Graham & Maddox

This matter concerned an appeal to the Supreme Court of Western Australia (Family Court) by a mother against orders made by a Federal Magistrate. The dispute arose following a DNA test which revealed the respondent was not the biological father of the child. The mother sought to appeal the Magistrate's decision regarding the reception of evidence and the continuation of existing parenting orders.

The primary legal issues before the court were whether the Federal Magistrate erred in failing to receive a report from a psychiatrist, in failing to order a single expert's report, and in failing to suspend or vary existing orders for equal shared parental responsibility and time with the child, particularly in light of changed circumstances following the DNA test. The mother also argued that the Magistrate erred in failing to suspend time orders pending the receipt of an expert report.

Strickland J found no error in the Magistrate's refusal to receive the psychiatrist's report, noting that it was obtained solely at the mother's request, without the father's input, and was based on disputed facts. The report was not based on any assessment of the parties or the child. However, the court allowed the appeal in relation to the Magistrate's failure to suspend the order for equal shared parental responsibility. The Magistrate had indicated in her reasons that suspension was appropriate but had omitted to include this in the formal orders.

Consequently, the appeal was allowed, and the orders made on 15 March 2007 were varied. Paragraph 1 of those orders was amended to provide that save for that paragraph, the orders of 9 October 2006 would continue and recommence on 16 March 2007. A new paragraph 1A was inserted, suspending paragraph 1 of the 9 October 2006 order (which provided for equal shared parental responsibility) until further order.