Hickson & Matthew

The appeal in Hickson & Matthew concerns the determination of parenting arrangements for a child, where the primary judge ordered unsupervised time with the mother despite finding an unacceptable risk for the child in her care. The appellant mother, Ms Hickson, appealed the decision, arguing that the primary judge's orders were inadequate and contained a non sequitur. The Federal Circuit and Family Court of Australia Appellate Division considered the appeal and found merit in the arguments presented by the mother and the Independent Children's Lawyer (ICL).

The legal issues before the court were whether the primary judge's reasons were adequate, and if there was a non sequitur between the unacceptable risk finding and the order for unsupervised time with the mother. The court also considered if there was an error in the primary judge's failure to explain the application of s 65DAA of the Family Law Act 1975 (Cth) considerations in respect to the period prior to the child commencing school.

The court found that the primary judge had failed to provide adequate reasons for ordering unsupervised time with the mother, given the finding of unacceptable risk. The court found that a non sequitur existed between these two findings, which constituted an error of law. The court also noted that the primary judge did not consider the practicality of the child spending equal or substantial and significant time with the mother in the period before the child commenced school in 2024, which was an error of significance in the context of these proceedings.

The appeal was allowed, and the matter was remitted for re-hearing before a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge. Costs certificates were granted for both the appeal and the re-hearing. The court found it appropriate to grant the parties costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth).