The High Court has quashed a District Court decision granting a father interim sole custody of his daughter, finding that the order was made and continued without fair procedures.
In a judgment delivered on 19 July 2019, Ms Justice Baker ruled that the District Court order of 29 April 2019 was “jurisdictionally unsound, disproportionate, and wrong as a matter of fair procedures”. The order gave the father sole custody “forthwith”. The mother had not seen the psychologist’s Section 47 report on which the District Court judge relied, and had no opportunity to challenge it at that hearing.
The District Court judge described the order as interim and expected it to last only a few days. But when the case returned on 1 May, the mother was represented and asked the judge to vacate or vary the order. The judge said he viewed his earlier decision as “precipitous”, but declined to change it without a substantive hearing. He could not offer an early date for that hearing.
The High Court said the decisive concern was that the order remained in force after the second hearing, potentially for weeks or months, without the mother being able to test the report or present evidence. The order transferred sole custody, a legally significant change to the parents’ existing statutory rights, rather than making only a temporary adjustment to day-to-day care. The judge could have adjusted care arrangements without removing the mother’s custody, the judgment said.
The father argued that judicial review was inappropriate because the mother had appealed the District Court order. Justice Baker rejected that objection, citing the jurisdictional difficulty created by parallel proceedings and the lack of a clear route to a prompt hearing that could remedy the order.
The High Court ordered the 29 April decision quashed. Justice Baker said the appeal would also fall away and that the effect, for the time being, appeared to be that the previous access arrangements and the parents’ joint custody would continue. The court did not determine the underlying custody merits or make a final custody arrangement.