Finality is Good, but Justice is Better”: Interim Orders Only in the Best Interests of the Children: Geisler v Geisler (2018) FCCA 3959

Background

Although three years of protracted proceedings had already passed, in giving consideration as to whether to make final parenting orders, the Federal Circuit Court in Geisler v Geisler (2018) decided that it was still in the best interests of the two young children involved, aged nearly 5 and 8 years, to delay proceedings for a further 12 months. How would the Court justify yet further delay given the time already spent in the Court system, the uncertainty for the family and the pressure on the Court’s time?

Key facts

Because of concerns about past alcohol addiction, compounded by family violence and the mental health issues of the father, the two young children of the Geisler family had been spending only supervised time with their father for two years. Latterly, by agreement, and just before proceedings were about to come before the Court, the children had started spending some unsupervised time with him. This had not been considered in the reports prepared for the proceedings.

Accordingly, on the day the matter was due to come to Court, all the parties, including the Independent Children’s Lawyer, agreed to adjourn proceedings. After three years in the Court system, the Court decided the making of interim orders only was in the children’s best interests.

Interim parenting orders can include:

 

• who is to have responsibility for making decisions about the child’s health, education, welfare and similar;

• where and with whom the child is to live and how much time and in with what arrangements the child will spend time with the other parent;

• the frequency and type of communication the child will have with each parent;

• the time a child might spend with other significant adults, such as grandparents, or, in the alternative, the possible prevention of the child being in the presence of certain others, such as new partners;

• restraints from removing a child from the country, state or even the local area;

• the establishment of any protective measures needed to ensure the child is protected from domestic violence or other unacceptable risks.

Key issues

The principles behind the Court’s deliberations were as follows:

• The best interests principle. Under the Family Law Act 1975 (“the Act”), the Court is required, when deciding whether or not to make a parenting order, to consider the “best interests of the child as the paramount consideration”. This is a mandatory consideration.

• Unless it would be contrary to a child's best interest, an underlying principle of the Act's central objective is that children have a right to regularly spend time and communicate on a regular basis, with both their parents.

• The principle of finality. As Judge Harman stated:

 “The family law jurisdiction has recognised the importance of finality as a manifestation of the Best Interests Principle”.

In essence, these principles mean establishing a framework of how the child can have a meaningful relationship with both parents while minimising the possibility of harm to, or neglect of, the child. At the same time, the Court has to recognise the stress that ongoing litigation can have on families, including the children and, as such, there is a preference for matters to be dealt with in a timely manner: 

“The real issue here is to balance the position of utility and finality against.... a cautious approach of developing a staged introduction of unsupervised time between these children and the father and then reviewing arrangements or the conclusion of the proceedings today based on the presently available evidence.”

 

In this context, the case and decision are notable for the comments made about the pressure on the Court. Judge Harman stated:

“There is great pressure on the Court, at this point in time, to be focused upon timeliness and especially focused upon the disposal of matters, to ensure that matters that come in the door and out of the door in the shortest possible turnaround, using as few resources as can be begrudgingly spared, assuming they exist.”

 

Ultimately, however, it was felt that, as suggested by Lord Aitken in the English case Ras Behari Lal v King- Emperor (1933), this was a case where finality is good, but justice is better and that justice is to be found in the best interests of the children.

 

What does it mean?

The Court fully recognised the problems with delay and the lack of finality, but the making of interim orders only was in the children's best interests.

The Court seeks to ensure that the children have a meaningful relationship with both parents, wherever possible, as long as they are protected from the risk of harm. This may include supervised contact, or denial of contact, where the risk is considered unacceptably high.

While recognising the need to deal with these matters expeditiously, the principle of doing what is in the best interests of the children remained paramount. Acknowledging the case as an exception to the doctrine of finality Judge Harman pointed out that:

“In the discourse regarding cases being disposed of quickly and cheaply, what is sadly absent is doing things better-the very thing that one would think the focus would be upon, particularly when addressing issues of such importance as the safety and best interests of children.”

 

The case can be seen as an example of the diversity of situations that the Family Courts have to weigh in the balance to ensure that the children come first.

The issue of delays and resources in the Family Courts is part of the now completed Australian Law Reform Commission Inquiry (as outlined in our article - The Reform of Family Law).

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