High Court set aside child custody

THE High Court has reportedly set aside orders that forced a mother to stay in a remote Queensland mining town so her ex-husband could have equal custody of their daughter.

The Australian newspaper yesterday reported it took just 15 minutes for the High Court to decide to send the case back to the Federal Magistrates Court to make new orders.

Chief Justice Robert French said it was not open to the lower court to find that it was “reasonably practicable” for the seven-year-old to spend equal or substantial and significant time with each parent.

The Morning Bulletin has been told the town cannot legally be named.

A summary of the case considered by the High Court, and provided for The Morning Bulletin, said the parents married in 2000 and their child was born in 2002.

In early 2007 the family moved from Sydney to Queensland in order for the father to take a position as an engineer.

They separated shortly after and some time following this the mother and the child moved back to Sydney.

The father then began proceedings in the Federal Magistrates Court for orders in relation to parenting arrangements.

At the time the matter was heard both parties were living in Queensland, with the child living with each parent on a week-about basis.

Magistrate John Coker, in a decision later upheld by the full Family Court, ruled the mother could not leave the mining town with her daughter.

The father had said he would not quit his job and move back to Sydney.

The Australian reported the mother said if the child was forced to stay in the remote town she would live there with her, although she would have to rely on welfare.

While the High Court is yet to publish its reasons, The Australian reported barrister Bret Walker SC argued on behalf of the mother that there were “yawning gaps” in the magistrate’s consideration of whether equal shared parenting was reasonably practicable.

The paper said that under the Howard government’s shared parenting laws, the court must presume a child’s best interests are served by shared parenting, unless there is violence.

The court must also consider whether equal or substantial and significant time with each parent is reasonably practicable.

Mr Walker said the magistrate should have considered the mother’s needs, as well as the father’s needs, when deciding whether equal parenting was practical.

However, barrister Graeme Page SC argued on behalf of the father that the lower courts had already decided it was best for the child to spend equal time with both parents in the mining town.

Mr Page said the laws gave prominence to the best interests of the child and did not require courts to go through a formulaic process to decide what orders to make, as each case was different.

The Australian reported the laws were now under review.

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