Navickas & Fried (No 2) [2025] FedCFamC1A 80 (7 May 2025)

1. It is not the task of this court to ignore error simply because it is not entreated by the appellant in a Notice of Appeal or Summary of Argument (Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531).
2. Items 12 and 25(1) of Schedule 1 of the Family Law Amendment Act 2023 (Cth) ("the Amendment Act") commenced on 6 May 2024. By Item 25(2), s 61CA of the Act as inserted commenced on 6 May 2024. Item 12 of the Amendment Act states in relation to s 60CC of the Act as follows:

1. Given the hearing first commenced on 11 September 2023 and had not concluded by 6 May 2024, the hearing was to be decided by application of the law as it existed before 6 May 2024. Unfortunately, the primary judge did not determine the matter according to law. The parties are agreed that the primary judge determined the matter by applying the Act as amended by the Amendment Act which changed in a significant and substantial way the provisions of s 60CC of the Act.
2. In that respect, the primary judge recorded in her reasons for judgment as follows:
   1. In determining the parenting issues, I have in accordance with Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637, considered all the relevant sections of Part VII Family Law Act 1975, including the considerations in section 60CC, although within these reasons each section or subsection may not have been specifically addressed or discussed or identified.
3. Thereafter commencing at [355], the primary judge addressed various considerations encapsulated by s 60CC of the Act as they now exist as amended by the Amendment Act. It is conceded by all parties that no aspect of her Honour's determination addressed the primary and secondary considerations in s 60CC of the Act as they previously existed. It is conceded by all parties that they addressed the primary judge on the law as applicable.
4. A failure to consider the applicable statutory considerations is an error of law.
5. As their Honours observed in Lane & Nichols [2016] FamCAFC 234; (2016) FLC 93-750:
   1. Whilst it must be acknowledged that it will be a rare or exceptional case where an error of law established on appeal, comprising misapprehension of evidence on the part of a judge at first instance, does not lead axiomatically to an appeal from the decision being allowed there are, albeit limited, exceptions.
6. No such exception arises in the context where the court below proceeds upon an incorrect principle of law. Where such error is established then the appeal must be allowed. Where the appeal must be allowed it is unnecessary to address the other grounds (Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593) and even less desirable to do so where if remitted another judge will need to determine the disputed factual contentions.
7. In her amended Notice of Appeal, the appellant seeks a remitter and for the orders to be set aside. Each of the respondent and the ICL submitted that the Court could and should re-exercise discretion.
8. The appellant's counsel in support of remitter submitted that the appellant wished to adduce further evidence as to the current arrangements for the children, how time had proceeded, the father's compliance with orders and the impact on the children of the current arrangements. In Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 the High Court observed as follows:
   1. If on an appeal by way of rehearing from a discretionary judgment an appellate court is minded to exercise the discretion in question by reference to circumstances as they exist at the time of the appeal, it is necessary that the parties be given an opportunity to adduce evidence as to those circumstances...
9. In those circumstances and notwithstanding that a rehearing is "an order of last resort" (CDJ v VAJ (1998) 197 CLR 172 at [103]) the necessary consequence is that the matter will have to be remitted for hearing before a judge other than the primary judge.
10. The appellant urged that the orders made by the primary judge be discharged such that the children be returned to her care and that the children spend supervised time with the respondent. Section 36(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides that the Court in the exercise of its appellate jurisdiction may do any of the following:

(1979) 142 CLR 531

(2000) 203 CLR 172

(2019) 268 CLR 593

(1998) 197 CLR 172