When determining the live with and spend time with arrangements for children, one area that the Courts must look at is whether it is “reasonably practicable” for Orders to be made.
Reasonable practicality is outlined in Section 65DAA(5) of the Family Law Act and takes into account issues such as how far apart the parents live from each other, whether the parents can afford to undertake what is being Ordered, the capacity for the parents to communicate, the impact Orders may have on the children and any other matter the Court deems necessary.
This issue was raised in the Family Court appeal decision of Ember & Assadi [2013] FamCAFC 107. Orders were originally made in this case for the children (then aged 3 and 2 years) to live with the mother but to return from Melbourne to Sydney so that the father could spend time with them.
The mother did not agree with the Orders for her and the children to move back to Sydney and she argued on appeal that the Federal Magistrate failed to consider the “reasonable practicability” of her returning to live in Sydney and that there was insufficient evidence to determine what her financial situation would be.
The evidence before the court on this occasion concerning the financial situation of the mother was that she was living in a Department of Housing house in Melbourne and was working only three hours per week.
Further, whilst there were comments that the father would pay to the mother $110 per week, there was no order to that effect nor was there any consideration as to whether the father could actually afford to give the mother that amount of money as he was only working 2 days per week and living with his parents. Again, the mother’s financial position was not fully determined.
The Full Court concluded that there was merit in the appeal because they did not find that there was enough evidence for the Federal Magistrate to determine whether it was reasonably practicable in the circumstances for the mother to be required to move back to Sydney and financially what that impact would be.
If you have any issues in relation to the reasonable practicality of the spending time with your children, you should seek legal advice from Everingham Solomons as we have the experience and expertise to assist you because Helping You is Our Business.
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