When dealing with the law, procedural fairness is concerned with the procedures used by a decision maker – such as a judge – rather than the actual outcome reached.

Procedural fairness is fundamental to the administration of justice. When procedural fairness has not been given, a person can file an appeal and get a decision overturned on that basis.

However, getting a decision overturned can be difficult.

In a recent case, a mother was unsuccessful in her appeal against parenting orders, after the court found an article the primary judge relied on, may have breached the rules of procedural fairness.

The judge had made orders for the child to live with the father and spend supervised time with the mother.

The mother did not challenge any findings of fact made by the judge but rather questioned the judge’s reliance upon an academic article for the decision.

Judges can take notice of matters of common knowledge in making decisions.

During her appeal, however, the mother said she was denied procedural fairness, which resulted in a miscarriage of justice.

The appeal court rejected the mother’s argument. The court conceded “the primary judge may have relied upon the article and breached the rules of procedural fairness, constituting an error of law”.

However, the appeal court noted the breach needed to be “material in nature, such to alter the nature of the orders made” and given that the mother had not challenged the nature of the orders, but rather their basis, the mother’s argument was rejected.

In considering whether there has been a denial of procedural fairness, courts will examine two issues:

· whether a duty to afford procedural fairness exists; and

· if such a duty exists, the content of procedural fairness in the particular case.

It’s important to remember procedural fairness means a fair hearing and not a fair outcome. A decision may be found to have been procedurally fair even where the decision arrived at was not fair.

Conversely, there can be a failure of procedural fairness even though the decision made was fair.

This is a complex area of law. If you need advice about appealing a decision of the court, or any other aspect of family law, contact our office for an appointment. Phone Michael Lynch Family Lawyers on: (07) 3221 4300 or email: law@mlynch.com.au