Shared care: not reasonably practicable

In a recent case, Wainder and Wainder a trial judge ordered that the parties share the care of the their son on an equal basis after he turned 5. The only snag was that by then he would be going to school, with the mother living on Sydney's north shore, and the father living in the western suburbs. Not surprisingly, the mother appealed, and was successful:

30. Itmay be implicit in his Honour’s order that the child spend equal time withher parents in 2012, that he was satisfied thatthat arrangement was reasonablypracticable within the construct of s 65DAA(5). However the trialJudge’s comments ... appear to us to be an acknowledgement that theproposed order to come into forcein 2012 may not be reasonably practicable ifthe parties were living in their present locations.
31. Theorder impugned is open ended and would, without further litigation, extendthroughout the child’s school life. Where thecourt proposes to makeorders stretching into the future, the consideration of whether a proposed orderis reasonably practicableshould focus on the date of enlivenment of the order.The trial Judge is required to make a prediction at the date of trial on theevidence then before him or her as to whether at the date on which the ordertakes effect, it will be practicable or “feasible”.
32. Althoughhis Honour paid careful attention to the matters in s 60CC and therebydetermined that the proposed order for equal time was in the child’s bestinterests, he did not proceed to determinewhether, on the evidence available tohim, the order for equal time would be reasonably practicable once the childstarted school,and in this respect, fell into error.