Berry & Andrews

Case [2022] FedCFamC1A 120

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Berry & Andrews [2022] FedCFamC1A 120

Appeal from: Andrews & Berry [2022] FedCFamC2F 7
Appeal number(s): NAA 27 of 2022
File number(s): TVC 667 of 2012
Judgment of: TREE, JARRETT & CAMPTON JJ
Date of judgment: 3 August 2022
Catchwords: FAMILY LAW – APPEAL – PARENTING – CHANGE OF RESIDENCE – Appeal from final parenting orders giving the father sole parental responsibility and changing the residence of the child from the mother to the father – Whether there was a denial of procedural fairness – Whether the primary judge relied on an academic article that was not admitted into evidence – Where the primary judge’s reliance upon the academic article breached the rules of procedural fairness – Where the breach of procedural fairness was not material – Where no challenge was made to the primary judge’s factual findings – Where the subject error has not resulted in a miscarriage of justice – Appeal dismissed. 
Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Cases cited:

Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2

House v The King (1936) 55 CLR 499; [1936] HCA 40

Lane & Nichols (2016) FLC 93–750; [2016] FamCAFC 234

Lindfield & Romano [2022] FedCFamC1A 81

McGregor & McGregor (2012) FLC 93-507; [2012] FamCAFC 69

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17

Shell & Armel [2022] FedCFamC1A 83

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Number of paragraphs: 65
Date of hearing: 28 June 2022
Place: Heard in Brisbane, delivered in Cairns
Counsel for the Appellant: Mr Treviño QC
Solicitor for the Appellant: Hawkes Lawyers
Counsel for the Respondent: Mr Fellows
Solicitor for the Respondent: Macrossan & Amiet
Counsel for the Independent Children’s Lawyer: Ms Murphy
Solicitor for the Independent Children’s Lawyer: Swanwick Murray Roche Lawyers

ORDERS

NAA 27 of 2022
TVC 667 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS BERRY

Appellant
AND:

MR ANDREWS

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

TREE, JARRETT & CAMPTON JJ

DATE OF ORDER:

3 AUGUST 2022

THE COURT ORDERS THAT:

1.The appellant have leave to amend the Amended Notice of Appeal filed on 31 March, 2022 to add a further ground of appeal as follows:

2.The learned judge’s reference to and reliance on the article authored by J B Kelly and J R Johnston entitled “The Alienated Child: A Reformulation of Parental Alienation Syndrome’’ when it was not in evidence was an error of law.   

2.The Amended Notice of Appeal filed on 31 March, 2022 be dismissed.

3.The appellant pay the respondent’s costs of and incidental to the appeal fixed in the sum of $14,561.07 within 28 days of the…

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Berry & Andrews [2022] FedCFamC1A 120
Case
[2022] FedCFamC1A 120
Decision Date

CaseChat Overview and Summary

In this case, the appellant, Ms Berry, appealed against the final parenting orders made by the primary judge, which granted the respondent, Mr Andrews, sole parental responsibility for their child and changed the child's residence from the mother to the father. The appeal was brought before the appellate court on three grounds, the first of which had three sub-grounds. However, during the appeal hearing, the appellant sought and received leave to add one further ground of appeal. The grounds of appeal were concerned with the primary judge's failure to accord the mother procedural fairness and the reliance on an academic article that was not admitted into evidence.

The court found that the primary judge's reliance on the academic article authored by J B Kelly and J R Johnston, "The Alienated Child: A Reformulation of Parental Alienation Syndrome," constituted an error of law. However, the court held that an error of law would only lead to a new trial if it had caused a miscarriage of justice. The court scrutinised the primary judge's reasons to determine whether the decision made could have been different had the breach of procedural fairness not occurred and whether any reliance caused a miscarriage of justice.

The primary judge determined that it was in the child's best interests to live with the father and spend regular time with the mother, subject to an initial eight-week moratorium followed by five occasions of supervised time. The primary judge's decision was based on the mother's exposure of the child to family violence, undermining her relationship with the father and paternal family, and the mother's refusal to take the child back into her care in January 2020. The primary judge also considered the child's scholastic performance and the incident leading to the child ceasing to spend time with the father.

The appellate court concluded that the primary judge's reliance on the academic article did not cause a miscarriage of justice, and the appeal was dismissed. The court ordered that the appellant pay the respondent's costs of and incidental to the appeal fixed in the sum of $14,561.07 within 28 days of the date of the order. The form of the order is subject to the entry in the Court's records, and this copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors or to record a variation to the order.

Orders

Orders of the court

NAA 27 of 2022

TVC 667 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS BERRY

Appellant

AND:

MR ANDREWS

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

TREE, JARRETT & CAMPTON JJ

DATE OF ORDER:

3 AUGUST 2022

THE COURT ORDERS THAT:

1. The appellant have leave to amend the Amended Notice of Appeal filed on 31 March, 2022 to add a further ground of appeal as follows:

2. The learned judge’s reference to and reliance on the article authored by J B Kelly and J R Johnston entitled “The Alienated Child: A Reformulation of Parental Alienation Syndrome’’ when it was not in evidence was an error of law.

2. The Amended Notice of Appeal filed on 31 March, 2022 be dismissed.

3. The appellant pay the respondent’s costs of and incidental to the appeal fixed in the sum of $14,561.07 within 28 days of the date of this order.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons which follow, we have concluded that the appeal must be dismissed.BACKGROUND The background leading to the trial before the primary judge is summarised by his Honour at [13] of his reasons for judgment. We respectfully adopt that background:13 A short history of the matter is:(a) The Father was born on … 1973. He will soon turn 49.(b) The Mother was born on … 1976. She is 45.(c) The parties commenced a relationship and co-habitation in 2008 and separated about 2 years later in 2010.(d) The only child of the relationship is [X] who was born on ... 2010. According to the chronology, that would be no more than 6 months prior to the final separation.(e) By reference to orders made in 2012 and 2014, the child has lived with and spent time with each parent for a considerable amount of her life, until early 2020.(f) In December 2019 the child commenced spending time with the Father in accordance with the then current (and almost over 5 years old) court order, for the child to spend the first half of the 2019 Christmas school holidays with the Father.(g) On 5 January 2020 which was when the child would return to the Mother for the commencement of the second half of the 2019 school holidays, the Mother refused to accept the return of the child and ceased communication with her.(h) On … 2020 arrangements were made for the child to spend time with the Mother on the child’s birthday, those arrangements being prompted by the child contacting the Mother.(i) The Mother refused to return the child to the Father and/or to comply with the order dated 28 May 2014 (the then current order) regarding the child spending time with the Father.(j) In around mid-2020, the Mother removed the child from school, enrolled the child in [distance education] and left the [City B] area for a lengthy period to go on a road trip with the child and the Mother’s son. Ultimately the Mother and the children were in the Northern Territory.(k) On 17 December 2020 the Father commenced contravention proceedings. The contravention related to the child not spending any time with the Father for in excess of 6 months, contrary to the 28 May 2014 order.(l) The Father commenced the current proceedings by filing an Initiating Application (Family Law) on 16 February 2021. The primary judge conducted the trial over five days in total. The matter was part heard after three days in November, 2021 before concluding after a further two days in December, 2021.THE GROUNDS OF APPEAL The Amended Notice of Appeal filed on 31 March, 2022 contains three grounds of appeal, the first ground having three sub-grounds. In his Summary of Argument, Queen’s Counsel for the appellant abandoned Grounds 1(c), 2 and 3. However, in the course of the appeal hearing, he sought and received leave to add one further ground of appeal. Taking into account the grounds so abandoned and the added ground, the grounds of appeal are now:1.The learned primary judge failed to accord the mother procedural fairness in that the mother was not given the opportunity to cross-examine, respond to, or introduce contrary evidence in relation to:(a)The academic article authored by J B Kelly and J R Johnston entitled “The Alieneated Child: A Reformulation of Parental Alienation Syndrome” (“the article”) in circumstances where the learned primary judge’s reference to and reliance upon the article underpinned his Honour’s decision to move the child’s primary residence from the mother’s household to the father’s household;(b)Whether the concept of parental alienation syndrome, as considered by the authors of the article, supported findings (ultimately made by the Court) that:(i)The mother was “guilty” of exhibiting behaviours consistent with parental alienation syndrome;(ii)The parental alienation practiced by the mother provided support for a move of the child’s primary residence to the father’s home.2.The learned judge’s reference to and reliance on the article authored by J B Kelly and J R Johnston entitled “The Alienated Child: A Reformulation of Parental Alienation Syndrome’’ when it was not in evidence was an error of law.

Evidence

Evidence Before The Court

The article in question was extraneous material. It was not part of the body of evidence before the primary judge. In this respect, this case bears a striking similarity to Shell & Armel [2022] FedCFamC1A 83. In that case, the primary judge had relied upon the very same article that is central to this appeal. The parties had been referred to the article in the course of the hearing. Nonetheless, the Full Court allowed the appeal. At [42] the Full Court said:However, in allowing the appeal on the basis of Ground 1(a), we do so not for a failure by the primary judge to accord the mother natural justice or procedural fairness; she was on notice, as was the father, about the article. Rather, we do so because her Honour’s erroneous reference to and reliance upon the article, when it was not in evidence, is an error of law.(Emphasis added) Nonetheless, an error of law will only lead to a new trial where it has caused a miscarriage of justice: Conway v The Queen (2002) 209 CLR 203 at 207, 208, 217, 219, 220, 232 and 244, applied in Lane & Nichols (2016) FLC 93–750 at [72]-[81]. Although the legislation applying to the disposition of appeals at the time Lane & Nichols was decided is different to that now, there can be no doubt that the powers of this Court in exercise of its appellate jurisdiction conferred under s 36(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) includes the power to dismiss an appeal in any case where an error of law, fact or other wrong has not resulted in any miscarriage of justice. Queen’s Counsel for the appellant argues that it is impossible to discern from the primary judge’s reasons the true extent to which the offending article, and the metes and bounds of the concept of parental alienation syndrome dealt within it, permeated his reasoning process. He argues that because it is impossible to understand the extent to which the primary judge has relied upon the offending material, the appeal must succeed. Counsel for the respondent and the Independent Children’s Lawyer argue that even if that is so, the breach of procedural fairness was not material to the orders that his Honour made. More, they argue that reliance by the primary judge upon the article in question did not cause a miscarriage of justice and the appeal should be dismissed. Assuming that there has been reliance upon the article in question, it is necessary to carefully scrutinise his Honour’s reasons for the purposes of Grounds 1(a) and 1(b), so as to discern whether it is realistically possible that the decision made could have been different had the breach of procedural fairness not occurred: Minister for Immigration and Border Protection v SZMTA; affirmed in MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 at [1]-[3]. For the purposes of Ground 2 it is necessary to determine whether any reliance caused a miscarriage of justice.THE PRIMARY JUDGMENT At [15]–[21] of his reasons, the primary judge summarised the outcome he determined to be in the child’s best interests. He determined that it was in her best interests to live with the respondent and to spend regular time with the appellant subject to an initial eight-week moratorium followed by five occasions of supervised time. His Honour recorded that he considered that the appellant had exposed the child to family violence and had undermined her relationship with the respondent and paternal family. He places great emphasis on the appellant refusing to take the child back into her care in January, 2020 after a period of holiday time with the respondent. His Honour’s view on that event, and how it colours his view of the child’s subsequent conduct, are summarised in the reasons:20.It seems to me hardly surprising that a child who has been rejected by her primary carer, would not go out of her way to comply with the wishes of that carer once the connection was re-established. In other words, the child is hardly likely to express any interest in having a relationship with or spending time with the Father, for fear of being traumatized again by another rejection by the Mother, as she was in the early months of 2020.

Decision

Reasons for decision

Assuming that there has been reliance upon the article in question, it is necessary to carefully scrutinise his Honour’s reasons for the purposes of Grounds 1(a) and 1(b), so as to discern whether it is realistically possible that the decision made could have been different had the breach of procedural fairness not occurred: Minister for Immigration and Border Protection v SZMTA; affirmed in MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 at [1]-[3]. For the purposes of Ground 2 it is necessary to determine whether any reliance caused a miscarriage of justice.THE PRIMARY JUDGMENT At [15]–[21] of his reasons, the primary judge summarised the outcome he determined to be in the child’s best interests. He determined that it was in her best interests to live with the respondent and to spend regular time with the appellant subject to an initial eight-week moratorium followed by five occasions of supervised time. His Honour recorded that he considered that the appellant had exposed the child to family violence and had undermined her relationship with the respondent and paternal family. He places great emphasis on the appellant refusing to take the child back into her care in January, 2020 after a period of holiday time with the respondent. His Honour’s view on that event, and how it colours his view of the child’s subsequent conduct, are summarised in the reasons:20.It seems to me hardly surprising that a child who has been rejected by her primary carer, would not go out of her way to comply with the wishes of that carer once the connection was re-established. In other words, the child is hardly likely to express any interest in having a relationship with or spending time with the Father, for fear of being traumatized again by another rejection by the Mother, as she was in the early months of 2020. At [22]–[39] of the primary judge’s reasons, he examined the appellant unilaterally placing the child into distance education before taking her on a road trip across northern Australia for several months. He contrasted the child’s relatively mundane scholastic performance while in the respondent’s care against her severely diminished performance in the appellant’s care. Doing so, he expressed a finding at [39] that living with the respondent would provide her with a better and more consistent education than living with the appellant. At [40]–[46] of his reasons, his Honour examined the incident leading to the child ceasing to spend time with the respondent. In brief, she spent the first half of the 2019 Christmas holidays in the respondent’s care – the first Christmas holiday time in the form that was then to become her annual arrangements in accordance with the 2014 orders. On the day prior to changeover, the respondent took the child for a haircut. At changeover, the appellant refused to take the child into her care. On both parties’ evidence, the appellant said to the child words to the effect that by having had a haircut in her father’s care, she had betrayed the appellant’s trust and was not welcome in her home. Their evidence as to the precise words differed; neither the primary judge nor we must resolve the difference.

Ratio Decidendi

Legal Principle Established

The primary judge concludes his reasons with a consideration of the matters he considered relevant arising from s 60CC(3) of the Act.Consideration That the child had been alienated or estranged from him by the conduct of the appellant was the core of the respondent’s case. He used those terms and others derived from them in the course of his evidence during cross-examination. The evidence shows that the respondent used those terms as general descriptions of the appellant’s behaviour and its consequences for the child’s relationship with him, rather than technical terms. Ms C also used similar terms, stating, amongst other things, “Alignment is a strategy utilised by a parent to undermine a young person’s perception of the other parent with a view to coerce the young person from having a relationship with the other parent”. It is unsurprising then, that those terms are used by the primary judge in his reasons for judgment. In [225] of his reasons, the primary judge identifies the article the subject of the appellant’s grounds of appeal. In paragraph [227] he refers to “more recent research and family studies” without identifying that research or those studies. Although the appellant’s Summary of Argument draws upon his Honour’s references to this material, it is only the reference to the article in [225] that is the subject of the grounds of appeal, and we have approached the appeal on this basis. At paragraph [225] the primary judge identifies the article in question, but no more. He does not set out or summarise the importance or significance of the article to his reasoning process. Nowhere in his Honour’s fact finding is there reference to the article informing any of his conclusions. The first sentence of [226] of his Honour’s reasons refers to the range of parent-child relationships following separation identified in the article. His Honour specifically refers to relationships where a child might be characterised as estranged or alienated from a parent. The next sentence recites the respondent’s general allegation that the child had become alienated and estranged from him through the appellant’s actions. The respondent had used those exact words when giving his evidence under cross-examination. Ms C had used similar, although not identical terms. The appellant’s own Case Outline before his Honour expressed fears that the respondent would attempt to “alienate” the child from her. His Honour draws attention to the article and the criticisms of it in [227]. He expresses no view about the validity of the criticisms, something to be expected if his Honour was going to adopt or apply the article or material within it. Instead, his Honour remained focussed upon the facts of the case before him. So much is apparent from his statement that “it is nonetheless important to consider what happens on a factual level.” His Honour then draws attention to the fact “that in this case as in many cases, we have a child who has turned around completely from a status quo existing for many years, of having an apparently good relationship with both parents. There is now no relationship between the child and the [respondent].” Those factual findings were not challenged before us.