September 14, 2010
Thousands of family court orders could be invalid after a landmark High Court decision, and the federal government has revealed it is drafting urgent legislation to avoid mass confusion among parents.
In the high-profile case of ''Rosa v Rosa'', a mother had been forced to remain in a Mount Isa caravan park, depressed and relying on welfare payments, after she moved there from Sydney for her husband's mining career and they separated.
The High Court found unanimously that the decision was wrong and ordered a fresh hearing in March, saying the Family Court cannot order that children spend equal or substantial and significant time with both parents unless the arrangement is ''reasonably practicable''.
But the decision means that ''a cloud now hangs'' over the status of thousands of parenting and consent orders granted by family courts, which have not addressed the question of ''reasonable practicability'', Patrick Parkinson and Richard Chisholm write in a forthcoming article in the Australian Journal of Family Law.
The affected orders include not only relocation orders but parenting orders and consent orders that parties have entered into using a popular kit provided by the court.
As the architect of the 2006 family law reforms and the author of a government-commissioned review of them, respectively, professors Parkinson and Chisholm have criticised the High Court decision, describing it as a ''misunderstanding'' of the laws that is difficult to reconcile with Parliament's intention when it passed them.
''Such uncertainty could lead to expense and delay as lawyers and courts struggle to work through the implications of the High Court's decision,'' they said.
A spokesman for the Attorney-General, Robert McClelland, said the government is preparing priority legislation to clarify the validity of existing parenting orders.
But professors Parkinson and Chisholm also say the federal government should go further and simplify and clarify the law of shared care.
A string of recent reviews - including one by Professor Chisholm, who is a former Family Court judge, and others by the Family Law Council of Australia and the Australian Institute of Family Studies - have recommended changes to the laws to better protect children from abusive parents, and to make the law clearer for parents and judges.
The reports have received a lukewarm response from the government, which is reportedly anxious to avoid upsetting men's groups that welcomed the changes.