Family Court of Australia

MANN and ANOR & VARGAS and ANOR	[2010] FamCAFC 50	

FAMILY LAW – PARENTING PROCEEDINGS – APPEAL FROM A DECISION OF FEDERAL MAGISTRATE – COSTS – Established that the Federal Magistrate erred in including the mother in an order for random urinalysis testing for illicit substances – Order for time spent with third parties not consistent with expert opinion evidence relied upon by Court as basis for such order - Court is of the opinion that the mother’s appeal having been successful, it is necessary to remit the matter for a further interim hearing in the Federal Magistrate’s Court – The court considers any further interim hearing likely to be significantly circumscribed and determined “on the papers” with consequential potential for another appeal to this Court against an interim order – Appeal allowed – Costs certificates granted to the mother, third parties and the Independent Children’s Lawyer pursuant to Federal Proceedings (Costs) Act 1981

Family Law Act 1975 (Cth) s.60CC(3)
Federal Proceedings (Costs) Act 1981 (Cth)	

House v The King (1936) 55 CLR 499
Goode v Goode (2006) FLC 93-286
Mazorski v Albright (2008) 37 Fam LR 518	

1st APPELLANT:	Ms Mann	

2nd APPELLANT:	Mr Blackwell	

1 RESPONDENT:	Ms Vargas 	

2nd RESPONDENT:	Mr Dacey	

Independent children’s lawyer:	Mr N	

File Number:	CAC	1485		of	2009	

Appeal Number:	EA	144		of	2009	

Date Delivered:	18 March 2010	

Place Delivered:	Dubbo	

Place Heard:	Canberra	

Judgment of:	Coleman J	

Hearing date:	25 February 2010	

Lower court jurisdiction:	Federal Magistrates Court	

lower court judgment date:	6 November 2009	

LOWER COURT MNC:	FMCAfam1383	

REPRESENTATION

COUNSEL FOR THE  APPELLANTs:	Gavin Howard	

SOLICITOR FOR THE 1st APPELLANT:	Farrar Gesini & Dunn	

SOLICITOR FOR THE 2nd APPELLANT:	KJB Law	

COUNSEL FOR THE respondents:	Mr Lee	

SOLICITOR FOR THE RESPONDENTs:	Pappas J Attorney	

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr N	

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Capon Hubert	

Orders
(1)	That the appeal be allowed.
(2)	That Order 5 of the orders of the Federal Magistrates Court of 5 November 2009 be varied by deleting from such order any reference to Ms Mann.
(3)	That Order 7(b) of the orders of the Federal Magistrates Court be set aside but that such order be stayed pending the re-exercise of the discretion of the Federal Magistrates Court by the Family Court of Australia.
(4)	That the parties have leave to arrange a one-day hearing before this Court on a date subsequent to 1 April 2010.
(5)	That, no later than three days prior to the date allocated for the further hearing of the appeal in this Court, the parties file all such further evidence as is intended to be relied upon by such party or parties.
(6)	That the Court grants to the 1st Appellant Mother a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant Mother in respect of the costs incurred by the Appellant Mother in relation to the appeal.
(7)	That the Court grants to the Third Parties a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Third Parties in respect of the costs incurred by the Third Parties in relation to the appeal.
(8)	That the Court grants to the ICL a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the ICL in respect of the costs incurred by the ICL in relation to the appeal.
(9)	That the Court grants to each party a costs certificate pursuant to the provisions of s.8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders. 

IT IS NOTED that publication of this judgment under the pseudonym Mann and Anor & Vargas and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE appellate court of THE Family Court of Australia at canberra	

Appeal Number: EA 144 of 2009
File Number: CAC 1485 of 2009

Ms Mann and Mr Blackwell 	
1st and 2nd Appellants

And

Ms Vargas and Mr Dacey 	
1st and 2nd Respondents

And

Independent Children’s Lawyer 	

REASONS FOR JUDGMENT
1.	By Notice of Appeal filed 27 November 2009 Ms Mann (“the mother”) appealed against orders made by Federal Magistrate Neville in parenting proceedings between herself, Mr Blackwell (“the father”), Ms Vargas and her partner Mr Dacey (“the third parties”).
2.	The orders of the learned Federal Magistrate which give rise to the appeal were made on 6 November 2009, after a relatively brief interim hearing. The parenting proceedings before his Honour related to a child of the mother and father, X, who was born in June 2008. X is accordingly approaching 2 years of age.
3.	Relevantly for present purposes, the learned Federal Magistrate made orders for urinalysis testing for illicit substances on the part of the mother and father with the frequency, and in the circumstances stipulated by his orders. His Honour’s orders also provided for urinalysis tests to be undertaken by Ms Vargas at the request of the Independent Children’s Lawyer (“ICL”).
4.	Subject to any contrary written agreement between the parties, the learned Federal Magistrate ordered that the child C spend time with the third parties, for a period of two months, for three nights per week and thereafter for two nights per week. The proceedings were otherwise adjourned to 19 April 2010. 
5.	For reasons which he comprehensively detailed, the learned Federal Magistrate dismissed an application to stay the orders of 9 November 2009 pending the hearing of an appeal against them to this Court.  The order which is relevant for present purposes is thus that which provided for the child to spend two nights per week with the third parties. His Honour’s orders provided that the child otherwise reside with the mother and that the father, who does not reside with the mother, be permitted to spend time with the child during periods that he was residing with his mother pursuant to his Honour’s orders.
6.	Orders for the preparation of a Family Report were made by the learned Federal Magistrate on 27 November 2009, for which purpose the parties were directed to attend upon the Family Consultant on 29 March 2010.
7.	The orders of the learned Federal Magistrate were sought to be varied in two respects. The first related to his Honour’s orders for random urinalysis testing for illicit substances (Orders 5 and 6). The orders sought in lieu of his Honour’s orders differ minimally in substance from those made by his Honour. In essence, the mother sought that, whereas she was potentially obliged to undertake testing up to twice fortnightly, she only be obliged to undergo three tests, inferentially between the date of his Honour’s orders and 19 April 2010.
8.	The second respect in which the learned Federal Magistrate’s orders were sought to be varied relates to the time the child C is to spend with the third parties. In lieu of two nights per week, the mother sought that the child C spend from 10 am – 5pm with the third parties each Sunday.
9.	The third parties resisted the appeal of the mother and sought to maintain the learned Federal Magistrate’s orders. The father took no part in the appeal.
Reasons for Judgment
10.	On 9 November 2009, the learned Federal Magistrate published Reasons for Judgment in relation to the hearing of the proceedings on 23 October 2009.
11.	Having identified the parties to the proceedings and the relationships between them, and the competing proposals, his Honour referred to the affidavit evidence before him, none of which was tested, or sought to be tested on 23 October 2009. In the course of his recording of the competing proposals of the parties, the learned Federal Magistrate referred to a Family Report which had been prepared by Ms L, a family consultant and registered psychologist on 16 October 2009. Ms L was not tested or sought to be tested, on the contents of her report during the hearing before the learned Federal Magistrate.
12.	His Honour recorded, accurately there is little doubt in the light of his review of the competing proposals, that there was “a plethora of proposals to consider, and not only as between the opposing parties but also different – not alternative positions from the same parties”. 
13.	The learned Federal Magistrate’s review of the affidavit evidence relied upon by the parties before him led him to observe, with respect accurately, that he was “unable, at this stage, to make any assessment of those areas of the evidence in which there is significant dispute”. 
14.	His Honour also recorded, again with respect accurately:
37.	It is decidedly unhelpful to have recounted in an affidavit what I am alleged to have said on an earlier occasion in Court (see par.33 of Ms [Mann’s] affidavit).  Nor is it helpful to have in an affidavit statements allegedly from Departmental Officers to whom are attributed expressions of legal or related advice as to what this Court should or should not do in relation to the applications before it.  (See par.39 of Ms [Mann’s] affidavit). 
15.	The learned Federal Magistrate then referred, with respect sensibly, in some detail to Ms L’s report. In her report, Ms L said, accurately there is little doubt having regard to the contents of the report, which forms part of the Appeal Book, that the key issues in the parenting proceedings were the father’s drug use, the child’s attachment relationships with significant adults in his life, the sibling relationship between X and another child of the relationship of the mother and father, Y who is five years old but living apart from the mother and father, and the capacity of the various adults to meet the child X’s needs. 
16.	For reasons which he articulated, the learned Federal Magistrate endorsed Ms L’s identification of the issues arising in the proceedings. His Honour referred as a “special concern” to the “lack of appropriate consideration in any affidavit of the violence between” the mother and father to which Ms L referred at paragraph 3 of her report. As paragraph 3 of Ms L’s report confirms, that violence related to the father’s drug taking, as his Honour suggested. 
17.	His Honour recorded that the absence of detail in the affidavit material in relation to that issue adversely impacted upon the Court’s “protective responsibility” to X and his brother Y. 
18.	The learned Federal Magistrate adopted a number of observations emerging from Ms L’s report. Those observations related to the times when Ms L observed X with his parents and with the third parties. The learned Federal Magistrate recorded that he regarded a number of other paragraphs from Ms L’s report as of significance and incorporated them in his Reasons for Judgment. His Honour recorded the concluding paragraphs of Ms L’s report and, in the absence of any evidence to challenge those “observations, comments and recommendations” accepted Ms L’s evidence with respect to them. 
19.	Of significance for present purposes was Ms L’s expert opinion evidence that in order for the third parties “to remain a predictable presence in [X’s] life, consideration might be given to him spending a full day with the couple once or twice a week”. Ms L also suggested that it might be best for X, in the interim, to sleep at his mother’s house to assist with “the process of consolidating a primary attachment to her and with strengthening his sibling bond with [Y]”. 
20.	Under the heading “Statutory Pathway & Other Jurisprudential Considerations” the learned Federal Magistrate referred to the judgment of Brown J is Mazorski v Albright (2008) 37 Fam LR 518. 
21.	The learned Federal Magistrate recorded that X’s age precluded there being any views requiring consideration, observing that “of most importance” were the “protective responsibilities of the Court” to which his Honour had earlier referred and his equal concern for the child’s parents and the “various but significant pressures with which they have to contend”. His Honour had earlier, as he recorded, “identified those pressures” as did Ms L “in more detail” in her report. 
22.	Then, the learned Federal Magistrate identified the issues with which the mother and father had to “grapple” as “a couple, as parents, with their respective drug issues, the violence from [the father] and in dealing with [the third parties] who have, on all accounts, played a regular and quite significant part in [X’s] life, and seemingly also to some degree in [Y’s] life”. Y is an older brother of X.
23.	The learned Federal Magistrate identified the legislative provisions which he considered to be “primarily involved” in the proceedings before him. Those provisions were: 
55.	In my view, the following sub-paragraphs of s.60CC(3) are primarily involved in this matter: (b), (f), (g), (i) and (j).  In my view, these sub-paragraphs are engaged on the evidence before the Court and my earlier consideration of it. 
24.	For reasons which his Honour detailed, and which do not assume significance in the present appeal, no orders were made in relation to parental responsibility. As his Honour recognised, he was not required to direct his attention to section 65DAA of the Family Law Act 1975 (Cth) (“the Act”). 
25.	The learned Federal Magistrate suggested that X’s best interests was the overarching factor in his deliberations and said: 
57.	As in all children’s matters, the issue is what orders are in [X’s] best interests. 
26.	His Honour also recorded that: 
59.	For the purposes of these interim orders I do not need to make any particular determination about most of the issues in dispute.  It is, however, indisputable that Ms [Vargas] and [Mr Dacey] have had significant involvement in [X’s] young life. 
27.	A concern about the father’s “heroin use, his lack of insight about its impact on the care of his children, as well as his apparent lack of appreciation of that use on his relationship” with the mother were then recorded by the learned Federal Magistrate. These were matters which his Honour had earlier noted and which had been considered by Ms L in her report. 
28.	The learned Federal Magistrate also recorded as a concern the mother’s use of marijuana and her “appreciation (or lack of it) about its impact on her parenting, as well as its impact on her relationship” with the father. 
29.	The “admitted drug use of both parents” suggested to his Honour that “the Court’s protective responsibilities must assume greater prominence at this time”. 
30.	The “important role” that the third parties had played in X’s life to date was considered by the learned Federal Magistrate to be relevant to the “transition” in which the parents were engaged. 
31.	Having determined that the father should undergo urinalysis testing for illicit substances, the learned Federal Magistrate said: 
65.	For more abundant caution, Ms [Vargas] should also undertake three random drug tests, those tests to be initiated by the Independent Children’s Lawyer.  The random tests shall also apply to Ms [Mann] and Mr [Blackwell] (subject only to the requirements of his rehabilitation program). 
32.	Significantly for present purposes, the learned Federal Magistrate also recorded: 
66.	In my view the transition to which I have referred should be staged and monitored.  For example, in the absence of written agreement between the parties, the initial time between [X] and the applicants should be three nights per week for two months, then two nights per week for the next two months.
67.	The transition should then proceed whereby, subject to the view of Ms [L] or such other family consultant, [X] move to one night per week for a short time until he progresses to each alternate weekend. 
33.	As noted earlier, passage of time means that X spends time with the third parties two nights per week assumes potential significance. It is reasonably clear that the learned Federal Magistrate intended to review those orders in April of this year. The scheme revealed by those orders, and the date when the matter was next to be before him confirmed that such was the case.
Relevant legal principles
34.	Although the appeal to this Court is against an interlocutory order, and, having regard to the orders made by the learned Federal Magistrate, of limited practical utility, and is not the subject of a requirement of leave to appeal, the Court must entertain it. The principles governing the appeal are not in doubt and do not require extensive re-statement. 
35.	In House v The King (1936) 55 CLR 499 at 504-505 the High Court said: 
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.  
36.	The decision of the Full Court of this Court in Goode v Goode (2006) FLC 93-286 to which the learned Federal Magistrate in fact referred is relevant for present purposes. Of particular relevance for present purposes are the following passages from that judgment.
37.	In Goode the Full Court said: 
68.	The procedures for making interim parenting orders will continue to be an abridged process where the scope of the inquiry is quite significantly curtailed. Where parenting orders will continue to be an abridged process where the scope of the inquiry is ‘significantly curtailed’. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future. 
69.	It remains the case that the Court must regard the best interests of the child as paramount in deciding what interim parenting orders to make.
The Grounds of Appeal
38.	The grounds of appeal articulated in the mother’s Notice of Appeal fall within two broad categories. The first category relates to the order made by the learned Federal Magistrate obliging the mother to undertake urinalysis testing for illicit substances as frequently as twice fortnightly if requested to do so by the ICL. The second category relates to the orders of the learned Federal Magistrate with respect to the time which the child X was to spend with the third parties.
39.	The Court has had the benefit of comprehensive and helpful submissions from Counsel for the mother, the third parties and the ICL. As a reading of the transcript of the hearing of the appeal would confirm, the written submissions of Counsel, and willingness of Counsel to engage directly with the real issues requiring determination in the appeal have facilitated the Court’s determination of the issues before it. 
40.	The absence of detailed reference to the written submissions of Counsel for the parties in these reasons ought not be seen as in any way implying that the submissions have been other than helpful. Nor have they been overlooked in any material way.
The challenge to the order obliging the mother to undertake urinalysis testing for illicit substances. 
41.	As Counsel for the mother confirmed, the ground directed to this topic Ground (1)(b) was submitted to be have been established on any of three bases. 
42.	It was submitted by Counsel for the mother that the learned Federal Magistrate had denied her natural justice in making this order, having not raised with her Counsel the prospect of such an order being made prior to doing so, in circumstances where no opposing party to the proceedings sought that such an order be made. 
43.	The second basis upon which the learned Federal Magistrate was asserted to have erred was that he failed to provide any reasons for making the order he did against the mother. 
44.	Thirdly, it was submitted on behalf of the mother that there was no evidentiary foundation for the order made by the learned Federal Magistrate.
45.	Counsel for the third parties did not engage with this challenge in his written Summary of Argument, and fairly so given that, as Counsel for the third parties readily conceded on the hearing of the appeal, his clients had not sought that such an order be made against the mother.
46.	Counsel for the ICL submitted that, on the evidence of the third parties and the recommendations of Ms L, the learned Federal Magistrate’s orders were appropriate.
47.	The transcript of the proceedings before the learned Federal Magistrate does not reveal that the order ultimately made by the mother with respect to urinalysis testing for illicit substances was sought by either Counsel then appearing for the third parties, or Counsel for the ICL. That factor of itself would not impel appellate intervention with the learned Federal Magistrate’s order. Nor, in an interlocutory hearing would the absence of reasons for making the order necessarily enliven appellate intervention.
48.	For reasons which he provided, and which were cogent, the learned Federal Magistrate accepted the expert opinion evidence of Ms L and gave such evidence significant weight. 
49.	In her report, Ms L undoubtedly suggested that the father should “submit to a drug and alcohol assessment in relation to the risk factors associated with the parenting of [X]”. No similar recommendation appears to have been made with respect to the mother. Although referring to the respective drug issues of the parties, and to the mother’s history of marijuana use, nowhere else in Ms L’s report did she express an opinion which would have provided an evidentiary foundation for an order that the mother undergo urinalysis testing for illicit substances. Whilst Ms L, for good reason it is evident, having regard to her report, identified as a “key” issue, the impact of drug misuse on the father’s ability to provide appropriate care for X, she did not there or elsewhere in her report say anything which could reasonably have constituted evidence supportive of an order of the kind his Honour made.
50.	As the learned Federal Magistrate correctly observed, the evidence before him, particularly with respect to the father’s history of substance abuse was cause for concern, and gave greater prominence to the Court’s “protective responsibilities”. Whilst his Honour made orders against Ms Vargas and the mother for random drug tests, nothing emerging from the evidence of Ms L provided an evidentiary foundation for such orders. 
51.	The mother’s challenge to that order is entitled to succeed.
The challenge to the order for time to be spent with the third parties.
52.	The challenges to the learned Federal Magistrate’s order that, as it has become, X spend two nights per week with the third parties finds expression in Grounds 1(a), 2, 3, 4 and 5.
53.	In oral submissions, Counsel for the mother agreed, that howsoever articulated, the challenges to the learned Federal Magistrate’s order ultimately turned upon two complaints. 
54.	The first of such challenges was that the orders made by the learned Federal Magistrate were not consistent with the expert opinion evidence upon which they were purportedly based.
55.	The second challenge was that if, as his Honour permissibly may have, he proposed making orders which were different in substance to those recommended by the expert whose opinion evidence he accepted, his Honour was obliged to provide some reasoning in support of such a decision.
56.	Ms L recorded, the mother having informed her that “given Ms [Vargas] and Mr [Dacey] frequently cared for [Y] and her sister’s children, she trusted them to have [X] for periods of time” and that she had been prepared to place X in the care of Ms Vargas when he was two weeks old. Ms L also recorded the mother’s admission that X had spend periods of up to “a week or two at a time” with the third parties. 
57.	Whatever the circumstances in which X came to spend time with the third parties, there seems little doubt that he had spent significant time with them, with the mother’s consent, prior to the hearing before the learned Federal Magistrate.
58.	Ms L’s observations of X with the third parties was that a “lively engagement” occurred between X and the third parties (page 133) and that X “appeared secure in their presence”. 
59.	Ms L’s assessment of the third parties provided no rational basis for concluding that contact with them should be supervised or limited to single day periods. Ms L recorded that the third parties displayed “a good understanding of [X’s] needs and it is apparent that they have made a positive impact on his overall development”, and were “supportive” of the mother as a parent.
60.	The Court has not been referred to any evidence contradicting any of the matters to which Ms L referred which provided a basis for rendering unsafe the learned Federal Magistrate’s acceptance of that evidence.
61.	In her affidavit, the mother deposed to X having started “more regular time with [Ms Vargas]. [Ms Vargas] would care for [X] for a few days at time” from the time X was about three months of age. 
62.	The mother further deposed to X having spent from Friday evening to Sunday on “most, but not all weekends”, from, inferentially, February 2009, having, during November and December 2008, spent time with the third parties “on Friday evening to Monday morning”. 
63.	The mother further said in her affidavit: 
44.	I acknowledge that [Ms Vargas] and [Mr Dacey] have been involved in [X’s] life and care about him. I am however concerned that [Ms Vargas] is attempting to substitute herself in my son’s life as his mother. 
64.	As is not in doubt, the learned Federal Magistrate, properly and sensibly, placed considerable weight on the evidence of Ms L for the purpose of the interim determination of the parenting proceedings before him. 
65.	It was submitted that, having done so, his Honour ought to have followed Ms L’s recommendations, but had departed materially from such recommendations. It was submitted that nowhere in his Honour’s reasons did he suggest why he had concluded that arrangements significantly different from those recommended by Ms L should be adopted. 
66.	It was submitted by Counsel for the mother that the crux of the learned Federal Magistrate’s reasons for making the order he did was to be found in the following paragraph of his reasons: 
66.	In my view the transition to which I have referred should be staged and monitored.  For example, in the absence of written agreement between the parties, the initial time between [X] and the applicants should be three nights per week for two months, then two nights per week for the next two months. 
67.	It was submitted that Ms L’s expert opinion evidence had been that “consideration might be given to [X] spending a full day with [the third parties] once or twice a week” and that it “might be best for [X], in the interim, to sleep at his mother’s house to assist with the process of consolidating a primary attachment to her”. Hence it was submitted that Ms L’s specific reference to X spending “a full day” but sleeping at the mother’s home left no room for doubt that her recommendation was for single day contact between X and the third parties, whether that be once or twice per week. 
68.	Without reasons explaining why, the learned Federal Magistrate’s increase of the time to be spent by X with the third parties from that suggested by Ms L to that ordered by him was submitted to be unable to be supported by reference to the evidence before him.
69.	On behalf of the third parties it was submitted that the learned Federal Magistrate had adequately discussed how he had arrived at the orders he made with respect to the time X would spend with the third parties. In that context, Counsel for the third parties referred specifically to paragraphs 48 and 49 of the learned Federal Magistrate’s Reasons for Judgment.
70.	With respect to Counsel for the third parties, whilst those paragraphs of Ms L’s report were supportive of X spending time with the third parties, nothing emerging from those paragraphs relates to the time which Ms L considered to be appropriate in that regard. 
71.	Counsel for the third parties also relied upon paragraphs 60, 63, 66 and 67 of the learned Federal Magistrate’s Reasons for Judgment. Paragraph 63 indeed referred to the “important role” which the third parties had played “in [X’s] life to date”. Paragraph 66 does not, beyond his Honour suggesting it to be appropriate, explain why the regime there discussed was so considered, or refer to the expert opinion evidence of Ms L which was undoubtedly before him. Similar observations apply to paragraph 67.
72.	It was submitted on behalf of the third parties, accurately, that the learned Federal Magistrate was concerned to assist the process of consolidating X’s primarily attachment to the mother, a matter identified by Ms L as being of significance.
73.	On behalf of the ICL reliance was also placed upon his Honour’s unchallenged finding that “on all accounts” the third parties had “played a regular and quite significant part in [X’s] life”. 
74.	It was submitted by the ICL in response to the complaint on behalf of the mother that the learned Federal Magistrate did not follow the recommendations of Ms L as set out in her family report that, as “a matter of interpretation of the family report and Ms [L’s] findings it was reasonably open to his Honour to make the order that he did with respect to the time [X] would spend with the third parties”. Counsel for the ICL relied upon paragraphs 14 and 15 of Ms L’s report in support of that proposition.
75.	It was further submitted that paragraph 18 of Ms L’s report, to which reference has earlier been made was “open to more than one interpretation”, and that it was important to be mindful that Ms L had also said in that paragraph “until the circumstances improve for Mr [Blackwell] and Ms [Mann] [X] will benefit from maintaining a relationship with Mr [Dacey] and Ms [Vargas], should he, at times require a place of safety”.
76.	Ultimately it was submitted on behalf of the ICL that:
24.	As mentioned above the appeal concerns, in reality, the speed at which the child is to be returned to the Appellant Mother. All parties have stated in the Transcript of Evidence at the interim hearing that they wish the child to be returned to the Appellant Mother’s full time care.
25.	His Honour put in place orders which commenced that process. That process has now moved to phase 2 with a further conference with a Family Consultant to occur on 29 March 2010. The purpose of this conference is to determine the next stage in the process. 
77.	Whilst it could be said that the amount of time X would spend with the third parties pursuant to his Honour’s orders was consistent with the time Ms L suggested, there was a material difference between the basis upon which Ms L suggested that such time be spent, and the effect of his Honour’s order.
78.	The Court perceives there to be little ambiguity about what Ms L was suggesting, or why she was. On the one hand, as seems not to be capable of being controversial, the third parties had played a significant role in X’s life. As Ms L suggested, it was in the interests of the child that the third parties continue to play such a role. Why Ms L recommended an absence of overnight time spent with the third parties on an interim basis was stated in paragraph 18 of her report.
79.	Without in any way unfairly overlooking or diminishing the limitations imposed upon the learned Federal Magistrate by time, the lay evidence before him, and absence of any opportunity for that evidence, or indeed that of Ms L to be tested, regrettably the Court accepts that, having correctly relied very significantly on the expert opinion evidence of Ms L, the learned Federal Magistrate erred in making the order he did, without explaining why he did so.
Conclusion
80.	The mother’s appeal having been successful, it is necessary to consider the consequences of such success. 
81.	So far as the orders for random urinalysis testing for illicit substances is concerned, the Court need only order that Order 5 be varied by deleting from such order any reference to the mother.
82.	At the conclusion of the hearing of the appeal, Counsel for both parties and the ICL submitted that, if the appeal were allowed, although perhaps unusual, the preferable course, given the history of the litigation to date and likely course it would take if it remained in the Federal Magistrate’s Court in the future, rendered it preferable that this Court re-exercise the decision of the Federal Magistrate after the release of the updated family report, and that the parties have the opportunity to test the lay and expert evidence by cross-examination. No criticism of the Federal Magistrates Court was made or intended by those submissions. They simply recognise the difficulties under which that Court labours.
83.	In the circumstances of this case, the Court considers that to be preferable to remitting the matter for a further interim hearing in the Federal Magistrate’s Court in circumstances where, through no fault of that Court, any further interim hearing would likely to be significantly circumscribed and determined “on the papers” with consequential potential for another appeal to this Court against an interim order.
84.	The question then arises as to what is to happen in the interim, that is to say before this Court re-exercises the discretion of the Federal Magistrate which will not be until some time later than April. But for the fact that the learned Federal Magistrate’s order that X spend two nights per week with the third parties has been in operation for about one and a half months, and there is no evidence before this Court that the arrangement is proving problematic, the Court would have been inclined to make, what is in reality an “interim” interim order in the terms that X spend two full days per week with the third parties.
85.	Although any order this Court makes at this time is necessarily arbitrary, the Court prefers, rather than to make yet another change in the arrangements governing the life of a young child, to preserve the orders of the Federal Magistrate pending this Court’s re-exercise of his Honour’s discretion.
Costs
86.	It was common ground that the mother, the third parties and the ICL all sought costs certificates for the appeal and the rehearing before this Court.
87.	Given the bases upon which the appeal has been allowed, the provisions of the Federal Proceedings (Costs) Act 1981 are properly enlivened.
I certify that the preceding eighty seven (87) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Coleman 

Associate:  

Date:   18 March 2010