A recent amendment to the Family Law Act (‘the Act’) has the effect of affirming parenting orders that may be defective because of a failure by the relevant judicial officer to consider matters that the Act deems mandatory.
The need for the amendment arose chiefly as a result of Rosa’s Case (MRR v. GR [2010] HCA 4). In this case, the High Court, in essence, determined that in considering whether to make an order for equal time under s65DAA(1), or substantial and significant time under s 65DAA(2), the requirement that the court consider the reasonable practicability of the arrangement is mandatory. Plainly this has consequences beyond contested relocation proceedings, the central issue in Rosa’s case.
A further complexity flowing from Rosa’s case, particularly affecting orders made by inferior courts such as the Federal Magistrates Court, was identified by professors Richard Chisholm and Patrick Parkinson in an article published last year ((2010) 24 AJFL 255).
Professors Chisholm and Parkinson focussed particularly on that part of the judgment of the High Court in Rosa’s case that sought to characterise the requirements in 65DAA(1)(b) and 65DAA(2)(d) as threshold requirements that are akin to the finding of a jurisdictional fact. To appreciate the significance of their insightful article we need to digress briefly to discuss the nature of courts.
Readers will appreciate that, given the dependence of Federal Courts on the limited powers set out in the Australian Constitution, jurisdiction is always a fraught issue in Family Law; one need only think back to the spectacular failure of the cross-vesting scheme to see how disruptive an issue jurisdiction (or rather the lack of it!) can be. Perhaps less widely known is the effect on jurisdiction and power of the characterisation of courts as superior or inferior courts.
The Family Law Act identifies the Family Court of Australia as ‘a superior court of record’. Not so the Federal Magistrates Court or the Family Court of Western Australia, which are clearly inferior courts. So what’s the difference? The authorities (ancient though many are: the leading case, Peacock v Bell and Kendal 85 ER 84, dates from 1666) suggest that a superior court, though its jurisdiction may be limited, is assumed to have acted within its jurisdiction unless found otherwise by an appropriate appeal court.
In other words, it is not necessary for a superior court to make a specific finding of jurisdiction: jurisdiction is assumed. The judgments and proceedings of inferior courts, on the other hand, must disclose that the court was acting within jurisdiction; there is no presumption operating (as there is with superior courts) that the inferior court necessarily has jurisdiction simply because it has arrived at a decision.
In addition, there are very different consequences for judgments of the two types of court if there is a failure of jurisdiction. In the case of a superior court a judgment, even a flawed judgment, is binding until set aside. The situation in the case of an inferior court is very different. If an inferior court does not have jurisdiction, the relevant judgement is a nullity.
Returning now to Rosa’s case, the High Court determined that the requirements in 65DAA(1)(b) and 65DAA(2)(d) (that is, the need for a finding that the suggested arrangements for time to be spent are ‘reasonably practicable’) are akin to the establishment of a jurisdictional fact.
Professors Chisholm and Parkinson then proceeded to join the dots: if ss 65DAA(1)(b) and 65DAA(2)(d) refer to facts akin to jurisdictional facts, and the judgment and proceedings before, say, the Federal Magistrates Court in a matter do not establish the necessary finding, the relevant judgment will be a nullity. In many cases it might be implicit in a judgment that jurisdiction has been made out. Nevertheless, what about all of the consent orders made before Federal Magistrates where there has been no hearing, and so where there cannot possibly have even been an implicit finding of reasonable practicability?
This was one of the alarm bells that will hopefully be silenced by the recent amendments (not to mention the recent re-jigging of the standard Application for Consent Orders form), since the effect of the amendments is to retrospectively validate all of those at-risk decisions of courts and Registrars exercising jurisdiction under the Family Law Act.
Here’s how.
The amending Act is known as Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Act 2010 (“the Validating Act”) and was assented to on 16 December 2010. While there are some subtleties to the Validating Act, the basic thrust is that in the case of ‘affected orders’, and subject to the best interests of the child,
the rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if each affected order were an order in relation to which the court or Registrar making the order had considered the required matters for the order.
An ‘affected order’ is essentially an order made under s65D in which the court or Registrar did not consider the required matters for the order. In this regard, recall that s 65D(1) provides as follows:
In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper [emphasis added].
In each case, the ‘required matters’ include, inter alia, a consideration of the reasonable practicability of the arrangement for time to be spent.
Problem solved? Not quite. Whatever the legal position, the social science debate over the effect of shared care arrangements on children continues apace!
Coleman Greig has a team of dedicated accredited specialists and family lawyers available to undertake agency work on behalf of your clients. If you require support or assistance with a family law matter, contact our team on ph: 02 9635 6422 for a confidential discussion.