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Procedural fairness in less adversarial trials

In Crestin & Crestin and Ors (2008) FLC 93-368 the Full Court of the Family Court of Australia discussed procedural fairness in less adversarial trial (LAT) matters.

The paternal grandparents sought parenting orders in a case conducted pursuant to the LAT process. The child's parents were the respondents to the application. The trial judge made interim orders which provided for the child to spend time with the father and grandparents and ordered that a family report be prepared. The trial judge refused the mother's application to stay the operation of the order against which she appealed.

Subsequently, the parties resolved all matters in dispute between them and final consent orders were made. The mother was not, however, prepared to discontinue her appeal as she wished the court to determine her application for a costs certificate. The paternal grandparents also sought a costs certificate.

Their Honours gave reasons in which they why they were satisfied that there was an error of law by the trial judge and it was appropriate to grant the cost certificates sought. They discussed procedural fairness in LAT matters as outlined in Truman & Truman (2008) FLC 93-360.

Their Honours found that it is necessary for a trial judge in a LAT hearing to afford procedural fairness to the parties and to give reasons sufficient to identify, at least generally and briefly, the grounds which led to the conclusions reached and to list the findings on the principal contested issues.

Costs certificates were duly granted to the mother and paternal grandparents.

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