Cottey & Backe (No 2)

In Cottey & Backe (No 2), the appeal arose from a family law dispute concerning the custody of a child, X, born in 2012. The child had been living with the mother and her stepfather when the mother passed away. The father, who had previously been granted interim custody, retained the child. The stepfather subsequently applied for the return of the child, and the primary judge dismissed the application. The stepfather appealed this decision, contending that the primary judge had not properly exercised his discretion in favour of the child’s best interests.

The court needed to determine whether the primary judge had erred in dismissing the stepfather's application for the return of the child. Key issues included the relevance of the presumption in favour of a parent, the separation of siblings, the stability of the child's living arrangement, and the consideration of statutory factors outlined in s 60CC of the Family Law Act 1975. The court also had to consider whether the stepfather was entitled to a costs certificate for the appeal.

The Family Court of Australia allowed the appeal, finding that the primary judge had not adequately considered the statutory factors and had not properly exercised his discretion in favour of the child's best interests. The court noted that there was no presumption in favour of a parent compared to another person and highlighted the importance of the child's views and the separation of siblings. The court also found that the stepfather's reasons were inadequate and that the primary judge had not properly considered the statutory factors. The appeal was allowed, and the orders were set aside. The court then exercised its discretion, ordering that the child live with the stepfather and that the child spend time with the father under specific conditions. The court also granted a costs certificate to the stepfather, considering the father's failure to seek the Court’s approval before retaining the child and his failure to concede the appeal.