Manderville & Borah

The mother, Ms Manderville, appealed the final parenting orders made by a primary judge in the Federal Circuit Court of Australia in proceedings with Mr Borah, the father. The two children of the parties' relationship, X and Y, were aged 13 and 9 years respectively at the time of the appeal. The parenting orders provided that the children live with the father and he have sole parental responsibility for them. The primary judge ordered that the children spend time with the mother during school terms as agreed between the parties or if there is no agreement each alternate weekend. School holiday time was to be agreed and, again if there is no agreement the children would spend the first half of each school holiday with the mother and the second with the father. Other orders were made which accommodated time on special occasions, school activities and the like. The appeal was dismissed, and the mother ordered to pay the father's costs of the appeal in a fixed sum of $24,227.00.

The appeal raised five grounds of challenge to the primary judge's orders however at the hearing of the appeal, counsel who appeared for the mother sought to rely on only one ground, Ground A, which contends that the primary judge failed to afford the mother procedural fairness during the hearing and, as a result she was significantly prejudiced. The mother's counsel argued that the primary judge should have adjourned the hearing and in failing to do so denied the mother procedural fairness. The mother's counsel further argued that the mother was not afforded adequate protection during cross-examination; her witness (her grandmother) was not afforded adequate protection during cross-examination; she was not afforded an opportunity to properly re-examine herself or her grandmother without the legal knowledge which, without any doubt, would have been done had the mother been represented; she had no ability to adequately cross-examine the family report writer without sufficient time to prepare to do so; and she had no ability to recall the father for further cross-examination in the circumstances where she had questions to put to the father that her inadequate counsel did not. The mother's counsel submitted that these were ways in which the mother was prejudiced by being required to complete the hearing while unrepresented. The court found that nothing put either in writing or in oral submissions establishes that the primary judge failed to afford the mother procedural fairness and the appeal will be dismissed.

The mother's appeal was not only wholly unsuccessful, it was entirely devoid of merit. The court proposes to make an order as sought being $24,227.