Pender & Haywood

This matter concerned an appeal by the mother against interim parenting orders made by Federal Magistrate Kemp, which provided for two and a half year old twins to live with the respondent father in Sydney. The mother had asserted a temporary relocation to Queensland due to a family emergency, and her undertaking regarding the removal of the children was allegedly breached by taking them to Queensland.

The court was required to determine whether the Federal Magistrate erred in the exercise of his discretion in making the interim parenting orders. Specifically, the appeal raised questions as to whether the presumption of equal shared parental responsibility was correctly applied, whether there was sufficient evidence to rebut this presumption on the grounds that it was not in the children's best interests, and whether the Federal Magistrate adequately addressed the competing proposals of the parties, including the impact on the children of separation from their primary caregiver and half-sibling, and the practicalities of the mother maintaining a meaningful relationship with the children whilst residing in Queensland.

The Full Court found that the Federal Magistrate did not err in making an order for equal shared parental responsibility, having found that the parties had a co-operative parenting regime. However, the Court concluded that the Federal Magistrate had failed to adequately address the mother's proposals and the practical implications for the children and the mother's relationship with them. Consequently, the appeal was allowed, and the interim orders were set aside.

The father's application for interim parenting orders was remitted for re-hearing before a different Federal Magistrate. The Court also granted costs certificates to both the appellant mother and the respondent father in relation to the appeal and the potential re-hearing.