Separation in a mining town is hard. When I started practicing family law 30 years ago I would visit the ETSA company town of Leigh Creek where, to have accommodation, you needed to be an employee of ETSA. Today the cost of living as a single parent reliant on child support and supporting parent benefits can equally make it impossible to live in high rent mining towns like Roxby Downs.On 3 December 2009, the High Court of Australia found that a Federal Magistrate was wrong in refusing to allow a single mother to relocate back to Sydney from Mt Isa. In this case, the mother and father had both lived in Sydney, and moved to Mt Isa so that the father could commence his 2 year contract working as a mechanical engineer. The parties intended this to be a short-term arrangement, but at the time of separation the father made it clear that he wanted to stay in Mt Isa, where he had better employment prospects.
The father made it very clear that even if his daughter were living in Sydney with the mother he would still not consider leaving his employment in Mt Isa to find alternative work in Sydney. He was determined to stay in Mt Isa. The mother was living in a caravan park in Mt Isa and relying on welfare payments and income from casual employment to support herself. The mother suffered depression arising out of her poor living conditions, lack of employment opportunities, and isolation from her family in Sydney.
The father had initially made an application to the Federal Magistrate that both parents have equal shared responsibility and that their daughter spend equal time with each of them. The Federal Magistrate found that the child spending equal time with both parents was in the best interests of the child. The Federal Magistrate made an order for equal time on the basis that both parents would live in Mt Isa, which meant that the mother could not return to Sydney.
The High Court affirmed the fundamental principle that there is a presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility.
The High Court found that the Federal Magistrate had correctly considered whether there should be an order that the child spend equal time with each of her parents and whether it was in the child’s best interests for such an order to be made. However, he had failed to make an assessment of whether spending equal time with each parent was actually feasible. The High Court found that the Federal Magistrate had failed to make a finding about whether on the evidence he had heard it was open to find it was ‘reasonably practicable’ for the child to spend equal time with each of the parents. In this case, due to the conditions the mother was living in, it was not ‘reasonably practicable’ for the Federal Magistrate to make an order for equal time.
When parents separate they should consider the best interests of their children and should seek assistance from a family relationship specialist or child consultant to help them reach agreement. The best piece of legal advice parents can be given when separating is to avoid court.