Cresswell & Conroy (No 2)
[2023] FedCFamC1A 201
•22 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cresswell & Conroy (No 2) [2023] FedCFamC1A 201
Appeal from: Cresswell & Conroy [2023] FedFamC2F 274
Cresswell & Conroy (No 2) [2023] FedFamC2F 669
Appeal number(s): NAA 92 of 2023
NAA 186 of 2023File number: PAC 4677 of 2016 Judgment of: MCCLELLAND DCJ Date of judgment: 22 November 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING AND PROPERTY – De facto relationship – Mental health issues potentially impacting upon presentation of appellant mother as a witness – Where adverse credit findings were made by the primary judge against the self-represented appellant mother based on demeanour – Where limited weight was given to expert evidence as a result of the adverse credit findings – Where the appellant mother suffered an acute stress reaction during the final hearing and was subsequently hospitalised – Where the primary judge found that the child was at risk due to the appellant mother’s dishonesty and manipulation – Delay in delivering judgment – Where the primary judgment was infected by operative delay – Denial of procedural fairness – Inadequate reasons – Related impact upon property settlement orders – Appeal allowed – Costs set aside – Parties and Independent Children’s Lawyer to file submissions in respect to whether matter should be remitted or whether the Full Court should re-hear the proceedings – Written submissions in respect to costs of the appeal. Legislation: Family Law Act 1975 (Cth) ss 79A, 90SE, 90SF, 90SM
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
CDJ v VAJ (No 2) (1998) 197 CLR 172; [1998] HCA 67
Cresswell & Conroy (No 2) [2023] FedCFamC2F 669
Cresswell & Conroy [2017] FCCA 912
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
Et-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24
Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; [2004] FCAFC 189
Folett & Langley (2016) FLC 93-738; [2016] FamCAFC 191
Halstron & Halstron [2022] FedCFamC1A 65
HT v The Queen (2019) 269 CLR 403; [2019] HCA 40
Langley and Tarelli (No 4) [2021] FamCAFC 107
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60
Maclean & Greenwood (2022) FLC 94–117; [2002] FedCFamC1A 200
Manifold & Alderton (2021) FLC 94-015; [2021] FamCAFC 61
McCrossen and McCrossen (2006) FLC 93-283; [2006] FamCA 868
MM Constructions (Aust) Pty Ltd v Port Stephens Council (No 7) (2012) 191 LGERA 292; [2012] NSWCA 417
Monie v The Commonwealth (2005) 63 NSWLR 729; [2005] NSWCA 25
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 134 FCR 85; [2004] FCAFC 1
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77
Nardini & Legal Aid NSW [2019] FamCA 340
Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9
R v Maxwell (1988) 217 ALR 452
R v Quesada (2001) 122 A Crim R 218; [2001] NSWCCA 216
Roberts v Cresswell [2023] NZCA 36
Tattsbet Ltd v Morrow (2015) 233 FCR 46; [2015] FCAFC 62
Von Schoeler v Allen Taylor and Company Ltd Trading as Boral Timber (No 2) (2020) 273 FCR 189; [2020] FCAFC 13
Gageler, Stephen, “Just Versus Quick: Constructivist and Ecological Rationality in a Common Law System” (2022) 45(2) Melbourne University Law Review 830
Number of paragraphs: 123 Date of last submissions: 6 October 2023 Date of hearing: 22 September 2023 Place: Sydney Counsel for the Appellant: Mr Livingstone Solicitor for the Appellant: Joshua Blom Lawyers Counsel for the Respondent: Dr Birch SC with Ms Breeze Solicitor for the Respondent: STC Legal Counsel for the Independent Children’s Lawyer: Ms Stolier Solicitor for the Independent Children’s Lawyer: Brian Samuel & Associates ORDERS
NAA 92 of 2023
NAA 186 of 2023
PAC 4677 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS CRESSWELL
Appellant
AND: MR CONROY
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
22 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Appeal NAA 92 of 2023 and appeal NAA 186 of 2023 are allowed.
2.Orders 1 to 13 of the orders made in proceedings PAC 4677 of 2016 on 15 March 2023 be set aside on and as from the date upon which further orders are made by the Federal Circuit and Family Court of Australia (Division 1) or the Federal Circuit and Family Court of Australia (Division 2).
3.Orders 14 to 21 of the orders made in proceedings PAC 4677 of 2016 on 15 March 2023 be set aside as and from the date of these orders.
4.The costs orders made in proceedings PAC 4677 of 2016 on 16 June 2023 be set aside.
5.Within 14 days of the date of these orders:
(a)The parties and the Independent Children’s Lawyer are to file written submissions, of no more than two (2) pages, in respect to the question as to whether the matter should be remitted for re-hearing before a judge other than the primary judge, or whether the Full Court should re-exercise discretion.
(b)The parties and the Independent Children’s Lawyer are to file written submissions, of no more than two pages, in respect to the issue of costs of the appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cresswell & Conroy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION
The primary appeal (NAA 92 of 2023) concerns the impact of delay in the delivery of judgment and the making of orders in circumstances where the credit of the appellant mother was a central issue in the proceedings. I have found appellable error as a result of the primary judge making a generalised adverse credit finding against the mother for reasons which included the mother’s demeanour during the course of giving evidence. That evidence was given four years prior to the publication of the final reasons for judgment.
The primary proceedings concerned an application for parenting orders concerning the party’s child, X (“the child”), who is now nine years old. The child was two years old when the proceedings were commenced by his mother on 4 October 2016. The proceedings also concerned an application for property settlement orders.
The matter has a lengthy and complex history, occupying 14 days of hearing, concluding on 19 November 2021, with final orders being made on 15 March 2023. Relevant findings of lack of credibility on the part of the mother were made, in large part, on the basis of evidence that she gave in February 2019.
These reasons address the three different components of the subject matter of the appeal. Firstly, the appeal against the parenting orders made by the primary judge, secondly, the appeal against the property settlement orders made by the primary judge and, finally, the separate appeal (NAA 186 of 2023) against the costs orders made by the primary judge.
BACKGROUND
The parties are currently in their late 30s. They met in high school and began a relationship in or around 2003, but never married. The appellant mother is an educator and the respondent father is a transport worker. On ... 2014, the child was born.
The nature and extent of the party’s relationship was essentially left undetermined by the primary judge who concluded at [296] that “[n]otwithstanding any arguments about the legal status of their relationship, [the parties] remained together for many years (even though there have been a number of periods of separation)”.
Following separation and prior to the mother commencing proceedings in October 2016, the child lived with the mother as the child’s primary carer. The parties lived within a few blocks of each other in City C.
An issue of controversy in the substantive proceedings had been the determination of the date of the party’s separation. The mother asserted that the parties separated “on a final basis on 1 October 2014”,[1] but the father contended that the parties separated on 26 July 2015.[2] Her Honour held that she had resolved the issue of the date of separation in her judgment delivered on 9 May 2017 which was in the context of an application for interim parenting orders, finding that the parties separated in mid to late 2015. It has been unnecessary to resolve the ground of appeal which contends that the primary judge erred in relying on that earlier finding made in respect to the interim application as creating an issue estoppel against the mother in respect to the date of separation.[3]
[1] Mother’s affidavit filed 16 July 2018, paragraph 3.
[2] Respondent’s Summary of Argument filed 1 September 2023, paragraph 7.
[3] Cresswell & Conroy [2017] FCCA 912 at [35].
The mother commenced the proceedings and sought parenting orders in accordance with her Application for Final Orders filed 6 October 2016 that was subsequently amended on 16 July 2018.
In Reply, the father sought spend time orders with the child. In circumstances where the father worked a flexible roster in his occupation as a transport worker, the spend time arrangements became problematic. It was found that the mother failed to adequately cooperate in facilitating the child’s time with the father. That finding has not been disputed in this appeal.
The final hearing commenced on Monday, 11 February 2019, with the mother being self-represented. The proceedings continued until Wednesday, 13 February 2019 with the next day of hearing being Friday, 15 February 2019.
On 15 February 2019, the matter was adjourned as the primary judge became concerned by the mother’s presentation during cross-examination.
The concern of the primary judge was such that she made orders immediately removing the child from the care of the mother and placed the child with the father on what was anticipated to be an interim basis. However, orders for the child to spend limited supervised time with the mother continued to remain in place until judgment was delivered in March 2023, at which time the challenged orders were made by the primary judge providing for an incremental increase in the child’s time with the mother without the requirement of supervision.
In late February 2019 after the matter was adjourned following the first tranche of the final hearing, the mother was admitted to the mental health unit of P Hospital. She was also admitted in November 2020 for a period of three days following the third tranche of the proceedings.
By orders made on 22 February 2019, a case guardian was appointed to appear on behalf of the mother.
Orders made by consent on 9 April 2020 stipulated that the mother would have contact with the child on three occasions per week, provided that the mother’s time was supervised by a range of persons known to the parties or by an external agency.
By orders of 23 April 2020, the case guardian was discharged.
The final hearing recommenced on 18 May 2020 for a further four days and then adjourned part-heard to 2 November 2020 for three days.
The parties were legally represented in the proceedings in May 2020 and November 2020.
Further proceedings occurred on 12 August 2021 and 18 November 2021, for a period of two days, at which time judgment was reserved. Judgment was delivered on 15 March 2023.
At the commencement of the final hearing in 2019, the mother’s Amended Initiating Application filed 16 July 2018, sought orders for the parties to have equal shared parental responsibility, with the child to live with the mother and spend time with the father on his rostered days off work. This was subsequently amended by way of a Minute of Order provided to the Court on 16 November 2021, prior to the commencement of the third tranche of proceedings. The mother sought that the parties have equal shared parental responsibility, with the child to live with the father and to spend time with the mother initially in a supervised capacity and thereafter, each alternate weekend, and on Tuesday and Wednesday afternoons after school.
At final hearing, by way of a Minute of Order dated 13 May 2020, the father sought sole parental responsibility in all aspects of the child’s care, save for religion which he proposed to be shared by the parties. The reference to religion was subsequently removed from his final Minute of Order dated 17 November 2021.
The Independent Children’s Lawyer (“ICL”) proposed orders as set out in their Minute of Order dated 16 November 2021, that the father have sole parental responsibility, for the child to live with the father and that the child spend time with the mother in an unsupervised capacity that would gradually increase to overnight time on alternate weekends and one night mid-week on Wednesday in each other week by the end of term 4 of 2021. The ICL also proposed that the child spend half of the school holidays with each parent in alternate seven night blocks for the 2022 school holiday periods.
Ms N, a clinical psychologist, prepared a Single Expert Report on 27 June 2020, recommending that an equal shared care arrangement commence immediately and that there be equal shared parental responsibility. A significant issue in this appeal is that the primary judge gave little weight to that report, including, as a consequence of the primary judge having made generalised adverse credit findings against the mother.
The final orders made on 15 March 2023 provided for the father to have sole parental responsibility and for the child’s time with his mother to increase on a gradual basis, as follows:
(1)Term 1: Commencing on 18 March 2023 until the conclusion of Term 1, the child would spend time with the mother from 10.00 am until 5.00 pm each Saturday. During the school holidays, the child would spend time with the mother from 10.00 am on Tuesday until 10.00 am on Thursday of each school holiday week.
(2)Term 2: Commencing on 29 April 2023, the child would spend time with the mother each alternate weekend from 10.00 am until 5.00 pm on Saturday and Sunday with no overnight time allowed. During the school holidays, the child would spend time with the mother from 10.00 am on 11 July 2023 until 10.00 am on 15 July 2023.
(3)Term 3: Commencing on 29 July 2023, the child would spend time with the mother each alternate weekend from 10.00 am on Saturday until 5.00 pm. During the school holidays, the child would spend time with the mother for the first week of the school holidays.
(4)Term 4: Commencing on 13 October 2023, the child would spend time with the mother each alternate weekend from after school on Friday until 5.00 pm on Sunday. During the summer school holidays, the child would spend seven nights with the mother in alternating periods.
(5)From 2024 onwards, the child would spend time with the mother each alternate week from after school on Friday until before school on Monday. The child would spend half of each school holiday period with the mother.
By way of summary, the primary judge’s reasons for making those orders included, most relevantly:
·the history of the mother’s non-compliance with orders made by the Court and concerns of the primary judge as to whether such orders would be complied with by the mother in the future (at [194] and [197]).
·that the mother is focused on her own needs rather than those of the child, and her actions have at times been to the child’s detriment (at [238]).
·that the mother has been unwilling to facilitate a relationship between X and his father “except on her own terms” (at [245]).
·that the child was at risk as a result of the mother’s history of dishonesty and being manipulative (at [257]).
It is the last finding that has been the primary focus of this appeal and that these reasons for judgment focus upon.
In addition, the Court, at first instance, heard evidence regarding property proceedings between the parties. The primary judge concluded that the father was entitled to an adjustment of 2 per cent in his favour pursuant to s 90SM of the Family Law Act 1975 (“the Act”) as a result of contribution factors, and an additional adjustment of 3 per cent as a result of future needs considerations set out in s 90SE of the Act. The weighting in favour of the father substantially related to his assumption of greater parenting responsibilities that occurred after the interim parenting orders made in February 2019 placed the child in his care.
By judgment delivered on 16 June 2023, the primary judge ordered the parties to share the costs of the ICL and for the mother to pay the father’s costs assessed as a lump sum amount of $178,743. The reasons for the primary judge in doing so substantially related to her findings regarding the mother’s “credit and conduct during the proceedings”.[4] That judgment is the subject of a separate appeal, being NAA 186 of 2023. These reasons for judgment also include consideration of that appeal.
[4] Cresswell & Conroy (No 2) [2023] FedCFamC2F 669 at [28].
GROUNDS OF APPEAL: NAA 92 OF 2023
The mother filed a Further Amended Notice of Appeal on 10 August 2023 pleading seven grounds:
As a consequence of the delay between the commencement of the final hearing on 11 February 2019 and the delivery of the reasons for judgment and the making of final orders on 15 March 2023 the primary judge erred in that:
1.The appellant mother was denied procedural fairness because the court’s capacity to assess evidence and evaluate her case was impaired; including insofar as
a.The primary judge made and relied upon strong adverse credit findings against the mother, more than four years after the mother commenced to give evidence in the proceedings, and nearly 16 months after the mother last gave evidence in the proceedings; and
b.The credit findings were central to both the primary judge’s reasoning as to both the parenting and property decisions.
2.The primary judge failed to engage with the mother’s case and assess the evidence, and make appropriate findings on the basis of that evidence; including as to
a. The reasons for the mother’s conduct
b. The reasons for the child to live with the mother
c.The reasons for the contribution based entitlement advanced by the mother
d. The length and nature of the relationship advanced by the mother.
3.The primary judge failed to take relevant matters into account; including insofar as
a.The primary judge disregarded the expert evidence of Dr J, Dr K and Ms N; or
b.The primary judge gave inadequate weight to the expert evidence of Dr K and Ms N
4.The primary judge substituted her opinion for those of Dr J, Dr K and Ms N on matters which were properly the subject of expert opinion; including as to
a. The mother’s parenting capacity
b. The reasons for the mother’s demeanour whilst giving evidence
c.The correlation between the mother’s mental health and the mother giving evidence which the primary judge found to be false.
5. There are material mistakes in the primary judge’s reasons; including
a.Determining that the mother could not argue the length of the relationship because of an earlier interim decision of 12 May 2017 where
i. That decision related to parenting,
ii. was interim in nature
iii.and the question of the length of the relationship was to that decision of peripheral importance
iv.the parties were not afforded procedural fairness that the trial judge might take that view.
6. The primary judge’s reasons were inadequate; including by
a.Having found that there was a strong argument for the child to live with the mother the primary judge
i. Gave no reasons which would explain that strong argument
ii.Gave no reasons explaining how that strong argument was weighed against a change of residence
b.Having found that the mother was not a witness of the truth failed to articulate whether her assessment of the Mother was formed at a time when the Mother was giving evidence in an acutely psychotic state or subsequently or both.
7. The primary judge’s findings were unsafe.
(As per the original)
For reasons which I set out below, I am satisfied that there is merit in the first ground of appeal and, insofar as there is overlap, also with Ground 6(b). This will result in the parenting orders being revisited by way of either remittal for re-hearing before another judge of the Federal Circuit and Family Court of Australia (Division 2), or by way of a Full Court re-exercising discretion. The fact that the parenting orders, made at first instance, will be revisited has consequences in respect to the property settlement orders that have been made.
GROUND 1: PARTY’S SUBMISSIONS
Appellant Mother’s Submissions
The mother contended that the adverse findings of credit made by the primary judge against her could not have been stronger.[5] Relevant context in this case was not only that orders were made approximately 16 months after the final date of submissions, but also that the trial itself had preceded over a period of approximately 30 months. According to the mother, this resulted in a denial of procedural fairness as the adverse findings were made, for reasons which included her demeanour when giving evidence, approximately four years prior to the delivery of judgment.
[5] Appellant’s Summary of Argument filed 10 August 2023, paragraph 9.
It was argued, by the mother, that the delay in judgment delivery impeded the primary judge’s ability to properly assess matters relating to credit and specifically, her ability to properly adjudicate the extent to which the evidence given by the mother, in the early stages of the proceedings, had been impacted by the mother experiencing an acute mental health episode.
Counsel for the mother contended that this was particularly relevant as the adverse credit findings made against the mother impacted not only on the assessment of the veracity of the mother’s evidence given during the course of the proceedings, but also the weight which the primary judge attached to the evidence of experts. In particular, the primary judge inferred, at [88]–[90] and [184]–[187] of her reasons, that the information provided by the mother, to the experts, had likely been infected by her propensity to be dishonest.
Additionally, according to the mother, the generalised adverse credit findings made against her influenced the primary judge’s conclusion that the child’s time with the mother in the period subsequent to the making of the orders, needed to be limited to protect the child from likely manipulative conduct on the part of the mother.
Submissions by the Respondent Father and ICL
The submissions of the father were supported by the ICL.
It was submitted and accepted in this appeal that delay itself is not a ground of appeal.[6]
[6] Manifold & Alderton (2021) FLC 94-015 at [36]. See also R v Maxwell (1988) 217 ALR 452 as cited in McCrossen and McCrossen (2006) FLC 93-283 at [76].
According to the father, the generalised adverse credit findings made by the primary judge against the mother were justified. Specifically, the father asserts that “there is no reliable evidence that the appellant suffered an acute psychotic breakdown, or any mental health event, prior to 15 February 2019”,[7] at which time the primary judge made orders removing the child from the mother’s care. This included when the mother gave false evidence on 13 February 2019 in relation to the child’s enrolment in school.
[7] Respondent’s Summary of Argument filed 1 September 2023, paragraph 21.
It was noted that when the mother gave evidence on 20 May 2020, she denied that she was experiencing symptoms of adverse mental health at the time of giving false evidence.[8]
[8] Respondent’s Summary of Argument filed 1 September 2023, paragraph 30.
Secondly, it was contended that the conclusions formed regarding the creditworthiness of the mother were based not just on the evidence that she gave in the beginning of February 2019, but also included the findings made in relation to the mother’s evidence and conduct generally. This, according to the father, justified the primary judge’s findings about the mother’s creditworthiness.
The father submitted that the adverse credit findings against the mother were made after detailed consideration of the evidence, and included findings referred to in paragraphs 24 and 32 of the father’s Summary of Argument filed 1 September 2023. By way of summary, they are as follows:
·the Court not accepting the evidence of the mother regarding the father’s lack of involvement in the child’s care;
·a finding that the mother had been resistant to the child spending time with the father and that she did not facilitate time with the father from occurring;
·in the period between November 2016 to March 2017, the mother had failed to comply with orders resulting in the child not spending time with the father on eight scheduled occasions;
·the mother had a repeated pattern where she ignored court orders resulting in the child missing time with the father on 33 occasions;
·the Court did not accept the validity of the mother’s reasons as to why time did not occur;
·the mother’s acknowledgement, when giving evidence in chief, that she had in fact spent unsupervised time with the child in 2019 contrary to orders;
·the mother conceded that she breached court orders by withholding the child for a period of two weeks between 30 September 2019 and 13 October 2019; and
·the mother complained that she was “getting tunnelled” in response to questions posed by the primary judge as to whether she would agree to a 50/50 time sharing arrangement if the only alternative was to change the child’s residence. Further, when given the opportunity thereafter, the mother failed to make constructive suggestions.
Additionally, the father’s position was that the primary judge had the benefit of a number of independent contact visit reports which are summarised at paragraph 28 of the father’s Summary of Argument filed 1 September 2023. These reports included reference to the mother being “persistently” argumentative in her correspondence with the supervision agency, to the point where the organisation terminated their services. Reference was also made to independent evidence made by a supervisor that the mother presented as “agitated and irate”.[9] Further reference was made to the mother’s reluctance to accept aspects of those supervision reports, particularly where they were critical of her.
[9] Respondent’s Summary of Argument filed 1 September 2023, paragraph 31.
RELEVANT PRINCIPLES AS TO THE EFFECT OF DELAY
As noted earlier, there was a 16 month delay between the final date of hearing and the primary judge delivering her reasons for judgment on 15 March 2023. This is in the context where the Full Court observed that a period of 10 months is “an excessive period of reservation, even for the most complex of trials”.[10] The delay occurred in circumstances where the trial itself extended over a period of approximately two years and 10 months, resulting in a delay of just over four years between the mother initially giving evidence and the publication of her Honour’s reasons for judgment.
[10] Halstron & Halstron [2022] FedCFamC1A 65 at [52], citing Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [152].
In noting the extent of the delay that has occurred in this matter, I acknowledge that judges of Division 2, previously the Federal Circuit Court of Australia, had and continue to have extremely heavy court commitments that can result in several months delay before another date can be found for adjourned matters. Additionally, I acknowledge that finding time to properly consider all relevant evidence in a complex matter such as this can also be problematic and can result in unfortunate additional delays in the delivery of judgment. This judgment is not intended to be a personal criticism of the primary judge who is highly competent and extremely dedicated to the performance of her judicial responsibilities. My responsibility is, however, to look at the impact of the delay that has occurred, on the outcome of the proceedings.
In Monie v The Commonwealth (2005) 63 NSWLR 729 (“Monie”) Hunt AJA at [43], by reference to earlier authorities,[11] extracted nine propositions that may be considered by an appellate court in circumstances where there has been operative delay in giving judgment. For the purpose of this decision, I have focused on two of those propositions:
(1)the need for heightened scrutiny of the decision by an appellate court; and
(2)the advantage of a trial judge in having seen and heard a witness give evidence and having observed the witness’s demeanour weaken over time.
[11] R v Maxwell (1998) 217 ALR 452. See also Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17 (“Expectation Pty Ltd”).
Dealing with the first proposition, delay on the part of a primary judge in delivering judgment results in the likelihood that the appellate court will subject the judgment to a heightened level of appellate scrutiny for factual or legal error.[12] It is therefore generally incumbent upon the primary judge to “explain how, despite the delay, he [or she] was able to recollect the oral testimony and demeanour of witnesses in order to demonstrate that delay did not affect [the] decision”.[13]
[12] Stephen Gageler, “Just versus Quick: Constructivist and Ecological Rationality in a Common Law System” (2022) 45(2) Melbourne University Law Review 830, 850.
[13] Von Schoeler v Allen Taylor and Company Ltd Trading as Boral Timber (No 2) (2020) 273 FCR 189 at [113].
The father submitted that the primary judge plainly made use of the detailed materials from the trial, including transcript, audio and of course, the affidavits and exhibits.[14] It is clear that the primary judge had access to the documentary evidence and transcript in this matter. However, in the absence of specific reference by the primary judge, there is, with respect, no indication that the primary judge accessed an audio recording of the mother’s evidence. Nor does the judgment contain an explanation for the delay, together with an assurance that the decision was not adversely impacted as a result of, for instance, the primary judge making contemporaneous notes of impressions formed while evidence was given by witnesses of importance.[15]
[14] Respondent's Summary of Argument filed 1 September 2023, paragraph 36.
[15] Expectation Pty Ltd at [73].
While recognising the primary judge’s expression of regret in the 16 month delay in the delivery of judgment, her reasons were nonetheless expressed “in a form that appears to treat the time involved in the [court] process as immaterial to the adjudicative function”.[16] Significantly, the reasons do not meet the requirements of providing a proper explanation as to how her Honour recalled the witness’s “expression” and “body language” (at [72]) in circumstances where evidence was given four years prior to delivery of judgment.
[16] NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 (“NAIS”) at [3] (Gleeson CJ).
It is accepted that, while rare,[17] the extent of delay in particular circumstances may be such that failure to deliver judgment reasonably proximate to the hearing gives rise to appellable error. This may occur where it is shown that the delay has “affected, or can be seen as apparently affecting, the decision-making in question”.[18] Nevertheless, “some apparent operative effect of the delay is required for appellable error to be established”.[19] As earlier observed, by reference to the second proposition that I have extracted from Monie, one such instance where the impact of delay may become relevant is in assessing a party’s credibility, particularly where it is based on demeanour.[20]
[17] NAIS at [5].
[18] Tattsbet Ltd v Morrow (2015) 233 FCR 46 (“Tattsbet”) at [2] (Allsop CJ) (emphasis added).
[19] Tattsbet at [2] referring to Monie, discussed in MM Constructions (Aust) Pty Ltd v Port Stephens Council (No 7) (2012) 191 LGERA 292 at [11].
[20] NAIS at [172] (Callinan & Heydon JJ).
I accept and agree with the submissions of both senior counsel for the father and the ICL that the primary judge’s reasons contain a detailed account of many aspects of the evidence including, most relevantly, findings that are adverse to the mother’s credibility. It is my view, however, that the primary judge has failed to properly grapple with a crucial issue in the proceedings. That is, the extent to which aspects of the mother’s presentation on either or both 13 February 2019 and 15 February 2019, were due to the consequences of mental illness, or more specifically, an acute mental health episode arising from the immediate stress of the trial process. As I will explain, that aspect of her Honour’s judgment has been infected by “operative delay”.[21] As a related issue, the primary judge failed to adequately explain whether her adverse credibility assessment of the mother was due to the evidence given by the mother on either or both of those days and her ability to properly do so was itself impacted by the delay (Amended Notice of Appeal filed 10 August 2023, Ground 6b).
[21] Expectation Pty Ltd at [76].
In so determining I have had regard to the caution expressed in Monie by Hunt AJA at [44]:
It must, however, be emphasised that delay between taking evidence and the delivery of judgment does not, in itself, justify upholding an appeal against the judgment given. Error must still be established on the part of the trial judge warranting either a reversal of the judgment or the grant of a new trial. Delay may assist an appellant in establishing such error because, as the approach identified by the Full Federal Court demonstrates, the inference will more readily be drawn that a trial judge’s failure to deal in a significantly delayed judgment with particular matters on which the appellant relied in contradiction of the findings made in that judgment resulted from those matters being overlooked by the judge — either because of the time which has passed or because of the pressure on the judge in the end to complete the judgment. In Boodhoo v Attorney General of Trinidad and Tobago [2004] 1 WLR 1689 at [11], the Privy Council acknowledged that the delay in giving the decision may adversely affect its quality to such an extent that it cannot be allowed to stand. That is what must be shown in order to demonstrate error resulting from delay which warrants either a reversal or a new trial.
(Emphasis added)
The respondent contended that, in civil proceedings, there is no equivalent to what has been the practise of criminal courts to set aside a judgment as being unsafe and unsatisfactory.[22] Insofar as that submission is made to address Ground 1 of the appeal it, with respect, misses the point. As noted by the Full Court, “[d]elay may assist an appellant in establishing error by demonstrating that delay in giving judgment has contributed to an error or made a decision unsafe”.[23]
[22] Dansie v The Queen (2022) 274 CLR 651.
[23] Folett & Langley (2016) FLC 93-738 at [35].
What is crucial for the appellate court to consider is the “fairness of the procedure that was followed”.[24] In that context, it is generally recognised that a central tenant of the requirements of procedural fairness is that all parties should be given a fair opportunity to present their respective case. That is not, however, the limit of the requirements. Operative delay may deny an applicant the opportunity to have their case properly considered.[25] That is, the denial of procedural fairness may arise not specifically from a denial of an opportunity to present one’s case, but also from a denial of the opportunity to have their case properly considered. As noted in NAIS by Gleeson CJ at [9]:
A procedure that depends significantly upon the Tribunal’s assessment of individuals may become an unfair procedure if, by reason of some default on the part of the Tribunal, there is a real and substantial risk that the Tribunal capacity to make such an assessment is impaired.
[24] NAIS at [9] (Gleeson CJ).
[25] NAIS at [172] (Callinan and Heydon JJ).
For reasons which I will subsequently explain, I am satisfied that a “practical injustice”,[26] to the mother has occurred, such that the appeal should be upheld. This is in circumstances where adverse credit findings have been made, in large part, on the primary judge’s assessment of the mother’s demeanour when giving evidence some four years before judgment delivery.
CONSIDERATION
[26] HT v The Queen (2019) 269 CLR 403 at [17]–[18] (Kiefel CJ, Bell and Keane JJ).
Additional scrutiny
In considering this appeal, consistent with the first proposition that I have applied from Monie, I record that I have subjected the reasons for judgment of the primary judge to a heightened level of scrutiny than would otherwise have been the case. That is, I have departed from the principle that an appellate court generally accepts that there is a strong presumption in favour of the correctness of the primary judgment subject of appeal, and that it is based on an advantage that the primary judge would ordinarily have in assessing the credibility of witnesses.[27] The additional scrutiny that I have applied has, unfortunately, resulted in a lengthier judgment than would otherwise be the case in an appeal of this nature.
[27] Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627.
Operative delay impacting ability to make adverse credit finding based on demeanour
The primary reason that I have upheld the appeal relates to the second proposition that I have applied from Monie. That is, I respectfully agree with the submissions of counsel for the mother that, in the broader context, to which I have earlier referred, there was an operative delay that resulted in the mother being denied procedural fairness. It is clear that adverse credit findings were made against the mother, in substantial part, as a result of evidence which she gave some four years prior to the delivery of judgment, and which included the assessment by the primary judge of the mother’s demeanour in giving that evidence. Significantly, that adverse credit finding was also relevant to the decision of the primary judge to reject the findings and recommendations of experts that were favourable to the mother’s case. The adverse credit finding was also relevant to the finding by the primary judge that the mother was “manipulative” which, in turn, influenced the decision of the primary judge to make orders limiting the child’s time with the mother.
The mother’s demeanour when giving evidence is particularly relevant in circumstances where it is undisputed that the mother was dysregulated in the giving of her evidence on 15 February 2019. As earlier noted, the mother’s presentation on 15 February 2019 was such that the primary judge made urgent interim orders removing the child from her care and placing the child in the care of the father.
While no formal judgment was delivered by the primary judge in making those orders, her Honour’s reasons for doing so were explained to the mother on 15 February 2019. The primary judge’s explanation included the statement that:
I’m persuaded by the submissions that have been made by the evidence that I have heard so far, but significantly by your demeanour in the witness box, that there may be an underlying organic problem that gives rise to the way that you have carried yourself during these proceedings. If it’s not that, and it may just be that you are - I don’t want to speculate as to why you are behaving the way that you are, but it gives me sufficient concern such that I have formed the view that at least in the interim period, it is in [the child’s] best interest that he live with his father and spend supervised time with you.[28]
(Emphasis added)
[28] Transcript 15 February 2019, p.151 lines 29–36.
I have placed deliberate emphasis upon the primary judge referring to the mother’s demeanour and presentation “during these proceedings” and not simply on the day in question – being 15 February 2019.
It is clear that, at that point in time, a central issue to be determined in the proceedings was whether the mother lacked credibility and was deliberately manipulative, or whether the mother’s presentation in the proceedings had an “organic” basis and was therefore, “beyond [her] control”.[29]
[29] Transcript 15 February 2019, p.151 lines 19–32.
That question was determined against the mother, with the primary judge stating in her reasons at [236] that “[t]here is no evidence of any mental health diagnosis which might go to explaining some of her behaviour”.
As a related finding going to credibility, the primary judge stated in her reasons at [40] that:
While not always desirable, particularly in parenting proceedings, it is necessary to make credit findings in this instance. [The mother’s] evidence, in many respects was wholly unreliable and in many aspects bordered on the bizarre.
(Emphasis added)
The central question in this appeal is whether there was practical unfairness in the primary judge making those findings, particularly in circumstances where the evidence provided by the mother, which first raised concerns regarding the mother’s credibility, occurred four years prior to judgment being delivered.
It is clear that the evidence provided by the mother and her demeanour in giving that evidence on 15 February 2019 gave rise to the concerns of the primary judge. In that respect, there is a contemporaneous record of the primary judge’s concerns about those matters where the primary judge stated:
But I am significantly concerned, as I’ve indicated earlier, about the mother’s demeanour, particularly when she was giving evidence. And it is her expression, her body language, the giggling - the inappropriate giggling – the inappropriate laughing at the questions, whether it’s nervous, whether it’s for a particular reason, what it might have been, or whether it’s simply a strategy that the mother is employing. Whichever way I look at it, it gives me significant concern … about the mother’s capacity.[30]
(Emphasis added)
[30] Transcript 15 February 2019, p.142 line 44 to p.143 line 7.
There is however, no description as to what particular “expression” or aspect of the mother’s “body language” gave rise to that concern, such that some four years later the primary judge was in a position to determine whether those aspects of her presentation were more consistent with the mother experiencing an acute stress reaction, as contended by counsel for the wife, or whether she was deliberately lying, as contended by senior counsel for the father.
Further, neither the judgment nor the transcript records whether the concerning expression, body language and inappropriate giggling, recorded by the primary judge, occurred only on that day, being 15 February 2019, or whether it also occurred on 13 February 2019. This is relevant because it was on the earlier of those dates that the mother prevaricated and gave false evidence as to whether the child had been enrolled in school. It was also the day upon which she gave the concerning belligerent direction to counsel for the father to “back off”.[31] The mother’s conduct in that respect was clearly a relevant consideration in the primary judge forming the view that the mother was “dishonest and manipulative” (at [238]).
[31] Transcript 13 February 2019, p.106 lines 6–7.
In the context of Ground 6(b) of the amended grounds of appeal, and in circumstances where greater scrutiny of the primary judge’s reasons is warranted as a result of the delay, it was incumbent upon the primary judge to give adequate reasons as to whether her Honour’s characterisation of the mother’s evidence as “bizarre” (at [40]) was limited only to the mother’s evidence given on 15 February 2019, when it was accepted that she was experiencing an acute mental health episode, or whether that description also related to the mother’s evidence given on 13 February 2019.
Particularity was required, on the part of the primary judge, because the manner in which the mother presented in giving evidence on both of those days in February 2019, was an issue of significance to each of the party’s respective case theories. This is reflected in the mother’s written submissions filed during the course of the substantive hearing on 14 December 2020, where it was submitted at paragraph 96 that:
Dr K was questioned about whether her suffering from an acute psychotic disorder might have impacted on her honesty and his response suggests that was a possibility. His evidence was that he could not say when the onset of her symptoms commenced but it was possible that she was feeling unwell in the week leading up to the trial.
(Citations omitted)
Comparatively, it was submitted in the father’s written submissions filed 1 December 2020 at paragraphs 42–44 that:
It is respectfully submitted that the Mother’s credit has become a relevant issue in these proceedings. The quality of the Mother’s evidence it is submitted in affidavit form, under cross-examination and in relation to the independent documents made available to the Court by third parties including the family report writer Ms N, the expert report writer and the child dispute memorandum writer evidence the unreliability of the Mother’s evidence when looked at as a whole.
It is submitted that the credibility and the reliability of the Mother as a witness in this case would be of deep concern to the Court. It is strongly suggested that unless the Mother’s evidence is supported or corroborated by objectively provable evidence or is not in dispute with the Father or other witnesses the Court would reject the Mother’s account or her evidence on that particular issue.
The evidence of the Mother in many respects was wholly unreliable, wholly unacceptable and, in many respects, bordered on the bizarre.
(As per the original, emphasis added)
As earlier noted, the primary judge adopted the father’s characterisation of the mother’s evidence as being “bizarre” and, further, found that “there is no evidence of any mental health diagnosis which might go to explaining some of [the mother’s] behaviour” (at [236], emphasis added).
In his report dated 23 August 2019 and during the course of cross-examination, the psychiatrist, Dr K was asked to, in effect, attempt to retrospectively characterise the mother’s conduct when giving evidence on both 13 February 2019 and 15 February 2019. While not rising to the level of what could be described as a mental health diagnosis, Dr K nonetheless gave evidence that was appropriately nuanced and in which he expressed some concerns regarding the potential impact of mental health considerations on the manner in which the mother gave evidence on both days.
Relevantly, on 13 February 2019, the mother was cross-examined regarding what, at that stage, appeared to be the assumption that the mother had held the child back from starting school. It is common ground that the mother’s evidence to that effect was wrong. It is also common ground that, before giving evidence on 20 May 2020, Dr K was provided with a recording of the mother’s evidence. While not providing affirmation that the mother was suffering from mental illness when she gave evidence on 13 February 2019, the manner in which the mother gave evidence on that day nonetheless evoked potential mental health concerns on the part of Dr K. Specifically, Dr K was asked whether there was “a medical explanation” for the mother providing false and misleading evidence about the child’s school enrolment. In response, understandably, Dr K stated that he was not in a position to determine whether the mother was intentionally giving wrong information.[32] Dr K postulated that “a possible medical explanation if she’s giving incorrect answers is that she might be distracted or not be understanding what’s going on in her environment”.[33]
[32] Transcript 20 May 2020, p.338 lines 35–37.
[33] Transcript 20 May 2020, p.338 lines 43–45.
It was not, of course, the role of an expert witness to express opinion regarding the veracity or otherwise of a witness’s evidence.[34] That is for the determination of the primary judge. While her Honour found, at [236] of her reasons, that there was “no evidence of any mental health diagnosis” (emphasis added) which might explain some of the mother’s behaviour, including, most relevantly, the evidence she gave in February 2019, the primary judge’s statement essentially begs the question as to whether the mother’s evidence given on either or both 13 February 2019 and 15 February 2019, was adversely impacted by episodic mental health concerns that may have fallen short of an affirmative diagnosis of a mental illness.
[34] Roberts v Cresswell [2023] NZCA 36 at [139]. See also R v Quesada (2001) 122 A Crim R 218 at [49] (Smart AJ).
It is clear that the primary judge had those concerns about the mother’s mental health on 15 February 2019 (at [19]). This is demonstrated by her invitation to counsel for the father to make an application for immediate parenting orders. In response to that application, the primary judge made urgent orders removing the child from the mother’s care, declined to hear from the mother in respect of that application and, further, within the following weeks, her Honour ordered for the appointment of a case guardian to represent the mother.
That is, the impact of mental health issues on the manner in which the mother gave evidence on at least 15 February 2019, was specifically acknowledged by the primary judge.
No distinction was, however, made by the primary judge, in her reasons for judgment, between the manner in which the mother gave evidence on 13 February 2019, and the manner in which she gave evidence on 15 February 2019. This is in the context where the finding by the primary judge at [173] that the mother “clearly misled the Court when giving her evidence in February 2019 about [the child] not yet having been enrolled in school” was given by the mother on 13 February 2019. It was also on that day the mother gave the belligerent direction to counsel for the father to “back off” (at [67]–[68]).
Counsel for the mother submitted that the misleading nature of the mother’s evidence and her belligerence on 13 February 2019, needed to be seen in the context of the mother experiencing declining mental health. That submission required specific consideration and determination by the primary judge and her Honour’s reasons should have explained how that occurred. The mother is entitled to assume that the ability of the primary judge to consider the evidence given by the mother on either or both 13 February 2019 and 15 February 2019 was apparently compromised by the delay of four years between when that evidence was given and when judgment was delivered. This is particularly so where there is no indication by the primary judge that she made contemporaneous notes of the “expression” or “body language” of the mother when she gave evidence on 13 February 2019, and it is unrealistic to assume that the primary judge had sufficient recollection of those maters after such a gap in time. In that respect, McHugh J, in Longman v The Queen (1989) 168 CLR 79 at 107, made the common sense observation that:
The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to “remember” is well documented. The longer the period between an “event” and its recall, the greater the margin for error. Interference with a person’s ability to “remember” may also arise from talking or reading about or experiencing other events of a similar nature or from the person’s own thinking or recalling.
Relevantly in his dissenting judgment in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 134 FCR 85, Finkelstein J, whose decision was upheld on appeal to the High Court stated at [65]:
… Before it rejected their evidence, the Tribunal was required (and it no doubt attempted) to assess the appellants’ creditworthiness by having regard, among other things, to their demeanour. Was the Tribunal in a position to discharge that obligation four and half years after the appellants gave their principal evidence? I have no doubt that the answer is in the negative. The opposite conclusion is simply fanciful …
Without any additional explanation being provided by the primary judge as to her means of recall, it cannot reasonably be assumed that the primary judge was in a position to recall and differentiate between the demeanour of the mother when she gave evidence in these proceedings, on either or both 13 February 2019 and 15 February 2019.
Determination of the manner in which the mother gave evidence in these proceedings is not merely tangential to the ultimate findings, it was an issue in contest in the proceedings. That is, counsel for mother contended that it could reasonably be inferred that the evidence given by the mother on both 13 February 2019 and 15 February 2019, and the manner in which she presented on both days was impacted by the mother’s declining mental health.[35] Comparatively, it is contended by the father that “[t]here is no proper basis to suggest that [the mother’s] evidence prior to 15 February 2019 was clearly affected by a form of mental disability and should not have been relied upon by the judge in an assessment of the [mother’s] credit worthiness”.[36]
[35] Appellant’s Summary of Argument filed 10 August 2023, paragraph 10.
[36] Respondent’s Summary of Argument filed 1 September 2023, paragraph 22.
Irrespective of which of the party’s submissions in that respect are correct, it was clearly a question that required proper consideration and determination as well as explanation in her Honour’s reasons for judgment. This is particularly the case where the transcript of evidence provides evidence of the mother asserting that she was confused on 13 February 2019.[37] In another instance, the primary judge acknowledged the mother’s distress, when giving evidence on 13 February 2019, by offering the mother to adjourn the court in circumstances where the mother requested that she be provided with tissues and stated that she was “finding it hard to stop crying”.[38]
[37] Transcript 13 February 2019, p.55 line 45 to p.56 line 4.
[38] Transcript 13 February 2019, p.68 line 42 to p.69 line 3.
As noted, it was the case of the mother that her conduct in giving evidence on both 13 February 2019 and 15 February 2019 needed to be considered in the context of declining mental health. There is, with respect, some justification for that submission which appears to have been recognised by the primary judge at [71]–[72] of her Honour’s reasons:
The mental health of [the mother] was first raised as a concern giving rise to possible risks for [the child], during proceedings in February 2019.
During the hearing in February 2019, the Court noted its significant concerns about the mother’s demeanour while giving evidence, and in particular her expression, body language and inappropriate giggling whilst being cross-examined. Furthermore, during the discussion between the parties and the Bench for the possible appointment of a Case Guardian, [the mother] was observed to be giggling again.
(Citations omitted and emphasis added).
By referring to the hearing/proceedings “in February”, the judgment does not differentiate between whether aspects of the mother’s concerning presentation observed on 15 February 2019 also occurred on 13 February 2019. While the judgment is silent on that issue, it would be unsafe to infer that no such similar conduct occurred, particularly where there is a contemporaneous record of the mother being unable to stop crying when she gave evidence on 13 February 2019. Even if that is not the case, the existence of ambiguity about that question is unsatisfactory and, understandably, of concern to the mother who contends that her case has apparently not been properly considered as a result of the significant period that has elapsed between the time in which she gave evidence and the delivery of judgment.
The finding by the primary judge, at [236] of the reasons, that “[t]here is no evidence of any mental health diagnosis which might go to explaining some of [the mother’s] behaviour” begs the question as to whether episodic mental health considerations, falling short of a mental health diagnosis, impacted upon the manner in which the mother gave evidence on both 13 February 2019 and 15 February 2019 when she was a witness and experiencing the stress of self-representing her case.
In short, the substance of the contest arising from the party’s respective submissions included whether the mother’s evidence and the manner in which she gave that evidence in February 2019 was adversely impacted by the mother experiencing an acute stress reaction for which she was admitted into a mental health facility in the weeks after she gave that evidence. Moreover, while there was no contemporaneous evidence of a diagnosis of the mother’s mental health when she gave evidence on both 13 February 2019 and 15 February 2019, it is clear that the primary judge was profoundly concerned by the state of the mother’s mental health when she gave evidence at least on 15 February 2019. It is not possible to discern from the reasons whether that concern initially arose when the mother gave evidence on 13 February 2019.
Demeanour based adverse credit finding contributed to a generalised adverse credit finding
While I accept the submissions of both the father and of the ICL that there were other aspects of the evidence provided by the mother that justified adverse findings as to credit made by the primary judge, it nonetheless remains a case that the primary judge’s findings regarding the mother’s expression, body language, general demeanour and the manner in which the mother gave evidence in February 2019, was highly relevant to the generalised adverse credit finding made by the primary judge. This included, as I will explain in greater detail, adopting an approach where the primary judge gave little weight to expert evidence as a result of that generalised adverse credit finding.
In that context, it is generally accepted that “an adverse finding about an aspect of a particular witness’ evidence does not mandate that his or her evidence must or should be rejected on all issues”.[39] While the making of a generalised adverse credit finding against the mother has not been identified as a specific ground of appeal, her Honour’s approach, in the particular circumstances of this case, is relevant to my consideration of the impact of delay in the publication of her judgment. This is because of the mother’s legitimate concern that the ability of the primary judge to differentiate between the circumstances in which the mother gave evidence in the stress of a courtroom, while self-represented, needed to be differentiated from statements that she separately made to experts in a clinical setting. No such differentiation has occurred as a result of the generalised adverse credit finding which, itself, has been infected by the effect of delay in delivering judgment.
[39] Et-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128 at [188].
Generalised adverse credit finding resulted in diminished weight being given to expert evidence
Significantly, the primary judge stated that she gave reduced weight to expert evidence due to her Honour’s finding of the mother’s general lack of credibility. Specifically, the primary judge inferred that the information provided by the mother to the experts must have been inaccurate. In that respect, for instance, the primary judge referred to a report prepared by the mother’s treating psychologist, Dr J, who opined that:
Throughout our sessions, [the mother] has presented as appropriately concerned about her circumstances and aware of the complexities of the legal pursuits. This has been nonetheless profoundly confronting, and I am aware of at least one further episode of acute stress reaction which prompted supportive family members to seek urgent medical advice. [The mother] has good support from her family and this, as well as the support of clinicians - […] - will continue to help build up her coping skills in managing the challenges around Court proceedings, liaison with [the father], and her care of [the child].[40]
[40] Report of Dr J dated 25 April 2019.
The primary judge stated at [90] that the Report of Dr J carried “very limited weight”. The reason for this included the primary judge’s assessment that the mother had demonstrated a “tendency to give evidence to the Court in a manner which suited her case” (at [88]).
Her Honour, for similar reasons, also stated at [187] that she gave “little weight” to the recommendations of Ms N, a private clinical psychologist, who had been engaged to provide a single expert report in the proceedings.
The appeal does not raise a specific weight challenge regarding Ms N’s evidence, but it was nevertheless procedurally unfair for the primary judge to give little weight to Ms N’s evidence on the basis of a generalised adverse credit finding when that finding was based, in substantial part, on demeanour findings made by her Honour. This is particularly so when the witness’s evidence was given in February 2019, four years prior to the judgment being delivered.
This is a matter of significance because it was the view of Ms N that the mother suffered an “acute psychotic episode” associated with extreme stress when she was in Court in February 2019,[41] and which subsequently resulted in the mother being admitted to a mental health facility on two occasions.
[41] Expert Report of Ms N dated 27 June 2020, paragraph 1.1.
Ms N concluded that the mother’s mental health had been “temporally” impacted by the stress associated with the court proceedings and the circumstances arising from the child being removed from her care. However, having recovered, Ms N opined that there was no impediment to the child spending unsupervised time with the mother. In that respect, in her report, Ms N recommended that the child should “move to an equally shared arrangement as soon as possible”.[42]
[42] Expert Report of Ms N dated 27 June 2020, paragraph 9.4.2.
Ms N’s recommendation was directly contrary to the orders that were made by the primary judge. Ms N further opined that the circumstances in which the child had been “precipitously” removed from his mother’s care for an indefinite period had been emotionally “damaging” to him,[43] and that, consequently, there should be a significant increase in his time with his mother “as soon as possible”.[44]
[43] Expert Report of Ms N dated 27 June 2020, paragraph 9.1.1.
[44] Expert Report of Ms N dated 27 June 2020, paragraph 9.4.2.
While the evidence of a single expert writer is invariably important in parenting proceedings, the opinion expressed by the expert does not bind a primary judge who is ultimately responsible for considering and giving appropriate weight to the totality of evidence presented in the proceedings.[45] Nevertheless, for reasons which I have set out, I am satisfied that the decision of the primary judge to give “little weight” to the report and recommendations of Ms N resulted in practical unfairness to the mother in circumstances where the generalised adverse credit finding made against her was based, in substantial part, on the primary judge’s assessment of the mother’s demeanour when giving evidence some four years prior to publication of her reasons for judgment.
[45] Maclean & Greenwood (2022) FLC 94–117 at [33].
Adverse credit finding impacted upon assessment of risk
As a related and additional consideration in determining that the mother was denied procedural fairness, is the decision by the primary judge to perpetuate orders that provided for the child to have limited time with the mother. The reason for this included the primary judge’s assessment of the mother’s “dishonesty and attitude” which led to her Honour’s conclusion that the child was likely to be easily manipulated by the mother (at [257]). As a result, the primary judge stated that the orders she made provided that “[the child’s] time with his mother will be of such length so as to minimise any risks arising from these matters” (at [257]).
Again, that generalised finding of “dishonesty” has, in part, been made on the basis of credibility findings based on an assessment of the mother’s demeanour and belligerent attitude when giving evidence four years prior to delivery of the judgment. This is also in circumstances where there was a live issue as to whether the mother’s expression, body language and attitude reflected evasiveness and deliberate dishonesty, or whether, the mother’s demeanour should have been contextualised. I am satisfied that the primary judge’s ability to properly consider and determine that issue has been impeded as a result of the operative delay in the making of orders and the publication of her judgment.
Grounds 1 and 6(b) upheld
Accordingly, for all of these reasons, I am satisfied that, in the broader sense to which I have earlier referred, the mother has been denied procedural fairness arising from operative delay in the publication of the reasons for judgment such that there would be a miscarriage of justice[46] if the parenting orders made by the primary judge are not set aside.
[46] CDJ v VAJ (1998) 197 CLR 172 at [151] (McHugh, Gummow and Callinan JJ).
Additionally, for reasons which I have earlier provided, I am also satisfied that the reasons for judgment fail to adequately differentiate between the evidence given by the mother on 15 February 2019 and that given on 13 February 2019. That is, the reasons do not adequately explain the extent to which the primary judge’s assessment of the mother’s credibility, based on demeanour, were made at the time the mother was experiencing an acute mental health episode on either or both of those days, such that a generalised adverse credit finding against the mother was justified.
Having found merit in the first ground of appeal and also Ground 6(b), it is unnecessary to consider the remaining grounds of appeal relating to the parenting orders made by the primary judge.[47]
[47] Boensch v Pascoe (2019) 268 CLR 593 at [7]–[8] (Kiefel CJ, Gageler and Keane JJ).
APPEAL IN RESPECT TO PROPERTY ORDERS
The grounds of appeal that relate to the property settlement orders, made pursuant to s 90SM of the Act, are Grounds 5 and, potentially, Ground 7.
While not specifically abandoning Ground 5, counsel for the mother, appropriately in my view, acknowledged that the ground was not strong.[48]
[48] Appeal Transcript, 22 September 2023 p.21 lines 26–33.
It was nonetheless contended that a necessary incidence of the parenting orders being set aside was that the property settlement orders should also be set aside insofar as the primary judge made an adjustment, in favour of the father, based on future parenting responsibilities in terms of s 90SF of the Act. It was contended that revisitation of the parenting orders will undermine the factual assumption upon which the property settlement orders were made, such that leaving those orders in place would result in an injustice.
In circumstances where, other than in the broadly expressed language of Ground 7, the point had not been raised as a specific ground of appeal or addressed in the party’s summaries of argument, at the conclusion of the appeal, I availed the parties the opportunity to make written submissions in respect to that question.
Parties’ written submissions
Counsel for the mother contended that, if the parenting orders are set aside, there may be a different outcome arising from the matter being either remitted for further hearing or reconsidered by way of the Full Court re-exercising discretion. It is submitted that, in those circumstances, there would be a miscarriage of justice to leave the property settlement orders in place. This is because a significant fact relevant to the determination of the property settlement orders was the identification of which parent would, in the future, have primary caring responsibility for the child. On that basis, an adjustment of 3 per cent was made in the father’s favour, having regard to s 90SF of the Act.
In response, senior counsel for the father contends that the precondition for the Full Court exercising power pursuant to s 36 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) requires the finding of error.[49] If no such error is identified, it is submitted that the appropriate course of action would be for the mother to avail herself from applying for orders to set aside or vary the property orders pursuant to s 79A of the Act which empowers the court to set aside or vary orders where there has been a miscarriage of justice. This section also includes a specific power set out in s 79A(1)(d) of the Act which provides:
[49] Respondent’s supplementary written submission in reply filed 6 October 2023, paragraph 4.
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
…
(d)in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
Consideration as to whether leaving the property settlement orders in place would result in a miscarriage of justice
It is unquestionably the case that, as contended by senior counsel for the father, a precondition to the Court exercising its appellant jurisdiction pursuant to s 36 of the FCFCOA Act is the establishment of legal, factual or discretionary error.[50]
[50] Allesch v Maunz (2000) 203 CLR 172 at [23].
Additionally, appellate jurisdiction is enlivened where there would be a miscarriage of justice to leave undisturbed orders made at first instance.[51] While commonly arising in the context of criminal appeal provisions,[52] appellate courts applying civil law may also set aside a judgment on that basis.[53]
[51] CDJ v VAJ (1998) 197 CLR 172 at [151].
[52] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at [110] (Gordon and Steward JJ) (“MZAPC”).
[53] MZAPC at [165] (Edelman J).
The principle has been applied by the Full Court in circumstances similar to this appeal. In Langley & Tarelli (No 4) [2021] FamCAFC 107 (“Langley”), the Full Court upheld an appeal against parenting orders made by the primary judge but found no error in the making of property settlement orders. The Full Court noted, however, that the decision to redetermine the parenting orders, which were made in error, had the potential to impact upon the factual assumptions that underpinned the making of the property orders. The Full Court stated:
119.We are unpersuaded that, on the facts taken into account by her Honour, any challenges to property settlement orders are made out.
120.However, we are conscious that, given the outcome of the appeal, the parenting orders are to be set aside and the parenting proceedings will be re-heard by another judge. The outcome of that hearing may be different to her Honour’s decision. The primary judge declined to make the adjustment of 10 per cent in favour of the father, as sought by him, because the child would henceforth be living primarily with the mother and not him. Indeed part of the reason given for making an adjustment of 10 per cent in favour of the mother was that that she would have almost sole care of the child which would adversely impact upon her capacity to work (at [864]). That may not be the position after the re-hearing.
121.In short, the factual basis for the determination of this issue will now be re-considered and it would be unjust for the property settlement orders to stand in circumstances where a significant fact relevant to their determination is again in issue. The property settlement issues too will be remitted for re-hearing.
(Emphasis added)
The circumstances of this appeal are sufficiently similar to those considered by the Full Court in Langley, such that I consider it appropriate for that decision to be followed by me sitting as a single judge upon appeal.[54]
[54] Nguyen v Nguyen (1990) 169 CLR 245 at 269.
In the circumstances of this appeal, where the parenting orders will be revisited, I am satisfied that it would be unjust for the property settlement orders to stand. Accordingly, the property settlement orders will, subject to further argument by the parties, be either remitted for rehearing or, sitting as the Full Court, I re-exercise discretion pursuant to s 36 of the FCFCOA Act.
In circumstances where I have found merit in the submission by counsel for the mother, it has been unnecessary for me to consider Ground 5 of the appellant’s Further Amended Notice of Appeal filed 10 August 2023.
APPEAL NO 2: NAA 186 OF 2023 – COSTS
Appeal No 2 relates to the decision of the primary judge to award costs in favour of the father in the amount of $178,743 and also the order requiring the mother to pay the costs of the ICL which amounted to $18,115.
The grounds of appeal in this matter are set out in the mother’s Amended Notice of Appeal filed 10 August 2023, as follows:
1.In the event that the Appeal in proceedings number/Appeal No NAA92/2023/PAC4677 of 2016 succeeds in part or whole then the verdict upon which the cost order was made will no longer exist.
2.That the primary judge erred in failing to consider differently the parenting and property aspects of the proceedings and how costs ought be apportioned differently for each aspect.
3.That the primary judge erred by ordering costs against the mother for Court events and at times when the mother was unwell or had a case guardian.
4.That the primary judge erred by failing to give consideration to the real impact of the orders made upon both of the parties.
5.The primary judge erred by exercising the costs power punitively against the mother and or the primary judge erred by considering the costs issue primarily from the perspective of the Respondent.
(As per the original)
To his credit, senior counsel for the father acknowledged that if the substantive appeal succeeded, it would also be appropriate to set aside the costs orders made by the primary judge.[55]
[55] Respondent’s Summary of Argument (Appeal No 2: NAA 186 of 2023) filed 1 September 2023, paragraph 10.
Comparatively, counsel for the ICL contended that different considerations apply in assessing the costs incurred by the ICL and, therefore, the Court should not disturb the order of the primary judge requiring the appellant to pay the ICL’s costs.
In considering this issue, I acknowledge that there is a significant public interest consideration relevant to the determination as to whether the parties should pay the costs of the ICL irrespective of the outcome of the proceedings.[56] However, in circumstances where the issue of costs will now need to be reconsidered in the context of the party’s current financial circumstances, I consider that it would be unfair to leave the costs order of the ICL undisturbed.
[56] Nardini & Legal Aid NSW [2019] FamCA 340 at [22]–[23] citing CDJ v VAJ (No 2) (1998) 197 CLR 172 at [11] (Kirby J).
ORDERS AND FURTHER SUBMISSIONS
In the context of the extensive disputation that has occurred between these parties, it would be contrary to the best interests of the child to leave a vacuum in terms of parenting arrangements. Accordingly, the orders will be made for the parenting orders to be set aside as and from the matter next coming before the Court.
The property settlement orders, and the cost orders will, however, be set aside as and from the date of the published orders.
During the course of the appeal, all parties understandably expressed concerns regarding the length of time it has taken for these proceedings to be finalised and the extent of costs incurred by the parties. In that context, there was a discussion with counsel for the parties as to whether it would be possible for me sitting as a single judge on appeal to re-exercise discretion.
Whether that is reasonably practicable would seem to depend upon the prospect of the parties’ reaching agreement on the evidence that I would consider, and the extent to which the evidence updating the circumstances of the parties in the period subsequent to the conclusion of the hearing could be agreed upon.
Accordingly, as anticipated at the conclusion of the appeal, I will provide the parties with the opportunity to give further consideration to that issue and provide brief written submissions of no more than two pages in respect to the question of whether I should re-exercise discretion or remit the matter for rehearing before a judge other than the primary judge.
In circumstances where that opportunity was being provided to the parties, it was also considered appropriate to provide the parties of the opportunity to make brief written submissions in respect to the cost of the appeal having regard to this judgment. The orders will also include directions for that to occur.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for the Judgment of the Honourable Justice McClelland. Associate:
Dated: 22 November 2023
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