Federal Court. If the parties to litigation agree on a principle, is that principle's precedential force diminished? Further, in Vaitaiki, Teoh was interpreted by: Burchett J as requiring decision-makers to take the best interests of children into account as a primary consideration if no notice to the contrary was given; Branson J as requiring decision-makers to treat those interests as a primary consideration. Is the error discussed in Teoh better characterised as one going to procedural fairness or as a failure to take into account a relevant consideration? If the former: is the procedural fairness obligation discussed in Teoh either subsumed within s 425 or not a matter dealt with by Div 4 of Pt 7 of the Act; should the FCA adopt Burchett J's or Branson J's interpretation of Teoh?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: If the parties to litigation agree on a principle, is that principle's precedential force diminished? In other words, can it be said that, "if a point is not in dispute in a case, the decision lays down no legal rule concerning that issue"?
Question 2: Is the error discussed in Teoh better characterised as one going to procedural fairness or as a failure to take into account a relevant consideration?
If the former:
Question 3: Is the procedural fairness obligation discussed in Teoh either subsumed within s 425 or not a matter dealt with by Div 4 of Pt 7 of the Act?
Question 4: Should the FCA adopt Burchett J's intepretation of Teoh, according to which, in the absence of notice to the Appellant to the contrary, the Tribunal should have treated the interests of their children as a primary consideration?
The FCA answered those questions as follows: