Berry & Andrews
[2022] FedCFamC1A 120
•3 August 2022
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 2012FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Berry & Andrews has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, JARRETT & CAMPTON JJ:
Ms Berry, the mother of X, appeals from final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 17 January, 2022. Before the primary judge the appellant had sought orders for X to live with her and for her to spend time with her father, the respondent to this appeal Mr Andrews, according to her wishes. She also sought an order for sole parental responsibility for X.
However, the primary judge rejected those orders. Broadly speaking, the primary judge made orders as proposed by the respondent and the Independent Children’s Lawyer. The orders made provide for X to live with the respondent and following a moratorium of time between X and the appellant, for her to spend five weekends of supervised time with the appellant and thereafter unsupervised time each alternate weekend from Friday afternoon until Sunday afternoon. The primary judge made a number of other orders, including an order that the respondent have sole parental responsibility for X.
Both the respondent and the Independent Children’s Lawyer oppose the appeal.
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.
None of the grounds of appeal challenge any of the findings of fact made by the primary judge. His consideration of the matters raised by ss 61DA(1) and 60CC of the Act are not challenged.
The appellant confirmed at the hearing of the appeal that the purpose of the appeal is to correct errors as they affect orders.
Grounds 1(a) and 1(b) advance a breach of the rules of procedural fairness. In the present context, and as Queen’s Counsel for the appellant submitted in his Summary of Argument at paragraph 17, the rules of procedural fairness require that anything relied upon by a court in reaching its decision be made known to the parties to the proceeding prior to the making of the decision, so that the parties may oppose reliance upon it, produce evidence in relation to it and make submissions about it. Reliance upon material which does not emerge in that manner is a breach of the rules of procedural fairness: McGregor & McGregor (2012) FLC 93-507 at [59].
It is uncontroversial that the article identified in Grounds 1(a) and 2 was referred to by the primary judge in his reasons for judgment. All parties agree that neither the article nor any intention by the primary judge to rely on it was identified to any party prior to the delivery of his Honour’s reasons for judgment. Assuming that his Honour relied upon the article, the parties agreed that a breach of procedural fairness was made out.
However, not every breach of the rules of procedural fairness will lead to a new trial. If further information would not possibly have made any difference to the result of the case before the primary judge, an appeal establishing a breach of the rules of procedural fairness or natural justice will inevitably fail: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; Lindfield & Romano [2022] FedCFamC1A 81 at [38].
Put another way, the breach of procedural fairness needs to be material. A breach is only material if it operates to deny a party an opportunity to give evidence or make arguments and thereby to deprive that party of the possibility of a different and more favourable outcome: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [2].
Ground 2 is not a procedural fairness ground but seeks to engage the relevant principles which govern appeals from discretionary judgments. Questions of procedural fairness aside, reliance on the identified article by the primary judge, if established, would reveal error of the type identified in House v The King (1936) 55 CLR 499 at 504-505 and in particular the type of error that occurs when a primary judge allows extraneous or irrelevant matters to guide or affect his judgment.
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.
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.
His Honour found that between 5 January, 2020 and her return to the appellant’s care in April, 2020 the appellant refused all contact with the child. The child’s frequent attempts to initiate contact were rebuffed or ignored. His Honour summarised the impact this must have had on the child as follows:
41.… It is hard to know how the child coped emotionally with this complete rejection by her Mother, not only in not seeing the Mother and her brother [Y] but presumably feeling that she was being punished for such a simple matter as having a haircut.
The primary judge also rejected the appellant’s claims to fear for X’s safety in her father’s care. Undisputedly, the child had spent regular time with the respondent between 2014 and April, 2020 and the appellant had left her in the respondent’s care for approximately four months after abandoning her in January, 2020.
At [47]–[56] his Honour traversed the allegations of family violence. Despite the appellant’s assertions to the contrary, ultimately the primary judge found that there had been no significant family violence by the respondent and he made no findings that the child was at risk by reason of the respondent’s neglect.
Whilst his Honour found that at the time of the trial there was no significant recent family violence involving the appellant, he took into account that, historically, the appellant had been both the victim and perpetrator of family violence. She had inflicted physical harm on a former partner and damaged property in the presence of the child and her half-brother.
The primary judge had the benefit of two reports from two family consultants. The first report was from Ms B. Ms B gave evidence before another judge of the Court in an interim hearing in April, 2021. Although Ms B was not cross-examined before him, his Honour had the benefit of a transcript of the April 2021 hearing.
The gravamen of the examination of Ms B’s evidence at [58]–[65] of the reasons is that his Honour closely considered evidence regarding the appellant’s conduct and its impact on the child. The primary judge was persuaded that the child feared her mother would abandon her again and that shaped her behaviour towards her father. Further, he found that the appellant extensively involved the child in the litigation and interfered with her capacity to receive mental health support from third parties.
Ms C authored the second report. His Honour dealt with her evidence at [69]–[104]. She considered the haircut incident to be a major catalyst for the child’s change in attitude to spending time with her father.
Ms C proposed an interim arrangement that recommenced the time between the respondent and the child. If the appellant was unable to facilitate that, then Ms C recommended an immediate change in residence.
Interim orders were indeed made on 1 April, 2021 for the child to spend time with her father. However, the primary judge was satisfied that the appellant had not facilitated time between the child and her father pursuant to those orders. His Honour said:
104.The above situation is what the court is faced with. The child has not spent time with the Father at all. She has not been willing to go to him or to the paternal grandfather at McDonald’s or elsewhere. In my view, the Mother cannot facilitate a different outcome. I do agree with the report writer’s recommendation and not without some reluctance given the effect of an order on the child, that there must be a change in her living arrangements.
At [105]–[127] his Honour turned his mind to the competing proposals of the parties.
The respondent proposed that the child live with him in Town A, west of City B, and attend the local primary school. The primary judge considered the support network surrounding the respondent, including the paternal grandparents and the respondent’s partner and the child’s familiarity with the area. He concluded that the child would have an ongoing stable environment in the respondent’s care.
His Honour recorded that the appellant proposed that the child live with her and her new partner in a not-yet-purchased home near City C. The child would then attend boarding school in City C. This living arrangement would be entirely alien to that which the child had previously experienced. The primary judge did not consider such an upheaval in the child’s life to be in her best interests. His Honour noted the lack of specificity in the appellant’s proposal. She could not outline the type of real property that she would purchase. While she noted three City C secondary schools that accept boarders, she otherwise provided no clear plan or evidence for the primary judge to examine about the child’s education.
According to his Honour, however, the appellant’s proposal would crystallise the child’s separation from her father. While the appellant’s proposal included that the child spend as much time with the respondent as she wished, his Honour considered the appellant had created an environment where the child feared to express such wishes. He did not think that the appellant would encourage the child to spend time with the respondent.
The primary judge accepted the evidence of the paternal grandparents. Their evidence highlighted the contrast between the happy and confident grandchild with whom they had a good relationship prior to April, 2020 and their experience of the child after she returned to the appellant’s care. The paternal grandfather described the child’s behaviour during his many abortive attempts to facilitate changeover as “totally unemotional to the extent that he would describe her behaviour as robotic”. She refused to acknowledge his or her grandmother’s presence, look at them when they spoke or engage in conversation with them.
Importantly, the primary judge recorded this evidence of the paternal grandmother:
155.It is of significance that at paragraph 30 of [the paternal grandmother’s] Affidavit, she says that the child went for a walk with her on the afternoon of 6 June 2020. It started raining and the child and [the paternal grandmother] sat under the shelter shed at a lookout. [The paternal grandmother] said that when she asked the child why she did not want to talk with or see her Father, the child became upset and started crying and said to her “I do not know”. The child told [the paternal grandmother] about a recent incident when the Mother had hit her former partner… on the head with a pole. The child said that she (the grandmother) could not tell anyone because the Mother might get into trouble. [The paternal grandmother] says that the child was chewing her nails and behaving in a very nervous manner. The child also told [the paternal grandmother] that she and her brother [Y] were not going to school. They were doing home-schooling because the Mother was taking them for a trip around Australia for about two or four years.
In general, his Honour considered that the appellant told the truth as she saw it. However, he thought that she demonstrated a lack of insight into the impact of her conduct on the child and her brother. That included the domestic violence to which the child was exposed, her failure to support the child’s education and the complete abrogation of her responsibility as a parent in letting the child choose whether she sees the respondent or not. Permitting the child to make such serious decisions revealed, in the primary judge’s view, a significant issue with her care by the appellant:
200.On this last point, I think that there is more to the issue then appears superficially. It is not simply that “the child can do as she wishes”. The child should never be put in this position of making decisions about seeing her parents. The child should never be encouraged to take on that role which is for parents rather than children, to decide. In my view, the child remains so affected by the Mother abandoning her in early 2020 which in reality is what happened, that she will not be willing now to give any indication the to the Mother of an interest in seeing the Father and his family.
The appellant’s partner gave evidence that the child physically recoiled from her grandmother’s touch. Having accepted that the child and her grandparents once had a good relationship, his Honour considered this created further concerns about what the child had experienced since April, 2020 in the appellant’s care.
Paragraphs [225]–[230] are, in a real sense, the subject of this appeal. They are worth setting out in full:
225.I am conscious of the article by J B Kelly and J R Johnston in the Journal “Family Court Review”: “The Alienated Child: A Reformulation of Parental Alienation Syndrome”.
226.In their consideration of what has been described as Parental Alienation Syndrome, the authors Kelly and Johnston point to the parent-child relationship after separation as ranging from a positive relationship with both parents to children being estranged or alienated from one parent. In the present case, the Father says that from the time the child returned to live with the Mother on … April 2020, she has become estranged from him and alienated from him. He says further, this has been caused by the Mother, probably both intentionally and unintentionally.
227.While I am conscious that more recent research and family studies have been critical of the term parental alienation syndrome and to some extent critical of the very concept, it is nonetheless important to consider what happens on a factual level. Whatever the syndrome or situation is called, the fact is 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 Father.
228.Kelly and Johnston record behaviours exhibited by a parent who may be guilty (my description) of parental alienation syndrome. These include:
(a)Strong negative views of the other parent. Those views are expressed repeatedly to the child.
(b)A belief that the child does not need the other parent in her life.
(c)A belief that the other parent is dangerous to the child in some way. I would comment that in this case, the objective evidence is more negative towards the Mother than the Father.
(d)A belief that the other parent does not and has not loved or cared about the child. The Mother in this case made it clear in cross-examination answers to Ms Murphy, that this is her position.
229.In my view, a decision to move the child’s primary residence to his Father’s household is supported by parental alienation or whatever one may care to describe the scenario here, practiced by the Mother since April 2020. It is also supported by the various other matters which I refer to when reviewing the section 60CC of the Family Law Act.
230.I accept that according to the evidence, it is likely that the child would be happy to remain living with the Mother and either spend no time with the Father or spend time as the child decides. On the other hand, the child will be angry and upset and likely very much so, should I change her residence arrangement so that she lives with the Father. The difficulty for the court is making a decision in the best interests of the child. In my view, the best long-term outcome for the child is that she have a relationship with both parents. Further in my view, this can be achieved only by the child living with the Father.
It will be necessary to return to a discussion of this passage.
From [231]–[241] the reasons for judgment travel down what is described as the “legislative pathway”. His Honour determined that it was in the child’s best interests for the respondent to have sole parental responsibility for her.
The primary judge accurately summarised the effect of ss 60B and 60CA before quoting s 60CC(2) in full. With respect to s 60CC(2)(a), his Honour considered that the child would benefit from a meaningful relationship with both parents, but that continuing to live primarily with the appellant would mean the child would not spend time with her father. As his Honour put it:
237.… The Mother has made it clear in her actions and words, that she will not foster any meaningful relationship between the child and her Father. The best she says is that the child herself can determine what time she spends with the Father. In reality, I am convinced that if the court were to order this, the child would “decide” to spend no time with the Father. …
When turning his mind to s 60CC(2)(b), the primary judge listed many examples of how the appellant’s conduct had exposed the child to a risk of harm:
239.With respect to the need to protect the child from physical or psychological harm, in my view the Mother has created significant harm for the child. Being rejected by the Mother in January 2020 and for months following that, must have been devastating for this little girl. As I have expressed above, it is no wonder now that she is so reluctant to take even the smallest of steps towards expressing any interest in seeing or spending time with the Father.
240.Not only has the early 2020 episode been likely to cause the child emotional and psychological harm, the Mother has put the child in the position where she has been exposed to other physical or psychological harm or risk of harm. These include:
(a)The Mother being assaulted by a former partner when her children were present. I recognise that at the time, the Mother may have been powerless to remove the children from the situation. Nevertheless the situation for the children should not have arisen.
(b)The Mother assaulting [her former partner] when drunk, in the presence of the children / child.
(c)The Mother driving the child long distances including from the Northern Territory to [City B] for the purpose of a contact visit and when it appeared clear that there would be little point in the visit and that the Mother could not or would not make the visit happen. As referred to in my discussion about the evidence of [Mr D], the Mother apparently drove with the child and her brother, up to 4000km in a few days.
(d)The Mother not making it clear to the child that it was not the Father who brought the child back to [City B] in early 2021 but rather a court order was made.
(e)The Mother discussing with the child and her brother [Y] the proceedings in some detail and / or allowing them to read material.
(f)The Mother’s position as referred to above, that the child be the decision-maker at age 11-12, of whether she should spend time with her Father.
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.
In paragraph [228] his Honour sets out four behaviours said by the authors of the article to be “exhibited by a parent who may be guilty … of parental alienation syndrome”. He makes no findings about any of them save the last – a belief that the other parent does not and has not loved or cared about the child. In that respect, he records that the appellant made it clear in cross-examination that “this is her position”. Indeed, this was the appellant’s clear evidence in cross-examination. Again, no reference is made to any of these matters in the earlier part of his Honour’s judgment devoted to finding the facts. We accept the respondent’s submission that his Honour’s reasons reveal no interleaving, interweaving or adoption of the article, or material derived from it, into his fact finding or analysis of those facts. Save for the paragraphs under present consideration, the appellant did not identify any part of his Honour’s reasons which demonstrated any adoption or application of the thesis of the article.
The appellant argues that in concert [228] and [229] of the reasons establish that the primary judge’s approach to the evidence was explicitly informed by the research to which he referred. The appellant further argues that the primary judge applied the research identified in his reasons (particularly the article by Kelly and Johnston) to the evidence to conclude that the appellant was “guilty” of parental alienation syndrome and that the appellant had “practised” parental alienation since April, 2020.
However, we do not accept those arguments. His Honour made no finding that the appellant was “guilty” of parental alienation syndrome. Instead, what the primary judge said in [229] was that his decision to move the child’s primary residence was the result of “the scenario here, practised by the Mother since April, 2020”. The primary judge’s focus was firmly on the facts of the case as he found them to be. He was not so much interested in the label that might attach to the appellant’s conduct as he had found it than he was with what she had done and how that had affected the child and her relationship with the respondent. His Honour’s words in this paragraph mean no more than whatever label one chooses to attach to the appellant’s behaviour as found, that behaviour justified a decision to move the child’s primary residence to the respondent.
Moreover, we do not accept that the use of the words “[i]t is also supported by the various other matters which I refer to when reviewing the [sic] section 60CC of the Family Law Act” in [229] demonstrates the significance and importance of the article to his Honour’s decision. In our view, that statement does nothing more than direct attention to the legislative pathway established in the Act, something to which his Honour almost immediately turns in his reasons for judgment.
CONCLUSION
Although we are unconvinced of the proposition, we have assumed that his Honour did in fact rely upon the offending article as the appellant submits. Doing so breached the rules of procedural fairness as the appellant postulates and, separately, constitutes an error of law because his Honour relied upon material that was not within the body of evidence before him.
Queen’s Counsel for the appellant acknowledged that an appeal is against orders, not against the reasons for those orders. It follows that unless the breach of procedural fairness was material to the orders now sought to be set aside, in the sense we have set out above at [12], the orders of the primary judge should not be disturbed.
The appellant does not establish that the breach was material in the relevant sense. The findings of fact made by the primary judge are unchallenged. Those factual findings informed his Honour’s separate consideration of the “legislative pathway” and his conclusion in [229] that a decision to move the child’s primary residence to the respondent’s household was in her best interests. Queen’s Counsel for the appellant accepted that this reasoning was open to his Honour and was another pathway that could have led to the orders made by the primary judge.
In our view that was the path that his Honour took. So much is clear from the conclusion expressed by his Honour at [104] of his reasons and reiterated by reference to the expert evidence at [241(f)]. Having regard to his Honour’s clear unchallenged factual findings, we do not consider it realistically possible that the orders made by the primary judge could have been different had the breach of procedural fairness not occurred. The want of procedural fairness was not material.
Grounds 1(a) and 1(b) have no merit.
Moreover, we are comfortably satisfied that the subject error has not resulted in, or provided the foundation for a conclusion that, a substantial miscarriage of justice had occurred.
Having regard to the orders made by the primary judge and our analysis of his reasons for those orders, his Honour’s reliance upon the article when it was not in evidence before him did not lead to a miscarriage of justice such that it is appropriate to set those orders aside and direct a new trial of the appellant’s application. The appellant did not argue that the orders were not in the child’s best interests given the primary judge’s unchallenged consideration of the matters raised by ss 61DA(1) and 60CC of the Act. The orders he made were compelled by that consideration.
Ground 2 of the appeal has no merit.
The appeal must be dismissed.
COSTS
In the event that the appeal is dismissed, the respondent sought an order that the appellant pay his costs fixed in the sum of $14,561.07. The appellant does not oppose such an order, nor the quantum of the costs claimed by the respondent. An order that the appellant pay the respondent’s costs of and incidental to the appeal in the sum claimed is appropriate.
The Independent Children’s Lawyer did not seek an order for costs.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Jarrett & Campton. Associate:
Dated: 3 August 2022
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