P & P

The Full Court of the Family Court of Australia, comprising Finn, May, and Boland JJ, heard an appeal concerning parenting orders. The dispute centred on the trial judge's approach to determining contact arrangements for children following a proposed relocation by one parent. While the trial judge was influenced by expert evidence and the mother's proposal for limited contact, the Full Court identified a critical error in the trial judge's failure to explore alternative contact arrangements that might have facilitated the mother's move and maintained the children's relationship with the father.

The central legal issue before the Full Court was whether the trial judge had erred in law by failing to consider options for contact arrangements beyond those proposed by the parties, particularly in light of the history of domestic violence and the father's substance abuse. The court was required to determine if the trial judge's approach adequately addressed the children's best interests by exploring arrangements that would allow for the mother's relocation while preserving the children's relationship with the father.

The Full Court reasoned that while a trial judge is bound by the evidence presented, they also have an obligation to consider alternative arrangements that may be in the children's best interests, even if not proposed by the parties. Drawing on the principles established in *Bolitho v Cohen*, the court held that procedural fairness requires parties to be informed of and given an opportunity to respond to any alternative options formulated by the court. In this instance, the trial judge's error lay not in the assessment of evidence but in the failure to investigate potential contact arrangements that would accommodate the mother's relocation.

Consequently, the appeal was allowed, and the matter was remitted for a new trial to properly examine all issues related to contact arrangements, including unsupervised and overnight contact, and the implications of the mother's relocation. The existing contact orders were to remain in place pending the outcome of the new trial. The court also ordered that each party be provided with a costs certificate in the event the appeal succeeded and a new trial was ordered.