Family Court Application & The Court’s Role

Introduction

In family court applications, parties sometimes believe that the Court will make a decision based upon the application of the party that the Court prefers. It is important however to understand the role of the Court in reaching a final decision whether for parenting arrangements or property settlement.

Relevant Case Law

The Full Court of the Family Court of Australia in Bradford & Donnellan [2019] considered the decision of a primary judge on a family court application that there be no contact between the children and the father. The mother had sole parental responsibility for the children.

The father complained that the primary judge had failed to take into account the references of the Independent Children’s Lawyer to the mother’s evidence. However, the ICL had submitted that the father’s evidence was not truthful.

The father also complained that the primary judge had not decided the matter in accordance with the parties’ family court applications.    However, the Full Court rejected that the primary judge was bound to do this. In fact, the Full Court stressed that the Court is not obliged to reach a decision that accords with the parties’ family court applications.

The Full Court confirmed the decision of the High Court of Australia in U&U [2002]  that a judge is not bound by the proposals of the parties but must make orders as the judge considers is in the best interests of the children.

The Full Court considered that the primary judge’s reasons set out fully and appropriately the basis of the orders made. The Full Court took the view that the father’s ground of appeal in this area was really a complaint as to the decision reached in relation to the family court application and was not a proper ground to challenge the orders made.

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