Navickas & Fried (No 2)

In the matter of Navickas & Fried (No 2), the appellant, Ms Navickas, appealed against the final parenting orders made by the primary judge in relation to the parties' two children. The primary judge had found that both parties had perpetrated family violence and that the best interests of the children required a change of residence and sole parental responsibility from the appellant to the respondent. The appellant argued that the orders were a denial of procedural fairness and that the primary judge was biased against her. The respondent opposed the appeal and contended that even if the primary judge had applied the incorrect law, the outcome would have been the same based on the findings of fact. The Independent Children’s Lawyer conceded that there had been an error of law and that the appeal should be allowed.

The court found that the primary judge had erred in the application of section 60CC of the Family Law Act 1975 (Cth). The court considered the provisions of section 36 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and determined that it was not appropriate to immediately discharge the orders as the children had been residing with the respondent for nearly five months. Instead, the court decided to set aside the orders from the date the proceedings were next listed for a defended hearing. This approach allowed a judge to determine the best interests of the children between that date and the final hearing. The court allowed the appeal, remitted the proceedings for re-hearing by a different judge, and granted costs certificates to all parties involved.

The court's decision was based on the findings that the primary judge had erred in the application of the relevant legal provisions. By allowing the appeal and remitting the proceedings for re-hearing, the court ensured that the children's best interests would be properly considered in light of the correct legal principles. The granting of costs certificates recognised the legal expenses incurred by all parties in the appeal and the anticipated rehearing.