Court decision

Can delay be in the best interests of children?

By Alison Ross and Kathleen Coggins / 03 July 2019

Key issues:

  • After three years in the Court system a Judge has determined that it was in the best interests of two children for the making of final parenting orders to be delayed for 12 months.
  • In Geisler & Geisler [2018] FCCA 3959, on the day the matter was due to commence trial, all parties agreed to adjourn the proceedings to determine how the children’s unsupervised time with one of the parents would progress and to enable the parties to participate in family dispute resolution.
  • Although the Court identified the problems associated with the lack of finality, it recognised that, above all, it is required to make a decision based on the children’s best interests; and the making of interim orders only was in the children’s best interests.

The delays and resourcing problems currently plaguing the family law jurisdiction are well documented and the subject of the now completed Australian Law Reform Commission Inquiry.

It is therefore surprising in the current climate that, after three years of already protracted proceedings, a Judge (in considering whether to make interim orders by consent) determined that it was in the best interests of two children for the proceedings to be delayed for a further 12 months. This was notwithstanding that a final hearing would be unlikely to occur for some 18 to 24 months after the adjournment.
 
In Geisler & Geisler [2018] FCCA 3959, on the day the matter was due to commence trial, all parties agreed to adjourn the proceedings. The children had been spending supervised time with their father for approximately two years as a result of serious concerns regarding his past alcohol addiction. Shortly before the trial, the children began spending unsupervised time with the father, by agreement. This was not contemplated by the reports prepared up until that point in the proceedings. On the day of trial, both parties and the independent children’s lawyer agreed that the proceedings should be adjourned to determine how the unsupervised time would progress and to thereafter enable the parties to participate in family dispute resolution. Potentially, a further family report would also need to be prepared. 
 
The Court recognised the problems associated with the proposed course of action, namely:

  1. The Court’s role is to hear and determine matters and, in this instance, it was asked to make an order which would prolong the proceedings significantly; and
  2.  The Court is guided by the principle of finality.

In addressing both of these issues, the Court acknowledged the pressures upon the Family Court of Australia and the Federal Circuit Court of Australia to turn matters around expeditiously. Notwithstanding this, the Court found that justice is fundamentally founded in the best interests of children.
 
Quoting Lord Atkin in Ras Behari Lal v King Emperor [1933] All ER 723, the Court emphasised:

Finality is good but justice is better
 
The Court recognised that, above all, it is required to make a decision based on the children’s best interests. The Court went to great lengths to take into account the necessary objects and principles in determining the particular interests of the children in this matter and determined their best interests would be met by a substantial adjournment of the proceedings. 
 
While acknowledging this case is a rare exception to the doctrine of finality, the Court raised an important point which should serve as a reminder to ensure a child’s best interests remain the paramount consideration. At paragraph 39 of the Court’s reasons, his Honour stated:

“In the discourse regarding cases being disposed of quickly and cheaply, what is sadly absent is doing things better – the very thing that one would think the focus would be upon, particularly when addressing issues of such importance as the safety and best interests of children.”

The Court acknowledged that the interim orders prolonging the proceedings were not made without hesitation. This is not surprising considering the uncertainties presently facing the family law jurisdiction (now the subject of extensive recommendations handed down by the Australian Law Reform Commission) let alone the uncertainties now facing these particular children.

For more information, please contact HopgoodGanim Lawyers’ Family and relationship law team.

Authors
Alison Ross
Partner
Alison is a Partner of our Family and Relationship Law practice who works exclusively with HG Private clients.
Kathleen Coggins
Senior Associate
Kathleen is a Senior Associate practising exclusively in Family and Relationship law.
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