Justice Cohen: sworn in

A three-member appeals bench of the FCFC has overturned “radical” parental orders in a judgment which, despite spanning over 750 paragraphs, was hindered by a paucity of reasoning. 

The original decision, handed down by Justice Robin Cohen in the Family Court of WA, concerned the parenting arrangements of the Kellermans and their ten-year-old son. Robin is a dual appointee of the FCWA and the FCFC. 

Both parents, and the son’s Independent Children’s Lawyer, submitted that their existing “equal time on alternating weeks” arrangement was untenable. Each parent applied for primary custody. 

Justice Cohen has extensive family law experience, with a meteoric rise to the bench. Her Honour was appointed in late 2022, a year after she became a Senior Counsel and following a career as senior solicitor at Legal Aid WA’s Family Grants Division, and as an Independent Children’s Lawyer. 

When deciding what would be in their son’s best interest, HH considered his unique vulnerability as a child with ADHD and suspected autism spectrum disorder. 

She stated that his life has been marred by his parents’ “chronic conflict” and inability to “prioritise his wellbeing over their disdain for one another”. 

Much of the judgment focused on the parents’ conflicting approaches towards their son’s behavioural needs, with each seeking contradictory medical advice from various health professionals. 

HH handed down a detailed prescriptive set of 75 orders, cementing equal parental custody of the son – a decision which “came as somewhat as a surprise” to the parties, who had argued that arrangement was unsustainable. 

HH reasoned that to have equal parenting time would allow each parent to provide a “check and balance” on the other. 

On appeal, Justice Murray Aldridge questioned the “length and unnecessary detail” of Her Honour’s decision. When deciding whether the judgment contained a correctable error of law, he found that there was no clear evidence which could have suggested that the animosity between the parents would have abated with such prescriptive orders. 

There was also a significant tension between HH’s desire not to deprive the child of either parent, while also recognising the emotional and psychological harm that the child would be exposed to through their continued conflict. 

When another of their son’s doctors gave evidence, they suggested that a one-parent primary custody arrangement, which would avoid “legal wrangling and argument,” would best serve their son. 

While Her Honour concurred with this statement in her judgement, the appeals bench struggled to accept her unexplained departure from it in her orders.

Justice Murray Aldridge writing for the FCFC appeal bench found that the reasons fundamentally failed to explain why the parties’ submissions about the equal time arrangement were not accepted, especially when all the evidence pointed to the unsustainability of the arrangement. 

Justice Aldridge thought that this “is an unfortunate outcome” and that “the last thing these parties need … is more litigation” – which is what will happen as it has to go back for another try with another judge.  

The other members of the bench, Robert McClelland DCJ and Jacoba Brasch J, agreed