Procedural Fairness in the Family Court

Introduction

According to the Australian Law Reform Commission, procedural fairness means acting fairly in administrative decision making. It relates to the fairness of the procedure under which a decision is made, and not the fairness in a substantive sense of that decision. The High Court has confirmed on numerous occasions that in the absence of a clear, contrary legislative intention, administrative decision makers must accord procedural fairness to those affected by their decisions (Minister for Immigration and Border Protection v WZARH).

Background

In the recent decision of Lorreck & Watts, the Full Court of the Family Court allowed an appeal by the mother after finding that the trial judge had denied the parties’ procedural fairness. The court found that procedural fairness was denied by the trial judge in determining the issue of sole parental responsibility in favour of the father without having raised his intention with the parties.

The parties to the proceedings separated in 2008, at the time they had two children aged 6 and 1. Since separation the children lived primarily with their mother. In 2012 the mother was granted orders that allowed her to relocate with the children from Canberra to North Queensland. The same orders granted the mother sole parental responsibility and for the father to spend time with the children. The mother met her obligations under the orders and the children spent time with the Father in Canberra. On several occasions, however, the father failed to return the children to the mother at the end of their time with him. While the children were spending time with the father during the Christmas school holidays he initiated proceedings.

On 18 December 2017 the father sought orders that the children live with him and for the parties to have equal shared parental responsibility. The children were supposed to be returned to the mother on 26 December 2017 however this did not happen and two weeks later the mother filed an application seeking a recovery order. At the time of the trial before the primary judge on 12 January 2018 the children remained in the fathers care.

Court Analysis

At trial the judge made orders for the children to live with the farther, for the father to have sole parental responsibility and for the children to spend time with the mother. It was not noted by the primary judge until his judgment that he did not think equal shared parental responsibility would be in the children’s best interests because there was no cooperation between the parents. It was common ground that neither party sought an order of sole parental responsibility in favour of the father and the prospect of it was not raised with the parties for submission. Therefore, the parties were unable to provide arguments surrounding this order and this was the point of contention on appeal.

At trial it became apparent that the mother and the eldest child (now 15) had a somewhat troubled relationship and she faced difficulties managing his behaviours. In addition to this, both of the children made allegations that the mother was violent towards them and that they did not wish to live with her.

On appeal the mother submitted that the trial judge had not afforded the parties procedural fairness in making the order giving the father sole parental responsibility. In addition to this, the mother submitted that the trial judge made inconsistent findings regarding the family violence allegations.

On appeal the Full court held that in failing to raise the intention that the party with which the children would live would have sole parental responsibility, the trial judge denied the parties the opportunity to consider making submissions about the proposed orders and therefore procedural fairness was denied.

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