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Less adversarial trials (LATs)

The manner in which a less adversarial trial should be conducted

Less adversarial trials: Truman and Truman

(2008) FLC 93-360.

The Full Court of the Family Court of Australia has considered the manner in which a less adversarial trial should be conducted, the question of an appeal prior to the conclusion of the entire proceedings and the validity of r 22.03(2).

An appeal by the father against orders made at the conclusion of the first day of a less adversarial trial (LAT). The father sought that time be extended to permit him to appeal the orders.

The father's appeal raised the question of the extent to which the orders had the effect of precluding him from appealing and, if so, whether the court had power to make such an order and, to the extent that such an order was made in reliance upon r 22.03(2) of the Rules, whether the rule was ultra vires of the Act and the power of the court.

The father also submitted the following:

- The trial judge erred in having regard to the material filed by the parties, and sought to be read by the father, in the interim proceedings.

- The trial judge erred in accepting and relying on the evidence of the mother in circumstances where such evidence was in issue between the parties and there was no testing of the evidence.

- The trial judge erred in his approach to, and acceptance of aspects of, the evidence of the family consultant.

- The trial judge erred in failing to properly apply the principles relevant to interim parenting determinations including s 60CC and s 65DAA.

- The trial judge failed to deliver adequate and sufficient reasons for the determination.

Held: Appeal allowed.

1. The Rules have the effect of precluding either party from lodging an appeal against any order made during the LAT until the entire proceedings are concluded.

2. If the order were to be interpreted in the same way as r 22.03(3), the order could not stand, even if procedural fairness had been afforded.

3. There could be no doubt from the Act, the Rules and the Practice Direction that once the proceedings commenced, even though there was an interim issue to be resolved, the decision about what issues required determination and what evidence was to be given by whom and in what manner was an issue that the trial judge had to determine.

4. It was not open to the trial judge to come to the conclusion that the mother's position had altered. If the trial judge had formed that view then it was incumbent upon him to afford procedural fairness to the father by clarifying the matter.

5. Given the orders sought by each of the parties and there being no indication that the mother resiled from the orders sought, it was incumbent on the trial judge to give reasons why he was departing from the orders each party was seeking in the circumstances.

6. There was nothing to suggest that the trial judge placed undue weight on the opinion of the family consultant that the parties had unresolved conflicts on personal issues which impacted on the children.

7. The trial judge correctly followed the legislative framework in s 65DAA.

8. It could not be said that the trial judge failed to provide reasons which led him to the conclusions reached, nor that there could be any doubt about why the trial judge reached his decision in the exercise of his discretion, having regard to the requirements of the Act.

Full text in judgment below

TRUMAN and TRUMAN - (2008) FLC 93-360

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
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