Procedural Unfairness in Family Court

Introduction:

Procedural unfairness in family court hearings is a ground upon which a party may make an appeal to have court orders set aside.

Where a party appeals a court order and one ground of the appeal is procedural unfairness in family court hearing, the procedural fairness challenge must be considered first by the appeal court. This is because any denial of procedural fairness in regard to a material matter calls into question the validity of a trial process and the court orders that were made.  If the ground of procedural unfairness is made out, the proper course is for the court orders that were made to be set aside and the matter to be re-heard before a different trial judge.

Relevant Case Law

In Tabb & Tabb [2019] FamCAFC 22,  the Full Court of the Family Court of Australia, hearing an appeal from the decision of a judge of the Federal Circuit Court of Australia (FCCA), dismissed the contention of the appellant father in effect that there had been procedural unfairness in family court hearing before the FCCA.

The Full Court said that natural justice requires fairness in all the circumstances.

Whilst the Full Court accepted that the trial judge had a times spoken over the father, raised his voice at him and  interrupted him as well as being argumentative with the father, the Full Court also acknowledged the role of the trial judge in keeping father to addressing the relevant issues in the matter rather than going off on tangents. The Full Court said that the trial judge should not have raised his voice as he had done. However, the appellant father had not established as he needed to do in order to show procedural unfairness in family court hearing that the trial judge’s “interventions and conduct denied him the opportunity to present his case or might raise a reasonable apprehension of bias”.

Whilst the appellant father failed on other grounds of the appeal, he succeeded in having set aside the order made by the trial judge that he be restrained from filing any further application without first obtaining leave from the court.

The Order had been made without notice to the father; the mother had not made any application for that order to be made. The Order did not indicate the source of power on which it was purported to be made and the trial judge had not given reasons for making that order.  The Full Court inferred that procedural unfairness in family court  hearing before the trial judge may have been sufficient for this order to be set aside but if it was not sufficient then the order was anyway set aside as a result of the trial judge’s failure to give reasons for it or to identify the source of power on which it was made and to apply the purported legislation.

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