Parenting orders in doubt after High Court ruling

14 September 2010

Thousands of family court orders could be invalid after a landmark High Court decision, according to Professor Patrick Parkinson, AM and Professor Richard Chisholm.

A report in today's Sydney Morning Herald states that 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''.

In a forthcoming article in the Australian Journal of Family Law, Professor Parkinson and Professor Chisholm write that 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."

Both criticse 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.''

View the entire article - Parenting orders in doubt after High Court ruling - Sydney Morning Herald

Contact: Greg Sherington

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