Judges Shouldn’t Speak Too Soon
There is a danger with Judges expressing a ‘preliminary view’ at the start of a hearing, about the likely outcome of a case. The obvious risk is that after the hearing, the ‘losing’ party may suspect that the Judge had made findings in the case that were necessary to support their preliminary view.
A mother appealed a decision preventing her from relocating her child’s residence after the trial judge expressed a ‘preliminary view’ prior to hearing any evidence or receiving submissions.
The Facts:
The parties separated before the child was born. The mother asked the court to allow the child (and her) to relocate to a town near where her new husband was working on a fly in/fly out basis.
The mother had a 1-year old child with her new husband.
The trial judge gave a ‘preliminary view’ that his focus was on maintaining a ‘meaningful relationship’ between the child and both parents and that a proposal that did not involve the maintenance of such a relationship would be unlikely to find favour.
A final court order was made preventing the mother from relocating with the child from Perth to a town in the Pilbara, Western Australia.
The mother appealed against the order. The father opposed the appeal.
Courts Considerations:
The Full Court said that the difficulty with the trial judge’s ‘preliminary statement’ or ‘view’ is that it immediately suggested his Honour’s attention was already focussed on the maintenance of a ‘meaningful relationship’ between the child and both parents.
In determining orders that meet the best interests of a child, a consideration (not an obligation) is that these promote a ‘meaningful relationship’. The trial judge was not in a position at the start of the trial without having heard the evidence to express a ‘preliminary’ view as he did.
Decision:
The judge had taken the wrong course and not given the mother procedural fairness. The mothers appeal was allowed and the matter returned for re-hearing.
If you would like advice on any family law matter, please contact Michael Lynch Family Lawyers on: (07) 3221 4300 or email: [email protected].
