Hart & Sellwood

Hart and Sellwood were involved in a family law dispute which reached the Family Court of Australia. The central issue was whether the court had jurisdiction to appeal an order made under section 11F of the Family Law Act 1975, which required the parents and their child to attend a family consultant for assessment. Additionally, the court had to determine whether leave to appeal was necessary and if the order was a "child welfare matter" as defined in regulation 15A(2) of the Family Law Regulations 1984. The court also considered whether the primary judge had correctly exercised their discretion in making the s 11F order without considering the best interests of the child and whether the judge had failed to regard relevant evidence.

The court held that the order under section 11F was not a "decree" that could be appealed without leave, and that leave was not required as the order related to an aspect of parental responsibility. The court found that the primary judge had erred in making the order without considering the best interests of the child and in failing to have regard to relevant evidence. The court concluded that the appeal should be allowed, the order set aside, and the matter remitted to the Federal Circuit Court for rehearing by a different judge. The father was ordered to pay the mother’s costs of and incidental to the appeal.

In light of the above, the court ordered that the appeal be allowed, the order made by Judge Myers on 8 July 2016 be set aside, and the matter be remitted to the Federal Circuit Court for rehearing by a different judge. The father was ordered to pay the mother’s costs of and incidental to the appeal within twenty-eight days of agreement or assessment. The form of the order was subject to the entry of the order in the Court’s records.