Edinger & Duy
[2023] FedCFamC1A 194
•10 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Edinger & Duy [2023] FedCFamC1A 194
Appeal from: Edinger & Duy (No 2) FedCFamC1F 450 Appeal number: NAA 165 of 2023 File number: PAC 4543 of 2020 Judgment of: ALDRIDGE, SCHONELL & CARTER JJ Date of judgment: 10 November 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final parenting orders providing for the child to live with the mother and spend no time with the father – Where the father alleges he was denied procedural fairness – Where the mother did not participate in the appeal – Whether the primary judge unnecessarily interrupted cross-examination – Whether the primary judge unfairly curtailed cross-examination – Whether the primary judge made findings of fact as to family violence which were unfounded and made unfairly – Whether there was a miscarriage of justice – Appeal allowed – Costs certificates issued for the father and Independent Children's Lawyer. Legislation: Family Law Act 1975 (Cth) Div 12A, Pt VII, ss 69ZN, 69ZX Cases cited: De Winter and De Winter (1979) FLC 90-605
Galea v Galea (1990) 19 NSWLR 263
Huda & Huda and Laham (2018) FLC 93-837; [2018] FamCAFC 85
Jones v National Coal Board [1957] 2 QB 55; [1957] EWCA Civ 3
Michel v The Queen [2010] 1 WLR 879; [2009] UKPC 41
R v T, WA (2014) 118 SASR 382; [2014] SASCFC 3
Royal GuardianMortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Yuill v Yuill [1945] P 15
Number of paragraphs: 103 Date of hearing: 28 September 2023 Place: Sydney Counsel for the Appellant: Mr Givney Solicitor for the Appellant: Maclarens Lawyers The Respondent: Litigant in person (did not participate) Counsel for the Independent Children's Lawyer: Mr Reeves Solicitor for the Independent Children's Lawyer: Philip A Wilkins & Associates ORDERS
NAA 165 of 2023
PAC 4543 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR EDINGER
Appellant
AND: MS DUY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALDRIDGE, SCHONELL & CARTER JJ
DATE OF ORDER:
10 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The orders made by the primary judge on 2 June 2023 are set aside.
3.The parenting proceedings be remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge.
4.The appellant is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in the appeal.
5.The Independent Children's Lawyer is granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children's Lawyer in respect of the costs incurred in the appeal.
6.The appellant and the Independent Children's Lawyer are granted costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant and the Independent Children's Lawyer in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party in relation to the new trial.
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 Edinger & Duy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, SCHONELL & CARTER JJ:
By Notice of Appeal filed 16 June 2023, the appellant father (“the father”) appeals from Orders 1, 2, 3, 5, 6, 7, 8 and 9 made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 2 June 2023. The parents have one child together who was born in 2015. The orders provide inter alia for the respondent mother (“the mother”) to have sole parental responsibility for the child; that the child live with the mother; and that the child spend no time with the father. The orders further provide that the mother is at liberty to remove the child from the Commonwealth of Australia for the purpose of a holiday, and enabled her to obtain a passport for the child without the father’s consent.
The mother took the child out of the Commonwealth of Australia in June 2023. She has not returned with the child.
The mother has taken no part in the appeal.
The mother’s solicitors filed a Notice of Ceasing to Act on 7 July 2023. All attempts to serve the mother with the Notice of Appeal have been unsuccessful. It is apparent from an affidavit of the father’s solicitor filed on 3 October 2023 that the mother (using her unique username and login identification) has accessed the Court portal and viewed the appeal documents, including the Notice of Appeal, the Summaries of Arguments, and the orders setting the matter down for appeal. In those circumstances, we are satisfied the mother was on notice of the appeal, and the hearing before us on 28 September 2023.
The Notice of Appeal sets out 12 grounds, some containing several sub-grounds. A number of the grounds do not properly identify an error or are difficult to follow. However, the primary challenge was that the father was denied procedural fairness arising from the manner in which the primary judge conducted the proceedings. That included assertions that the primary judge:
(a)unnecessarily interrupted cross-examination and engaged in excessive interference in the trial, causing a serious injustice;
(b)cross-examined the Family Report Writer and promoted the mother’s case to the expert; and
(c)unfairly limited cross-examination, in particular in relation to family violence, a topic which the primary judge found was highly material to her determination.
It was also submitted the primary judge made a number of findings of fact as to family violence which were absent foundation.
In addition, a number of grounds could be characterised as weight challenges.
For the reasons set out below, we are satisfied there has been a miscarriage of justice as a result of the manner in which the proceedings were conducted, and the appeal will be allowed. In those circumstances it is unnecessary for us to consider the additional grounds of appeal.
BACKGROUND
The parties married in 2012, and separated on 31 August 2020. There is one child of the marriage who was born in 2015. The mother had another child from a previous relationship who, it appears, resided on a permanent basis with the family.
Both parties deposed to serious family violence incidents from as far back as 2011, including allegations of choking and rape of the mother perpetrated by the father, and physical abuse inflicting wounds on the father perpetrated by the mother. The mother also asserted the father drank to excess. Each denies the other’s allegations. Both parties had Apprehended Domestic Violence Orders for their protection against the other for a period following their separation.
The father commenced proceedings in September 2020 seeking parenting orders. The mother’s response was that the child spend no time with the father. On 7 December 2020 interim orders were made for the child to spend supervised time with the father. The parties then had the benefit of a Child Inclusive Conference Memorandum. Subsequently, orders were made by consent on 4 February 2021 providing inter alia that the child live with the mother and spend alternate weekends, one weeknight in the intervening week, and time over the school holiday periods with the father.
Overnight visits commenced on 5 February 2021. It is the mother’s evidence that following the second occasion of overnight time, the child disclosed he witnessed sexual activity between the father and his girlfriend. A report was made by the mother to the Department of Communities and Justice on 12 February 2021. On 10 May 2021, the Department of Communities and Justice assessed that neither parent was a risk to the child.
It was the mother’s case that over the next two years, the child repeatedly made reports that he had witnessed sexual activity in the father’s home, that he was subjected to sexual abuse by the father’s girlfriend, and that he had been physically abused and neglected by his father and the paternal grandfather. The child’s reports resulted in the mother involving the police and the Department of Communities and Justice on multiple occasions. The child was subjected to repeated interviews and a physical examination. With the mother’s assistance, the child also contacted E Services on multiple occasions to complain about his father. The father also took thousands of photographs to document the child’s time in the father’s care.
When the matter commenced before the primary judge, the mother asserted the father presented an unacceptable risk to the child as a result of the physical, sexual abuse and/or neglect of the child experienced in the father’s home. The cross-examination during the trial centred on these allegations. However, at the conclusion of the hearing the mother conceded that the Court could not make a finding of unacceptable risk as a result of abuse or neglect in the father’s home.
Notwithstanding that concession, she maintained there should be no relationship between the child and the father. It was submitted on behalf of the mother that she understood there was insufficient evidence to form a basis for a finding that the father presented an unacceptable risk to the child. However, as a result of her lived experience of the father, she remained highly suspicious and vigilant, and continued to hold the view that the father did actually pose a risk to the child. Accordingly, it was her case that if the child continued to spend time with the father, it was likely she would continue to document and report the child’s complaints to the authorities. The child would then be subjected to repeated interviews – being the continuation of a pattern that had emerged in the years leading up to the final hearing.
The father and the Independent Children's Lawyer submitted the child was at an unacceptable risk of harm if he continued to live with the mother as a result of the mother’s firmly held – but misconceived – belief that the child was at risk in his father’s care. Those risks included that the mother could not support the child having a relationship with his father, that the child may be repeatedly subjected to interview and investigation, coached, or encouraged to make false statements about his father, and led to believe a false narrative about his father and the quality of his father’s care.
In the Family Report dated 1 February 2022, the Family Report Writer recommended that if the Court did not consider the child to be at risk in the father’s care, he live solely with the father for three months before being reintroduced to his mother. The Family Report Writer noted that such an arrangement, while it allowed for the continuation of the child’s relationship with his father, would mean a temporary cessation in his relationship with his mother and his half-sister, both of whom played pivotal roles as caregivers for the child.
However, following a lengthy cross-examination by the primary judge, the Family Report Writer changed her position – and said the least detrimental option was for the child to live with the mother and to not spend any time with the father.
In her reasons for judgment, the primary judge provided an extensive analysis of the allegations of family violence alleged by both parties. She concluded that the mother had been the victim of violence and abuse perpetrated by the father. The primary judge was satisfied the mother’s experiences of family violence in turn informed the mother’s views and attitudes towards the father and explained the mother’s concerns for the safety of the child in the father’s care. The primary judge also found that the mother had been encouraged by authorities and professionals to make repeated reports of abuse. The primary judge concluded that the least detrimental outcome for the child was to remain in the mother’s primary care and spend no time with the father.
THE APPEAL
That the father was denied procedural fairness
The father’s assertion that he was denied procedural fairness goes to the very issue of the integrity of the hearing. If successful, such a challenge mandates a rehearing. For that reason, such assertion must be dealt with first: see Royal GuardianMortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128.
Justice of Appeal Ward in Royal Guardian considered the case law regarding the respective roles of judge and counsel. The principles can be distilled relevantly to include:
(a)a judge who conducts a cross-examination will be less able to assess the evidence, and a witness who is being cross-examined by a judge will react differently than to cross-examination by counsel; per Lord Greene MR in Yuill v Yuill [1945] P 15 at 20;
(b)the judge’s role is to listen to the evidence, and only ask questions that are necessary for clarification or have been overlooked, and to otherwise exclude irrelevant evidence. The judge ought not assume the robes of an advocate; per Denning LJ in Jones v National Coal Board [1957] 2 QB 55 at 63–64;
(c)whether there has been excessive judicial intervention will depend on the context, number, and circumstances of the intervention. Interruption early in a witness’ evidence may be less readily excused than one later, and the judge must ensure the appearance of an impartial and unprejudiced mind; per Kirby A-CJ in Galea v Galea (1990) 19 NSWLR 263 at 281–282;
(d)excessive judicial intervention will give rise to a miscarriage of the trial if the questioning unfairly undermines the proper presentation of a party’s case, or is such an egregious departure from the judge’s role that it unduly compromises the judge’s advantage of being able to objectively evaluate the evidence; per Kourakis CJ in R v T, WA (2014) 118 SASR 382 at [38]; and
(e)it is a “core principle” of the adversarial system that “the judge remains aloof from the fray and neutral during the elicitation of the evidence”; per Lord Brown in Michel v The Queen [2010] 1 WLR 879 at [31].
The impugned interventions that found the denial of procedural fairness ground can be categorised as:
(a)excessive judicial intervention;
(b)curtailment of cross-examination in relation to family violence (which the primary judge subsequently determined to be a crucial part of the evidence); and
(c)the manner in which the primary judge cross examined the Family Report Writer.
(a) Excessive judicial intervention
Challenges to judgments based on the complaint of excessive judicial intervention are never easy to evaluate, and require the consideration of the whole of the transcript and the reasons: Royal Guardian; Huda & Huda and Laham (2018) FLC 93-837.
It was submitted that the proceedings were “characterised by the regular … interference by the Trial Judge” and that the transcript demonstrated few pages where the primary judge did not correct counsel or a witness, disallow a question, interrupt cross-examination, or raise an issue with counsel (appellant’s Amended Summary of Argument filed 27 September 2023, paragraph 12).
In addressing this submission, it needs to be observed that a number of interventions (directing the witness to answer the question, seeking clarification as to the question being asked, the answer given, or the document being referred to) were entirely proper. They form part of the judge’s role to ensure that evidence flows in an orderly fashion, that questions are properly put and that the Court understands the evidence as it is given.
Further, the principles for conducting child-related proceedings are set out in Division 12A of Part VII of the Family Law Act 1975 (Cth). They include “that the court is to actively direct, control and manage the conduct of the proceedings”: s 69ZN(4). Section 69ZX sets out the court’s general duties and powers relating to evidence. Those duties and powers include that the court may “ask questions of, and seek evidence … from parties, witnesses and experts on matters relevant to the proceedings”: s 69ZX(1)(e).
That said, we are satisfied in this hearing there was a significant departure from that permitted for proper trial management such as to give rise to a miscarriage of justice. The interventions were excessive, including needlessly interrupting the flow of the evidence and cross-examination of witnesses. Interventions are found in the vast majority of pages of the transcript. They were frequent. Many of those interventions were lengthy, with the primary judge putting multiple questions to witnesses that went well beyond clarification.
For example, the cross-examination of the mother by counsel for the father is recorded over 255 pages of transcript. There were just 38 of 255 pages during which the primary judge did not interrupt or ask a question herself.
We accept the submission made by counsel for the father that such frequent judicial interventions can be disruptive to the flow of cross-examination – with counsel having to adapt and respond to the questions posed, determine whether to change track and investigate the matter identified by the court, and then to try to return to the topic of counsel’s choice.
There were multiple occasions when the primary judge took over the cross-examination of the mother. For instance:
(a)on the first day of the mother’s cross examination over five pages (commencing at Transcript 1 March 2023, p.205), the primary judge asked the mother multiple questions about the child’s attendance upon medical professionals and whether he was diagnosed with [a medical condition]. All questions posed to the mother were asked by the primary judge;
(b)over a further four pages (commencing at Transcript 1 March 2023, p.215), the primary judge asked the mother about her interviews of the child. She put to the mother that the mother believed she was encouraged to interview the child and record him, a proposition with which the witness agreed. She also asked the mother if she thought she was doing the right thing because she had been encouraged to conduct the interviews. Again, the mother agreed with that proposition. That the mother believed she was encouraged to conduct interviews and continue to report the allegations of abuse was a central finding of her Honour’s. All questions posed throughout those pages of transcript were asked by the primary judge;
(c)over another five pages (commencing at Transcript 1 March 2023, p.229), the primary judge asked questions related to whether the child had witnessed sexual acts at the father’s home;
(d)over another four pages (commencing at Transcript 1 March 2023, p.265), the primary judge questioned the mother about recordings she made of her questioning of the child;
(e)over another four pages (commencing at Transcript 1 March 2023, p.277), the primary judge questioned the mother about her belief as to what the child was reporting. On this issue, counsel for the father asked two questions and all other questions were posed by the primary judge;
(f)commencing at Transcript 1 March 2023, p.302, the primary judge also asked the mother about awareness of child sexual abuse in the mother’s country of origin. In the absence of the witness, counsel for the father objected on the basis that the mother had not raised cultural naivety as an explanation for her beliefs. The primary judge said she regarded her question as being of assistance to her and continued to ask the mother over another two pages of transcript during which period counsel for the father asked just one question; and
(g)on the second day of cross-examination over four pages (commencing at Transcript 2 March 2023, p.34), the primary judge asked the mother about the child’s counselling and asked how the counsellors ‘coach’ the mother to help the child. Furthermore, for over six pages (commencing at Transcript 2 March 2023, p.61), the primary judge asked the mother about the mother’s understanding of how the police and the Department of Communities and Justice regarded her reports, and how she felt encouraged by the authorities to continue to make such reports. As observed, it was a central finding by the primary judge that the mother believed she was encouraged to conduct interviews and continue to report the allegations of abuse. All questions posed throughout those pages of transcript were asked by the primary judge.
The primary judge cannot be said to have remained aloof from the fray, nor neutral during the elicitation of the mother’s evidence.
(b) Curtailment of cross-examination on family violence
The father submitted the primary judge denied counsel the opportunity to test the mother in any meaningful way on her allegations of family violence. He said in the circumstances, it was unfair for the primary judge to have made the findings she did in relation to family violence.
During cross-examination of the father, and just before lunch on the first day of hearing, the primary judge indicated that whilst the matter had been set down for five days, it could probably be contained to three days. She said, “all counsel will have to think about their questions and things that are actually going to help me” (Transcript 27 February 2023, p.61 lines 38–39). The matter resumed after lunch at 2.20 pm. Not long thereafter, the primary judge raised with counsel again that the matter could be contained within four days. She said if she had to, she would direct cross-examinations be curtailed, but that would not be necessary if cross-examination focussed on matters that would assist her Honour (Transcript 27 February 2023, p.64 lines 6–8). At no time did the primary judge indicate what those matters might be.
Shortly thereafter, the primary judge interrupted cross-examination of the father saying that counsel’s questions were “consuming time”. She again said the matter should be contained to three or four days (Transcript 27 February 2023, p.75 lines 15–17).
Later, and whilst the father was still being questioned about family violence and his asserted emotional dysregulation, the primary judge interjected and said it was now 3.20 pm, and indicated she regarded the matters being put (from 2019 and 2020) as historical. She said, “I am going to place limits on the cross-examination because I think that it can be contained” (Transcript 27 February 2023, p.84 lines 23–24). Again, she did not indicate the general topics that would be of assistance to her.
As to the cross-examination of the mother on the topic of family violence, the reasons record as follows:
54.In the father’s written submissions, it is also asserted that there was insufficient time available to explore the incidents of violence with the mother under cross-examination. The transcript of the proceedings reveals that the father’s counsel cross-examined the mother extensively for almost two days. The father’s counsel was not ever curtailed in his cross-examination of the mother and it was entirely a matter for him to determine the appropriate topics for cross-examination. Towards the end of his cross-examination when additional time was given (beyond the estimates given for its completion), the father’s counsel suggested that he was being curtailed in relation to the cross-examination concerning family violence. I took issue with this suggestion at the time and allowed the father’s counsel further time. During that additional time other topics were explored and the topic of family violence was only touched upon to some extent. I do not accept the assertion that there was insufficient time available to explore the incidents of family violence with the mother under cross-examination as argued on behalf of the father.
The accuracy of the primary judge’s conclusions are the subject of challenge.
Counsel for the father commenced his cross-examination of the mother on 1 March 2023. He cross-examined for just under an hour before the morning break and then for another hour before lunch.
Counsel’s cross-examination of the mother during that time was not without interruption. As already set out, the transcript revealed there were stretches where the primary judge asked the bulk of the questions of the witness. There were other times when the primary judge engaged in discussion with counsel (see Transcript 1 March 2023, p.224–225, 234–239 and 246–248).
In the afternoon, Court resumed at 2.21 pm. The mother’s cross-examination did not recommence immediately and concluded at 4.33 pm. Again, during that two hours and 12 minutes of available time, there were periods the primary judge asked most of the questions of the witness and engaged in discussion with counsel (see Transcript 1 March 2023, p.272–273, 319–322). The witness was also briefly absent from the court room on occasion during those periods.
On 2 March 2023, counsel for the father cross-examined for 48 minutes before the morning break (with the mother’s evidence commencing at 10.48 am that day and going until 11.36 am), 42 minutes before another break in the evidence, and another 19 minutes prior to lunch.
Similarly, that cross-examination was interrupted at times by discussions with counsel (see Transcript 2 March 2023, p.6–7, 11–14, 29–30 and 68–81) and by periods where the primary judge asked the bulk of questions of the witness.
The primary judge first raised her concern about the time being taken by counsel’s cross-examination of the mother shortly before lunch on 2 March 2023. At that time the primary judge asked how much longer counsel would be. Counsel said he would do his best to finish in 30 minutes (Transcript 2 March 2023, p.70 lines 38–40).
Cross-examination resumed at 2.20 pm. Counsel for the father cross-examined the mother for about 17 minutes, before another break in the evidence, and then another eight minutes before the primary judge again interjected and said she was concerned that it was 2.50 pm (Transcript 2 March 2023, p.99 line 44). About ten minutes later, at 3.00 pm, which was very shortly after counsel commenced cross-examination on the topic of family violence, she stopped him again. She said counsel had been “going all day”, and she could only give him “a few more minutes” to conclude his cross-examination (Transcript 2 March 2023, p.102 lines 7, 11 and 13).
At that stage, counsel had cross examined for just short of two and a half hours on 2 March 2023. As already set out, there were numerous interventions by the primary judge during the cross-examination.
Counsel asked if family violence was going to be “a big-ticket item” (Transcript 2 March 2023, p.102 lines 24–25). He said if it was not, he would not pursue the line of questioning. The primary judge said family violence was of course significant, but that he had previously indicated he would be 20 minutes more “a long time ago” and that he was “just going to have to finish” (Transcript 2 March 2023, p.102 lines 35 and 39). The primary judge observed that counsel had made decisions about how the case was run. At that time, counsel had only cross-examined for about 40 minutes since he said he would do his best to finish in 30 minutes.
The primary judge permitted counsel to continue. However, she promptly took issue with the way counsel phrased a question, and then told him “you have five more minutes” (Transcript 2 March 2023, p.103 line 35). Counsel responded that he would not be able to finish his cross-examination of the mother in such a short time, given the significance of the topic and sought to put further questions, about the mother’s own derogatory communication with the father, and to show the witness various photographs of the injuries the father said the mother caused to him. Apparently, those photos appeared to be difficult to locate as a result of pages not being properly paginated. The primary judge was critical of what appeared to be some disorganisation by counsel for the father. She reminded him that he gave an estimate, to which he had not kept; that she had given him five minutes, which he said would be insufficient; and that she had then allowed another 10 minutes (Transcript 2 March 2023, p.110 lines 34–45).
Counsel said he was moving as quickly as he could. Her Honour said “[w]ell, how much longer do you think – it’s – it’s quarter past 3”. Counsel said he would just put the photos to the witness. Her Honour asked again “[h]ow much longer will you be?”. He said he would put the photos to the witness and would then sit down (Transcript 2 March 2023, p.111 lines 1–12). The mother was shown the photos, and was also asked about the father’s email to her and a statement to police in which he complained about her assaulting him. Not long after, counsel for the father concluded his cross-examination.
Section 69ZX(2)(d) of the Act sets out that the court’s general duties and powers relating to evidence includes permitting the court to give directions limiting the time for the giving of evidence. That must however be tempered by the primary duty of a judge, namely to ensure a fair hearing – which will be undermined by arbitrary time limits or unreasonable restrictions that, as here, compromise the integrity of the hearing.
In our view, it was procedurally unfair and unreasonable for counsel to be given effectively a five minute warning when a significant part of the evidence regarding family violence had not yet been put to the witness. That is particularly problematic in circumstances where it is readily apparent from the reasons that the mother’s experiences of family violence were central to the Court’s determination.
Moreover, in her reasons, the primary judge identified the lack of cross-examination on many aspects of the mother’s allegations regarding family violence as relevant to her fact-finding process. It was not a topic that counsel overlooked or made a forensic decision not to cover in cross-examination. It was a matter identified by the primary judge in her reasons as being of fundamental importance. Yet she permitted only about 20 minutes in total for counsel for the father to complete his cross-examination on the topic – during which time the primary judge continued to interrupt counsel.
It is plain from the transcript that at no time earlier in his cross-examination of the mother did the primary judge express to counsel that she would be assisted by a testing of the evidence relating to family violence. Nor did she indicate that the topics that counsel did cover were not helpful to her.
(c) Cross–examination of the Family Report Writer
It is not the role of a judge to descend into the arena, act as an advocate of a party or to cross-examine witnesses. Lord Brown in Michel v The Queen observed that a primary judge “must not cross–examine witnesses, especially not during evidence in chief” (at [34]). Here, unfortunately, her Honour did so.
It had been anticipated by the primary judge that the Family Report Writer would have had the benefit of the transcript, and thus be aware of the evidence that had been adduced. However, the transcript was not obtained. Immediately after the Family Report Writer was sworn in, the primary judge commenced questioning the expert. She took it upon herself to inform the Family Report Writer about additional information that had been adduced during the final hearing. The matters which the primary judge raised were that:
(a)the father had taken thousands of photographs when the child was in his care, including of the child’s food. The mother had also photographed and documented any alleged injury or mark on the child;
(b)the parents had not yet resolved their property dispute; and
(c)the mother remained concerned about the child being abused in the father’s care and that she had presented the child to doctors and that the child was receiving counselling for trauma said to have arisen from abuse.
The primary judge then said she would inform the Family Report Writer as to further evidence given by the mother, prefacing her comments with an acknowledgment that she may not necessarily accept such evidence. That evidence included:
(a)the mother’s assertion that child sexual abuse was not discussed in the same way in her country of origin, and that the mother had no experience with allegations of child sexual abuse until the child made the first complaint;
(b)that following the child’s statements, the mother was assisted by her case worker and counsellor to understand that the child was reporting sexual abuse. Over the years, a number of agencies had reinforced that advice to her, and encouraged her to continue to report every time the child disclosed sexual abuse, and she had reported those complaints in reliance on that advice;
(c)that the child received counselling organised by the Department of Communities and Justice for trauma arising from sexual abuse – which was expressed by the primary judge to be a matter beyond dispute; and
(d)that the mother said she believed the child has been abused in the father’s home.
Importantly, later evidence revealed the child was not receiving counselling for trauma arising from sexual abuse.
It is difficult to know why the primary judge chose to raise these issues at the outset of the expert’s evidence and before cross-examination by the parties. It is an unusual practice, and one we do not endorse. It is part of the role of the Independent Children's Lawyer to put matters to the expert by way of update. We note further that the concept of the mother being naïve about child sexual abuse, and that she was encouraged to report the complaints were matters about which the primary judge had asked the mother multiple questions.
The father’s counsel objected at that point. In the absence of the Family Report Writer, the father’s counsel said it was unfair for the primary judge to effective only put the mother’s case to the expert. Her Honour did not agree, emphasising she had repeatedly said to the witness that the Court had not determined whether to accept the evidence.
In the course of hearing counsel’s objection, the primary judge properly categorised that which she was not to do as follows:
[COUNSEL FOR THE FATHER]: - - - in my submission, the effect of what you’ve put to the witness is leading.
HER HONOUR: It is leading. It’s cross-examination.
[COUNSEL FOR THE FATHER]: Well, your Honour - - -
HER HONOUR: I’m telling her – what have I put that’s inaccurate, Mr – this is – it is a serious allegation, [counsel for the father]. It is a serious allegation that you make about the conduct of the proceedings. Do you have an application?
[COUNSEL FOR THE FATHER]: No. Of course I don’t.
HER HONOUR: Right. All right. Well, if you don’t have an application, are you suggesting – are you – you’re not – you are suggesting that asking these questions – by putting to her what the evidence is, and saying, “If the court accepts it” is unfair. Is that right?
[COUNSEL FOR THE FATHER]: Yes. Well, the obvious answer to your Honour’s question is yes, and it’s coming from a judge. That’s the problem, your Honour.
(Transcript 3 March 2023, p.37 line 46 to p.38 line 17)
When the Family Report Writer returned, the primary judge reiterated that the Court may not accept the mother’s evidence. The primary judge then embarked on a series of questions that ultimately resulted in the Family Report Writer altering her recommendation.
It is important to note the explanation to the Family Report Writer and the matters the primary judge put to her were lengthy and contained multiple propositions and commentary. It was at times unclear what the witness was being asked to comment upon. It was also clear from the responses of the Family Report Writer that she, too, was unsure what she was being asked. That much is plain from the exchange between the primary judge and the Family Report Writer at Transcript 3 March 2023, p.39 line 7 to p.48 line 41.
After putting further propositions to the Family Report Writer, the primary judge asked her whether – if the Court accepted the mother’s evidence – her analysis would alter. The Family Report Writer referred to various support services tending to approach issues through their specialised lens. However, the primary judge said she was not asking about that, and after further discussion with the witness, again directed the expert to provide a view on whether – if the mother was acting on advice, and in good faith – that made a difference to her recommendations (Transcript 3 March 2023, p.40 lines 25–44).
The Family Report Writer responded that the effect on the child as a result of the reporting of multiple false allegations – was still the same, whatever the mother’s motivation.
The primary judge asked again:
…but in terms of what’s best for [the child] … Is there a difference between a parent who maliciously, and not sincerely, goes out to pursue and continue to harm a child … through this allegation …. and a parent who is – if I were to find that it were the case … genuine and sincere … and also encouraged by authorities …
(Transcript 3 March 2023, p.41 lines 8–19)
The Family Report Writer expressed her view that it was hard to believe the mother had been so encouraged. The primary judge responded that was a matter for the Court, but if the Court did accept the mother’s evidence, and accepted the mother was sincere in her belief she was being encouraged to make the reports, the primary judge asked the Family Report Writer a third time whether she would stand by her recommendation (Transcript p.560). At that point, the Family Report Writer said, “if I can sit on the fence, I would” (Transcript 3 March 2023, p.42 lines 11–12).
The primary judge continued to question the Family Report Writer, putting to her that essentially if time occurs between the father and the child, the mother’s behaviour of reporting abuse will not end. Ultimately, the primary judge asked the witness “[a]re you able to express a view about what would be the least detrimental to [the child]? Do you agree it’s in the least detrimental category?” (Transcript 3 March 2023, p.43 lines 23–24). The Family Report Writer responded that she did not think the mother was otherwise a bad parent, and that:
I suppose I would fall on the side of the least detrimental perhaps is living with his mother and having nothing to do with his father, but I think that’s also highly detrimental to [the child].
(Transcript 3 March 2023, p.43 lines 27–29)
That was effectively the fourth time the primary judge had pressed the Family Report Writer as to whether she stood by the recommendations made in the Family Report. It was, in our view, a somewhat equivocal view arrived at after being repeatedly pressed by the primary judge as to whether her recommendations had altered.
The primary judge continued to ask the Family Report Writer a number of questions, before returning again to put to the expert as follows:
[HER HONOUR]: Now, I just want to have this absolutely clear so I understand it. You – you see this case as one that is about least detriment?
[THE FAMILY REPORT WRITER]: Yes.
(Transcript 3 March 2023, p.46 lines 18–19)
At that point, the Family Report Writer reversed her recommendations after being asked a series of questions put to her solely by the primary judge, in which the Family Report Writer was repeatedly asked whether her recommendation had changed in response to the matters that were so put.
As observed by Basten JA in Royal Guardian:
19.…pressure from the judge (even if not consciously applied) may result in a witness making concessions which would otherwise not have been made. Whether or not the concession was justified in a particular case will not readily be assessable, especially by the judge who obtained it. Most people will seek, to some degree, if not to ingratiate themselves with, at least to avoid antagonising, the person in authority with the power to determine the fate of their litigation.
We cannot discount the risk that the concession made by the Family Report Writer was a consequence of the primary judge’s questions which put inappropriate pressure on the expert. As a result, the integrity of the expert’s evidence was impugned, and consequently, the entire process.
We agree with the submission of the Independent Children's Lawyer that subsequently allowing counsel for the father and for the Independent Children's Lawyer to advance their cases, or seek the witness agree with alternate propositions could not undo that already done.
Further, the primary judge accepted and gave great weight to this aspect of the expert’s evidence. By becoming involved as she did, it would have been difficult for the primary judge to objectively assess the expert’s evidence. This was precisely the concern referred to by Ward JA in Royal Guardian, where a judicial officer becomes so involved that they have:
168.… lost the advantage of judicial detachment which he or she would otherwise have enjoyed as a judge adhering to the common law adversarial method of trial.
That findings of fact made by the primary judge regarding family violence were made unfairly and without foundation
We agree with the submissions by counsel for the father that a number of material findings the primary judge made regarding family violence were not open to her on the evidence. Whilst the judgment on its face included a careful consideration of the evidence regarding family violence, it is infected with errors and inaccuracies.
How the primary judge dealt with the mother’s allegations of choking
At [184] of the reasons, the primary judge stated she considered it to be particularly significant that the father did not “grapple in his trial affidavit” with the mother’s allegations that he choked or attempted to choke her on two occasions in November 2018, and July 2019.
The trial directions required the parties’ trial affidavits to be filed simultaneously. In fact, the mother’s trial affidavit was filed on 3 November 2022, the day after the father had filed his trial affidavit. In those circumstances, it is difficult to understand the criticisms that the father did not “grapple” in his trial affidavit with the allegations made by the mother in her trial affidavit.
What the father does address at paragraph 170(g) of his affidavit is the mother’s allegations in her Notice of Risk filed 3 February 2021. At [185] the primary judge referred to this paragraph and concluded the father did not deny or address the mother’s claim of choking. This finding is erroneous: in his affidavit the father did deny the allegation that he choked the mother in July 2019. He deposed that “[n]o such incident occurred then or ever” (appellant’s affidavit filed 4 November 2022, paragraph 170(g)).
The particulars of the incident in July 2019 were put to the father during cross-examination. He said he did not do as asserted, that “[a]bsolutely not” and “[n]one of that happened” (Transcript 27 February 2023, p.83 lines 10, 13 and 21).
In his affidavit the father did not specifically deny choking the mother during the November 2018 incident. However, he deposed to a very different set of events that took place that evening, including that the mother attacked him from behind whilst the parties were outside the house, causing him to fall over, and that she then punched and bit him. There is no suggestion in his version that he put his hands on the mother in any manner.
The particulars of the November 2018 incident in which it was asserted he choked the mother were put to the father. When asked if it had happened, he responded “no and never” (Transcript 27 February 2023, p.78 lines 5–6).
The father similarly denied all allegations of violence when interviewed by the Family Report Writer.
The primary judge noted at [96] and [185] of her reasons that the mother was not challenged about her version of these “very serious allegations” (at [185]) – being the incidents in which she alleged she was choked by the father. Nor was it put to the mother that they were untrue. As already noted, the primary judge curtailed cross-examination by the father’s counsel in relation to family violence.
The primary judge’s conclusion that the father had not grappled in his trial affidavit with the two incidents of alleged choking – which she found to be of particular significance – was not available. Her reliance on the failure by counsel to cross-examine the mother as being supportive of a positive finding that the events occurred was also unfair in circumstances where cross examination on the topic was limited by the primary judge.
How the primary judge dealt with the mother’s sexual assault allegations
At [186] of the reasons, the primary judge was similarly critical that the father did not deny in his evidence what she described as the mother’s other “very serious allegation” that he sexually assaulted her on two occasions.
Counsel for the father confirmed these allegations did not form part of the mother’s narrative in any earlier affidavit. Nor was there any such assertion in her Notice of Risk filed on 3 February 2021, nor was it reported to the Family Report Writer. Rather, the first time the mother asserted the father had sexually assaulted her was in her trial affidavit.
In circumstances where the father was not on notice of the allegations, it is difficult to understand how the father could be criticised for not engaging with them in his trial affidavit. Despite the seriousness of the allegations, they were never put to the father in cross-examination.
At [63] of her reasons, the primary judge observed that the mother was not challenged about her assertion of sexual assault in 2011. At [71] of her reasons, she similarly observed the mother was not asked about a sexual assault she said occurred in 2012. As already noted, the father’s counsel was curtailed in his cross-examination of the mother.
The primary judge’s findings as to credibility
The primary judge’s conclusion that the father had subjected the mother to family violence was pivotal to her determination. She came to that conclusion on the basis of her assessment of the parties’ credibility, finding that she preferred the mother’s evidence over that of the father’s in relation to all allegations of family violence.
At [188] of the reasons, the primary judge asserted the first basis upon which she regarded the mother’s evidence as to family violence preferable to the father’s was that:
188.… the mother’s account of the various incidents is generally consistent within her affidavit itself and with the evidence she gave under cross-examination and when reporting upon these matters to the expert.
With respect we do not understand how the primary judge could come to this conclusion at least in relation to the allegations of sexual assault. First, it is unclear what is meant by “generally consistent within her affidavit”. Secondly, the mother was never cross-examined about the sexual assault allegations – as already observed by her Honour. Nor was she cross-examined about any family violence perpetrated on her by the father either by counsel for the father or for the Independent Children's Lawyer. It is simply erroneous to conclude that the mother’s affidavit was consistent with the evidence she gave under cross-examination, where there was no cross-examination about the allegations. Similarly, it is erroneous to conclude the mother’s evidence was consistent with what was reported to the expert where the sexual assault allegations were not recorded.
Presumably, by putting this as the first basis for preferring the mother’s evidence, the primary judge put considerable weight on this.
In coming to her conclusions as to the parties’ credibility, the primary judge made a further erroneous finding of fact regarding the father’s lost passport.
The father lost his passport in early 2016. Believing he had inadvertently left it in a taxi, he made a declaration in February 2016 to that effect.
It was the father’s evidence that his driver subsequently told him that he had witnessed the mother throwing a bag containing his passport into the river.
The primary judge concluded the father’s different explanations for the disappearance of his passport was an inconsistency in the father’s evidence to which she attached “particular weight”, at [202], in determining the parties’ credibility. At [203] of the reasons the primary judge said she regarded the declaration as likely to be a correct account of the circumstances in which the passport was lost. She said this was consistent with the mother’s version of events, and inconsistent with the father’s evidence that the mother had thrown the passport into a river.
In coming to that conclusion, the primary judge overlooked the father’s affidavit in which he deposed he had believed he had lost his passport, and completed the declaration seeking a replacement prior to being told by his driver that the mother had been seen throwing the bag with the passport into the river. That is, the father’s evidence was not inconsistent, given the chronology to which he deposed.
It was never put to the father that his evidence was untruthful, or that the declaration he made was knowingly false.
In those circumstances, it was not open to the primary judge to reach the conclusion that the father’s evidence was inconsistent with the declaration.
In our view, the primary judge’s determination as to the credibility of the father was infected by her erroneous findings in relation to the allegations of sexual abuse, and her finding of inconsistency between the father’s evidence and the declaration. These were material errors, upon which the primary judge placed considerable reliance in finding the father to be an unreliable witness: De Winter and De Winter (1979) FLC 90-605.
CONCLUSION
It is clear that the transcript revealed a tendency on the part of the primary judge to intervene. Those interventions went well beyond clarifying ambiguities or misunderstanding. They were not interventions towards the end of a witness’ evidence to ensure better comprehension. Whilst many of the interventions were to assist the primary judge to better understand the evidence, there can be no doubt that at times, the primary judge “descended into the arena and adopted the mantle of advocate”: per Ward JA in Royal Guardian at [219]. This went well beyond acceptable active case management. It deprived the parties of the opportunity to have their case heard as expected in the adversarial system; by a judge who would remain above the dispute. That the primary judge relied on the recommendation made by the Family Report Writer which arose following prolonged questioning by the primary judge was also procedurally unfair, as was her Honour’s containment of the cross-examination of the mother on the topic of family violence.
Indeed, the findings about family violence were not properly made for a myriad of reasons, including that the findings about credibility were without foundation. These were material errors, as the findings regarding credit and family violence were central to the primary judge’s determination.
Accordingly, the appeal must be allowed, and the matter remitted for hearing before a judge other than the primary judge.
COSTS
Given the appeal has been allowed on the basis that there has been a miscarriage of justice, it is appropriate the Court grants the father and the Independent Children's Lawyer costs certificates.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Schonell and Carter. Associate:
Dated: 10 November 2023
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