D v D

The applicant, Mr D, sought special leave to appeal to the High Court of Australia from an order made by the Family Court. The dispute concerned interim orders relating to the custody, guardianship, welfare, or access to a child. Mr D argued that the primary judge failed to consider specific matters mandated by section 64(1)(bb) of the relevant legislation, which he contended rendered the subsequent order under section 64(1)(c) invalid.

The central legal issue before the High Court was whether section 64(1)(bb) of the Family Law Act 1975 (Cth) was mandatory, requiring the court to take into account the listed matters, including the capacity of each parent to provide for the child's needs. Mr D contended that the primary judge, due to time constraints and the exigencies of interim proceedings, did not adequately canvass these matters, thereby failing to exercise the power to make the order under section 64(1)(c) lawfully. A further issue raised was whether the Family Court's practice of making interim custody orders without full regard to the factors in section 64(1) was contrary to established legal principles, particularly in light of differing authorities within the Family Court itself.

The applicant argued that the primary judge's statement that certain issues could not be canvassed due to time constraints indicated a failure to comply with the mandatory requirements of section 64(1)(bb). He submitted that this practice, and the differing judicial interpretations within the Family Court regarding the application of section 64 in interim proceedings, raised matters of public importance warranting the High Court's guidance. The applicant specifically referred to the principles in *Cilento v Cilento* and subsequent case law, suggesting they might be contrary to the statutory provisions.