Kearney & McMaster [2024] FedCFamC1A 2
It is well established that the Court has the ability to make Orders at its own discretion and are not bound by proposal of the parties to the proceedings.
In this appeal the Court considered the principles procedural fairness and Court’s obligation to permit parties to make submissions when a Judicial Officer intends on making Orders not contemplated by any of the parties.
Background of Proceedings
The appeal was bought by the mother against Orders made in Division 2 of the FCFCOA with respect to one child, aged 11 years on 25 August 2023.
The parties in the proceedings had separated some years earlier and in 2018 reached an agreement for their children (born 2008 and 2012) to commence an equal time arrangement in 2019. The arrangements continued until around late 2020 when an incident occurred between the father and his new partner which resulted in his arrest and charge. The father was allegedly intoxicated at the time and entered a guilty plea on an amended Statement of Facts.
The parties agreed that Orders for time would only relate to the youngest child.
The issues of risks identified by the mother and the Independent Children’s Lawyers were allegations as to the capacity to manage his anger, allegations of family violence, allegations of alcohol abuse.
Issues in Dispute
The issues in dispute at final hearing in brief were:
- Whether the father should be subject to a period of supervised time.
- Whether the father should undertake testing for alcohol abuse.
- The amount of time the child should ultimately spend with the father.
The Primary Judge’s Orders
It is important at this juncture to note that it was an agreed position of the parties and the ICL that the father would attend a program in relation to anger management and that the father’s time with the child would be, in part, contingent on the successful completion of the program.
The Primary Judge made Orders which allowed for the immediate commencement of time between the father and the child, without the requirement for the anger management program to have been completed.
Was it an appealable decision?
The mother appealed on the basis of a lack of procedural fairness for the mother in relation to the decision made by the primary Judge.
It is widely held, pursuant to U v U (2002) 211 CLR 238; [2002] HCA 26 that the Court is not bound by the proposal of any of the parties in proceedings and can make Orders of its own volition. However it is also accepted that, if the Court is to make Orders which would not have been contemplated by the parties, the Court must offer the parties an opportunity to make submissions in respect of it.
Justice Christie on Appeal held that the primary Judge failed to give the parties the ability to make submissions in relation to the proposal to commence time, unsupervised, without the father completing the anger management course. Justice Christie also found the primary judge failed to give adequate reasons for judgement. The appeal was allowed, and the matter remitted for rehearing.
