French CJ, Gummow J, Hayne J, Kiefel J & Bell J
On 1 April 2008 the Federal
Magistrates Court (Coker FM) made parenting orders under s
65D(1) of the Family
1975 (Cth) ("the Act")
with respect to the child of the marriage between the appellant and the
respondent. The orders provided that the parties have equal shared
responsibility for the child and that she spend equal time with each of them:
 FMCAfam 427.
The orders were made on the basis that (contrary to the mother's expressed
wish) both parents would live in Mount Isa. The mother's appeal from that
decision, which was heard on 5 August 2008, was dismissed by a Full Court of
the Family Court of Australia (Finn, May and Benjamin JJ):  FamCAFC
Regrettably, for reasons not explored on the hearing of this appeal, that
decision was not published until 15 May 2009.
a grant of special leave on 2 October 2009, the appeal was heard by this
Court on 3 December 2009 and orders pronounced, with reasons to be provided
at a later date. It was ordered that the mother's appeal be allowed. In
place of the orders made by the Full Court of the Family Court, it was
ordered that the appeal from the Federal Magistrates Court be allowed and
the orders of that Court be set aside. The matter was remitted for rehearing
parties lived in Sydney, in what became the matrimonial home, from 1993
until January 2007, when they moved to Mount Isa in order that the father
could gain work experience as a graduate mechanical engineer with a mining
company. The position was initially for a term of two years. By the time of
the hearing in the Federal Magistrates Court the indications were that his
contract would be extended. The child of the marriage was born in August
parties separated in August 2007 shortly after they had travelled to Sydney
to attend an awards ceremony connected with the father's graduation. The
father returned to Mount Isa and advised the mother that it would be
necessary for her to find alternative accommodation there. The mother
returned only to collect her belongings and remained living with the child
at her father's residence in Sydney. The mother and child returned to Mount
Isa on 17 October 2007 following the making of interim orders, on the
application of the father, which provided for the return of the child.
the time of the hearing before Coker FM the mother and father were living in
Mount Isa, with the child living with each parent on a week about basis. The
mother's initial proposal with respect to parenting orders involved her
living in Sydney with the child. The father would not consider living in
Sydney. His Honour noted that the father "was very determined .... to
continue his employment in Mount Isa to the extent of indicating even that
if the child were to be living with the mother in Sydney, that he would not
consider alternative opportunities for work in the same field that he was
FMCAfam 427 at .
The mother amended her proposal to add two further alternatives – that she
remain in Mount Isa or the parties both live in Sydney.
VII of the Act (ss 60A-70Q) concerns children. It was substantially
amended in 2006 by the Family
Law Amendment (Shared Parental Responsibility) Act 2006
60B(1) of the Act
provides that it is an object of the Part to ensure that the best interests
of children are met, inter alia, by "ensuring that [they] have the
benefit of both of their parents having a meaningful involvement in their
lives, to the maximum extent consistent with the best interests of the
60CA requires that a court must regard the best interests of the child
as the paramount consideration when deciding to make a particular parenting
order in relation to a child. The considerations necessary to be taken into
account in determining what is in a child's best interests are listed in s
65D(1) provides that the Court
may make such a parenting order as it thinks proper, subject to the
provisions of ss
61DA and 65DAB.
requires the Court to apply a presumption that it is in the best interests
of the child for the child's parents to have equal shared parental
responsibility for the child. The presumption may be rebutted by evidence
that satisfies the Court that it would not be in the best interests of the
1975 (Cth), s 61DA(4)). Section 65DAB
requires the Court to have regard to any parenting plans entered into
between the parties and is not relevant in this case.
Sub-section (1) of s 65DAA is headed "Equal time" and provides:
If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
of sub-ss (1)(b) and (2)(d) of s
65DAA require the Court to consider whether it is reasonably practicable
for the child to spend equal time or substantial and significant time with
each of the parents. It is clearly intended that the Court determine that
question. Sub-section (5) provides in that respect that the Court "must
have regard" to certain matters, such as how far apart the parents live
from each other and their capacity to implement the arrangement in question,
and "such other matters as the court considers relevant",
"[i]n determining for the purposes of subsections (1) and (2) whether
it is reasonably practicable for a child to spend equal time, or substantial
and significant time, with each of the child's parents".
FM said that he applied the presumption of equal shared parental
FMCAfam 427 at .
His Honour noted that he was obliged, pursuant to s
65DAA, to consider "whether equal time with each parent would be in
the child's best interests and is reasonably practicable, and if equal time
is not appropriate then whether substantial and significant [time] would be
in the best interests and reasonably practicable.":
FMCAfam 427 at .
Because the father had said he would not move from Mount Isa, the only possibility for equal time parenting would arise if the parties both remained in Mount Isa. In what follows his Honour was clearly of the view that they should do so. His Honour said at 
If [the] parties remain in Mount Isa as the father suggests, then they are in the same locality. They are proximate to each other and there can be the opportunity for equal time which would be, in my assessment, in the best interests of this child.
His Honour noted that the Family Consultant had recommended a continuation of the existing arrangements:  FMCAfam 427 at . His Honour said that he too did not consider it would be beneficial to the child if the parents lived "thousands of kilometres apart"; it was in the child's interests that there be equal time spent with each parent:  FMCAfam 427 at .
Honour concluded that the father's proposals of equal shared parental
responsibility with the child living in Mount Isa most appropriately ensured
the child's best interests and welfare would be met (
FMCAfam 427 at )
and on that basis made the orders in question.
65DAA(1) is expressed in imperative terms. It obliges the Court to
consider both the question whether it is in the best interests of the child
to spend equal time with each of the parents (par (a)) and the question
whether it is reasonably practicable that the child spend equal time with
each of them (par (b)). It is only where both questions are answered in
the affirmative that consideration may be given, under par (c), to the
making of an order. The words with which par (c) commences ("if it
is") refer back to the two preceding questions and make plain that the
making of an order can only be considered if the findings mentioned are
made. A determination as a question of fact that it is reasonably
practicable that equal time be spent with each parent is a statutory
condition which must be fulfilled before the Court has power to make a
parenting order of that kind. It is a matter upon which power is conditioned
much as it is where a jurisdictional fact must be proved to exist: See Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651 -
 per Gummow J.
If such a finding cannot be made, sub-ss (2)(a) and (b) require that the
prospect of the child spending substantial and significant time with each
parent then be considered. That sub-section follows the same structure as
sub-s (1) and requires the same questions concerning the child's best
interests and reasonable practicability to be answered in the context of the
child spending substantial and significant time with each parent.
Honour treated the answer to the firstmentioned question, whether it was in
the best interests of the child to have equal time with each parent, as
determinative of whether an order should be made. His Honour did not
consider, as he was obliged to do, whether it was reasonably practicable in
all the circumstances. The Full Court acknowledged that his Honour "did
not expressly address the issue of whether an equal time arrangement would
be 'reasonably practicable'": 
FamCAFC 81 at .
However, the Court observed, his Honour went on to consider, at length, the
matters to be considered under s
60CC in determining what arrangements are in the child's best interests:
FamCAFC 81 at .
But those matters could be relevant only to the question posed by par (a) of
65DAA(1), not the question in par (b), which required consideration of
other, different matters.
65DAA(1) 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. The presumption in s
61DA(1) is not determinative of the questions arising under s
65DAA(1)(b) requires a practical assessment of whether equal time
parenting is feasible. Since such parenting would only be possible in this
case if both parents remained in Mount Isa, Coker FM was obliged to
consider the circumstances of the parties, more particularly those of the
mother, in determining whether equal time parenting was reasonably
consideration been given to the question only one conclusion could have been
reached, one which did not permit the making of the order. From the time
that she returned to Mount Isa to the date of the hearing the mother had
been required to live in a caravan park, and live there with the child on
alternate weeks. Apart from the facilities being limited, it could not be
said that such an environment is usually ideal for a child. The availability
of alternative accommodation did not seem likely. Rental accommodation is
scarce in Mount Isa and the waiting lists for it long. The mother said
that she could not afford good quality accommodation in any event and the
cheaper rental properties were in "rough" areas.
mother had limited opportunities for employment in Mount Isa. When the
parties lived in Sydney she had worked part-time. She had full-time
opportunities available to her with her previous employer in Sydney which
provided her with flexibility of hours. In Mount Isa the mother supported
herself from social services payments and income from casual employment. The
disparity between her income and that of the father had not been addressed
by the time of the hearing. She said there was no employment in Mount Isa
for someone of her experience and there were limited opportunities for
evidence of the Family Consultant was that the mother was "definitely
despondent" about being in Mount Isa, as her living conditions were not
good and she was isolated from her family. The Family Consultant said that
the mother was depressed and recommended that she attend counselling. The
finding of Coker FM that "the mother's anguish and depression in being
in Mount Isa .... can, to a significant degree if not in their entirety,
be dealt with by .... counselling" ( FMCAfam 427 at )
is not supported by this evidence.
evidence before his Honour did not permit an affirmative answer to the
question in s
65DAA(1)(b). It follows that there was no power to make the orders for
equal time parenting. It was necessary for his Honour to proceed to consider
whether substantial and significant time spent by the child with each parent
was in the child's best interests (given that equal time was not possible)
and whether that was reasonably practicable. That would require
consideration of the mother being resident in Sydney. But without a finding
as to practicability no conclusion could be reached. At the rehearing of
this matter afresh, the necessary determinations will be made on the
evidence as to the practicability of such orders, given the circumstances
pertaining to the parties as they then stand.
orders made by his Honour did include one to the effect that if the mother
did not live in Mount Isa, then the child should live with the father and
the mother spend time with and communicate with the child at reasonable
times to be agreed. No reasons were given concerning the order. It may have
been intended as an interim order, to cover the contingency that the mother
did not remain in Mount Isa and make provision for what was to occur until
further consideration could be given by the Court, having regard to the
changed circumstances of the parties. It could not be an order under s
65D, the statutory criteria not having been addressed.
It is for these reasons that, when pronouncing orders on 3 December 2009, this Court expressed the opinion that the Full Court of the Family Court should have held that (a) it was not open to the Federal Magistrate to find that it was reasonably practicable, within the meaning of s 65DAA(1)(b) of the Family Law Act 1975 (Cth), for the child 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 s 65DAA(1)(c).
 Order dated 3rd December 2009
 Section 69H(4) confers jurisdiction on the Federal Magistrates Court in relation to matters arising under Pt VII.
B W Walker SC with L A R Goodchild (instructed by Neisha Shepherd Solicitor) for the appellant.
G K W Page SC with T D Betts (instructed by Rod Madsen) for the respondent.
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