Polson & Polson & Anor

The Full Court of the Family Court of Australia, constituted by Loughnan J, considered an appeal concerning orders made in relation to the children of the marriage. The primary dispute involved the allocation of parental responsibility and the arrangements for the children to spend time with their parents. A key element of the proceedings was the appointment of an Independent Children's Lawyer.

The central legal issues before the Full Court were whether the primary judge erred in making orders that the children live with the mother and spend time with the father only in accordance with a prior written agreement between the parents, and whether the primary judge had the power to make such an order under section 68C of the *Family Law Act 1975* (Cth). This section pertains to the court's power to make orders with respect to the rights and responsibilities of parents concerning their children.

Loughnan J reasoned that the primary judge's orders effectively restrained the father from spending time with the children except as agreed in writing by both parents. His Honour found that section 68C of the *Family Law Act* grants the court broad powers to make orders for the well-being of children, including orders that regulate parental contact. However, the judge determined that the specific wording of the order, which made the father's time with the children contingent on a future written agreement, was problematic. The court held that such an order was not a proper exercise of the court's power under section 68C, as it effectively delegated the court's decision-making authority to the parents and created an uncertain and potentially unworkable arrangement.

Consequently, the Full Court allowed the appeal, set aside the orders made by the primary judge, and remitted the matter back to the Family Court for redetermination.