ROSA: Reasonable Practicability and a Child's Best Interests

Abstract

Four years on from the shared parenting amendments to the Family Law Act 1975 (Cth) (‘FLA’) debate continues about the effect of the reforms. In 2009, the High Court of Australia, for the first time since these changes, considered key provisions of the legislation concerning equal time arrangements. The appeal was from a decision of the Full Court of the Family Court of Australia, published as Rosa v Rosa (‘Rosa’). The reasons for judgment of the High Court were delivered in March 2010, and published as MRR v GR (‘MRR’).

The High Court was asked to determine, on this occasion, the construction of s 65DAA FLA. This section requires a court to examine the ‘reasonable practicability’ of proposed parenting arrangements. The High Court’s judgment is not without controversy.

Key comments by the High Court indicate that, previously, Family Law Courts have made decisions potentially contrary to the intent of the legislation. Moreover, it seems the High Court’s reasons go further, and suggest that courts may have made orders they did not have the power to make. This reasoning, on the face of it, is at odds with others, particularly those that affirm the ‘paramountcy’ of a child’s best interests.

The High Court has, in its interpretation of s 65DAA, concluded that the circumstances in which a court should order an equal time arrangement are much narrower than previously thought. It will be suggested that the legislation, in its current form, is confusing, contradictory, and difficult to explain.

Post MRR, the High Court has been the subject of some criticism. This article discusses those comments, and also looks to a series of Full Court decisions made since.

This article advances the proposition that the existing legislation is misunderstood; a proper interpretation of the existing provisions (together with the High Court’s reasons) effectively sets out a clear (if slightly convoluted) pathway for determining parenting orders applications.

Finally, potential, further legislative reform is considered. In part, the suggested changes are designed to more simply reflect the law as it currently is, but also are intended to enable a court to more fully consider new evidence about the impact on children if shared parenting arrangements do not work.