Insights and inspiration
Wrong Decision Wrong Reasons
22 October 2014
Sometimes judges reach the right conclusions for the wrong reasons, and sometimes they reach the wrong conclusion for the wrong reasons. It seems rarer that judges reach the right decisions from wrong reasons.
The recent case of Maldera and Orbel  FamCAFC 135 is an example of a judge coming to the wrong decision for the wrong reasons. That makes it quite comforting when the Full Court overturned the trial judge's decision.
This was a parenting case. It concerned a boy who lived for the first four years of his life either with his mother, or both parents together. It sounds like a turbulent period in his life. Then he went to live with his grandmother after a court order but spent some time with each of his parents as well. The child did spend time with his father, but not the mother because she more or less disappeared out of his life.
In 2013, the father asked the court to order that the boy come to live with him. The judge first had to decide whether there was any reason to make a change.
Things went badly wrong. That part of the Family Law Act that deals with children is, without doubt, confusing, badly put together and complex. Nonetheless, previous courts, including appeal courts, have laid down some pathways. The fundamental point is that in section 60CA the judge is told that the court must regard the best interest of the child as the paramount consideration. Then the court has to turn to section 60CC, which sets out the way in which a court goes about deciding what is in the child's best interest. However, section 60B of the Family Law Act sets out what are supposed to be the objects of the Family Law Act dealing with children, and the underlying principles. It is not clear to us what the distinction is between objects and principles but they are:
- ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
- protecting children from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence; and
- ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
- ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. Principles
- children have the right to know and be cared for by both their parents; and
- children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
- parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
- children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture). Where the trial judge principally went wrong in this case was to say that she had to bear in mind that if she made an order that the child lived with the father, it would better meet the objects and principles of the Family Law Act. Even though the trial judge said that the child was progressing very well in the grandmother's care, she said that the Family Law Act said that children have a right to know and be cared for by both of their parents, the mother was not there, the father wanted to be a parent, and therefore the boy should go to his father. This despite the fact that she said that there was some risk the change might not work.
The Full Court, in hearing the appeal, said that it was necessary to realise that the sections of the Act dealing with objects and principles were no more than really preambles, providing a context, indicating what the parliament intended the purpose of the Act to be, and to operate as a guide to work out what it meant. What the trial judge did was to treat section 60B and the "objects and principles" as though they had an impact on determining whether a particular order was in a child's best interest. This was an error.
The previous leading decision of the court in this area was B and B: Family Law Reform Act 1995 (1997) FLC 92-755. This particular Full Court determined that the Full Court in B and B had got it wrong in giving some force to the principles set out in section 60B and to say that where there are no countervailing factors, the court may normally be expected to conclude that it is in the best interest of the children to have as much contact with each parent as is practicable. The court decided in that particular respect the decision in B and B was mistaken. The fact of parenthood requires careful consideration, but does not sit at the top of a hierarchy of considerations.
The Full Court sent the case back for trial before a different judge, and in those respects it is clear that when a new judge comes to hear the case, hopefully the right decision will be reached for the right reasons.
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