Cubbin & Cutler

In the case of Cubbin & Cutler, the appellant father contested orders regarding the parenting arrangements for his children with the respondent mother, leading to an appeal in the Family Court of Australia. The primary judge had made orders requiring a specific regime of mediated parenting meetings and family therapy. The father argued that the orders were not supported by the evidence and that the primary judge had not provided procedural fairness. The court was tasked with determining whether the primary judge erred in making the orders and whether the orders were supported by the evidence.

The court found that the primary judge did not err in referring to previous observations made by another judge, as the issues raised by that judge were still relevant. The court also found that the primary judge had not failed to provide procedural fairness by not reformulating the proposed orders until the last moment. The court held that the orders were not supported by the evidence, as the primary judge had not considered all of the evidence and had made findings based on assumptions. The court found that the orders were therefore not in the best interests of the children.

The appeal was allowed in part, and the orders made by the primary judge were set aside. The proceedings were remitted to the Federal Circuit Court of Australia for reconsideration of the orders and definition of the time the appellant was to spend with the children. The appellant was ordered to pay the respondent's costs, and the court granted costs certificates to the appellant and cross-appellant.