Newlands & Newlands

This appeal concerned parenting orders made by a trial judge in the Federal Circuit Court of Australia. The proceedings were heard before the commencement of the *Family Law (Shared Parental Responsibility) Act 2006* (Cth), but judgment and orders were delivered after its commencement. The husband appealed the parenting orders, arguing, among other things, that he was denied natural justice regarding the impact of the new Act. The appeal also involved property orders made by the trial judge.

The court was required to determine several legal issues. These included whether the trial judge failed to provide natural justice by not affording the husband an adequate opportunity to make submissions on the effect of the amending Act, and whether the trial judge misapprehended the nature of the husband's application, thereby vitiating her discretion. Further issues concerned whether the trial judge erred in her findings regarding family violence, the rebuttal of the presumption of equal shared parental responsibility under s 61DA of the *Family Law Act 1975* (Cth), and whether the trial judge denied the husband natural justice by making an order for sole parental responsibility for educational decisions without affording him an opportunity to make submissions. The court also considered whether the trial judge failed to adequately examine and provide reasons for rejecting the recommendations of a family consultant.

The Full Court found that while the trial judge had invited written submissions on the impact of the amending Act, and there was wide publicity surrounding the changes, the husband had not been afforded a sufficient opportunity to make submissions on a specific order concerning sole parental responsibility for educational decisions, constituting an appealable error. Furthermore, the court determined that the trial judge had prima facie misunderstood the nature of the husband's application, which permeated and affected her discretion in assessing the parties' competing proposals. The findings in respect of family violence were also found not to be open on the evidence, which impacted the application of the presumption of equal shared parental responsibility. The trial judge's failure to examine and provide reasons for rejecting the family consultant's recommendations was also identified as an appealable error.

Consequently, the appeal in respect of the parenting orders was allowed, and the matter was remitted for rehearing. The court also noted that as the parenting orders would impact the assessment of factors under s 75(2) of the *Family Law Act 1975* (Cth), the property orders could not stand and would also require reconsideration at the rehearing. Certificates under the *Federal Proceedings (Costs) Act 1981* (Cth) were granted for the appeal and the rehearing.