Blass & Blass

The case of Blass & Blass involved an appeal against final orders made by the Federal Circuit Court of Australia, which involved the division of parental responsibilities and living arrangements for the children of the parties. The appellant, Ms Blass, had raised allegations of family violence against the respondent, Mr Blass, and had also alleged problematic and harmful sexual behaviour by one of their children. The primary judge had found in favour of the appellant on the basis of family violence, and ordered that the children live with the appellant while spending time with the respondent. The primary judge also found that the appellant had a history of non-compliance with the previous final orders, which had resulted in her being placed on a bond. The respondent and the Independent Children’s Lawyer sought to reverse the residence order that was made by the primary judge.

The legal issues before the court were whether the primary judge erred in failing to accept the appellant's evidence of problematic harmful sexual behaviour, and whether the primary judge erred in finding that the appellant had a history of non-compliance with the previous final orders. The court found that the primary judge had erred in finding that the appellant had a history of non-compliance with the previous final orders, and that this error was significant enough to warrant a rehearing of the matter. The court held that the primary judge had failed to properly consider the evidence of the appellant, which included a statement by the appellant that she had come to understand the risks associated with failure to comply with the orders, and that she would endeavour to comply in the future. The court also held that the primary judge had failed to properly consider the evidence of the respondent and the ICL, which included evidence that the children's ongoing relationship with the respondent was prejudiced whilst the appellant retained primary care.

The appeal was allowed, and the orders of the primary judge were set aside. The matter was remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge. Costs certificates were granted to all parties in accordance with the Federal Proceedings (Costs) Act 1981 (Cth). The court held that the appellant had succeeded on a question of law, and that it was appropriate to grant costs certificates to all parties in respect of the costs incurred in relation to the appeal and the re-hearing. The court held that the appellant had made the relevant applications, and that the respondent and the ICL were not employees of the Legal Aid Commission. The court held that it would be appropriate for the Attorney-General to authorise payments under the Act to the appellant, the respondent and the ICL in respect of the costs incurred in relation to the appeal and the re-hearing.