Miyajima & Mikkelsen

This appeal involved a dispute between Ms Miyajima and Mr Mikkelsen regarding parenting arrangements for their children. The Federal Circuit and Family Court of Australia's appellate division was tasked with reviewing the primary judge's decision that had imposed conditions on Mr Mikkelsen's time with the children, including mandatory psychological therapy and course completion. The primary judge had found that Mr Mikkelsen posed a risk of harm to the children due to allegations of family violence.

The central legal issue was whether the orders made by the primary judge constituted an improper divestiture of judicial power, as well as whether the orders were uncertain. The appeal hinged on the interpretation and application of the case of Lainhart & Ellinson (2023) FLC 94-166. The court found that the primary judge had indeed made orders that amounted to an improper divestiture of judicial power and were uncertain. The orders requiring Mr Mikkelsen to engage in psychological therapy and complete courses before spending time with the children were deemed to be delegating judicial functions to the therapists and course providers, which was not permissible under the law.

The court allowed the appeal and set aside the orders in question. It remitted the matter for rehearing before a different judge, emphasising that the primary judge should not impose conditions that require the children to participate in therapeutic processes. Additionally, the court granted costs certificates to all parties, recognising the complexity and significance of the appeal.

The final orders included setting aside certain parenting orders, remitting the matter for rehearing, and issuing costs certificates to the appellant, respondent, and the Independent Children’s Lawyer for the costs incurred in the appeal and the rehearing.