Kearney & McMaster

This appeal before Christie J concerns an application for the immediate commencement of unsupervised time for the children of the parties, Ms Kearney and Mr McMaster. The appellant, Ms Kearney, contended that the primary judge’s decision to immediately commence unsupervised time for the children constituted a denial of procedural fairness and that the primary judge had failed to provide adequate reasons for the parenting orders made. The appeal was heard in the Federal Circuit and Family Court of Australia's appellate jurisdiction, which has the authority to review decisions made in the Family Court and Federal Circuit Court regarding family law matters.

The central legal issues before the court were whether the primary judge's decision to immediately commence unsupervised time for the children was a denial of procedural fairness and whether the primary judge's reasons were adequate. Specifically, the court had to determine if the primary judge had strayed beyond the scope of the issues framed by the parties, which would constitute a denial of procedural fairness. Additionally, the court needed to assess whether the primary judge's reasons sufficiently explained the basis for the parenting orders and the approach to the safeguards that were to be in place before unsupervised time was to commence.

Christie J found that the primary judge had indeed departed from the scope of the issues as defined by the parties, thus denying procedural fairness. The court held that the primary judge's reasons did not adequately explain the extent to which significant events had informed the parenting orders or the approach to the safeguards. The court concluded that the primary judge had failed to analyse whether the appellant's argument that the respondent's conduct would place the children at risk was accepted or rejected. As a result, the appeal was allowed, and the matter was remitted to a different judge of the Federal Circuit and Family Court for rehearing. The appellant was also granted a costs certificate for the appeal, and both parties received a costs certificate for the new trial.