Franklyn & Franklyn

The appeal in this case concerns interim parenting orders involving a biological child of the parties, following the mother's relocation with the child and her older child from a previous relationship. The mother had moved from one region to another without the father's consent, prompting an application for interim parenting orders from the father. The primary judge, in the Federal Circuit Court, made orders that required the mother and children to return to the original region to facilitate unsupervised time with the father and also stipulated the changeover location and required the mother to inform the Court and the Independent Children’s Lawyer of the children's new residence. The mother appealed from these orders, arguing that they were based on legal errors and inadequate reasons. The father resisted the appeal, while the Independent Children’s Lawyer did not.

The court was tasked with determining whether the primary judge made material errors of law in arriving at the interim parenting orders, particularly whether the judge appropriately considered all relevant evidence and applied the correct legal principles. Key issues included whether the primary judge properly considered the mother's filed affidavits and the evidence related to the risk of harm to the child. The court also had to assess whether the primary judge gave adequate reasons for the orders made and whether the decision to require relocation was justified.

The appeal succeeded because the primary judge made material errors of law. The court found that the judge failed to consider relevant filed affidavits and did not give sufficient weight to aspects of the evidence, particularly concerning the risk of harm to the child. The court held that the primary judge did not provide adequate reasons for the relocation order and wrongly discounted the mother's evidence. Additionally, the court accepted that it was open to the primary judge to rely on the Family Consultant's opinion, despite it not being tested by cross-examination. Consequently, the appeal was allowed, the impugned orders were set aside, and the matter was remitted to the Federal Circuit Court for re-hearing. The parties were granted costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth), but the Independent Children’s Lawyer was ineligible to receive such a certificate.