Mauldera & Orbel

This appeal concerns a challenge by Ms Maldera to parenting orders made by Judge Terry on 9 April 2014 in relation to her grandson, X (“the child”). X had lived with Ms Maldera, his maternal grandmother, since he was four years old. In 2007, orders were made that X live with his grandmother and that she have sole parental responsibility. The child’s father, Mr Orbel, filed an application in May 2013 that the child live with him. After considering the child’s views, and the parties’ respective capacities to meet the child’s needs, Judge Terry discharged the 2009 orders and ordered that the child lives with the father. Ms Maldera appeals against those orders.The primary judge correctly identified that the paramount consideration in determining whether to make a particular parenting order was the best interests of the child. However, the primary judge erred in applying the terms of s 60B of the Family Law Act 1975 (Cth) as a justification for the orders she made. Section 60B cannot be used to establish a hierarchy as to outcome in which parents sit at the apex. In our view, it is abundantly clear that the comparative significance for a particular child of the fact of parenthood (which may in an individual case be decisive) is to be considered and weighed along with the other matters identified in s 60CC. But not on the basis that the factors referred to in s 60B can be used in favour of a parent to deliver an outcome inconsistent with the proper application of s 60CC.We also found that the primary judge erred in failing to make any proper investigation into the attachments and wishes of the child. The primary judge should have approached the evidence contained in the s 11F memorandum with caution. The memorandum itself says that it provides “preliminary expert advice” and that “any views expressed or recommendations are, of necessity, limited.” It being understood that to do so based on the limited interviews and investigations involved in the s 11F process, may be unsafe. Had a family report been ordered, the primary judge would have had the benefit of evidence in relation to the child’s maturity, sex, lifestyle and background more comprehensive than what she saw as evidence which enabled her to do no more than determine his age and that he is “apparently easy going and adaptable.” In our view, in failing to give attention to the family consultant’s evidence concerning the “very negative and inappropriate” changes in the child’s life, as well as both parties having raised serious concerns about the other party and household, not only did her Honour fail to consider the evidence concerning the child’s views in context but also to establish what were the “serious” concerns to which the family consultant referred.In light of these errors, the appeal was allowed, the orders made by Judge Terry were set aside, and the matter was remitted to the Federal Circuit Court for rehearing by a judge other than Judge Terry. The Full Court also granted costs certificates for the appeal and any rehearing.