Bruce & Bruce (No 3) - [2024] FedCFamC1A 33

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bruce & Bruce (No 3) [2024] FedCFamC1A 33

Appeal from: Bruce & Bruce [2023] FedCFamC1F 936

Appeal number: NAA 306 of 2023

File number: NCC 4120 of 2020

Judgment of: TREE, HARPER & JARRETT JJ

Date of judgment: 21 March 2024

Catchwords:
FAMILY LAW – APPEAL – Parenting – Where the mother appeals from final parenting orders that vest the father with sole parental responsibility and impose a moratorium of two months of no contact with the mother – Assertions of bias – Where the mother makes claims that border on scandalous – Assertions of a denial of procedural fairness – Where the primary judge’s interjections were polite and helpful – Alleged breach of the Criminal Code Act 1995 (Cth) – Where it was not a crime to order that the children live with the father – Whether primary judge failed to take relevant considerations into account – Where the assertion does not bear out on the transcript – Inadequacy of reasons – Where the primary judge’s reasoning was readily discernible – No error identified.

FAMILY LAW – APPEAL – Application in an Appeal – Further evidence – Where the day prior to the appeal the mother sought to rely upon a further 3797 pages – Where all of the documents were either available at the time of trial, contentious or irrelevant – Application dismissed – Appeal dismissed.

Legislation:
Family Law Act 1975 (Cth) ss 60CC, 69ZN, 69ZX, 102NA

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 35, 36,

Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth) rr 13.10, 13.23

Cases cited:
Adacot & Sowle (2020) FLC 93-982; [2020] FamCAFC 215

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

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

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Bruce & Bruce (No2) [2023] FedCFamC1A 226

Bruce & Bruce (No2) [2023] FedCFamC1F 1012

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Newett & Newett (No 9) (2023) FLC 94-133; [2023] FedCFamC1A 23

Newett & Newett [2023] HCASL 186

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

Number of paragraphs: 235

Date of hearing: 26 February 2024

Place: Heard in Sydney, delivered in Cairns

The Appellant: Litigant in person

The Respondent: Litigant in person

Solicitor for the Independent Children's Lawyer: Legal Aid NSW (Filed Submitting Notice 24 November 2023)
ORDERS

NAA 306 of 2023
NCC 4120 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS BRUCE

Appellant

AND:
MR BRUCE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

TREE, HARPER & JARRETT JJ

DATE OF ORDER:

21 MARCH 2024

THE COURT ORDERS THAT:
1.Save that on 26 February 2024:
(a)the appellant was given leave to file in court an Amended Notice of Appeal dated 24 January 2024, and to rely upon two further grounds as identified at page 39 of her Summary of Argument filed 26 February 2024; and
(b)the appellant was given leave to rely upon a 40 page Summary of Argument filed 26 January 2024 in lieu of oral submissions;

the appellant’s Applications in an Appeal filed 6 and 23 February 2024 are dismissed.
2.The appellant’s application to rely upon a proposed “third appeal book” is dismissed.
3.The appeal is dismissed.

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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bruce & Bruce (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, HARPER & JARRETT JJ:
INTRODUCTION

On 3 November 2023, a judge of the Federal Circuit and Family Court of Australia (Division 1) made final parenting orders relating to the parties’ two children, X and Y, now aged 13 and 10 years respectively. Those orders provided Mr Bruce (“the father”) with sole parental responsibility in respect of the children, who would live with him and, after a moratorium of two months of no contact with Ms Bruce (“the mother”), initially spend professionally supervised time with her for a period of six months, and then progress to unsupervised time each alternate weekend and during the school holidays.
By Notice of Appeal filed on 3 November 2023 the mother appealed from all of those orders. The father resists the appeal. The Independent Children’s Lawyer (“the ICL”) filed a Submitting Notice on 24 November 2023. We shall have something more to say about that later.
For the reasons that follow the appeal will be dismissed.
BACKGROUND
The parties began cohabitation in 2009, and married in 2010. X was born in 2010 and Y in 2012. There was some dispute about when the parties finally separated, but it was uncontroversial that they no longer lived together by September 2013.
Post-separation the father re-married, to which relationship three children were born in 2016, 2021 and 2022.
The mother also re-partnered, although had separated by the time that the only child to that relationship was born in 2016.
For some years, the post-separation co-parenting of the children between the mother and the father proceeded smoothly, culminating in equal shared care. However, difficulties apparently ensued, with the mother commencing these proceedings in November 2020, and the situation deteriorating further in 2021. The primary judge was unable to discern the cause for the breakdown in the parties’ co-parenting, but whatever the cause, things got to the point where the mother withheld the children from the father in August 2021, and sought interim orders terminating the children’s time with him. Orders for supervision of the children’s overnight time with the father by the paternal grandmother were made in November 2021, although in February 2022, that time was varied to not less than three hours of professionally supervised time every alternate weekend.
Notwithstanding those orders, by the time of trial, the children had not spent time with the father since January 2023. The reason/s for that was/were contentious.
THE TRIAL
On the eve of the trial, the primary judge listed the matter before him, on which occasion the mother’s then solicitor sought, and with the mother’s agreement obtained, leave to withdraw. The reason proffered by the solicitor was that she “was struggling to obtain proper instructions. I issued a notice to [the mother] to the effect that if I could not obtain instructions, I would need to withdraw. I subsequently then got correspondence from [the mother] instructing me to withdraw….” (Transcript 13 October 2023 p.2 lines 17–20).
Later in the trial the mother proffered a radically different explanation for the reason for her solicitor withdrawing, but that was not raised by her on 13 October 2023, although she did then foreshadow that she would seek that the trial be adjourned.
The following Monday the mother unsuccessfully pressed her adjournment application, and thereafter the trial proceeded. The mother called herself and her own mother as the witnesses in her case, the father called himself and his wife, and the ICL called two single experts.
By the conclusion of the trial, the mother’s proposal (which over time had varied markedly) was that the parties should share parental responsibility for the children, save for medical and educational matters, which would be solely hers. She further proposed that the children should live with her, and spend two hours of professionally supervised time with the father each alternate Sunday (at [29]). She justified those orders on three bases: firstly, that the father was a risk of physical abuse to both children; secondly, that he was a risk of sexual harm to X; and thirdly, that he was a risk of exposing the children to family violence (at [52]).
For his part, the father ultimately proposed that he have sole parental responsibility for the children, who would live with him, and after a two month moratorium, begin to again spend time with the mother, initially comprising two hours of professionally supervised time once per fortnight for three months, then weekly for another three months, moving to unsupervised alternate weekend time (including Saturday night) for three months, before culminating in three overnights each alternate weekend, together with block school holiday time. Those proposed orders were supported by the ICL.
That regime was said to be justified on the basis that the mother posed a risk of emotional and psychological harm to the children, largely, but not solely, evidenced by her desire to effectively terminate the children’s relationship with the father, and the impact on the children of her attempts to achieve that.
THE PRIMARY JUDGE’S REASONS
Initially the primary judge recited relevant background facts (at [5]–[17]), gave reasons for having refused the mother’s application for an adjournment (at [18]–[21]), discussed the parties’ proposals, including their history and evolution (at [22]–[33]), identified the sources of evidence before him (at [34]–[38]) and briefly traversed relevant legal principles (at [39]–[42]).
His Honour then addressed both of the primary considerations in s 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”) and the relevant additional considerations contained in s 60CC(3) (at [39]–[129]). The primary judge then articulated his conclusions (at [130]–[145]).
As to the primary consideration in s 60CC(2)(a) of the Act, the primary judge recited the expert evidence that “the children appear attached to the mother” (at [43]) but went on in that paragraph to note concerns about their relationship with her, including that X was displaying signs of “parentification”.
The primary judge appears to have accepted that at the time of trial, there were problems in the children’s relationship with the father (at [46]–[47]) before concluding at [49]–[51]) as follows:
49.One thing is highly probable. Whilst ever the children remain living with the mother, they have no chance of having relationships with the father, let alone meaningful relationships. That is particularly so for the younger child. The elder child is approaching an age where she might have the courage to defy the mother, but that is unlikely due to her timidity.
50.Of course, if the children do require protection from the risk of harm posed to them by the father, as the mother alleged, then that objective must be prioritised (s 60CC(2A)). But if they do not require such protection, then their current alienation from the father must be rectified. That could only be achieved by the reversal of their residence because the mother will not genuinely countenance them spending time with him while they live with her.
51.The single expert said, and I accept, that if the mother’s allegations of misconduct against the father are unfounded then she is infringing the children’s rights by preventing them from enjoying meaningful relationships with him. Consequently, it is necessary to scrutinise the multiple allegations made under the rubric of s 60CC(2)(b) of the Act.
(Footnotes omitted)
Turning then to s 60CC(2)(b), the primary judge extensively traversed the evidence pertaining to the contended risks relating to both parents.
As to the father, his Honour concluded:
78.On the evidence adduced, none of the mother’s allegations of child abuse or family violence are established to the requisite civil standard of proof on the balance of probabilities.
79.Nor is the evidence sufficiently strong to establish the father poses a future risk of harm to the children on account of his subjection or exposure of them to abuse or family violence.
As to the mother, the primary judge’s ultimate finding was:
92.I am satisfied the evidence demonstrates the children have sustained emotional harm, properly described as “serious psychological harm”, by reason of their subjection and exposure to the mother’s emotionally abusive behaviour and, further, they are at risk of suffering more harm of that type if they remain living with her. The children require protection from such harm. That can only be achieved by changing the children’s residence.
Turning then to the additional considerations, as to the children’s wishes, the primary judge concluded:
107.The views sometimes expressed by the children of their rejection of the father are not likely genuine. Most likely, they believe the expression of such sentiments is the only way they are able to ensure the stability of their relationships with the mother, because they perceive she demands their loyalty. Accordingly, no probative weight is attributed to views expressed by the children which are critical of the father.
The primary judge then considered the children’s relationship with their other siblings (at [110]). He next addressed the impact on the children of the proposed changes to their living arrangements, recognising the likely upheaval to them which the father’s orders would effect, but concluding that, if managed as the single expert advised, “is likely to be successful” (at [117]).
His Honour then turned to address the parties’ respective parenting capacities and related matters, concluding that “[t]he mother’s capacity to provide for the children’s emotional needs and her attitude to the responsibility of parenthood are sadly lacking” (at [118]). On the other hand, his Honour found that “…the father can adequately provide for the children’s physical, emotional and intellectual needs” (at [124]). The primary judge concluded his traverse of the additional considerations by addressing a lapsed family violence order in which the children were the protected party, and the father the respondent (at [126]) and rather pessimistically dealt with the prospect of further litigation ensuing (at [127]–[129]).
As to the primary judge’s conclusions, his Honour determined that the presumption of equal shared parental responsibility did not apply, nor was such an order in the children’s best interests, as the parties’ “antipathy would preclude them from working cooperatively to solve problems for the children … The residential parent should have sole parental responsibility” (at [130]).
As to who should be the residential parent the primary judge concluded:
131.The children should live with the father. The features of the evidence which dictate that outcome are these, in summary:
(a)the only way in which the children can enjoy meaningful relationships with both parents is to live with the father. They cannot do so if they continue living with the mother.
(b)the father does not pose any risk of physical or emotional harm to the children. He can meet all of their physical, emotional and intellectual needs.
(c)the mother does pose a risk of emotional harm to the children. She cannot adequately meet their emotional needs.
(d)the children’s relationships with the paternal half-siblings are no less important than their relationships with the maternal half-sibling and the maternal grandmother.
His Honour then turned to consider the time which the children should in the future spend with the mother, and initially determined that “[t]he prospects of success of the residential transition will be enhanced if the mother’s influence is removed for a relatively short period of time” and accepted two months was appropriate (at [134]). The primary judge continued:
137.After the embargo period, the children will be re-introduced to the mother gradually, beginning with professionally supervised time at a contact centre. The next stage will be unsupervised time for a day on a regular basis. Ultimately, the children will spend three nights on alternate weekends and parts of school holiday periods with the mother. The ICL proposed the eventual expansion to include school holiday periods, but the father did not. The father claimed the single expert did not recommend any school holidays visits, but her evidence was not so prescriptive.
(Footnotes omitted)
As to telephone communication, his Honour concluded:
141.No orders are made to regulate the children’s telephone communication with the mother when they live with the father, or with the father when they are spending time with the mother. The children will see the parties frequently enough without the need for such prescriptive communication. The mother can hardly quibble. She told the single expert it is inconvenient for the children to receive telephone calls from the father, so the reverse must also be true, and she did not propose any communication orders herself.
(Footnotes omitted)
MATTERS AFTER JUDGMENT
The mother filed this appeal on the same day as the primary judge delivered judgment.
Next, on 22 November 2023, the mother filed an Application in a Proceeding which, amongst other things, sought a stay of the primary judge’s parenting orders (“the stay application”). That application was dismissed by the primary judge on 24 November 2023 (Bruce & Bruce (No 2) [2023] FedCFamC1F 1012).
On 3 December 2023, the mother filed an appeal from the refusal to stay the primary judge’s orders (“the stay appeal”) which was dismissed by the Full Court on 15 December 2023 (Bruce & Bruce (No 2) [2023] FedCFamC1A 226).
THE MOTHER’S APPLICATION IN AN APPEAL FILED 6 FEBRUARY 2024
By Application in an Appeal filed 6 February 2024, the mother sought a raft of orders, which application was listed for the hearing of the appeal on 26 February 2024. Aspects of the relief she sought were not controversial and at that hearing, we permitted the mother to file an Amended Notice of Appeal dated 24 January 2024 augmented with a further two grounds, and to rely upon a 40 page further Summary of Argument in lieu of making oral submissions. Otherwise most of the application was overtaken by subsequent events and hence fell away, or should be otherwise dismissed for the reasons which follow.
By paragraph 1, the mother sought that the appeal be, in effect, a hearing de novo, with her being able to lead further (unspecified) new evidence. Whilst an appeal in this court is indeed by way of rehearing (Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) s 35(a)) with the opportunity to receive fresh evidence (FCFCOA Act s 35(b)) subject to it meeting the requirements set out in CDJ v VAJ (1998) 197 CLR 172 (“CDJ”), the appeal does not proceed as a hearing de novo (Allesch v Maunz (2000) 203 CLR 172 at [23]) but rather the court can only proceed as s 36 of the FCFCOA Act provides. Thus the relief which the mother sought in this paragraph was misconceived.
By paragraph 2, the mother sought to rely upon a Supplementary Appeal Book, which transpired was the Trial Exhibit Book, which was already before us.
Paragraph 3 was acceded to, in that we permitted the mother to rely upon a further 40 page Summary of Argument filed 26 February 2024 in lieu of oral submissions.

As to paragraph 4, in fact the mother’s 24 page Summary of Argument was accepted for filing on 25 January 2024, so no order for leave to file it is required.
As to paragraph 5, again although the mother’s Summary of Argument filed 25 January 2024 exceeded 15 pages in length, it was nonetheless accepted for filing, so again no order granting leave to do so is required.
As to paragraph 6, at the hearing of the appeal we permitted the mother to rely upon her proposed Amended Notice of Appeal dated 24 January 2024, and to add a further two grounds as well, as set out at page 39 of her 40 page Summary of Argument.
Paragraph 7, which sought leave to file a List of Authorities out of time, was misconceived, as it had already been accepted for filing.
Paragraphs 8 and 10 were overtaken by the mother’s application to rely upon a so-called third appeal book.
Paragraph 9 seeks to introduce into the appeal book a document which during the trial was apparently marked for identification (becoming MFI “A”) but not thereafter sought to be tendered into evidence. It therefore was never evidence at the trial and ought not be in the appeal book, as ultimately the mother appeared to concede.
For these reasons, save for the leave granted on 26 February 2024, the mother’s Application in an Appeal filed 6 February 2024 should be dismissed.
THE MOTHER’S APPLICATION IN AN APPEAL FILED 23 FEBRUARY 2024
On the eve of the appeal, the mother filed a further Application in an Appeal. It repeated the relief sought in the Application in an Appeal filed 6 February 2024 in relation to the filing of the Amended Notice of Appeal dated 24 January 2024. We have already observed that we acceded to this application.
Next, the mother foreshadowed objecting to the father’s affidavit filed 13 February 2024, which traversed the facts underpinning his submissions on the various grounds of appeal. Ultimately the father did not press for the admission of that affidavit, so this aspect of the mother’s application fell away.
Then the mother sought to have admitted as evidence in the appeal a variety of documents, all of which were encompassed within the proposed “third appeal book” and hence this part of the application fell away.
Finally the mother sought “..permission to grant and allow me a McKenzie friend…” although the way in which that aspect of the application is drawn suggests strongly that the intended McKenzie friend in fact prepared the application. It was proposed that the McKenzie friend actually speak on behalf of the mother; however given that the mother herself conceded that, apart from housekeeping matters, if she were permitted to rely upon her 40 page Summary of Argument, then her oral participation should be restricted to submissions in reply, no case for departing from the usual role of a McKenzie friend was established.
We therefore permitted the McKenzie friend to sit quietly beside the mother to assist her in giving that response. No formal order to that effect is required, nor was it necessary to seek it by way of Application in an Appeal.
Save as earlier discussed, the mother’s Application in an Appeal filed 23 February 2024 is dismissed.
THE MOTHER’S APPLICATION TO ADMIT A “THIRD APPEAL BOOK”
At a little before midnight on the day before the appeal was listed for hearing, the mother emailed to the appeal registry a third appeal book extending to some 3797 pages. It was accepted for filing by the court’s registry at 8:30am on the morning of the hearing of the appeal. Although the mother had emailed the document to the father he had not been able to access it, as he could not download it, presumably because of its size.
Although the mother had previously foreshadowed her intention to rely upon much, if not all, of that material (albeit in rather general terms) in her Applications in an Appeal of 6 and 23 February 2024, the extreme lateness of the provision of the proposed third appeal book would, on its own justify its rejection, but we will nonetheless consider the proposed material, because, as shall be seen, none of it would be admitted in any event.
It was common ground that (apart from some exceptions we will discuss later) none of the new material formed part of the evidence before the primary judge. Section 35 of the FCFCOA Act gives this Court an unfettered discretion to admit further evidence on appeal.
The principles relevant to the discretion were discussed in the High Court in CDJ where McHugh, Gummow and Callinan JJ observed:
114.No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
…
116.The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
…
148.… The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
Relevant to appeals concerning parenting orders, the High Court stated:
117.The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children’s welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better “custodian” of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.
118.The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interests in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
By reference to the document numbers contained in the index to the proposed third appeal book, we conclude as follows.
Document 27
Document 27 comprised 858 pages of documents derived from material produced pursuant to subpoena by “NSW DCJ”, all of which was available for inspection and tender before the primary judge. Whilst the mother contends this material was “attempted to be adduced at Trial but refused by the [primary judge]” (Mother’s affidavit filed 6 February 2024, paragraph 8) that is not borne out by the transcript.
Rather, what his Honour did at the hearing on 13 October 2023 was to direct that no electronic tender bundles of documents be filed prior to the commencement of trial (Transcript 13 October 2023, p.8 lines 42–45) and then, on 16 October 2023 said “… I won’t be letting anyone tender a tender bundle of documents. Anyone who wants to refer to a document can refer to it during the course of the proceedings. And if they tender it, I will deal with its admissibility at that point in time” (Transcript 16 October 2023, p.19 lines 11–13).
It transpired that the mother had not examined the subpoenaed material, However, she was given leave to photocopy it, during the course of which the primary judge made it clear that the mother “can inspect [the subpoenaed material] at any time you want …” (Transcript 16 October 2023, p.19 lines 20–27 and p.64 lines 23–24).
It appears that thereafter the mother did (albeit perhaps after an initially unsuccessful attempt) view at least some of the subpoenaed material (Transcript 18 October 2023, p.322 lines 24–25) and intended to do so again once court concluded that day (Transcript 18 October 2023, p.323 lines 36–37). It was then proposed that any documents the mother wanted to tender from the subpoenaed material would be considered the next day (Transcript 18 October 2023, p.323 lines 16–22).
Indeed, when court resumed, the mother did then seek to tender some subpoenaed material (Transcript 19 October 2023, p.330 line 15 to p.332 line 9) which became Exhibit M9, although it does not appear that the mother attempted to tender any of the material encompassed within document 27. However, no complaint of an inability to examine all of the subpoenaed material was advanced by the mother, who thereafter proceeded to tender a number of exhibits relating to a wide variety of topics.
Thus, it can be seen that it is simply not correct to say that this material was “attempted to be adduced at trial but refused by [the primary judge].”
In any event the material in document 27 appears to be the records of various notifications to the relevant Department about the children from time to time, including as to the risks which the father posed to them. They do not appear to raise any concerns beyond those which were ventilated before the primary judge, and even if they do, the father was not cross-examined by reference to them, and hence they would almost certainly prove controversial.
In her Summaries of Argument, the mother makes a handful of oblique references to document 27 but does not descend into any detail as to the purpose of their admission other than to repeat her complaint that they were rejected by the primary judge (which we have already dealt with) and to criticise the conduct of the ICL (Mother’s Summary of Argument filed 25 January 2024, p.3, Mother’s Further Summary of Argument filed 13 February 2024, p.14 and 39).
Document 27 is rejected.
Document 28
This document is a transcript of the reasons of Cleary J for interim parenting orders made in these proceedings on 2 February 2022. Precisely what the purpose of the admission of this document was remains unclear, since unsurprisingly no factual findings were then made by her Honour.
Document 28 is rejected.
Document 29
This document is described in the index to the proposed third appeal book as:
Documents and Recordings obtained from the eldest Child’s Personal laptop from the Respondent Father & Stepmother’s Home addressed in Transcript of Proceedings and Expert Witness Report.
The mother conceded that these documents were all available at trial, and there is no evidence explaining why they were not then sought to be relied upon. It must be remembered that on 19 October 2023 the mother did tender a number of documents into evidence, and why those, and not others, were selected, is unexplained.
Document 29 is rejected.
Document 30
By reference to the index to the proposed third appeal book, these are said to be:
Documents pertaining to serious Solicitor Misconduct of Mother’s Solicitor addressing in Transcript of Proceedings and Case Outline leading to her dismissal days prior to Trial leaving the Mother legally unrepresented.
The mother conceded that these documents were all available at trial. In any event we cannot see how they are relevant to the issues raised by this appeal.
Document 30 is rejected.
Document 31
The description of these documents in the index to the proposed third appeal book is:
Documents pertaining to Mother fostering Meaningful Relationships for Children with Half-Siblings and Respondent’s Extended Family in excess of minimum Court Orders.
Again the mother conceded that these documents all were available at trial, yet were not then sought to be put into evidence. There is, on the evidence before us, no explanation as to why they were not sought to be tendered. In any event, as we have noted, it was the mother’s likely failure to permit the children a relationship with the father which was the significant factor at play in the change of residence, not any reluctance to let them have relationships with siblings or extended family.
Document 31 is rejected.
Document 32
These documents are described in the index to the proposed third appeal book as:
Phone communication Abuse by the Father and his Wife to the Mother and Children.
The mother accepted they all predated the trial, and there is no evidence as to why they were not then sought to be then tendered. This is particularly significant as the mother did in fact tender some communications between her and the father at trial (Exhibit M15).
Document 32 is rejected.
Document 33
The index describes this document as:
Evidence of Father’s Wife defaming the Mother and discussing Court with the Public including her Church Congregation on Multiple Public YouTube Videos.
In fact this material appears to be a purported transcript of an audio recording, and description (albeit pejoratively cast) of what can be seen in the accompanying video recording, of a church event during which the father’s wife discussed these family law proceedings, together with some stills of the video.
It was all available at trial, and its failure to be relied upon them is not explained by evidence. That is all the more remarkable as the mother did tender into evidence at trial an email exchange between her and the father’s wife (Exhibit M10).
Document 33 is rejected.
Document 34
This document is described in the index as:
Medical Subpoena Evidence of the Father’s long-term mental health conditions & suicide attempts.
Evidence of the Father’s medical diagnosis, treatment and prognosis with [Cancer]
A – Pre-Cancer medical Records
B – Cancer Medical Records
C – Court Transcript and Messages regarding Cancer
It was conceded by the mother that this material was available prior to (albeit only shortly prior to) trial.
The father gave unchallenged evidence in cross-examination that his cancer was in remission (Transcript 18 October 2023, p.264 lines 14–45). The mother conceded before us that the material she now seeks to introduce does not contradict that evidence, but rather simply does not state that the father’s cancer is in remission.
In any event, the father’s health was not a significant matter which informed the primary judge’s reasoning, or indeed the parenting orders.
Document 34 is rejected.
Document 35
The index says that this material is:
Evidence that the Father contacted all viable local High Schools and tried to prevent enrolment at any other High School than Suburb J High School Wife Works.
It was all material available at trial, and its failure to be tendered unexplained. In any event, the material appears to fall far short of what the description contends it contains.
Document 35 is rejected.
Document 36
This material is said to comprise:
Evidence of Stalking, Intimidation, Harassment, Coercive Control, sexual innuendos, trying to reestablish a relationship with the Mother persistently for 9 years post-separation and ongoing instead of focusing on children.
In fact it appears to be a vast array of communications between a variety of people, often acrimonious in nature.
It was all available at trial, and its failure to then be then brought forward not explained.
Document 36 is rejected.
Document 37
This document was not pressed.
Document 38
This document is described as:
Forged Affidavit of [Ms L], filed by the Father on 12 December 2023 in Stay Appeal Proceedings at last minute on day of hearing.
This affidavit relates to another document which the mother sought to rely upon as part of document 39, being annexure MB1 to her affidavit filed in the stay proceedings. It is therefore convenient to consider that part of document 39 now.
Annexure MB 1 was a message sent by X at 10:51pm on 2 November 2023 in a group chat on social media, being the night before the primary judge was to deliver judgment. The relevant parts of annexure MB 1 read:
Hey guys,
What I’m about to talk about is serious.. I’ll just get to the point. My dad has been given custody of me and my brother… This will be my last time messaging you guys but I have some good news! Part of my dad getting me and brother is that we are finishing the year at [School H] but I don’t know what happens from then onward…From tomorrow I will be living with my dad who is severely strict and is abusive.. I am not allowed any devices there so this is my last message. I love all of you guys [emoji] All of you are amazing friends [heart emojis] I’m not sure if I’m going to be safe but I want you to know that I won’t stop fighting because I know how it feels to hit rock bottom but some times no one believes me and says that I make it up… I know this is really random but I want you to know EVERYTHING! Because it’s not fair if I don’t tell you and leave you confused. A few years ago I was severely suicidal and left my teacher a death note.. At that time I was cutting myself and tried to kill myself several times… There have been the odd occasion where I do get those feelings again but I never want to go there again.. I’m year 4 I used to hide my bruises with concealer so no one would know and you know what?! The entirety of my dad’s family knew what he was doing and DID NOTHING TO SAVE AN INNOCENT CHILDS LIFE! I have been sexually abused multiple times by him, emotionally abused, physically abused and mentally abused… I have depression, PTSD, anxiety, trust issues, an ED and suicidal thoughts.. All of these because of my dad.. I have been struggling really bad with panic attacks latel because of everything as well. I am so sorry for bombarding u guys with all this but u deserve to know. Out of all the friends I’ve had at my 3 schools, you guys have been the best [emoji] I gtg now but I hope to see you on Monday and btw plz don’t tell anyone about this, it is very private and I’m trusting you guys with so much! Love you bye!
…
I’m also not coming tmrw because I’m going to court because the decision is being made.
…
I already know who it is tho and I’m so sorry.
…
It’s my dad…
(Mother’s affidavit filed 22 November 2023)(Emphasis added)

The mother relied upon this material in the stay (and the stay appeal). It precipitated the father filing document 38, being an affidavit of the maternal grandmother.
In that affidavit the maternal grandmother described a very emotional encounter between X and the mother on the day preceding her message in the group chat (paragraph 13). At paragraphs 15–20 the maternal grandmother continued:
15.Later when [X] opened up about the time in her mother’s house she stated her mother was telling her horrible things about myself and [Mr L]. [The father and his wife], telling her about all the evidence she was to prove we are lying to her. [X] displayed very distressed and confused behaviours as she knew her mother was lying to her and didn’t understand why.
16.Because of the allegations made by [the mother] of [X] being a victim of sexual misconduct by [the father] I carefully approached the topic and had discussions with [X] over the past few years to help her have clear boundaries around this topic.
17.As [the mother] herself had experienced sexual abuse as a child, I unfortunately am familiar with how to approach such conversation and what warning signs to take note of.
18.On 2 separate occasions, when she was 11yrs old and again at nearly 13yrs old, I have asked [X] directly “have you ever been around anyone male or female that has acted inappropriately towards you or done anything to you that made you feel uncomfortable or afraid” and without hesitation she replied “No Grandma, never.”
19.I doubt that [X] has EVER been a victim of sexual harm especially by [the father].
20.I believe any communication sent by [X] was heavily impacted by that encounter with her mother which left her confused and worried.
Later at paragraph 28 she concluded:
28.I do not believe the mother’s fresh evidence is a genuine disclosure, but a stating of words put in a twelve year old girls head by a mother who has continued to expose her to psychological harm.
Even accepting that some of those paragraphs do not comply with the rules of evidence (which generally do not apply in parenting proceedings) such that the conclusions articulated therein may deserve little weight, nonetheless the circumstances behind X’s message in the group chat of 2 November 2023 are obviously controversial.
The mother now contends that the maternal grandmother’s affidavit was forged, in the sense that the signature was fraudulently applied by the father. She relies upon the similarity of the maternal grandmother’s purported signature to at various places in her affidavit to support that contention. The mother invited us to compare the signature as it appeared on each page of the affidavit and conclude they are identical. Having undertaken that exercise, we can confidently say that they are not identical.
Plainly then, although neither the message in the group chat nor the maternal grandmother’s affidavit were available at trial, they clearly raise issues which are highly controversial and incapable of resolution in this appeal.
X’s social media post at annexure MB 1 to the mother’s 22 November 2023 affidavit, and document 38 are rejected.
Document 39
This comprises:
Full Transcript of Proceedings of the Stay Proceedings and Stay Appeal Proceedings for the purposes of proving inherent prejudice, judicial bias and nonfeasance.
Affidavit filed 20 November 2023 (Stay Affidavit) including: Annexures [MB]-1, [MB]-2, [MB]--3, [MB]-4 and [MB]-5.
We have already addressed annexure MB-1 when considering document 38.
Annexure MB-2 is already part of the Trial Exhibits Book (Exhibit ICL9, M5 and M6). Annexure MB-3 comprises some material which was produced under subpoena and available at trial, but not then relied upon, as does annexure MB-4. No explanation for the failure to adduce that evidence at trial is in evidence. Annexure MB-5 is already in the Trial Exhibits book in the appeal (Exhibit M9).
We cannot see any relevance to the transcript of the stay hearing before the primary judge or the transcript of the hearing of the appeal from that decision. Particularly, although this appeal raises allegations of bias against the primary judge at trial, no submissions relating to his Honour’s conduct in the stay application are raised in either of the mother’s Summaries of Argument.
Document 39 is rejected (to the extent it is not already in evidence).
Document 40
This document is described in the index to the proposed third appeal book as:
[Ms M] from [City N] Family Day Care, [Ms O], the Maternal Grandmother, [Ms L] and Maternal Stepfather, [Mr L] witness statements to NSW Police in relation to the lengthy investigations under [Detective P] at [City G] Police Station into the Mother’s historical sexual assault perpetrated by the Father in 2013 post-separation.
Obviously this material all was available at trial, and its failure to be then sought to be tendered unexplained on the evidence. In any event, it would inevitably be highly controversial which would necessitate the relevant witnesses being cross-examined.
Document 40 is rejected.
Document 41
This material is described in the index as:
Child Support Investigation Outcome of 1 APRIL 2022 which refers to ALL evidence of risk of harm including Justice Clearly based on the Father’s objection, with outcome confirming Family Violence by the Father pursuant to s4AB Family Law Act.
Self-evidently, all of that material was available at trial, and again the failure to then seek to rely on it unexplained. In any event, we fail to see how child support issues are relevant to the parenting dispute, even if the father made (as appears to be the case) an unsuccessful objection to an assessment against him.
Document 41 is rejected.
Document 42
This is said to be:
[Dr R]’s professional witness statements rendered in a recent letter dated 20th February 2024.
Clearly this document post-dates the trial. However, it is nothing more than the mother’s GP stating his belief that the mother has been variously abused by the father, including financially. It does not purport to rely upon any medical examination of the mother in support of the claimed physical abuse, but rather appears to just be a partisan statement in support of her, presumably based on a reported history given by the mother. It would, even if admitted, be controversial.
Document 42 is rejected.
Document 43
The index describes this document as:
Child Psychology Records form [S] Family Services – Entire File for both Children.
Breathtakingly, this material runs to nearly 1400 pages, all of which the mother conceded was available at the time of trial, again bereft of explanation as to why it was not sought to then be relied on. Further, how any of the material was relevant was not made clear.
Document 43 is rejected.
Document 44
This is said to comprise:
ICL costs Application
The Appellant [Ms Bruce] Response to an Application in a Proceeding and Supporting Affidavit filed to the Court and Served to the other Parties on both 13 February 2024 and 16 February 2024 under the original case file, NCC4120/2020.
The Respondent, [Mr Bruce’s] Responses to an Application in a Proceeding and Supporting Affidavits filed to the Court and Served to the other Parties on both 13 February 2024 and 16 February 2024 under original case file, NCC4120/2020.
The Independent Children's Lawyer, [Mr T] Application in a Proceeding and Supporting Affidavit filed on 30 November 2023 under the original case file NCC4120/2020.
The Orders made by the [the primary judge] on 19 February 2024 for the aforementioned proceedings under the original case file, NCC 4120/2020.
Although all this material post-dates the trial, we cannot see how any material relating to the ICL's costs application arising from the trial has any relevance to this appeal.
Document 44 is rejected.
Document 45
This is said to comprise:
Contravention Applications - ALL
Plainly this material was all available at trial, and yet again the failure to seek to then rely upon it unexplained on the evidence. In any event we cannot see that it is of any relevance to the appeal.
Document 45 is rejected.
Conclusion
The mother’s application to rely upon a proposed third appeal book is dismissed.
THE APPEAL
Overview
The appeal is rather a muddle. The Notice of Appeal filed 3 November 2023 correctly identified that leave to appeal was not required, but nonetheless confusingly proceeded to list 12 facts in support of the grant of leave. Later in the same document, 12 far briefer grounds of appeal were articulated, perhaps – but perhaps not – in some way reflecting the 12 facts in support of leave.
Pursuant to Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) r 13.10(1), the mother had until 4:30pm on 24 January 2024 to file an Amended Notice of Appeal. She did not do so, but sought unsuccessfully to file such a document the next day. That document treated the 12 facts advanced in her original Notice of Appeal in support of leave as if they were the grounds of appeal, and wholly jettisoned the earlier actual grounds. It tracked the changes to them, including introducing some entirely new grounds and abandoning others.
Rule 13.23(2)(a) and (c) of the Rules provide:
(2) For the purposes of subrule (1), a summary of argument must:
(a)set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on (together with references to the relevant pages of the appeal book and transcript); and
…
(c)not exceed 15 pages, unless leave to exceed that number has been given…
Unhelpfully the mother complied with neither rule – the Summary of Argument filed 25 January 2024 is almost without any reference whatsoever to a single ground of appeal, whether extant or proposed – and ran to 24 pages.
It seems likely the father had not seen the proposed Amended Notice of Appeal when he filed his own Summary of Argument on 13 February 2024, which somewhat oddly addressed not the actual grounds of appeal in the mother’s 3 November 2023 Notice of Appeal, but the 12 facts in support of the grant of leave to appeal relied upon by the mother, which she expressly did not seek.
As we have already observed, at the hearing of the appeal we:
(a)permitted the mother to rely upon her Amended Notice of Appeal dated 24 January 2024, together with another two grounds articulated at page 39 of her 40 page Summary of Argument;
(b)permitted the mother to rely upon the further Summary of Argument of 40 pages, in lieu of oral submissions, save in reply.
However, the 40 page Summary of Argument did not in fact align with the Amended Notice of Appeal, and particularly:
(a)the Summary of Argument refers to a “Ground 7A” which is, in fact, the new aspect added to Ground 7 in the Amended Notice of Appeal;
(b)Ground 9 as recited in the Summary of Argument is not contained in the Notice of Appeal. We will not consider it save to say that to the extent it is a valid ground of appeal at all, it is largely already encompassed in Ground 15, and in any event, the transcript does not support the premise of the challenge;
(c)In consequence of the reference to a new Ground 9 in the Summary of Argument, the discussion of Grounds 11, 12, 13, 14 and 15, are in fact references to, respectively, Grounds 10, 11 (although it is in materially different terms) 12, 13 and 14 in the Amended Notice of Appeal;
(d)Ground 16 on page 39 of the Summary of Argument, is as the mother advised, new, however;
(e)As it transpires, contrary to what the mother told us, Ground 17 as articulated at page 39 of the Summary of Argument is not new, but rather it is identical to Ground 15 in the Amended Notice of Appeal.
We gave the father the opportunity to make oral submissions, including in response to the new matters in the Amended Notice of Appeal and the two further grounds.
In setting out the grounds of the Amended Notice of Appeal, we will leave in the tracking of the changes, to enable the evolution of the grounds, or insertion of new grounds, to be identifiable.
Grounds 16 and 17 are taken from page 39 of the mother’s 40 page Summary of Argument.
Relevant principles
At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”) must be established. There, the majority of the High Court said:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …
Some of the mother’s grounds of appeal allege bias or want of procedural fairness; we will deal with these first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117]).
Ground 8
This ground provides:
8.The Trial Judge formed a prejudicial determination of the matter prior to full cross examination and evidence being presented to the Court. He demonstrated this by stating on every day of proceedings words to the effect of “Are you really going to push that [Ms. Bruce]? It will make no difference to my decision.” and “I see no evidence before me that the Father is a risk” where such evidence was either not yet tested under cross examination or was omitted by the Trial Judge from being entered into evidence at Trial for cross examination.
We construe this ground as asserting pre-judgment of the case by the primary judge, which is a form of actual bias. As to that, the test for actual bias requires the complainant to demonstrate that the decision maker’s mind is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (“MIMA”) at [72] per Gleeson CJ and Gummow J, with Hayne J agreeing at [176]). It requires the complainant “to establish…the subjective motives, attitudes, predilections or purposes of the decision-maker” (MIMA at [111] per Kirby J).
In applying the test set out in MIMA, von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 discussed the difficulty of establishing actual bias, as follows:
38.In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. …
In Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98, Gleeson JA, with Emmet JA and Tobias JA agreeing, gave the following helpful summary of principles in relation to actual bias:
68.A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) (Sun v Minister) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited.
…
73.The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 at 437 [33]. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs (Bilgin v Minister) (1997) 149 ALR 281 at 289-290 per Finkelstein J; Sun v Minister at 127 per Burchett J and 135 per North J. As Finkelstein J said in Bilgin v Minister at 290:
"The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point insofar as the validity of the decision is concerned."
A convenient starting point to considering this ground is s 69ZN of the Act, which relevantly provides:
Principles for conducting child-related proceedings
Application of the principles
(1) The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b)in making other decisions about the conduct of child-related proceedings.
…
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
…
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Section 69ZX further provides:
Court's general duties and powers relating to evidence
(1) In giving effect to the principles in section 69ZN, the court may:
…
(e)ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.
(2)Without limiting subsection (1) or section 69ZR, the court may give directions or make orders:
…
(d) limiting the time for the giving of evidence; or
…
(i)limiting, or not allowing, cross-examination of a particular witness; or
Therefore, it can be seen that in parenting proceedings, a judge is no passive observer, but rather has positive duties to control the proceedings in the ways those provisions require. Particularly in highly conflictual litigation involving one or more self-represented litigants, that duty can be exacting.
The mother’s Summaries of Argument rely upon a number of transcript passages as apparently making good her “words to the effect of” contention contained in this ground, but they simply do no such thing. Even if his Honour was in error in, for example (at Transcript 18 October 2023, p.246 lines 45–47) suggesting that any breach by the father of relevant telecommunications law by recording a phone call without permission was not relevant to the risk assessment he was being asked to undertake, it does not – at all – speak to actual bias.
Worse, not only do the mother’s selected passages of transcript not prove her allegation, they do not fairly depict the primary judge’s role in the trial either.

Of course, as one would inevitably expect, the transcript is replete with examples of the primary judge directing the proceedings in an effort to achieve an efficient use of time, including identifying the irrelevance of many questions asked, and topics explored, in cross-examination by both the ICL’s counsel, the father’s counsel and the mother.
Relevant to the mother’s cross-examination of the father, the primary judge’s interventions include the following:
HIS HONOUR: Can you just answer that question for us, [to the father]‑‑‑
[THE FATHER]: Well, I – well, I’m not suggesting necessarily that you have sent those images.
[THE MOTHER]: I’m not asking if you’re suggesting ‑ ‑ ‑
HIS HONOUR: She’s asking you why you would suspect she was capable of doing it. Can you give us a reason?‑‑‑
[THE FATHER]:I don’t have a reason, your Honour.
[HIS HONOUR]: All right. Okay.
[THE MOTHER]: So you have just answered yes, that that is something from your personal experience with myself that you, yes, think I would do, but now you can’t give a reason as to why I would do that. So is it yes or no?
HIS HONOUR: That’s not a proper question, [to the mother]. You can’t ‑ ‑ ‑
[THE MOTHER]: Do you still believe ‑ ‑ ‑
HIS HONOUR: [To the mother], just relax. I’m the referee. When I blow the whistle, you have got to stop. You can’t, as a questioner, dictate to the witness how he has to answer your questions. If you answer – ask a question, it’s his entitlement to answer how he sees fit, within the rules of the game, and I administer them strictly. I don’t think you can squeeze any more juice out of this lemon. You have got his concessions that these emails and these as yet undisclosed images were sent from his email address. At the moment, the only evidence I have is that the only two people with access to that email address at that time were him and you. He denies that it was him. The implication is that it was you. You have asked him what your motive would be for that and he hasn’t been prepared to speculate. What else can you ask him now that would take this issue any further? You can ask ‑ ‑ ‑
[THE MOTHER]: I would – yes.
HIS HONOUR: You can make a submission at the end of the case that he sent it and I should disbelieve his evidence that he – of his denial of having done so, but that’s a matter of assessment at the end of the day, isn’t it?
(Transcript 18 October 2023, p.233 lines 8–42)
…
HIS HONOUR: [To the mother], look, I’m sorry. I don’t mean to be an obstacle, but if you think – and there’s a suggestion you do, because I have read your case outline. If you think the decisions made by Victim Services about the compensation payable to you and to [X] and to [Y] is proof – binding proof about the commission of some form of abuse by the father, I can disabuse you of the situation now.
[THE MOTHER]: Yes.
HIS HONOUR: That’s just wrong. It’s not correct. And the reason it’s not correct, in summary, is because people who feel they have been the victim of some offence can make a unilateral application for compensation to Victim Services, and Victim Services, sometimes on the papers in chambers, other times in an open hearing before the tribunal, sometimes before the District Court of New South Wales, make a decision about the amount of compensation they’re going to pay out, and they do that without the alleged perpetrator ever knowing anything about it. That’s why I asked [the father] yesterday, whether he had ever been contacted by a Victims’ Compensation.
[THE MOTHER]: Yes.
HIS HONOUR: Because once Victims’ Compensation pays out to a victim, sometimes they contact the alleged perpetrator for the purposes of recovering that money for the state. Not always, but sometimes. And that’s the first occasion that the perpetrator – alleged perpetrator ever finds out about it, and it’s the very first time they ever get a chance to have their say about whether or not the compensation should have been payable, or the amount that they should have to reimburse, because sometimes it’s not a total amount. You know, in this case, it’s not cut and dried, as in many cases, because the compensation is paid out following the alleged perpetrator’s conviction of a – for a criminal offence. But we know [the father] has never been convicted of a criminal offence. He hasn’t even been prosecuted. So he knew nothing about the compensation awards, and that’s why there is no issue estoppel, which is the correct terminology in this court, by a finding made by the Victims’ Compensation people. So we can move on, okay?
(Transcript 18 October 2023, p.240 lines 5–37)
…
[THE MOTHER]: So it’s your belief that that’s a substantial reason for safety, to record non-consensual phone calls? Is that correct?
HIS HONOUR: I don’t know what that means, even if the ‑ ‑ ‑
[THE MOTHER]: Okay.
HIS HONOUR: What’s a non-consensual phone call?
[THE MOTHER]: Sorry. I have got laws in my head, your Honour. I’m sorry.
HIS HONOUR: Okay. Look, there’s no need to apologise. I’m just trying to sort out the meaning of the question so that the meaning of the answer is clear.
[THE MOTHER]: Okay. Thank you.
HIS HONOUR: So that at the end of the process when everyone’s making submissions and you make a submission, it will be consistent with the evidence, not your belief about what has been said. I want to make sure that there’s a coincidence between what you believe and what I believe.
(Transcript 18 October 2023, p.244 lines 5–24)
…
HIS HONOUR: [To the mother], I’m sorry. The question has gone for a long time and includes a whole heap of components. So even if I let you get to the end, I won’t understand the answer that [the father] gives, if he’s able to. If you can tell me what you’re driving at, I will try and help you construct this.
(Transcript 18 October 2023, p.259 lines 6–9)
…
[THE MOTHER]: Yes. Is your Honour able to have a look, and in – based on your opinion, whether you believe the time spent between myself and my mother, as opposed to [Mr Bruce] and [Ms U], has been a fair distribution or representation for you and the court?
HIS HONOUR: If you are intending to imply that because your case took a day and a quarter to complete, and that the father’s case is going to take a bit less, maybe a day to complete, that that of itself is unfair, I’m unable to see how that is. You have been in cross-examination of the father now for an hour and 45 minutes, and I don’t mean to be disrespectful. I think the meaningful part of that cross-examination could be confined 10 minutes, because you have asked him about a whole host of things that have got nothing to do with the outcome of the case. So a raw comparison of the time spent in cross-examination is not a relevant consideration for fairness. If you are complaining that you haven’t had the same amount of time in cross-examination of the father and his supporting witness as the other parties had of you and your mother, then what I want you to do is articulate how you want me to cure the defect, given the amount of time left in the case. What’s your proposal? I will listen to anything reasonable you have got to say.
(Transcript 18 October 2023, p.259 lines 30–47)
As to the mother’s cross-examination of the father’s wife:
[THE MOTHER]: Okay. Do you recall ever attending my wedding with [Mr Bruce]?‑‑‑
[THE FATHER’S WIFE]: No.
[THE MOTHER]: You don’t recall being out the front of the church you now attend at [Suburb V] where [Mr Bruce] and I got married?‑‑‑
[THE FATHER’S WIFE]: No. I was at the park with a friend because we were hanging out with the wife of a groomsman, but I wasn’t aware of that till later.
[THE MOTHER]: So you recognised, then, that you were with a member of the party. It was a groom.
[COUNSEL FOR THE FATHER]: I object to this.
HIS HONOUR: [To the mother], what on Earth is this ‑ ‑ ‑
[THE MOTHER]: Okay. I give up.
HIS HONOUR: What?
[THE MOTHER]: I give up. I won’t cross-examine. I’m sorry.
HIS HONOUR: You’re welcome to, but ‑ ‑ ‑
[THE MOTHER]: No. No, thank you.
HIS HONOUR: ‑ ‑ ‑ you’re required to respond to an objection. An objection has been taken to the question on the basis that it could not possibly be relevant to the case at hand. Now, as a litigant participating in the proceedings, you are entitled to be heard about that. If you assert the question is relevant, tell me what the relevance is, and I will adjudicate on the objection.
[THE MOTHER]: I don’t think I’ve been able to articulate it very well to you in the way that it needs to be. I don’t want to be misinterpreted.
HIS HONOUR: Well, have a go.
[THE MOTHER]: I don’t want to offend you any further ‑ ‑ ‑
HIS HONOUR: You’re not offending me.
[THE MOTHER]: I did previously, and that was not my intent or what I meant by what I stated. I don’t want to possibly confuse your interpretation.
HIS HONOUR: [To the mother], please address the objection, or I will have to allow it.
[THE MOTHER]: Yes, your Honour. No further questions.
(Transcript 18 October 2023, p.278 lines 19–45)
As to her cross-examination of the single expert:
HIS HONOUR: Just for a second, [to the single expert]. It’s all right. [To the mother], I can tell you now at the end of this case I’m not going to find that you are mentally ill in some way, because no one here has given me expert evidence to that effect. [The single expert] has commented upon diagnoses that she has read about you from prior medical records. She has given you a PAI test. She has expressed a professional opinion about what the meaning of the test is. She has made some observations and expressed some opinions about your personality traits, but no one has diagnosed you as being mentally ill or having some other psychiatric or psychological condition recognised in DSM-5, and as a consequence of the absence of that evidence, I’m not going to find you have such a condition. So if you want – if you are just driving at getting evidence that will avoid such a finding, I’m not going to make one so you don’t need to worry about that.
[THE MOTHER]: May I answer, your Honour.
HIS HONOUR: Yes
[THE MOTHER]: Your honour, I have found after your explanations, after my cross-examinations, as you have explained/summed up everything, in my understanding more so than I had previously to today and developed a – a very good understanding now of what – what you mean and the points that you have been trying to get across, so I appreciate that, which is why, yes, that – in the beginning, because it was very clear put. So I appreciate your assistance with that, and I don’t have any further questions, your Honour.
(Transcript 18 October 2023, p.278 line 19 to p.279 line 16)
We have set out these passages at length, because far from demonstrating pre-judgment, they clearly show the opposite, and have all the indica of a scrupulously impartial mind, determined to direct the trial to the relevant issues and not waste time on extraneous matters. Moreover, the primary judge’s interjections and commentary were invariably polite and respectful. The claim of actual bias must be firmly rejected.
We should at this point address a submission made at length in the mother’s 40 page Summary of Argument, albeit not said to arise under this ground, but rather Ground 3, although Ground 3 plainly does not encompass it. That submission, made over many paragraphs, is to the effect that other prior decisions of the primary judge demonstrate “matters of gender bias and due to such biases; a prejudicial determination of matters involving Child Sexual Abuse/Family violence allegations by mother’s” (Mother’s Summary of Argument filed 26 February 2024 paragraph 34). At paragraphs 35–60 of that Summary of Argument, the mother advances not merely a claim (based, in part, upon newspaper reports) that the primary judge has such a generally biased disposition, but more, than he, and other judges involved in contentious parenting proceedings, should face “a legitimate removal under s 72 Constitution…” (paragraph 48).
Firstly, no such argument was made to the primary judge. Secondly, no ground of appeal actually raises this contention. Thirdly, the claim borders on scandalous and is bereft of not only legal merit, but also logic. However, the extraordinary – beyond bizarre – allegation made against another judge at paragraph 60 of the 40 page Summary of Argument, even eclipses the allegations against the primary judge.
Other than acknowledging that we have considered them, and that they are wholly without any substance whatsoever, we need say no more about this aspect of the bias claim.
This ground fails.
Ground 9
This ground provides:
9.The Trial Judge committed an act of Apprehended and/or Actual Bias against the Mother as a ‘Protective Mother’ in proceedings” and has failed to issue an adjournment for the employment of new Legal Representation, despite major impropriety on behalf of the Lawyer prior to Trial including the lawyer telling the Appellant’s Mother to admit her to a Mental Health Ward to “buy time” so she could “arrange an adjournment”.
Section 26(2) of the FCFCOA Act relevantly provides:
(2)      An appeal must not be brought from a judgment referred to in subsection (1) if the judgment is:
(a)       a determination of an application:
(i)for leave or special leave to institute proceedings in the Federal Circuit and Family Court of Australia (Division 1); or
…
(b)       a decision to do, or not to do, any of the following:
…
(ii)       adjourn or expedite a hearing;
(iii)      vacate a hearing date.
It is an interesting point whether that provision would preclude an appeal from a refusal to adjourn a trial, which refusal was manifestly procedurally unfair or the result of actual or ostensible bias, but that can await another day, as on no view is that the case here.
We have already set out relevant principles pertaining to actual bias in discussing Ground 8.
The principles relating to apprehended judicial bias are well established. The test to be applied in determining whether a judge is to be disqualified by reason of the appearance of bias is “whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (Johnson v Johnson (2000) 201 CLR 488 (“Johnson”) at [11]). In order to satisfy that test, the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 said at [8] the following:
8.The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
Thus, the inquiry into an apprehension of bias requires two steps: (1) the identification of what it is said might lead the judge to decide a case other than on its legal and factual matters and (2) there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.
While the fair‑minded lay observer "is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice" (Johnson at [13]).
Here, the facts pertaining to the adjournment were set out by the primary judge at [18]–[21] as follows:
18.Before the trial commenced, the mother applied for an adjournment, which was opposed by both the father and the ICL. The adjournment was refused, the trial proceeded, and the mother was self-represented.
19.At a procedural hearing just days before the trial was due to start, the mother terminated the retainer of the solicitor who had acted for her for most of the time the proceedings have been on foot. The mother said she understood she would have to represent herself at the trial in the following week if her foreshadowed adjournment application failed. At the trial several days later, she asserted the solicitor had unexpectedly withdrawn her representation, but that was contradictory to and irreconcilable with the admission she made at the procedural hearing of it being her decision to terminate the retainer, as was confirmed by the solicitor.
20.The premise of the mother’s adjournment application was that she would be disadvantaged without legal representation during the trial, but that situation arose by her exercise of personal choice. She need not have sacked her solicitor. If she did so because of dissatisfaction with professional performance, she had plenty of time within which to gauge her dissatisfaction without leaving it to the last few days before the trial. The disadvantage the mother suffered through the lack of legal representation was ameliorated by her being able to rely upon all of the evidence prepared for her by her solicitor in readiness for the trial.
21.Any adjournment of the trial would have occasioned much greater prejudice to the father than was suffered by the mother in having to represent herself. She claimed her poor financial circumstances would preclude her from paying for the legal costs thrown away by the father as the consequence of any adjournment, so he would have been forced to incur that financial burden through no fault of his own. In addition, an adjournment would only prolong the children’s current estrangement from the father and serve to consolidate the mother’s apparent intention to keep them apart. Any delay would damage the viability of the father’s case and be passively advantageous to the mother’s case.
At the time of the application for an adjournment, there was no evidence before the primary judge of the matters the mother now asserts. It is simply not possible to identify either what it is said might lead the primary judge to determine the case other than on its legal and factual matters, nor any connection whatsoever between such a notion and the feared deviation. The claim of ostensible bias fails, and the claim of actual bias is even less tenable.
Otherwise than relating to the refusal of the adjournment, the challenge of bias is without particularity, which renders it meaningless and hence fails.
If this ground were somehow intended to capture the allegation of bias advanced in the mother’s 40 page Summary of Argument under Ground 3, we have already explained why it is without merit in discussing Ground 8.
Ground 12
This ground provides:
12.The Trial Judge made error of procedure by failing to enforce the admission of the current medical records of the Father during the case management process and demonstrated apprehended bias by refusing to allow the testing of the Father’s medical condition under cross- examination and failed to allow proper cross examination of the Father’s wife as witness by the Appellant.
The primary judge did not, as this ground wrongly contends, refuse to permit cross-examination of the father with respect to his medical condition, nor impermissibly restrict cross-examination of the father’s wife. Particularly, as to the former, the mother’s cross-examination of the father included the following:
HIS HONOUR: Right. Well, let’s get back to the facts in relation to page 278 of the father’s affidavit. This is a document that he has produced, supposedly to verify the contents of some paragraphs in his affidavit. You are evidently dissatisfied with it. The answer I’m giving to you is it was free to you, your lawyer and [the ICL] to issue subpoenas for further records had you wished to do so, and you now concede that on 7 August when the matter was in my hands I made what orders in relation to subpoenas were asked of me.
[THE MOTHER]: Yes, you were, your Honour. That’s not what I was trying to reiterate to you at all. It wasn’t about you issuing subpoenas. It was about disclosures and material being received back to the ICL, not you, your Honour.
HIS HONOUR: Can you answer the question I have asked? What information do you want to extract from the father? Because it is not apparent to me from what you have been asking him so far. Clearly, you are dissatisfied with the content of the document he has provided. What else do you want to ask him that would – in an attempt to prove to me it’s deficient?
[THE MOTHER]: Is it your understanding that your cancer diagnosis will no longer be a problem ever, from now to the future?‑‑‑
[THE FATHER]: That’s the advice I have received from my treating professionals.
[THE MOTHER]: And you believe that advice is correct?‑‑‑
[THE FATHER]: I trust their expert opinion.
[THE MOTHER]: And you are stating that their expert opinion is that from now and into the future, your cancer diagnosis that you have received, and any residual health difficulties, will never be an issue ever again. Is that what you’re saying?‑‑‑
[THE FATHER]: I’m not a medical expert to answer the question.
[THE MOTHER]: You just told me that you were medically advised that it would not be a re-occurrent issue?‑‑‑
[THE FATHER]: The medical opinion that I have had from my treating professionals is that I’m in remission.
(Transcript 18 October 2023, p.264 lines 14–45)

As to the mother’s cross-examination of the father’s wife, we have already set out how it concluded at [152]. This aspect of the ground therefore necessarily fails.
Further, contrary to what this ground seems to assume, there was no obligation on the primary judge to require the tendering of unspecified medical records pertaining to the father.
The ground fails in totality.
Ground 13
This ground provides:
13.The Trial Judge committed an error of law, and procedural unfairness a failure to exercise jurisdiction by improperly exercising discretion by harassing the Appellant in line with precedent rulings in Adacot v Sowle, including a failure to allow the Appellant to make submissions throughout the Trial, or make her closing submission using improper interference (impermissible intervening) and a statement he would not allow her submissions to “go on the Transcript”.
Consistent with the duty imposed on the primary judge by s 69ZN and s 69ZX of the Act discussed earlier, his Honour attempted to focus the mother on the issues relevant to determining where the children’s best interests lay.
We have already set out numerous representative examples of the primary judge’s interactions with the mother when discussing Ground 8. In doing so, his Honour did not misconduct himself, and certainly did not even remotely behave in the way evidenced in Adacot & Sowle (2020) FLC 93-982.
This ground is without merit and fails.
Ground 1
This ground provides:
1.The Trial Judge committed a criminal breach of s273B.4 Criminal Code Act1995 (Cth) by making Orders under his Authority for a child of the proceedings to live with a person who has been determined on a balance of probabilities by a qualified specialist Government Authority to have committed a sexual crime against the Child.
The genesis of the complaint made by this ground is the fact that the mother and children have apparently been compensated by the New South Wales Victims Service for alleged criminal conduct by the father. The primary judge dealt with this at [75]–[76] as follows:
75.During the trial, it was revealed the mother and both children have received small awards of compensation, supposedly to compensate them for their physical or psychological injuries sustained by reason of the father’s conduct. The mother thought such awards were definitive proof of the father’s past abusive behaviour towards her and the children, by which findings this Court would be bound. She was mistaken.
76.The determination of any application for compensation lodged by an applicant with NSW Victims Services (“the Service”) is an entirely unilateral procedure. The Service decides whether an award of compensation ought be made to the applicant in respect of injury said to arise from the perpetration of criminal conduct by an offender. The decision is made on the basis of material submitted by only the applicant. The alleged offender is not afforded procedural fairness, as no opportunity is given to adduce evidence or make submissions in rebuttal of the application. Once compensation is awarded to the applicant, reparation might later be sought from the offender by the Service. Here, the father was not charged, let alone convicted of any offence, and he knew nothing of the awards of compensation. He has not heard from the Service. Although the Service may have been satisfied in 2022 of the mother’s and children’s entitlement to compensation, any ancillary finding of misconduct by the father is not binding in these proceedings because he was not privy to those conducted by the Service. The doctrine of issue estoppel does not apply.
(Footnote omitted)
No error is discernible in his Honour’s treatment of that evidence. Further, the primary judge explained that to the mother during the course of the trial, as set out earlier in these reasons ([151] quoting Transcript 18 October 2023, p.240 lines 5–37).
Moreover, the primary judge did not commit any criminal offence by ordering that the children live with the father (Newett & Newett (No 9) (2023) FLC 94-133 at [43(c)]; Newett & Newett [2023] HCASL 186).
This ground fails.
Ground 2
This ground provides:
2.The Trial Judge made error of law, and a failure to exercise jurisdiction by improperly exercising discretion, where he committed a breach erred in his application of s60B, s60CA, s60CG, s60CC(2A), s60CC(2)(b), s60CC(3)(k), s60DA(2) and (4) Family Law Act 1975 (Cth) by making Orders under his Authority for a child of the proceedings to live with a person who has been determined on a balance of probabilities by a qualified specialist Government Authority to have committed a physical assault crime against one Child of the proceedings and a sexual assault crime against the other Child of the proceedings, and/or (b) to have ignored a current recently lapsed Apprehended Domestic Violence Order (ADVO) with the Children as the subject of those Orders; where the Father by accepting the ADVO without proceeding to a Trial, has admitted to being a risk to the Children.
In part, this is a repetition of an argument raised under Ground 1, and nothing more need be said to justify the rejection of that aspect of the challenge.
The limb of the ground which raises the ADVO is an apparent reference to what the primary judge said at [125]–[126] as follows:
125.There are no, and has never been any, family violence orders in existence between the parties.
126.The father was formerly bound by a State family violence order for the children’s protection, arising out of the allegations of child abuse made against him in late 2021, but the terms of the order did not preclude the children’s contact with him and the order expired in early 2023. That family violence order was not for the mother’s protection, as she wrongly alleged to the single expert.
(Footnotes omitted)
The premise of the challenge now raised is that the father by “accepting the ADVO without proceeding to trial, has admitted to being a risk to the children.” That premise is false, and therefore the second aspect of Ground 2 also fails.
Ground 3
This ground provides:
3.The Trial Judge made error of law, and a failure to exercise jurisdiction by improperly exercising discretion, failing to apply s42 Family Law Act and s67 Federal Circuit and Family Court of Australia Act 2021 (Cth) – by failing to apply s60B, s60CA, s60CG, s60CC(2A), s60CC(2)(b), s60CC(3)(k), s60DA(2) and (4) Family Law Act 1975 (Cth) by making Orders under his Authority for a child of the proceedings to live with a person who has been determined on a balance of probabilities by a qualified specialist Government Authority to have committed a sexual assault crime against the Appellant, the eldest Child and physical abuse against the youngest Child of the proceedings.
This appears to be a repetition of the first aspect of Ground 2 and similarly fails.
Ground 4
This ground provides:
4.The Trial Judge made error of law, and a failure to exercise jurisdiction by improperly exercising discretion to remove the Children from the Appellant Mother’s care in entirety in conflict with s60CC(2)(a) Family Law Act where there was no evidence of any harm caused by the Mother to the Children, no mental health concerns against the Mother and no other valid reason for which the Children could be lawfully removed from the care of the Mother.
At [90]–[93] the primary judge said:
90The elder child is at risk of developing a psychological disorder if she remains living with the mother. The younger child is likely to have his relationship with the father entirely severed if he remains living with the mother.
91. The single expert said this, which I accept:
190.Although the Mother maintained that she has not been parenting from an anxious stance and is protective in her focus, unless the Court determines that the allegations she has made against the Father have substance, then it is respectfully suggested that the Mother’s parenting approach as it affects the children’s ability to form and maintain relationships is increasing the potential for [the children] towards developing significant anxiety.
191.A continuation of the present experience of parental conflict for the children is considered likely to come with consequences to their social development as they are considered to be at risk of developing attitudes of mistrust in others. The information available suggested this may have been the case not just in the children’s relationship with their father, but also schools and services.
…
193.Additionally, the information available suggested that the children’s relationships with extended family, such as one set of grandparents/aunts/uncles and their relationships with their paternal step siblings is at risk of becoming permanently disrupted.
194.Unless the Court determines that the evidence indicates the children have been subject to abuse from their father, the subject children are at significant risk of developing relationship approaches in which they will struggle with forming and maintaining productive, trusting and supportive relationships with others going forwards in their lives. In the absence of established violence and abuse it would appear that their views and emerging relationship styles are at risk of being predicated on emotional dependence.
92I am satisfied the evidence demonstrates the children have sustained emotional harm, properly described as “serious psychological harm”, by reason of their subjection and exposure to the mother’s emotionally abusive behaviour and, further, they are at risk of suffering more harm of that type if they remain living with her. The children require protection from such harm. That can only be achieved by changing the children’s residence.
93Even if the evidence does not engage the operation of s 60CC(2)(b) of the Act, the mother’s conduct is still so reprehensible that it reflects adversely upon her capacity to adequately provide for the children’s emotional needs and her attitude to the duties of parenthood, in which event it is still a salient and persuasive feature of the evidence which activates the application of s 60CC(3)(f) and s 60CC(3)(i) of the Act.
(Footnotes omitted)
Later at [131] (recited at [26] above) his Honour concluded that the children should live with the father. There the primary judge was clearly addressing the likely risk of future harm to the children which the mother posed, and was satisfied that it justified them moving into the primary care of the father.
That is a perfectly valid reason for the orders which the primary judge made, even if the mother had not actually harmed the children to date, and was without mental health concerns. The assessment of risk is an exercise in predicting possibilities, and does not require a finding on the balance of probability: Isles & Nelissen (2022) FLC 94-092 at [50]–[52]. Hence this ground fails.
Ground 5
This ground provides:
5.The Trial Judge made error of law by failing to properly consider the wishes of the Children under (s60CC(3)(a) Family Law Act to live with their Mother who has been primary carer for their entire life and clearly presented no evidence of any emotional abuse in respect of their clear wish to live with her and no mental health problems in the children on account of Mother.
Contrary to what this ground contends, the primary judge did extensively traverse the children’s wishes at [95]–[108]. We have earlier in these reasons recited [107], but a further example is at [108], where his Honour said:
108.During cross-examination, the mother was impelled to concede the elder child periodically told her she wanted to see the father, which sentiment she expressed to her as recently as only a few weeks ago. One of the last supervision reports, compiled at the supervised visit in December 2022, betrays the elder child was genuinely pleased to see the father. Similarly, the younger child outwardly seemed very happy to see the father at the supervised visit in September 2022. Children’s behaviour is likely to more reliably show their feelings than their verbal expressions.
(Footnote omitted)
These paragraphs are sufficient to dispose of this ground, which fails.
Ground 6
This ground provides:
6.The Trial Judge committed an error of law, a failure to exercise jurisdiction, and improperly exercised discretion to apply the incorrect weight to the evidence before him and failed to properly test the evidence before him. His Honour stated he would not be applying any weight to evidence the Appellant attempted to admit to proceedings or arguments she sought to make, for example: the Father’s current [...] Cancer, Family Violence of the Father.
It is difficult to get to the heart of this ground. If it is a challenge to the weight given to the particular evidence, it is forlorn (CDJ at 230–231 per Kirby J). If it contends that there was improper disregard of evidence as to the father’s health, we cannot see how it was directly relevant to any assessment of risk which he posed, given the unchallenged evidence we have recited earlier that the cancer was in remission.
As to the alleged family violence by the father, the primary judge extensively dealt with the evidence pertaining to that at [52] and following, particularly at [67]–[81], including at [78]–[81] where his Honour said:
78.On the evidence adduced, none of the mother’s allegations of child abuse or family violence are established to the requisite civil standard of proof on the balance of probabilities.
79.Nor is the evidence sufficiently strong to establish the father poses a future risk of harm to the children on account of his subjection or exposure of them to abuse or family violence.
80.The first retrospective factual enquiry and the second prospective risk enquiry are different and should not be conflated (Isles & Nelissen (2022) FLC 94-092 at [1]–[7], [50]–[53], [70]–[74] and [81]–[86]).
81.Conclusions to that same effect were urged by the ICL and are also consistent with the views expressed by the single expert, who did not believe the allegations against the father were substantiated by the documents she was asked to review. Of course, any fact-based finding in respect of the mother’s allegations falls beyond the purview of the single expert’s specific psychological expertise, but her concurrence is an added assurance when making such findings independently. The mother’s insistence about the danger posed by the father and the need to eliminate him from the children’s lives makes the single expert’s opinion about her “catastrophic thinking” and “oversensitivity” resonate.
(Footnotes omitted)
Plainly the primary judge carefully considered the alleged family violence, and rejected that the father posed any risk of harm to the children in that respect.
This ground fails.
Ground 7
This ground provides:
7.The Trial Judge committed an error of law, a failure to exercise jurisdiction, and improperly exercised discretion to omit critical Child Related evidence required to determine the safety of the Children in the Respondent Father’s supervised or unsupervised care. In doing so he failed to exercise s69ZN Principles for Child Related Proceedings, which were mandatorily required to be followed pursuant to s67 Federal Circuit and Family Court of Australia Act 2021 (Cth). During Trial, His Honour without any evidence before the Court and without cross-examining the writers of the Reports (Jones v Dunkel), denigrated the Department of Communities and Justice staff claiming they were unable to assess, or had improperly assessed, the risk of harm of the Children by the Father; despite their expertise in the topic of Family Violence and Child Risk of Harm. He stated words to the effect of “they don’t assess or analyse the evidence”
This ground was bifurcated into 7 and 7A in the mother’s 40 page Summary of Argument, however we will deal with it as one ground.
We are at a loss to identify any material improperly rejected by the primary judge being “child related evidence.” The balance of the ground appears to be either a repetition of Ground 2, or an assertion that the primary judge said something which we have been unable to find in the transcript, and which if in any event was said by the primary judge, does not comprise, or even tend to establish, appealable error.
Ground 7 fails.
Ground 10
This ground provides:
10.The Trial Judge committed an error of law, and a failure to exercise jurisdiction by improperly exercising discretion in failing to adjourn proceedings and failing to apply s102NA Family Law Act 1975(Cth), forcing a Victim of Family Violence to cross examine her own abuser.
The adjournment complaint was raised by Ground 9, and we need not address it further. None of the matters in s 102NA which mandate the prohibition of cross-examination of a witness by a perpetrator were established here.
In any event, the father was legally represented at the trial, and did not cross-examine the mother himself. The mother did not at any stage seek any order under s 102NA(1)(c)(iv), and is bound by the conduct of her case at trial (Metwally v University of Wollongong (1985) 60 ALR 68 at 71) nor was it incumbent on the Court to consider the matter of its own volition.
This ground fails.
Ground 11
This ground provides:
11.The Trial Judge committed an error of law and error of procedure, by unreasonably interfering in the cross examination by the Appellant of the Parties, and in the answering of questions by Witnesses in proceedings.
This challenge appears to be something of a repetition of Ground 13, albeit cast as an unreasonable interference ground. We have already recited extensive examples of the primary judge’s interactions with the mother which, to the extent they were remarkable at all, were only remarkably polite and helpful.
We can detect no unreasonable interference by the primary judge in the cross-examination undertaken by the mother, nor in the answering of questions by witnesses.
This ground fails.
Ground 14
This ground provides:
14.The Trial Judge made error of fact and malicious defamatory fabrication of facts in judgment on the basis of no evidence; in determining the Appellant “touched the child’s breast buds” when it was in fact the Father who had told the Appellant he had touched the child’s breast buds. This further impacted the Stay Appeal where they relied on this to make their judgment.
The primary judge dealt with this aspect of the evidence at [58]–[59] as follows:
58.In her trial affidavit, the mother said her suspicions of the father’s propensity to sexually assault the elder child were based on her past observations of him sometimes having an erection when nursing the elder child as an infant, the elder child experiencing urinary tract infections and vaginal rashes when staying with the father, her discussion with the father about the elder child developing breast buds, and her belief in the father’s “sex addiction”. Importantly, she conceded the elder child had never expressly complained of sexual abuse.
59.In cross-examination about the issue, the mother confessed her belief the father may have “groomed” the elder child for sexual abuse. She articulated how her fears were largely based on past statements made to her by the elder child about her privacy not being respected within the father’s home. However, she additionally alleged she exchanged emails with the father about the onset of the elder child’s puberty, during which exchange the father admitted he had touched the elder child’s breast buds. The father recalled the exchange, but said it occurred by way of text messages, which were then tendered in evidence. Inspection of them reveals no such admission by him at all. They instead show that, in January 2021, the mother claimed to the father she had checked the elder child’s breast buds with her consent. The mother made the same allegation against the father to the court child expert in May 2021, but did not allege the father’s admission in her affidavit. It is unlikely she would have omitted it if it had actually happened. Most likely, the allegation of his admission was fabricated by the mother to accentuate the seriousness of the danger in the face of the otherwise relatively benign allegations of privacy deprivation. The father credibly denied making any such admission.
(Footnotes omitted)

The primary judge therefore plainly considered the mother’s contention that the father had told her of touching X’s breast, but rejected it. That finding was reasonably open on the evidence (Edwards v Noble (1971) 125 CLR 296) and his Honour’s reasoning for so concluding readily discernible (Bennett and Bennett (1991) FLC 92-191 at 78,266).
Ground 14 fails.
Ground 15
This ground provides:
15.The Trial Judge failed to make finding of fact that the Father and his Wife had deliberately misled the Court by truncating Subpoena evidence, and/or directly committing perjury and/or lying to the Court.
We have no idea what the allegation about the “truncating of subpoena evidence” entails, and given that the primary judge largely accepted the evidence of the father and his wife, no occasion for findings as this ground suggests ought have been made, arose.
True it is that there was a discussion between the primary judge and the mother as follows:
[THE MOTHER]: In relation to those, as she said, it doesn’t prove that he inspected them. Would it be appropriate or needed for yourself where I can provide evidence that he has, as this was put in an application in the proceeding in front of register – Judicial Registrar [...].
HIS HONOUR: It’s up to you what you want to tender [to the mother]. But look, you know, we’ve had this discussion several times. Let it be imagined thinking forward that you prove he lied about this. So what? What’s it going to – how is that going to affect my decision about what I should do now for the best interests of the children? It would demonstrate that he told a lie on oath, which is improper. It’s a potential criminal offence. It can be prosecuted by the Attorney-General of Australia. But I’m really interested in knowing how that piece of evidence is going to fit into the puzzle about what I do with respect to the children. The fact that he might have told a fib about that in evidence about that one issue doesn’t seem to me to bear out a submission that he’s an incapable father.
[THE MOTHER]: No, your Honour. I understand that that would be your position.
HIS HONOUR: So is it an issue you really want to pursue?
[THE MOTHER]: It is, your Honour, but only because I obviously haven’t been able to explain the other puzzle pieces.
HIS HONOUR: If you wish to pursue it, that is your prerogative.
[THE MOTHER]: Yes, your Honour.
(Transcript 19 October 2023, p.345 lines 15–40)
However, the primary judge was quite correct to identify that any perjury by the father had little or no impact on the parenting trial, as it did not tend to show he was a risk of sexual, physical or emotional harm to either child.
Ground 15 fails.
Ground 16
This ground, which is articulated at page 39 of the mother’s 40 page Summary of Argument, reads:
The trial Judge made error of fact in determining at multiple points of the Trial there “is no evidence before me” or “its not in evidence” for example: that there was no evidence about the Police and the Father, and “there were no witnesses” to the family violence and the sexual assault, when there were witnesses who supplied affidavits to that fact and that were included in the subpoena records.
The mother’s 40 page Summary of Argument refers to a discussion between her and the primary judge on 19 October 2023 between pages 396 and 403 of the transcript. Included there is the following:
HIS HONOUR: Do you agree you’ve not made a formal complaint to the police of sexual assault?
[THE MOTHER]: No. I’m not agreeing to that.
HIS HONOUR: Where is the evidence of you having done so,
[THE MOTHER]: No. I said I’m not agreeing that I have not. I said I’m not stating I have not.
HIS HONOUR: I know. I’m asking you where is the evidence of you having done so?
[THE MOTHER]: Of me submitting?
HIS HONOUR: Where is the evidence before me of you having made a formal complaint to the police of your sexual abuse, on either one or two occasions, by the father?
[THE MOTHER]: Sorry, your Honour. Is it my understanding that you have no evidence before you in regards to the investigation and that process?
HIS HONOUR: I think so. That’s what I’m asking you. Take me to it.
[THE MOTHER]: Your Honour - - -
HIS HONOUR: I know that you went to the police in November of ’21 to make allegations in respect of the children, but I’m not aware of where I find in the evidence you having gone to the police to allege sexual assault by the father. Now, if it’s in the evidence before me, I’m inviting you to take me to it.
[THE MOTHER]: Sorry, your Honour. I’m just very baffled that you do not have any of that before you.
HIS HONOUR: Well, who’s going to give it to me other than you, the father or the ICL?
[THE MOTHER]: Unfortunately, up until Friday, I had legal representation who, not going into the relationship dynamics, ultimately, whilst should be instructed by myself – I do not have the position to, ultimately, file or - - -
HIS HONOUR: This is an explanation for why I won’t have the evidence. I’m just asking you to confirm at the moment if you think I do. Bringing to me to mind all of the evidence I’ve read, I can’t remember having read anything about that, but if I’m wrong, I’m giving you the opportunity to correct me. All you’re doing at the moment is reinforcing the provisional view I have that I do not have such evidence, and you’re trying to explain why that situation might be so.
[THE MOTHER]: Your Honour, due to those circumstances, I am not aware - - -
HIS HONOUR: Let it be assumed for the moment, even though I have no evidence of it, that you have made a formal complaint to police of your sexual assault. There is no evidence of the investigation having included an invitation for the father to be interviewed, and there’s no evidence of him being charged. So the evidence only permits me to find that, so far, if you have made a complaint, the police have not acted on it. Wouldn’t you agree?
[THE MOTHER]: No, your Honour.
HIS HONOUR: Okay. How do you disagree?
[THE MOTHER]: Your honour, I apologise that I can’t take you to a specific page, but it is in the father’s affidavit that he was interviewed.
HIS HONOUR: I thought that was in relation to the children.
[THE MOTHER]: No. He specifically stated that due to the alleged false allegations - - -
HIS HONOUR: Can you find the paragraph number for me please, [to counsel for the father]. Yes, [to the mother]. Go ahead.
[THE MOTHER]: This was obviously reiterated in his version, in his affidavit, of events, and, unfortunately, as you’ve said, you’ve only got the evidence before you, so I’m – I know that the father has stated this in his affidavit specifically.
HIS HONOUR: Let’s assume you are correct.
[THE MOTHER]: Yes. Yes.
HIS HONOUR: Please answer my question: do you accept that, notwithstanding a complaint by you to the police and even if he has been interviewed, he has not been charged?
[THE MOTHER]: At this present time, he has not been charged.
HIS HONOUR: Okay. Thanks. All right. Carry on. What did you want to tell me about that?
[THE MOTHER]: Your honour, if you do not have any evidence in front of you, which I believe, because - - -
HIS HONOUR: I have plenty of evidence before me because - - -
[THE MOTHER]: No, no.
HIS HONOUR: - - - you’ve given evidence about what happened - - -
[THE MOTHER]: No.
HIS HONOUR: - - - and he has given evidence denying it.
[THE MOTHER]: Sorry, your Honour.
HIS HONOUR: The – what I was referring to was the lack of evidence of you having made a complaint about it to the police.
[THE MOTHER]: Yes, that’s what I was referring to. I’m sorry. I’m – specifically, the evidence of any of the police involvement, the detective process, how long that process went to, the details of that formal complaint that was made by an SARO form.
HIS HONOUR: I don’t know what an SARO is.
[THE MOTHER]: This form I was instructed by both DVACAS and VOCAL ‑ ‑ ‑
HIS HONOUR: I don’t know who DVACAS is.
[THE MOTHER]: Women’s Domestic Violence Advocacy team. He referred me to the VOCAL organisation, due to, as I stated, I did not believe that there wasn’t a statute of limitation. They advised me that I could ‑ ‑ ‑
HIS HONOUR: [To the mother], look, I’m sorry. I know this is hard, but you can’t tell me – you can’t give me evidence from the bar table at the end of four days of trial. You’ve had your go. These are submissions that you make based on the evidence which is before me, and I’m not trying to make the process difficult for you, but I’m trying to sort wheat from chaff as we go along. It’s – I’m fully aware of you having alleged the father sexually abused you.
[THE MOTHER]: Yes.
HIS HONOUR: I’m uncertain as to whether it was once or twice on the evidence and the dates upon which these things – or the approximate times when these things happened. There was just no evidence that I was aware of that you had actually gone to the police and made a formal complaint. Now, the way in which you are talking leads me to conclude you have. I’m prepared to accept that for the sake of the argument, but you’ve agreed the father has not been charged. Now, that being the case - - -
[THE MOTHER]: Yet. Yet.
(Transcript 19 October 2023, p.383 line 6 to p.386 line 5)
Plainly from that exchange the mother wasn’t able to take the primary judge to any direct evidence relating to a complaint to police made by her.
The mother now points to evidence given by the maternal grandmother of the mother making a complaint to her of being sexually assaulted by the father sometime around separation, (Transcript 17 October 2023, p.163 lines 23–39) albeit she did not refer to it in her affidavit (Transcript 17 October 2023, p.164 lines 7–10).
Otherwise the mother refers to an affidavit from 2021 that was prepared by the mother’s then solicitor, but not sought to be relied upon at the trial. Plainly that was not in evidence before the primary judge, and we have rejected its admission as part of document 40 in the proposed third appeal book.
This ground is not made out and fails.
Ground 17
Although we were told that Ground 17 as recited in the mother’s 40 page Summary of Argument was new, in fact it is a repetition of Ground 15, and fails for the same reason.
OUTCOME
No ground of appeal succeeds, and therefore the appeal will be dismissed.
COSTS
The father incurred no legal costs in resisting the appeal.
THE INDEPENDENT CHILDREN'S LAWYER’S NON-INVOLVEMENT IN THE APPEAL
On 24 November 2023, only three weeks after the appeal was filed by the mother, the ICL filed a submitting notice. That was despite the Notice of Appeal seeking, in the event that the appeal were allowed, vastly different final parenting orders be made by this court, rather than simply remitting the matter for rehearing.
Whilst we have no information as to why the ICL chose to file a submitting notice, the effect of it was indistinguishable from the ICL being discharged. Particularly, it meant that the ICL was not involved in any of the preparation for the appeal. We also note that the ICL filed another submitting notice in relation to the stay appeal.
More, the ICL was not present to assist the court in this appeal, where both parties self-represented. Such assistance would have been much appreciated.
We would not want some practice of ICLs absenting themselves from appeals to develop. As we say, we do not know why the ICL engineered their non-involvement in this appeal, and we draw no adverse inference against them, but such an abstention should be a truly exceptional thing, and not in any way encouraged.

I certify that the preceding two hundred and thirty-five (235) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Harper & Jarrett.
Associate:
Dated: 21 March 2024

NAA 306 of 2023 NCC 4120 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS BRUCE Appellant
AND:	MR BRUCE Respondent
INDEPENDENT CHILDREN'S LAWYER

Appeal from:	Bruce & Bruce [2023] FedCFamC1F 936
Appeal number:	NAA 306 of 2023
File number:	NCC 4120 of 2020
Judgment of:	TREE, HARPER & JARRETT JJ
Date of judgment:	21 March 2024
Catchwords:	FAMILY LAW – APPEAL – Parenting – Where the mother appeals from final parenting orders that vest the father with sole parental responsibility and impose a moratorium of two months of no contact with the mother – Assertions of bias – Where the mother makes claims that border on scandalous – Assertions of a denial of procedural fairness – Where the primary judge’s interjections were polite and helpful – Alleged breach of the Criminal Code Act 1995 (Cth) – Where it was not a crime to order that the children live with the father – Whether primary judge failed to take relevant considerations into account – Where the assertion does not bear out on the transcript – Inadequacy of reasons – Where the primary judge’s reasoning was readily discernible – No error identified. FAMILY LAW – APPEAL – Application in an Appeal – Further evidence – Where the day prior to the appeal the mother sought to rely upon a further 3797 pages – Where all of the documents were either available at the time of trial, contentious or irrelevant – Application dismissed – Appeal dismissed.
Legislation:	Family Law Act 1975 (Cth) ss 60CC, 69ZN, 69ZX, 102NA Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 35, 36, Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth) rr 13.10, 13.23
Cases cited:	Adacot & Sowle (2020) FLC 93-982; [2020] FamCAFC 215 Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 House v The King (1936) 55 CLR 499; [1936] HCA 40 Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Bruce & Bruce (No2) [2023] FedCFamC1A 226 Bruce & Bruce (No2) [2023] FedCFamC1F 1012 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Newett & Newett (No 9) (2023) FLC 94-133; [2023] FedCFamC1A 23 Newett & Newett [2023] HCASL 186 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Number of paragraphs:	235
Date of hearing:	26 February 2024
Place:	Heard in Sydney, delivered in Cairns
The Appellant:	Litigant in person
The Respondent:	Litigant in person
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW (Filed Submitting Notice 24 November 2023)

ORDER MADE BY:	TREE, HARPER & JARRETT JJ
DATE OF ORDER:	21 MARCH 2024