Lovett & McGregor

The case of Lovett & McGregor involved an appeal concerning parenting arrangements for the children of the marriage. The dispute arose from the Family Court of Australia's order that the children live with the appellant and spend six nights a fortnight with the respondent during school term. Neither the appellant nor the Independent Children's Lawyer sought this arrangement, and the parties were not informed that the primary judge was considering such an order. The appeal focused on whether the primary judge denied procedural fairness by making an order that deviated significantly from the proposals argued by the parties and the Independent Children's Lawyer. Additionally, the appellant argued that the primary judge failed to properly consider the risks posed by the respondent and did not adequately justify the orders made.

The court found that the primary judge's order constituted a significant deviation from the proposals argued by the parties and the Independent Children's Lawyer, and thus, the appellant was denied procedural fairness. The court also found that the appellant's argument regarding the primary judge's failure to consider the risks posed by the respondent had no merit. Given the denial of procedural fairness, the appeal was allowed, and the order regarding the amount of time the respondent was to spend with the children during school term was set aside. Due to a deficit of evidence relevant to what interim parenting arrangements should apply between the rehearing and now, the court restated the set aside order as a default position and emphasised the urgency of judicial attention on the matter.

The court ordered that the appeal against Order 6.1 of the orders made on 8 February 2019 be allowed, and the order be set aside. The matter was remitted to the Family Court of Australia for rehearing by a judge other than Justice Cleary to determine the appropriate time the children should spend with the mother and the terms of such arrangements. The court granted the appellant a costs certificate pursuant to section 9 of the Federal Proceedings (Costs) Act 1981 (Cth). Pending further orders, the children were to spend time with the respondent each alternate weekend from after school Thursday to before school Wednesday, consistently with the pattern of time the children had previously been spending with their mother under Order 6.1 made on 8 February 2019.