenting order”, found in 64B, in subsection (2) one finds a wide range of descriptions of the content or effect that such orders may have. I simply draw to attention as germane to a case such as the present those seen in paragraphs (a), (b) and, to an extent, (c).

We then come to that part of Part VII which is most centrally in question in this case, that is Division 6, commencing with section 65A. I need to draw your attention immediately to section 65AA. It is, with respect to the drafter, rather curiously expressed, but bearing in mind that it concerns parenting orders and bearing in mind that it refers back to section 60CA with the rule as to paramount consideration, it perhaps somewhat clumsily but nonetheless effectively picks up that which was anticipated in the terms of section 60CB to which I drew attention earlier. Section 65D makes it clear that there is an hierarchy of these provisions, presumptions and mandatory considerations. For example, in subsection (1):

In proceedings for a parenting order, the court may . . . make such parenting order as it thinks proper.

But it does so subject to the presumption of 61DA, to which I have made reference, and also to that which may emerge from complete agreement parenting plans, section 65DAB, unfortunately not in question in this case. So the presumption of equal shared parental responsibility provides a framework within which the court must work. It cannot be overturned. Section 65DAA is the section at the very heart of the matter and it sets out both in hierarchy and in sequence the way in which things must and then may proceed in cases such as the present where there has been the application or there is the application of the presumption of equal shared parental responsibility. Subsection (1) again is expressed in terms that show in a very practical, everyday sense – at least five days a week sense – that it is directed to what judges do in court:

If a parenting order provides (or is to provide) –

a form of words which well conveys that this is to do with the process of considering what an order should do and, as it were, at the stage where the presumption of equal shared parental responsibility to which the discretion in relation to making a parenting order is subject – see 65D(1) – at the stage that that, I will call it, equal responsibility is in place, then there are three steps. Each must be gone through:

the court must:

(a) consider –

so again it is the wording of a statute which is directed to what judges do, “consider”, which means take into account the relevant evidence for what it is worth, understand and apply the relevant legal rules and exercise discretions judicially such as they are –

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

and, of course, at that best interests point via, if one likes, 65AA, one goes back to 60CA and one goes to 60CC.

GUMMOW J: Well, there is the definition in section 4, the expression “order under this Act affecting children”, and that includes in paragraph (a) “a parenting order”.

MR WALKER: Yes.

GUMMOW J: Where do we then find the jurisdiction section? I am not sure it fits within 39.

MR WALKER: Section 65D.

GUMMOW J: No, there has to be a law investing jurisdiction.

MR WALKER: Section 65D?

GUMMOW J: No.

MR WALKER: I am misunderstanding your Honour’s question about jurisdiction. Power to make orders is 65D.

GUMMOW J: I realise that. There has to be a law under section 77 of the Constitution somewhere.

MR WALKER: Yes.

GUMMOW J: This assumes it.

MR WALKER: Yes, it does.

GUMMOW J: This section assumes it. Normally it is found in section 39 but I cannot quite fit this in 39.

MR WALKER: Can I take that on notice, your Honour?

GUMMOW J: Yes.

MR WALKER: I confess I have not thought about it at all for this reason - - -

GUMMOW J: I do not think it is a matrimonial clause, you see.

MR WALKER: It does not arise in this - - -

GUMMOW J: I might not, but if I am going to write a judgment, I want to know what the source of jurisdiction in this federal magistrate was.

MR WALKER: Yes, quite so, your Honour.

GUMMOW J: I am entitled to be told.

MR WALKER: Yes, your Honour, and what I am doing is I am apologising for not being able to tell you straight away.

GUMMOW J: All right. The people who practice in this field will not go back to the constitutional route. We have it over and over again when we get these appeals.

MR WALKER: Yes. Your Honour, may I say this, that, as I apprehend both the way in which the courts below proceeded, the issues in this Court, there is nothing concerning the constitutional footing for the power of the Family Court, Federal Magistrates Court - - -

GUMMOW J: Well, there is a reference to power with respect to children, is there not?

MR WALKER: Yes, your Honour.

GUMMOW J: That is why it is not a matrimonial clause.

MR WALKER: There is nothing in the constitutional footing which affects the meaning of any of the critical terms in this case. Now, that is not an excuse but it is - - -

GUMMOW J: That does not answer the question of where the investment of jurisdiction is.

MR WALKER: No, it does not, but what I am saying is the jurisdictional source does not affect any of the meanings of the critical expressions. Could I go back, please, to 65DAA(1). So under the “Equal time”, which is the first cab off the rank, as it were, first, whether spending equal time would be in the best interests of the child. Then second, paragraph (b):

consider whether the child spending equal time with each of the parents is reasonably practicable –

Now, were those provisions not enacted in the form and sequence they have been, it might have been arguable that as a matter of ordinary English in context practicability and reasonable practicability would have been part and parcel of considering the best interests of the child, but that is a hypothetical of what might have been, it does not matter. What Parliament has done is separately to express the reasonable practicability no doubt because in ordinary parlance one can very well imagine onlookers saying of a child’s position, it is in the best interests of the child that such and such happened, and then people say, but then there is the small matter of who can pay for it and how can it be done, et cetera.

So that dividing, though obviously recognising the close relationship, perhaps the overlap, the concepts of best interests of the child and reasonable practicability of one manifestation of that, namely, equal time with both parents, is the linguistic and legal choice the Parliament has made and that must be observed by judges. In paragraph (c), the sequence continues:

if it is –

that is, if equal time is reasonably practicable, then you –

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.

That is where expression will obviously be exercised with the best interests of the child paramount yet again or always. Now subsection (2) shows, as I say, the hierarchy and sequence because subsection (2), which is not equal time but which is concerned with substantial and significant time, applies, as paragraph (b) makes clear, only if:

the court does not make an order (or include a provision in the order) for the child to spend equal time –

So that there is an order of preference which obviously must be worked through in order that the requirements set down for judicial consideration in the cases of equal shared parental responsibility be observed.

GUMMOW J: The Chief Justice points out the answer, jurisdiction may be in section 69G and following and, in particular, under 69L –his own jurisdictional system for Part VII.

MR WALKER: I should not give an answer off the top of my head, your Honour, but yes, that may well be.

GUMMOW J: Tell us if that is wrong.

MR WALKER: Yes.

HAYNE J: Section 69H(4) may be engaged, I think.

MR WALKER: Section 69H(4) for first instance, yes, that is right. Section 69H(4) would appear to be plain and simple conferral of jurisdiction. That does not answer Justice Gummow’s question as to why 69H(4) is valid, but I confess I have not - - -

GUMMOW J: I am not suggesting it is invalid. I am not suggesting anything is invalid.

MR WALKER: I am not suggesting your Honour is suggesting it is invalid. Your Honour asked about the constitutional footing, the short answer is 69H(4) is the jurisdictional provision. In DAA, the next subsection to be gone to is in subsection (5), which under the heading “Reasonable practicality” stipulates mandatory matters for regard admittedly with the courts being able to consider all sorts of matters relevant – see paragraph (e) – for what we have called the reasonable practicability requirement. We stress that the reasonable practicability requirement applies both to the first resort consideration, that is equal time, as well as to the fallback resort, namely, substantial and significant time if equal time is not in the best interests of the children.

In short, in relation to the nature of time measured by a mixture of duration and quality that is going to be at the heart of the reflection practically or concretely of these parents’ equal shared parental responsibility, Parliament has said that reasonable practicability must be considered, overtly we submit, that is you must be able to see in the reasons that it has been considered as such, and not just as part and parcel of best interests because Parliament has expressed it as following upon a best interest determination, say, of equal time.

This case itself demonstrates why there would need to be just that deliberateness of separate consideration because lo and behold we have, see order 8, an equal time determination which, in effect, dissolves, falls away without even anything in the terms of substantial or significant time if the mother, as is her obvious liberty in civil terms, were to decide not to stay in Mount Isa, assuming of course that the father did continue to live and work in Mount Isa.

GUMMOW J: Is there any difference between you as to this? I thought from the respondent’s submission the debate became whether the requirements of 65DAA(1)(b) had been adequately addressed by the federal magistrate.

MR WALKER: Yes, and Justice Gummow has anticipated my next point. I am about to go to the reasons now, because even if we are correct in the reading we have just offered of the need for overt, discrete consideration of reasonable practicability, after best interests of equal time have been determined, we still have to show that there was error in the Full Court in failing to detect material error in the federal magistrate’s approach. If I may, the approach I intend to take is to go to what we would proffer as really the best shots in the federal magistrate’s reasons at findings or holdings or perhaps comments by his Honour that might be thought suggestively to be aimed at 65DAA(1)(b).

FRENCH CJ: It really boils down to the question did the trial judge have regard to mandatory relevant considerations in relation to 65DAA, notwithstanding that he failed to, as it were, label them by reference to the particular part of the statute, and the reasonable practicality requirement.

MR WALKER: It is nearly that, your Honour. There are two modifications. The first is I am going to point out there is a labelling by him at at least one point.

FRENCH CJ: Yes.

MR WALKER: The second is that it is not entirely captured by the notion of failing to have regard to mandatory consideration, although that is the heart of the matter. It also has this more pointed expression, “a failure to reach a mandated conclusion”.

HAYNE J: Are you saying “not open on the evidence”?

MR WALKER: No, I cannot say not open on the evidence, your Honour, although clearly enough - - -

HAYNE J: Whether you can say “not open on the evidence” presupposes giving a meaning to the expression “reasonably practicable”.

MR WALKER: Yes, it does. We have tried to offer such a meaning and then to apply that to the facts, such as they are. Why I said I cannot say “not open” in answer to Justice Hayne’s question is because there was evidence but there are not findings. There are conclusions drawn which are sometimes explicitly simply impressionistic but never aimed at the reasonable practicability of equal time, bearing in mind the liberty both parents have in relation to places of residence and work, and particularly bearing in mind the relative or comparative position of the mother, depending whether she was in Mount Isa or in Sydney, and of the father, depending whether he was in Mount Isa or, say, Sydney.

There are absences of findings, though recognition, if you like, of problem in the federal magistrate’s reasons which, in our submission, mean there has been this yawning gap in relation to the sequence of compulsory consideration by a court about to make such a far-reaching and important decision, which has, as we say, an effect on at least three people – in this case, given the grandparents, many more.

HAYNE J: I, at least for my part, would have difficulty understanding whether account has not been taken of a relevant consideration without understanding what you contend to be the content of the relevant consideration beyond the bare statutory expression “reasonably practicable”.

MR WALKER: Yes. Your Honours, in paragraphs 16 and 17, particularly 17 and following on the matters we have noted in paragraph 15 of our written submissions, we have tried to give content to the notion of reasonable practicability. The word “practicable” plus the epithet “reasonable” combine obviously in cases of contest, and they are cases of contest that we are talking about, to involve balance or compromise. They involve considerations by way of comparison or finding of relative positions and, in particular, they require measurement of what I will call efficacy, or outcome as we have called it, against the statutory objects and principles, the purpose of the relevant parenting order.

HAYNE J: At some point in your submission, Mr Walker, it may be that you would need to give content to these references found particularly in 17 of your written submissions to what is meant by consideration of how something happens, something should be under consideration and the like. I should say to you frankly that I read 16 and 17 and I do not understand yet what you mean by “reasonably practicable” as applied in this case.

MR WALKER: Yes, I accept what your Honour says is something that we have to do. The stage I am at at the moment is to point out that the federal magistrate did not do either any or the large part, the large bulk, of what would be required by these compulsory considerations.

KIEFEL J: Is it so much, perhaps, a question of the content of reasonable practicability or the point from which the trial judge starts – the federal magistrate starts? The starting point assumes that the mother is living in a particular position and the question is then addressed. Is that really where it goes – you say it goes awry?

MR WALKER: That is probably the explanation as to why things go awry. There is no exploration of the alternative certainly involved in some of the mother’s possibilities. As this Court has pointed out, the parties - the parents as parties do not confine the Court’s consideration of “reasonable practicability or best interests of the child” but in any event, there was well and truly raised by the variant possibilities put forward by the mother, there was certainly raised the need to consider in relation to reasonable practicability of equal time, and that is the compound notion, what would happen if, how would it work if? Those are questions of practicability – and would it produce the desired effect? That is also practicability.

The desired effect is the benefit children are presumed or, as a matter of principle, get from spending equal time, and would it be oppressive, impossible, impractical, awkward, any number of epithets, to be the opposite of reasonable and, in particular the possibility - to answer Justice Hayne’s question now – absolutely clear in contest between these parties not the subject of either any or any finding worth consideration by his Honour, at first instance, is of the child living with the mother in Sydney and the father confronting the travel of or to the daughter or the father shifting his job.

KIEFEL J: They often say that it is not the answer that it is difficult but the question.

MR WALKER: Yes.

KIEFEL J: How do you pose the question that the federal magistrate should have asked himself?

MR WALKER: He should have asked of the various permutations available - which were father in Mount Isa, mother in Sydney; father in Mount Isa, mother in Mount Isa; mother in Sydney, father in or near Sydney - he should have asked of each of those the balance or compromise questions with assessed attributes going to reasonableness from or for both mother and father as to reasonable practicability. Obviously, in terms of practicability, one would also be considering the efficacy of the regime so far as concerns contact with the child or contact by the child with both her parents.

So there was the overwhelming circumstance in this case of the sheer physical distance plus airline configuration between Mount Isa and Sydney. That obviously also involved expense, that is, airfares. That also involves travelling time and that also involves consideration of work, et cetera, et cetera. Now, in our submission, one simply does not find, except by cursory comments not to be regarded really as findings on any factual matters, one does not find the federal magistrate considering this.

But to return to something Justice Kiefel raised with me, most particularly, there is no consideration worthy of the name of the possibilities contrary to the father’s wish or determination to stay in Mount Isa. That, in our submission, unaccountably and without any justification in the statutory provisions, gave to the person who displayed an inflexible position a whip hand, as it were, on the reasonable practicability default decision over the person who was prepared, though reluctantly and much against her preference, to show some flexibility.

There was, in a modern and unattractive form, a kind of judgment of Solomon involved here and, in our submission, that is not called for or permitted by these provisions. In short, where one works and whether, for example, if Mount Isa were the only place where a decent remuneration could be obtained by this young man of a kind which would be obviously relevant to the prospects or fortunes of his daughter, then that would be one thing, but there is no such finding at all. It is not as if they were leaving an ancestral place. Mount Isa was new for both of them, for all of them.

So, in our submission, findings and holdings, comparisons and relative positions and assessments had to be made in order to consider the practicability of equal time, bearing in mind that one should not and could not have approached it on the basis that because the father said he was not going to move, you were thereby dispensed from considering one of the mother’s variants, which was the child should be in Sydney. Of course, the father cannot be forced to move, and whether or not it would be sufficient inducement for him to move so as to spend equal time in a way that is not distinctly uncomfortable is ultimately going to be a matter for him.

HAYNE J: Was the question of reasonable practicability to be judged on the footing that the father would remain where he was?

MR WALKER: No. That was one of the possible footings that had to be considered. It was not one – and perhaps the really neat way of showing the difference between the parties, your Honours, in that respect is to go to one of the closing paragraphs of our learned friend’s written submissions. The paragraph is the very last one. Paragraph 69, about line 18 or thereabouts:

there is no basis for suggesting –

our friends write –

that there be an onus placed upon the father in this case to justify his decision to remain in Mt Isa –

Of course not, quite so. It is not a question of onus, and we do not advance at all any question of onus. We say it is the consequences, in practicable terms, of equal time if the father is in Mount Isa and the mother is in Sydney, for example, is one of the possibilities that had to be considered.

KIEFEL J: But is it possibilities that the court considers or the fact that where the parents say that they intend to - - -

MR WALKER: Both. The latter will inform the former. It is not to be forgotten that in this case, the mother’s intention, to use your Honour’s words, is entirely contingent upon the child having to be in Mount Isa.

KIEFEL J: Yes, the question under section 65DAA(5)(a) is how far apart the parents live from each other. That appears to be the starting point. So is not the first port of call for the judge where the parents have expressed their wish to remain living, or where they intend to live? It is hard, I suppose, where they say that - - -

MR WALKER: If it were only so simple - - -

KIEFEL J: It is contingent, yes.

MR WALKER: This is an entirely contingent intention. I want to live in Sydney, but my attachment to my child is such that if you put her in Timbuktu, I will be in Timbuktu.

HAYNE J: But is that not the point, Mr Walker. One parent expressed a contingent intention. The other parent did not.

MR WALKER: The other did not, and that then raises the question as to whether reasonable practicability is trumped as an issue by one party saying “Come what may, I will not move”.

HAYNE J: It is not a question of trumping at all. It is a question of determining whether, in consequence, the father having announced that he will live in one place, not another, whether then it is reasonably practicable and - - -

MR WALKER: Your Honour, I am sorry – yes, what I am saying is yes, you do then consider reasonable practicability. We would submit obviously, were this first instance argument, that at that point, ceases to be reasonably practicable, and one moves away from equal time.

FRENCH CJ: What is the relevance then to 5 of your statement that there was no consideration of the father travelling to Sydney or changing residence? How does that work in this context?

MR WALKER: Because, your Honour, reasonable practicability of equal time should have been considered on the basis of the mother being in Sydney, as well as the possibility of her being in Mount Isa. That is what she was putting up as something that should happen and when considering a parenting order in a contest between adversaries, even in this jurisdiction, they all needed to be considered. Her intention to stay in Mount Isa was only if she could not have equal time with her child if she lived in Sydney. That would only arise if something like order 8 were determined on, which of course deprives her of anything like equal time, notwithstanding there was no ordered movement under the section away from equal time as being in the best interests of the child.

KIEFEL J: The mother had been residing in Sydney for some time and had only returned to Mount Isa as a result of an order of the Court.

MR WALKER: Yes, that is right. Exactly.

KIEFEL J: So that if you were considering the mother’s residence it would be Sydney, would it not?

MR WALKER: We would have thought so, yes.

KIEFEL J: Is that not the starting point, the mother resides in Sydney and the father resides in Mount Isa?

MR WALKER: Yes. Resides, alternatively, resided and wishes to resume that very recent residence, yes.

KIEFEL J: Lives.

MR WALKER: Could I just continue with what I wanted to say on paragraph 69 of our learned friend’s submissions. The first half of that sentence raises a straw man. We are not saying that at all about an onus but the second half is highly significant:

there is no basis for suggesting that there be an onus . . . anymore than there is a need to investigate the circumstances that the mother is placed in living there.

That means in Mount Isa. But, of course, there is. That would be involved on at least one and possibly two of the considerations, the possible outcomes, permutations, the reasonable practicability of which, if you are going for equal time, needed to be considered.

KIEFEL J: Is the critical finding or consideration of his Honour at paragraph 98 in the sentence, “If then the parties remain in Mount Isa”?

MR WALKER: That is one of the ones I was going to take your Honours to. Yes.

KIEFEL J: That is the consideration, is it not?

MR WALKER: Yes. The word “If” in our submission, a word that betokens the incompleteness, the gap in the considerations, bearing in mind the issues joined between these parties concerning the reasonable practicability of matters.

HAYNE J: The premise for what is in 98 is in 71, is it not – the first sentence of 71?

MR WALKER: Yes, absolutely. We have given the references to the evidence. I do not need to take your Honours to it. The father’s position had nothing to do with the practicability of moving or not.

HAYNE J: But you are giving content to the term “practicability” which seems to be purely a question of whether someone can get on an aeroplane or someone can physically move, that is, you are giving content to practicability barely as a matter of physical possibility.

MR WALKER: No. That will be part of it but that is only a part of it.

HAYNE J: Of course it is a part of it but the real question is what does this phrase “reasonably practicable” mean in this Act? Does it mean that it is physically possible to achieve this result where both parents have shelter and something from which they can buy some food or does it go beyond that?

MR WALKER: It must go beyond that but if it does not include that then we will have failed, but in most cases where parties are before a judge who is deciding equal time, the question of what I will call bare survival will have been satisfactorily met, though in my client’s case only just. The issue of reasonable practicability is – I hope this meets Justice Hayne’s concern – plainly comprehensive of a great deal more than fares, timetables and hours of the day, of course. They, of course, are of real significance, particularly bearing in mind these so-called relocation cases where there is a distance posited for the purposes of the decision between one parent and another.

To remind your Honours, the context of this is the decisions being reached, as it were – it must be provisionally – that it would be in the best interests of the child that it spend equal time. Then you ask, now will that spending equal time, will that be reasonably practicable? Where distance is the killer, as it is in this case, hence the importance of proximity once the mother says, “Well, if I have to to be with my daughter, I will be there, near the father”, in a case where distance is the killer, obviously matters such as timetables, fares, travelling time, hours of the day, et cetera, will be, one would have thought, de rigeur to be explored and to have findings made of it.

But where there are also questions of the – the word “reasonable” after all appears – possibilities for each of the parents to make a household, by reason of their livelihood or their support, their surrounding acquaintance, their surrounding family, then, in our submission, practicability is still being explored when one asks, well, as between the person whose livelihood makes it very difficult to contemplate moving away from this town and this other person whose livelihood makes it really quite straightforward to move back, for example, to that town, if there is to be equal time, the question is, would that move be such as to make that reasonably practicable?

In our submission, that will involve evaluation of matters beyond simply the sincerity of a determined expression of an inflexible position that, come what may, even if it means separation from his daughter, he will not move from Mount Isa. I stress, he had not been there all that long and although the evidence was hopeful as to his continued renewal of employment, it was by no means indefinite. No suggestion in the evidence, to the contrary, of difficulty of getting employment elsewhere. Moving employment in order to be near family is, of course, something which is hardly new or rare.

So, in our submission, that is grist to the mill of a practicability inquiry. It may in certain cases involve invidious comparisons of the different parent’s different livelihood positions, but decisions in this area are bound to have invidious comparisons and relativities and not merely when it comes to reasonable practicability. When one comes to decisions about capacity to communicate, for example, because it takes two to tango, there will always be invidious decisions.

KIEFEL J: Mr Walker, could I ask for your assistance in relation to paragraph 100 of the reasons for judgment?

MR WALKER: Yes.

KIEFEL J: I just have some difficulty in - - -

MR WALKER: I think there is a typographical slip in the third line. After the expression “substantial time” we think that there should be a word such as “such” or “so” inserted.

KIEFEL J: But what is the conclusion reached? What does the last sentence mean?

MR WALKER: It certainly does not mean that he has reached any reasonable practicability. All he is saying is best interests of the child for equal time. That is paragraph - - -

KIEFEL J: Which makes me wonder whether the reasoning of his Honour is to the effect that the best interests of the child are served by equal time with the parents is the presumption.

MR WALKER: Yes, that is right.

KIEFEL J: There is equal time if they are both in Mount Isa. I will approach the question of reasonable practicability on the basis that they are in Mount Isa. Is that how it runs?

MR WALKER: I think that is exactly how it ran.

FRENCH CJ: Well, except it looks at the other alternative, they are both in Sydney. Is that not the last sentence in 100:

if the father were to be living in Sydney or the mother living in Mount Isa - - -

MR WALKER: I am sorry, yes. If they were in the same place – the father in Sydney means the mother is there because it is clear that is where she would be but for the child being in Mount Isa.

KIEFEL J: So it is just a reinforcement of it is best for the parents to be in the same place?

MR WALKER: Yes, exactly.

KIEFEL J: That is how you approach reasonable practicability - - -

MR WALKER: Then one asks the question, well, why does that mean that it has to be Mount Isa? In other words, there has to be consideration of both of the possibilities that were hypothesised for the best interests decision.

FRENCH CJ: Perhaps there is a subtext underlying that last sentence, that is that reasonable practicality is not an issue if they are living in the same place in a substantive sense?

MR WALKER: That is right. In some cases, of course, it will be even if they are very close to each other, but in this context, no.

FRENCH CJ: Yes, sure, but in this context - - -

KIEFEL J: We are back to the starting point then as to whether the federal magistrate can start from the point that both parties are in one place, or whether he was obliged to consider them as living in different places.

MR WALKER: Yes. They are called relocation cases, but nothing I say will dispense with the jargon, I suspect. If equal time is in the best interests, and the sentence Justice Kiefel has drawn to attention in paragraph 100 is as neat a place as you can find at first instance for that being, as it were, that staged assessment, then a question arises as to movement of the child or to the child in the event that they are not living in the same place.

Now, the event of not living in the same place is what has given rise to this jargon term “relocation” because it is an important attribute obviously of individual freedom, much of which is given up when you have children, that you may move around. Now, with respect, once the household is fractured so that being together with the other parent is not an option, that is, literally being together with the other parent is not an option, the freedom of movement, which is again deeply entrenched upon by having children, arises as a possibility, and if it arises as a possibility it is equally available to both sides. It is not musical chairs; it is not, as it were, in the temporary location they happen to be in when they had their last blazing row. So, with respect - - -

HAYNE J: Well, moving is available to both sides if, but only if, you assume that on moving both sides, as you describe them, can establish a household in the place to which they move of a kind that is relevantly appropriate.

MR WALKER: Yes, your Honour. Now, this goes both ways. It must go both ways, that is why I call it a balance or compromise assessment. The evidence of the position in Mount Isa leads to a very, very exiguous comment – perhaps it is a finding – by his Honour at first instance, to which I will come; that is in terms of the mother. There was no finding that the father’s position was such that he would not have been able to do much better than that for himself and his daughter in, say, Sydney.

This is not an argument that he had to move. It is an argument that, in the detailed prescription inserted by amendment over and above simply a best interest determination, for cases which will include relocation cases as well as many other cases, the reasonable practicability assessment did require looking at all the possibilities, at least those raised by the parties, and perhaps those others which are inherent in any event. That last category does not concern us, we think, in this case because my client did say, “Well, look, I am only going to be in Mount Isa if she is there”. There was no consideration given to the reasonable practicability situation of her being in Sydney and the husband having to make a choice, presumably not once and for all. Presumably one can start missing a child and change your mind.

What you swear in court about the simple fact, “It is a very interesting job, I like it” – he did not say there were not such jobs elsewhere. He did not say anything that would suggest that this was the only place something sufficiently lucrative could be looked for, for either his budget or for his daughter’s well being, all of which would have been good reasonable practicability evidence. In our submission, it is that gap or, to adopt the expression that Justice Kiefel has asked me to consider, it is that what we would call “an inappropriate starting point”, to use her Honour’s expression, that we submit was the error incorrectly failed to be corrected by the Full Court.

GUMMOW J: Mr Walker, can we just look at 65DAA(1) again for a minute. Rather interesting draft in a way. Section 65DAA(1)(b) says “the court must”, so it obliged the magistrate:

consider whether the child spending equal time with each of the parents is reasonably practicable.

Then (c) says, “if it is”. It does not say “if the court considers it is”. It says “if it is”. Now, is it your submission that the Magistrates Court was in error in considering it reasonably practicable and that therefore it should not have gone on to consider making an order to provide it for equal time?

MR WALKER: Your Honour, may I - - -

GUMMOW J: Just a minute. Before you answer it, I ask you this because of the relief you seek here which is that it go back to the magistrate. Is it to go back to the magistrate and just start from scratch or to go back to the magistrate on the position? Do you seek to establish in this Court that it is not reasonable and practicable and that when it goes back to the magistrate, he has the task simply of deciding whether or not the arrangements are in the best interests of the child, what the arrangements should be, in other words, go back to the old days? Unless we know where you want us to go, we cannot get on the train.

MR WALKER: I am, of course, standing here in light of the appeal as it was mounted to the Full Court where I am not able to point to a ground that simply said there was a jurisdictional fact not found and therefore an unauthorised exercise of power.

GUMMOW J: No, wrongly found, as it were.

MR WALKER: Wrongly found and therefore no exercise of power. But I am standing here to say something which is a root and branch sweep away of the decisions below because we say that there have not been the findings made, or the consideration given, I should say, and then the conclusion reached required by subsection (b) and it is for those reasons that any exercise of power under subsection (c) has miscarried.

GUMMOW J: What was the scope of the authority of the Full Court under their appeal section?

MR WALKER: It is a rehearing which permits them to re-exercise a discretion, your Honour.

GUMMOW J: Not a discretion.

MR WALKER: No, re-exercise a discretion and I think it extends to finding facts which would - - -

GUMMOW J: This word “discretion” is causing more trouble than it should ever have been allowed.

MR WALKER: I was working backwards. There is a discretion at the end, there is a conclusion in the middle and there are facts to start with. So the facts would be concerning the various elements of reasonable practicability in this case. The conclusion would be reasonably practicable or not and then if yes, then there would be a discretion.

GUMMOW J: Where is the appeal court?

MR WALKER: Section 94(2).

GUMMOW J: It is a provision about the nature of the appeal, is it not? We looked at this before.

HAYNE J: Yes, we looked at that in DJL, was it?

MR WALKER: DJL, your Honours.

HAYNE J: Which is [2000] HCA 17; 201 CLR 226, if that is the case in which we looked at it.

MR WALKER: I am pretty sure it is. Your Honours, if we are right in identifying the omissions as opposed to errors – though, of course, to omit and to receive is to commit an error – if we are right in identifying the omissions, as we have, then everything needs to be remitted to be done afresh.

GUMMOW J: I think it was CDJ.

HAYNE J: CDJ, was it?

GUMMOW J: I am not sure that passed through the eye of the needle in the Commonwealth Law Reports.

MR WALKER: Your Honours, I have got to do this quickly now, could I touch on the other paragraphs that, as it were, we offer as misses rather than hits on the reasonable practicability at trial. Pages 472 and 473, paragraph 94, that is obviously a reference to 65DAA, but it is a reference as if matters had already been dealt with under those rubrics and we submit that is where the error came in. I have already dealt with 98 and it is as important as Justice Kiefel asked us to consider. Yes, it is a very important paragraph.

BELL J: Just on paragraph 98, his Honour says, “If then parties remain in - - -

MR WALKER: It should be “the parties”.

BELL J: Yes, “If the parties remain in Mount Isa”, I think the correct position is that at the time the proceedings were commenced the mother was in Sydney and the father was in Mount Isa.

MR WALKER: That is right.

BELL J: Pursuant to interim orders, the mother returned to Mount Isa, but it does seem that his Honour - - -

MR WALKER: Because of interim orders.

BELL J: Yes.

MR WALKER: Yes.

BELL J: Pursuant to, because of.

MR WALKER: I do not think she was ordered to.

BELL J: I see.

MR WALKER: Drawn by her child.

BELL J: In any event, it is just a question of how the magistrate has approached the matter at this point, and it seems to be rather than if one goes to 65DAA(5)(a), one looks at, among other things, the question of how far apart the parties are living and the assumption in 98 appears to be for practical purposes they are in Mount Isa.

MR WALKER: Yes. Everywhere is very close, I presume.

FRENCH CJ: He approaches the 65DAA issue – he identifies the criteria that he has to apply, best interests and reasonable to an equal time order, “best interests and reasonably practicable” at 98. Then he appears to reach a best interests conclusion without reference to the living arrangements at the end of 100, in a sense, perhaps purporting to answer the question which he had to answer under 65DAA(1)(a). The problem is where does he proceed to 65DAA(1)(b)?

MR WALKER: Yes, exactly. That is exactly the point, yes. In our submission, the matter that Justice Bell has raised with us does pick up what we have taken the liberty of describing as the caution expressed by Justice Hayne in U v U [2002] HCA 36; 211 CLR 238 at 285, paragraph 175.

Your Honours, the next paragraph I need to confront is paragraph 111 on page 476. That is a reference to paragraph 60CC(e) and there is, of course, a degree of linguistic similarity and an obvious overlap of subject matter but a different location of focus and a different stage of judicial consideration in relation to 60CC and 65DAA. So that, in our submission, will not serve.

Paragraph 112 is the next to be looked at. So there is the finding of the mother:

wholly lacked any real appreciation of the enormous financial drain that would be put upon her as well as the father and of course, the enormous physical drain that would be placed upon both parents but more significantly the child with one parent living in Mount Isa and one parent living in Sydney.

That, with respect, is it. It is through the lens of one of the several ways in which the learned magistrate made unfavourable adverse findings about my client’s appreciation of the position, including the need for a relationship of daughter and father. Then finally, paragraph 118 on page 478, and this picks up our learned friend’s written submission that says, in effect, there is no need to have considered the mother’s circumstances, at the foot of paragraph 118, still under the rubric of 60CC:

the Court must consider any other fact or circumstance . . . relevant. There are obviously concerns here in relation to the mother’s emotional wellbeing in Mount Isa, and of course, there are also financial concerns and considerations that arise.

They do arise, but nothing in the succeeding paragraphs or indeed in the preceding paragraphs deals with them so far as they are concerned. They are simply outflanked.

They are outflanked by something which deserves the description – the last sentence of paragraph 119 – of a pious hope, not supported by evidence, not supported by any – there is no finding of fact as to what the father either could or would do or indeed would find it necessary to do in that regard.

In the Full Court I should take you at page 502 to paragraph – I can go over these quickly, this is where they are describing what happened below. Paragraph 42 I should draw to attention without dwelling on it, paragraph 46 similarly notes the passage I have just read. Page 504, paragraph 51, in our submission, is an important paragraph, “the reality which faced his Honour” their Honours refer to. In our submission, that reality is treating the inflexible position of the father as somehow different, factually, so as to give a different legal foundation from the position of the mother which included, of course, her request that she be able to live in Sydney with her child.

That, in our submission, shows the Full Court not appreciating 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 in Sydney and then the father’s position which, after all, amounted to little more than a determination without practical, economic, financial or indeed anything beyond the job being very interesting that singled this out from any of the other possibilities where it might be perfectly reasonably practicable for a person to move in order to be with his or her children.

The next passage I should take you to is on page 506, paragraph 56, where their Honours go to this extent of saying, “There would have been no point” and it follows from my argument that we say that is completely wrong, that is the opposite of the case. They say:

there would have been no pint in his Honour’s giving any consideration to a proposal –

et cetera. In our submission, that is a demonstration of error. On the next page paragraph 58 continues the same error in the description as “misconceived”, the exploration of possibilities which in our submission was mandatory.

KIEFEL J: Paragraph 59 is potentially quite important in the court’s reasoning, is it not? Is it not saying there that if you consider the position with the mother in Sydney it is answered by the larger considerations of his Honour about whether or not the relationship with the father would be - - -

MR WALKER: Yes, that is right.

KIEFEL J: So it is saying that you go straight to best interests to answer the whole question.

MR WALKER: That is best interests. Yes. The burden of our argument is – and asking for a rehearing rather than this Court making a decision is that there has simply not been the stepping through of the staged overt, very deliberate requirement of reasonable practicability which would prevent everything from simply being put into a best interests quasi discretionary assessment or evaluative assessment.

Paragraph 63 and 64 on page 507 show that the Full Court did indeed see some shortcomings in the expression of reasons. Paragraph 65 on page 508 dismisses as being “of weight only” the grant of appeal which it is true was expressed in terms of “did not give adequate weight to”, but it obviously concerned the relevant consideration required by the statute, and in our submission paragraph 65 did not address the argument which was live below and is certainly the argument we put here.

GUMMOW J: What is the basis for the rehearing, Mr Walker? I do not understand at the moment.

MR WALKER: Because there has not been the process gone through with findings made that the statute requires.

GUMMOW J: There has been a constructive failure to exercise jurisdiction, is that what it comes to?

MR WALKER: That is one way of putting it. It may be perhaps an elaborate way of putting it.

GUMMOW J: There has not been a consideration of the nature required by paragraph (b), is that right, of 65DAA(1)?

MR WALKER: That is right. Now, that would leave, or could have left, the question, well, does that matter, to which I think it is common ground the short answer is, yes, it does matter, it is mandatory, it has to be done, which is why no doubt that one could construct this as a constructive failure to exercise the jurisdiction, that is, in accordance with the mandatory requirements laid down for the exercise of that jurisdiction.

They are striking provisions, the way they in terms speak to and of judicial work when a court makes, when a court considers, et cetera – when a court determines. In our submission, that is a very strong indication, we think not contested in this case, that if there has been a departure or failure to meet those requirements then the orders cannot stand. They have been made contrary to the statute.

Your Honours, in paragraphs 66 and 70 on page 508 their Honours call in aid, that is, in rejecting the attack in the Full Court on the first instance reasoning, they call in aid order 8, and in our submission, as we intended by referring to that at the outset today, order 8 in fact really indicates to what an extent there had been a failure to consider reasonable practicability of the matters which were in issue in relation to whether spending equal time was in the best interests of the child.

GUMMOW J: I ask you again, Mr Walker, would this federal magistrate’s decision be amenable under 75(v) to an order for prohibition and mandamus?

MR WALKER: Yes, for failure to comply with (b).

GUMMOW J: That perhaps crystallises it.

MR WALKER: Yes.

GUMMOW J: He is an officer of the Commonwealth, so it is not a hypothetical question.

MR WALKER: Yes.

BELL J: Order 8 seems to carry with it some recognition that when one parent lives in Mount Isa and another parent lives in Sydney it is not reasonably practicable that they have equal time.

MR WALKER: That is certainly, in our submission, that which the learned magistrate would have been driven to had he followed through the statutory remit requirement for all the matters that were before him and at the risk of repeating ourselves, it is not simply a matter of saying, well, all or most of the mother’s proposals are knocked out of court by the father saying, “This is my position and I am not moving”, to which the proper response would have been, “Well, we will make a reasonable practicability determination about what happens if you do not move, but we will do it with all of the possibilities that the mother has raised”. She is in Sydney, as well as in Mount Isa, and - - -

HAYNE J: The proposition you have just advanced, that consideration of all of the matters by the federal magistrate, what was it put as, would have led to the conclusion not reasonably practicable. It seems to be a proposition of a kind coming very close to the proposition that on the facts as they were before the magistrate it was not open.

MR WALKER: Yes, it is your Honour.

HAYNE J: It was not open because you had two people, one of whom was intending to live in Mount Isa, the other of whom wished to live in Sydney but would move to Mount Isa in the circumstances described if it meant remaining in contact with her child.

MR WALKER: Yes, your Honour.

FRENCH CJ: This highlights the fact that the argument is being put through the prism of an equal time consideration and equal time order. He got to the best interests of the child aspect of equal time and then stopped, if you like, going into reasonable practicability when confronted with the reality of one in Mount Isa, the other in Sydney.

MR WALKER: Yes. To pick up what the Chief Justice and Justice Hayne have put to me, I refer to hierarchy and sequence when speaking of those paragraphs in subsection (1) of section 65DAA. Those descriptions should not be pressed too far because we are talking after all about judicial consideration which the words recognise will or will not result in a parenting order of a particular kind. So we are talking about process up to the outcome of the judicial consideration.

I referred earlier to paragraph (a), for example, perhaps being at certain stages provisional. Well, that must be so, because the connection, the degree of overlap perhaps, between reasonable practicability on the one hand and best interests to have equal time on the other hand may mean that one will need to revisit, having examined reasonable practicability, equal time. That is what the statute says by saying if equal time is not reasonably practicable, move now to substantial and significant, and that is the way in which the sequence moves. Yes, we do put it as the Chief Justice has raised it for consideration, namely, there has been a failure to complete the exercise.

GUMMOW J: Another way of looking at it – seeing we are not in the realm of a prohibition and mandamus at the moment, we are on an appeal –

another possibility is a declaration by this Court to the effect that upon the material before the magistrate - - -

MR WALKER: It is not reasonably practicable - - -

GUMMOW J: - - - subsection (b) was not satisfied with a remitter to go back and do it again but on the other basis, namely, the best interests of the child.

MR WALKER: Yes, your Honour. I simply wanted then to draw to attention on pages 519 and 520 to paragraph 96, again another appreciation not carried through to correcting the magistrate by the Full Court of the inadequacies of the approach taken.

Then paragraph 99 is an important one. That is where, in effect, it is said that 60CC provided a proxy for the relevant consideration, as we have put in writing and as I think I have already said today, but 60CC, even with the degree of linguistic similarity, even with the obvious overlap of subject matter, is being deployed at a different stage in the exercise and paragraph 99 defeats the purpose of there being a 65DAA in the manner it is set out. Finally, page 523, paragraph 107, again, in our submission, a significant acceptance by the Full Court of the deficiency in the reasons below produced by failing to follow through the requirements of the section. May it please the Court.

FRENCH CJ: Thank you, Mr Walker. Yes, Mr Page.

MR PAGE: Your Honours, it is easier for me if I start where my learned friend left off and take up the suggestion that there was no indication whether the federal magistrate had moved on to section 65DAA(2) and, in my submission, that question is, with respect, ill founded because, as Justice Hayne has pointed out, it is essential that before that exercise is entered into, the court must know what it has to look at in those particular circumstances, that is, what is the content of reasonable practicability in this case.

Now, there has been debate about exactly what the term “reasonable practicability” has meant in general terms incorporated into this part of the statute. The explanatory memorandum that accompanied the Bill in 2005 after amendment from the Senate – and I think it was in 2006 that it came down – indicated at paragraph 200 that:

Subsection 65DAA(5) sets out factors that the court should consider in determining whether both equal or substantial and significant time are reasonably practicable. These factors originate from case law, including the case of T and N (2001)FMCAfam 222. The inclusion of the factors was recommended by the Family Law Council which considered 2004 research by the Australian Institute of Family Studies –

The decision of T and N is a decision of Federal Magistrate Ryan, as she was – now Justice Ryan – and at paragraph [93] on page 303 of the report of her judgment, Justice Ryan says:

The factors that the court should particularly examine in cases where a party seeks orders that share a child’s time equally between its parents (or others) include the following:

• The parties’ capacity to communicate on matters relevant to the child’s welfare.
  
• The physical proximity of the two households.
  
• Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
  
• The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustments?
  
• Whether the parties agree or disagree on matters relevant to the child’s day-to-day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
  
• Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
  
• Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
  
• Can they address on a continuing basis the practical considerations that arise when a child lives in two homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
  
• Whether or not the parties respect the other party as a parent.
  
• The child’s wishes and the factors that influence those wishes.
  
• Where the siblings live.
  

There are no siblings in this case but, nevertheless, that gives, in our submission, some real guidance as to what the meaning of this term is generally and what the Court should look at particularly then where it is premised on the basis that there is an order for equal “shared parental responsibility”. That phrase, and the meaning of that phrase is defined in section 65DAC which is under the heading “Effect of parenting orders that provides for shared parental responsibility”. What in fact it emphasises in subsection (1)(b):

the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

Subsection (3):

The order is taken to require each of those persons:

(a) to consult the other person in relation to the decision to be made about that issue; and

(b) to make a genuine effort to come to a joint decision about that issue.

It is a mater of communication and relationship that causes an order to be made for equal care parental responsibility despite the presumption which is seen to be in the best interests of the child. So that if one is then looking at reasonable practicability in each particular case one looks at the questions of communication and that is what the federal magistrate set about to do in this particular case and the logistics of that communication, the convenience to the child was a factor.

BELL J: Mr Page, when one looks to 65DAA(5) it tells you something about the content of “Reasonable practicability” in that it requires the Court to have regard to how far apart the parents live from each other.

MR PAGE: Yes.

BELL J: Upon an acceptance that the mother was only in Mount Isa pursuant to the interim arrangements set in place following the father commencing the proceedings, what is wrong with a consideration that when one turns to order 8 one sees a recognition that it is not reasonably practicable for there to be equal time with one parent in Mount Isa and one parent in Sydney?

MR PAGE: Firstly, we take issue with the fact that the mother was only in Mount Isa by reason of orders which were made which returned the child to Mount Isa. She had evinced a wish to return to Sydney but the family report which had been prepared by a consultant indicated that she would settle in Mount Isa and would look for and obtain other accommodation. The federal magistrate himself found that the resolution of these proceedings would far more likely than not overcome the problems which she perceived, both emotional and financial, in terms of her living in Mount Isa.

By the time the federal magistrate heard this matter, whilst she evinced a wish to reside in Sydney, she had a large degree of settled intent in relation to Mount Isa which went further than a statement that if the child was ordered to live in Mount Isa she would remain there. So with a starting point that is a premise that she was only there by reason of an order made in relation to the child, we take issue.

BELL J: Accepting, Mr Page, that the order did not compel her but that she removed herself from Sydney to Mount Isa when a court order required that her child be in Mount Isa, is that the correct sequence of events?

MR PAGE: The parties had been living in Mount Isa for some months.

BELL J: Yes, I appreciate that.

MR PAGE: They returned to Sydney for the purposes of an award ceremony for the father to attend. All three went there. The father returned to Mount Isa before the mother and indicated from Mount Isa to the mother in Sydney that he thought that she should move out of the house when she returned. She returned with her father and effected that removal. It is a pity, perhaps, that the statements of fact that are set out in the submissions are weighted to an extent against the father more than the evidence in fact shows, but the fact is that she removed herself from the house with her father and then returned to Sydney. It was then that an order was made for the return of the child and it was then, some weeks later in October 2007, that she returned to Mount Isa with the child. That needs to be understood. Her statements to the consultant upon whom the federal magistrate relied were really to the extent that she had enjoyed Mount Isa other than for the separation between herself and the father.

Going to your question, Justice Bell, as to paragraph 7, can I just preface my answer to you on this basis, that up until the time that the trial judge had to consider the factors or the guidelines in section 65DAA, his Honour had determined that (a) it was best for this child that the parents live in proximity to each other. He had determined that it was in the child’s best interests that the child live in Mount Isa. Those matters had been determined on the basis of the best interests of the child and he had applied the provisions of section 60CC to those considerations.

He then came to consider the question of equal shared parental responsibility and determined and made a finding that he considered that that was in the best interests of the child. He did not have to do that. There was a presumption, but he went further than that. He then was required by the Act to turn his mind to the question as to whether equal time with the parents or substantial and significant time was appropriate and he determined in the best interests of the child that equal time was appropriate and that met with the consultant’s recommendations. So he had then to turn his mind to the questions in paragraph (b).

It was at that point that the court needs to look at what were the matters that arose under (b) to determine because, in our submission, he did turn his mind to those factors, he did move on to those matters, because he had determined by this time that the parents should live in proximity, that that was best for the child and that the child should live in Mount Isa.

KIEFEL J: Forgive me for interrupting. Where is the statutory warrant for the court determining where the parents live?

MR PAGE: Section 64B(2) says:

A parenting order may deal with one or more of the following:

(a) the person or persons with whom a child is to live –

There is no warrant that says where the child should live, but it is consistent with that that the judge takes into account where each of the parents are living.

GUMMOW J: I am sorry, what section was that?

MR PAGE: Section 64B(2). There is no warrant that indicates where the child shall live. That must be part of the general - - -

KIEFEL J: I thought you were saying that the federal magistrate made findings as to where the child, therefore the parents, should live.

MR PAGE: No, he made findings as to where the child should live because he talked about the benefits of the child living in Mount Isa and he had determined those matters. If I can come to Justice Kiefel’s questions then as to whether there was a starting point from which he moved to his consideration of reasonable practicability, the answer is yes, and it was not a question of considering all of the alternatives at all. It was what the magistrate had before him at that time. The facts were that they were living in proximity, that since October 2007 the equal shared care had been in place and the mother had said that if the child was to live in Mount Isa, then – and it follows that if there was to be an equal shared care that followed because of the previous findings, that that was reasonably practicable.

KIEFEL J: Do I understand you to say that the federal magistrate found that the child should live in Mount Isa because an interim order was made returning the child?

MR PAGE: No, I did not say that at all and I would not say that.

KIEFEL J: No, that does not follow.

MR PAGE: He had made an independent assessment of the relation - - -

KIEFEL J: You say that is found in the reasons in relation to the final order?

MR PAGE: Yes. I would just refer you to page 507 which is within the reasons of the Full Court in this respect. This second ground is directed to the situation which the choice between Sydney and Mount Isa was to be made on the basis that both parents could or would - - -

KIEFEL J: This is the Full Court?

MR PAGE: Yes. This is because, as I already explained in connection with ground 1, the father was not prepared to leave Mount Isa for Sydney, even if the child was in Sydney, and we have come to that. We have heard that said. That was one of the bases upon which, no doubt, his Honour considered that it was best for this child, that the child remain in Mount Isa.

HAYNE J: It was the father’s case, was it not, as described in the relevant case outline document – see page 39, lines 5 and following – that:

If the Mother was permitted to relocate to Sydney . . . the parties would live approximately 2,300 kilometres apart and equal time would be impractical.

MR PAGE: Yes. So, in my submission then, his Honour did move on to the question of reasonable practicability as that term applied to the situation he had before him or which he found was in the best interest of this child. That really answers the questions that the appellant raises here. The whole operation of making parenting orders for the 4.6 or so per cent of people who require that intervention is not a semantic or formulaic exercise, in my submission, nor does the legislation require such an approach.

It is both from section 60CC and section 65DAA that one can interpret what is there to be considered as simply guidelines or touchstones, and that is really a justified term by reason of the paramountcy of the best interests of the child. They are all things that need to be touched on, but 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. The Full Court were aware of that. The Full Court of the Family Court has said on several occasions that there is an overlap between the considerations which must be had and if it can be seen from the judgment that in determining the best interests of the child that each of those considerations has been taken up, then the judgment is unassailable, and that was the case here.

GUMMOW J: Do you point to any particular passages, Mr Page, in the Full Court?

MR PAGE: Yes, your Honour. I am just looking at the judgment of the Full Court here.

GUMMOW J: It starts at page 517, does it not, relevantly, of the appeal book?

MR PAGE: Yes. I was just trying to get to it more succinctly. At paragraph 96 on page 519 - - -

GUMMOW J: Yes, that is where it starts really, I think.

MR PAGE: Yes:

It is true that in these paragraphs, his Honour did not expressly address the issue of whether an equal time arrangement would be “reasonably practicable”, nor can he be seen as addressing the matters which s 65DAA(5) requires should be addressed in determining the matter of “reasonably practicable”.

However, it is important to recall that it was only following paragraphs 98 to 100 that his Honour embarked upon his relatively extensive consideration of the matters in s 60CC . . . A consideration of the statutory provisions in this order was of course open to his Honour –

and the court referred to its own decision in Taylor v Barker. It is from there and paragraph 99:

We are satisfied that the four specific factual matters which are referred to in Grounds 15 to 21 and which are asserted on behalf of the mother not to have been adequately considered by his Honour, were considered by him in the course either of his consideration of the s 60CC matters or of his extensive review of the evidence at the commencement of his reasons, to a sufficient extent that our interference with his decision on account of any of those matters would not be justified.

That is really what epitomises what I have said, is that at the coalface the judges are simply making these decisions with reference to these matters under section 60CC and 65DAA as touchstones but are not finding it necessary to make separate findings in relation to each of those factors in order to achieve the paramount interests of this child, which is the best interests of the child, and that is what is the important factor that arises out of them all.

Can I just also draw to the Court’s attention the fact that in relation to reasonable practicability the Family Law Council in May 2006, after this reform bill had been presented, itself presented a paper to the Government and advised the Attorney in relation specifically to relocation. In its recommendations and its views, which it commenced to express at page 67 of that report, that the:

Council has come to the conclusion that the principles in the Family Law Act . . . should continue to apply in relocation cases. That is, the best interests of the child should remain the paramount consideration. The factors in section 60CC will then be considered by the court in determining what is in a child’s best interests . . .

This does not mean that there is no scope for providing further legislative guidance for relocation decision-making.

It went over the page to recommend an insertion into the Family Law Act which the Chief Justice of the Family Court had drawn to its attention, were used in:

both Canada and New Zealand . . . in combination with a pure ‘best interests’ test.

It is of interest only, (a) to see what were proposed, that is, what alternatives there are to the proposed relocation, whether it is reasonable and practicable for a person opposing the application to move to be closer to the child if the relocation were to be permitted, and whether a person who is - - -

GUMMOW J: The Family Law Council is established under section 115, is it not, by the Attorney-General.

MR PAGE: It is certainly established under the Family Law Act. I cannot remember the section, and that that was not taken up by the government in terms of those provisions or otherwise is significant, save that it inserted the question of reasonable practicability. That, in our submission, is due primarily to the need to have regard to that term in relation to the facts of every case. There cannot be a definition of that term. It really is upon that that we rest. If the Court pleases.

FRENCH CJ: Thank you, Mr Page. Yes, Mr Walker.

MR WALKER: I have nothing in reply, your Honour.

FRENCH CJ: The Court will adjourn briefly to consider the course it will take.

AT 4.02 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.16 PM:

FRENCH CJ: The Court is of the opinion that the Full Court of the Family Court of Australia should have held that (a) it was not open to the federal magistrate to find that it was reasonably practicable within the meaning of section 65DAA(1)(b) of the Family Law Act 1975 for the child, MJR, to spend equal time or substantial and significant time with each of the child’s parents; and that (b), accordingly it was not open to the federal magistrate to consider making an order as described in section 65DAA(1)(c).

The Court is thus of opinion that orders should now be made in the following terms:

1. Appeal allowed.
   
2. Set aside the orders of the Full Court of the Family Court of Australia made on 15 May 2009 and in their place order that:
   

(a) the appeal by the mother against the orders of the Federal Magistrates Court of Australia made on 1 April 2008 is allowed;

(b) the orders of the Federal Magistrates Court of Australia made on 1 April 2008 are set aside;

(c) the matter is remitted to the Federal Magistrates Court of Australia for rehearing de novo.

The Court will state its reasons for making these orders more fully at a later date. What interim arrangements should be made pending the rehearing of this matter in the Federal Magistrates Court is a matter for agreement between the parties or, if needs be, the subject of some fresh application to the Federal Magistrates Court for interim orders.

The Court will now adjourn until 9.30 tomorrow for pronouncement of orders.

AT 4.18 PM THE MATTER WAS ADJOURNED