KMB & PRL

[2005] FamCA 1202

[2005] FamCA 1202

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA
AT MELBOURNE

Appeal No. SA 6 of 2004
  File No. MLF 8035 of 1996

IN THE MATTER OF:

KMB

Appellant Mother

AND

PRL

Respondent Father

AND

Child Representative

REASONS FOR JUDGMENT OF THE FULL COURT

Coram:  Kay, Holden & May JJ
Date of Hearing:                 22 June 2005
Date of Judgment:             14 December 2005

Appearances:

Mr North of Senior Counsel with Mr Cronin (instructed by Coadys) appeared on behalf of the appellant mother

Mr Glover of Counsel (instructed by Ingpen & Bent) appeared on behalf of the respondent father

Ms Agresta of Counsel (instructed by Victoria Legal Aid) appeared on behalf of the child representative

APPEAL SUMMARY

MATTER:  KMB and PRL
APPEAL NUMBER:  SA 6 of 2004(MLF 8035 of 1996)
CORAM:  Kay, Holden and May JJ
DATE OF HEARING:  22 June 2005
DATE OF JUDGMENT:                 14 December 2005

CATCHWORDS:                 

FAMILY LAW – APPEALS – CHILDREN – RESIDENCE – Bias of trial Judge during the trial – Parent Alienation – Orders change the residence in favour of the father – Previous non-compliance – Effect of orders against the wishes of the child – Orders further restrict contact with mother and maternal sibling and grandparents with gradual reintroduction of contact – Full Court held trial Judge failed to consider the effects of a change in residence upon the child – Appeal allowed and matter remitted for rehearing.

CASELAW CITED:

AMS v AIF (1999) 199 CLR 160

Firth and Firth (1988) FLC 91-971

Galea v Galea (1990) 19 NSWLR 263

House v The King (1936) 55 CLR 499

Johnson v Johnson (No 3) (2000) FLC 93-041

Jones v National Coal Board [1957] 2 All ER 155

M and M (1988) FLC 91-979

Sampson and Sampson (1977) FLC 90-253

Re Z (1996) FLC 92-694

Appeal allowed
New trial ordered and written submission on the costs of the appeal sought.

INTRODUCTION1.   

1.This is the mother’s appeal against orders made by Guest J on 27 January 2005 providing that the parties nine year old son reside with his father and have limited contact with his mother until August 2005, when a further review of the contact orders was to take place. The effect of the residence order was to change the situation that had prevailed for the entirety of the child’s life namely that he had resided with his mother.

2.By a Notice of Appeal the mother seeks orders that the child reside with her and the father have regular contact with the child both on alternate weekends and during school holidays. 

3.The operation of Guest J’s orders have been stayed, in accordance with orders made by him on 27 January 2005, pending the outcome of this appeal.

BACKGROUND FACTS2.   

4.The child is now 10. His parents had lived together from June 1992 until February 1994 and continued a sexual relationship until shortly after he was conceived in September 1994. 

5.In May 1996 the father filed an application seeking orders for contact which he subsequently amended to an application seeking residence. In September 1998 Faulks DCJ made consent orders providing that the child reside with the mother and the father have contact each alternate weekend from 10am Saturday to 10am Sunday and overnight on each alternate Wednesday.

6.In December 1999 the father sought to vary the contact arrangements so that it occur each alternate weekend from Wednesday evening until Sunday evening. In February 2000 he filed a further application seeking residence.  The mother’s response was to seek a suspension of contact.

7.By June 2000 orders were made by consent providing that contact occur alternate weekends between noon Friday and 4pm Saturday. 

8.In February 2001 the father agreed to withdraw his application for residence and orders were made by consent that provided for contact alternate weekends from 6.30pm Friday until 5.30pm Sunday.  The implementation of the contact orders proved to be fraught with difficulty and by May 2002 contact effectively ceased with the child apparently saying that he did not want to have anything to do with the father.  A series of contravention applications were commenced. 

9.In August 2002 an order was made for the preparation of a family report for the purpose of obtaining recommendations as to contact changeover difficulties. 

10.In May 2003 a child representative was appointed and the father’s contact was formally suspended.  Eventually further family reports were ordered and the trial before Guest J commenced on 18 November 2004.

11.The hearing occupied some ten sitting days in November 2004 and January 2005 with orders being made on 24 January 2005. 

12.It seems there has effectively been no contact at all between the father and child since May 2002 other than for the purposes of the preparation of various reports which were relied upon in the course of the trial.

13.The child lives with his mother and his maternal half sister who is now approximately three and a half years old.

THE TRIAL JUDGE’S REASONS3.   

14.At the commencement of his reasons for judgment Guest J defined the issues as follows:

2.It is the father's fear, that without a residence order in his favour, he will never see his son again, so strong is the manipulating influence of the mother. He claims that from a once happy, but hard-won relationship and despite the mother's oppositional conduct the current position has become painfully clear, namely, that [the child] does not want to see him at all.

3.The mother, for her part, protests by asserting that the court should listen to [the child’s] wishes. She expressed frustration at “eight years of constant litigation”, associated financial detriment and collateral strain on her family's equilibrium. She refutes that any degree of responsibility for [the child’s] attitude and wishes may be sourced from her conduct or actions. It is her view that the father, by his application, is “playing” with [the child’s] life and that any change of residence was nothing short of “abusive”. She maintained that the father was “focused on litigation” whereas his focus should have been directed to [the child].

4.It is within that background that Ms […], a [forensic] psychologist, addressed her attention to the competing issues for my determination.  There were three alternative positions available.  Firstly, ceasing all contact between [the child] and his father, which was likely to be the most convenient option but was not an option that she supported.  She said that such an option was likely to leave [the child] with long-term psychological problems that could not be guaranteed to be resolved by an absence of the father in the child’s life.

5.Her second alternative position was that continued attempts to establish a contact relationship between [the child] and his father was likely to be difficult, with small chance of success. [The forensic psychologist] doubted that the mother would ever be able to set aside her own emotional needs to support a relationship between the child and his father. Thirdly, that any change in residency with [the child] residing with his father was likely to be traumatising for him, adding to his difficulties in the short and perhaps the long-term, rather than ameliorating them. 

15.The reasons for judgment contain 431 paragraphs set out over 160 pages.  They painstakingly described the evidence of each of the witnesses relied upon and draw strong conclusions relating to the credit of those witnesses. It was conceded by Senior counsel appearing on behalf of the mother at the appeal, that the conclusions were open to the trial Judge on the evidence before him and could not be successfully challenged on appeal. 

16.The trial Judge said of the father:

28.I observed the father carefully in the giving of his evidence and I was left with the clear impression that he earnestly responded to the many questions put to him. He was polite, direct and respectful. There was no circumstance of substance arising in the course of his evidence that contradicted earlier depositions and I have every confidence in him as a witness of truth. A number of his answers demonstrated considerable insight on his part into very complex issues. In the result, I found him to be a thoughtful person, sensitive to the emotional issues placed before the court and clearly capable of making decisions in the best interests of [the child].

17.The father has three other children who were born during the course of his relationship with his then partner. They are aged 6, 3 and 8 months of age, as at the date of trial. The father and his partner separated in April 2003.

18.His Honour was clearly impressed with the evidence of the father’s ex-partner. 

19.He then turned to the mother’s evidence and indicated as follows:

99.In coming to my determination I have regard to the mother's affidavit of evidence-in-chief and her oral evidence before me. I was far from impressed with her evidence and there were many aspects that were of considerable concern to me.

100.The mother is an intelligent woman, who works professionally with the Department of Human Services as a protective worker. She said that she had previously, in a professional capacity, given evidence in this court. She appeared to me, in the giving of her evidence, to adopt a professional poise, at times, of a theatrical nature. Even allowing for the pressure associated with the giving of evidence, I speculate as to whether I saw the real [her], as I felt that a number of her answers were rehearsed. I gained the impression, time and again, that many of her responses were “designer” answers. By that I mean designed to best suit her case, regardless of accuracy or truth. She delivered much of her evidence with a postured affect and in a clinical manner playing the role of an advocate for [the child] and on a number of occasions was cautioned by me to address herself to the question when she embarked upon self‑serving speeches that best accommodated her view.

101.I was not impressed overall, and when weighed against the evidence of the father, I have little confidence in relation to her evidence concerning a number of significant issues for my determination. For example, whether she genuinely encouraged [the child] to see his father and allowed this child to love him. The genuineness of her presentation was diaphanously thin as she spoke of “disclosures” and variously addressed aspects of her letters, as times replete with alien rhetoric. I will address the issue of these letters later in my judgment, for they did, in my view reveal some insight into the character and personality of the mother.

102.Overall, I am quite satisfied that where the evidence of the father and [his ex-partner] is in conflict with the evidence of the mother save where independently corroborated or otherwise indicated, I prefer the evidence of the former.

20.Apart from the professional witnesses, the only other witness the trial Judge made comment on was the maternal grandmother, about whom his Honour said:

209.… I have little confidence in her evidence, albeit it now appears she said she would encourage the father’s relationship with [the child].  Whether or not she will in fact do this, and in a genuine and thoughtful manner, is, however in my view, quite speculative.

…

224.Notwithstanding all that has gone on in the two and a half years of no contact, [the maternal grandmother] asserted that it was in [the child’s] best interest to now see his father. I do not accept, having regard to all that I have read, heard and seen, that she seriously meant what she said. … I do not accept her as a witness upon whom I can rely.

21.It was common ground that the child has a close relationship with his maternal grandparents who live close by and have been involved in his day-to-day care since the time of his birth; as well as with his maternal half sister, who lives with him and his mother in Victoria.

22.His Honour set out and commented upon the evidence of the various professional witnesses, being a psychologist who prepared a report in July 1998, a consulting psychiatrist who prepared a report in November 2000, a clinical psychologist who prepared reports in June and November 2000, another who prepared a report in October 2002, and the psychologist earlier referred to in this judgment, who prepared reports in January 2004 and June 2004.  In addition to the two 2004 written reports, this psychologist gave oral evidence and was cross examined.

23.His Honour’s conclusions arising out of the various reports were as follows, beginning with the 1998 psychologist’s report:

232.…that as far back as 1998, the mother, (and indeed her parents) were seized with an anti-pathetic and hostile attitude towards the father, that she was on notice about the requirement to facilitate contact and the advantages to [the child] of being able to actively participate with his father as an important part of his life. Sadly, it appears to me, she failed to heed this significant independent view.

24.The consulting psychiatrist reported in November 2000 that the mother harboured a deep distrust of men which led her to seeing the worst in the father. Part of his report is reproduced in paragraph 245 of the judgment.

25.His Honour said that he found this report of considerable assistance, “for it sat seamlessly with the factual history offering evidence of a consistent pattern throughout leading me through to my conclusion”.

26.He turned to the reports of the clinical psychologist also prepared in 2000, noting that the physician concluded in the second report:

262.… As suggested in my previous report, it may be that if [the father] can be absolutely assured of regular contact including holiday contact, that this may be sufficient. Under such an arrangement, there should also be a clear expectation that if the contact is frustrated that a change of residence is a very real option. Otherwise, a testing of the evidence will be required to assess the relative merits of the case and the determination made at that point. I do not have any doubt that either [the father] or [the mother] could adequately care for [the child].  It may ultimately be that this matter should be determined on the basis of whether either parent could ensure a relationship for [the child] with the other parent and there be recognition that in part, a good measure of parenting and the psychological health of one parent in family law disputes, is a recognition of their child’s relationship with the other parent. (Trial Judge’s emphasis)

27.His Honour observed that the passage in the report of November 2000 “clearly put the mother on fair notice for the future” but that “little heed was paid by the mother and a reversion to her past attitude soon broke through the veneer of her resolve”.

28.His Honour then turned to the evidence of the report writer who had seen the father and child together in October 2002. The purpose of his report was to make recommendations about future contact for the child. When the child and the father met in a suburban lake setting the contact arrangement appeared to be a very happy and successful one. When contact was observed at the father’s home the child became very upset indicating that he wanted to go home and accusing the father of wanting “to send Mummy to gaol”.

29.His Honour made no comments about his acceptance or rejection of any of this report writer’s evidence, perhaps because the factual matters contained in his reports were not the subject of challenge.

30.The trial Judge then set out at some length the evidence given by the forensic psychologist engaged by the child representative. She prepared two reports dated 30 January 2004 and 1 June 2004. His Honour ultimately said of her evidence:

353.… Overall, I was most impressed with her evidence, together with her detailed understanding of the issues before me and of [the child’s] personality, problems and difficulties.

31.Immediately prior to considering her reports, the trial Judge noted the vigour with which she quantified her role as the child’s counsellor rather than a family assessor. His Honour then turned his attention to the first report, which he considered in some depth. In that report, the forensic psychologist observed that the child was “a pleasant, polite 8 year-old boy who showed no sign of elective mutism”. She was able to readily establish a rapport with the child who, whilst maintaining his position in “not wishing to have any contact with his father”, was “neither angry nor distressed when discussing the possibility of [it]”. His Honour noted from the report that the most significant complaint consistently expressed by the child was that “no-one listens” to him.

32.The child’s “overall presentation” was cause for concern for the forensic psychologist, as his rejection of his father “was inconsistent with earlier reports which recorded the warmth and good quality of their relationship”, and “was in contrast to his expressed pleasure when exposed to happy memories of past times spent with him”. In her opinion the child relied heavily on the psychological defence of splitting, whereby ‘mum is all good’ and ‘dad is all bad’; and opined that his “grossly negative views and feelings were significantly distorted and his reactions exaggerated”. This, she opined, accorded with the condition of parent alienation, which refers to a “child who expresses freely and persistently unreasonably negative feelings and belief towards a parent that is significantly disproportionate to the child's actual experiences with the parent”. It seems that the trial Judge was particularly influenced by the expert witness’ interpretation of “parent alienation”.

33.In her report, as stated by the trial Judge, the forensic psychologist outlined some of the psychological repercussions of splitting and parental alienation that could manifest in this particular child. The trial Judge noted that, according to attachment literature referred to by the forensic psychologist,

285.… children who lost a significant attachment figure (such as in this case the father) before the age of 10 years were vulnerable to being unable to form a stable lasting attachment within adulthood. They are also vulnerable to anxiety and depressive disorders over a lifetime. …

34.His Honour also considered the forensic psychologist’s statements in relation to the role of the father in the lives of his children, and made the following comments:

285.… She said that fathers generally, whilst they might be secondary attachment figures or carers, are not secondary mothers and “were not dispensable”. Nor were they replaceable by another male attachment figure. They offered children, particularly male children, a variety of emotional of opportunities that mothers cannot. 

35.In her first report, the forensic psychologist provided some meaningful comments regarding the future residence/contact arrangements and contact with professionals in psychology or similar fields. Of significance, his Honour considered her recommendation that the child not be introduced to another professional (counsellor) in light of the number he has had to deal with in recent years and his exposure to, what she terms, “systemic abuse”.

36.As to the forensic psychologist’s views regarding a change in the child’s residence, his Honour said:

287.[The forensic psychologist] was of the opinion that a re‑establishment of contact between [the child] and his father through counselling would not be achieved in the short term. It would require long‑term, regular counselling appointments and even then such a process had slim prospects of success.  As to a change in residency she was of the opinion that at this stage [the child] would be “emotionally traumatised” by such a change. Importantly, [the forensic psychologist] has no doubt that the father had the capacity to emotionally support [the child] through such a change and that [he] would settle over time. However, she was also of the view that [the child] would still be the subject of “high‑level acrimony between the parents” and feared a further escalation with [the child] still struggling to separate out his own feelings about his father from that of his mother and maternal grandparents. I take all that into account in coming to my determination.

37.As to the effect on the child of a change of residence, his Honour said the following, although it is not clear how his Honour took this into account in coming to his ultimate conclusions:

309.[The forensic psychologist] re-iterated that a change of residence would emotionally traumatise [the child], albeit that it would guarantee [he] had a relationship with both parents. The trauma could span at least 12 months to two-year period. In the circumstances prescribed by her, she said that such a decision would require a period of time where [the child’s] contact with the maternal family, including his mother, was limited to solely his sister […] with a slow reintroduction in supervised settings with the maternal family.  This, in her opinion, would require court supervision. However, such an order would be likely to add to [the child’s] emotional difficulties in the short, and long term, rather than ameliorate them. I take this into account in the total factual matrix for my consideration.

310. In considering the cessation of contact between [the child] and his father, [the forensic psychologist] took the view that the father would comply with court orders but added that she could not reassure the court, the father or the mother that there would not be long-term emotional repercussions for [the child]. While such an order would relieve the Family Court, and both parents of ongoing litigation and [the child] from the pressure of the parental conflict, it would be unlikely to outweigh the negative long-term effects of the loss of a significant attachment figure. I consider this to be a significant factor.

…

325.Having given the matter her total consideration, [the forensic psychologist] expressed the view that any contact order was the least desirable of the three options.  She said that the parties “had reached a window of opportunity” to establish a relationship between [the child] and his father.  She explained that how children perceived their world, and how they control their world changed as they moved into adolescence, and that if one waited for another 12 to 18 months, that window of opportunity in terms of development would be lost.  As she said, “I really think it's do it now or not do it at all”. Whatever the position, [the forensic psychologist] expressed confidence that it was the father who would be able to foster the absent parent in a positive manner.

326. [The forensic psychologist] expressed the opinion that if residence was changed, it would be necessary to give the father a few months when the mother’s contact was minimal and then reintroduced. It was her opinion that it would work because there was “… enough there to build upon and I think [the father] has got the capability of settling him down and working with the dynamics of his own family”. The father had given sensible consideration to such an event. She said it was “well thought out” and that he had sought good advice. She explained that there would be “short‑term pain”, but that with the reintroduction with his mother there would not be a “long‑term loss”, suggesting a window of some three months or so where children of [this child’s] age can actually manage without someone that is consistently in their life. I found all of that evidence very helpful indeed. 

327.It is clear to me that [the forensic psychologist] has given this matter her most anxious and concerned consideration.  Insofar as her opinion, in the result is concerned, she had this to say and which bears direct quotation:

‘… It’s really bothers me and I really think, and I've thought it through and I've continually thought it through.  Out of the three options, I think the change in residency is the one that I would support and I prefer.  I realise there are problems with it but there are problems with all three options and this one has the best chance of [the child] perhaps integrating some of the splitting, and having a better integrated sense of himself and others.  It has the change [sic] of [the child] having a relationship with both his parents and all his siblings and extended family.’

328.[The forensic psychologist] said that if residence was changed, it would require overseeing by the court until contact was reintroduced with the mother, re‑established and supported until it settled down.  It would require case management. Both the parties would require professional assistance.

329.Insofar as the no‑contact option was concerned, [the forensic psychologist] made it perfectly clear that it was not one she would support, but added that it was an option that would certainly move the matter out of the Family Court and would solve it for everyone else, “but not necessarily for [the child]”. 

330.There was no doubt that [the forensic psychologist] has given this matter her most serious and anxious consideration. She made it clear that she had "struggled" with her recommendation, but that it was the more appropriate one.  She said:

‘In order for [the child] to be able to integrate his sense of self, his sense of both his parents, and have a relationship with both parents and have an integrated sense of other people and events in his life, he needs that change of residence.’

38.In the course of his reasons for judgment, commencing at paragraph 354, his Honour turned to a consideration of the evidence that he had already described within the confines of s 68F(2) of the Family Law Act before setting out his final conclusion. He noted the child’s wishes were to stay with his mother and have nothing to do with his father but indicated that he would arrive at a conclusion that was contrary to those wishes. He said:

360.… I am satisfied that [the child’s] wishes are not well thought through and that, as [the forensic psychologist] said, he does not have the capacity or emotional maturity to make such an important decision. … Furthermore, I am satisfied that the mother’s influence has borne heavily in what he has expressed.  His wishes are not founded upon proper considerations and are not well thought through.

39.The trial Judge noted that the child had a close and loving relationship with his mother and a troubled relationship with his father. He was however confident that the previous relationship the father had with his son was a solid platform on which to build and regenerate a loving and affectionate relationship between them. As already mentioned, it was accepted that the child has an affectionate attachment to his maternal grandparents and sister.

40.Of significance the trial Judge observed

363.… that the success of [the child’s] residence with the father will depend, certainly to some extent, upon the mother having insight into her son’s needs as a contact parent.

41.His Honour noted that

364.… [t]he main impact [of any proposed contact regime if the child resides with the father] will be the mother’s ability or otherwise to sublimate her own feelings of both anger and grief in the best interests of [the child]. I have, as I said, every confidence that the father will promote the mother as an absent parent and will address this issue with consummate sensitivity and thoughtfulness.

42.His Honour further concluded that the mother was not capable of ensuring the child had a relationship with his father in the future. It was the father, the trial Judge concluded, who was better equipped to meet the child’s future needs.

43.His Honour also said:

367.In my view, for [the child] to remain in his mother’s care will perpetuate psychological harm to him by the removal of his father as a significant person in his life, or at all. …I have little doubt that the immediate future will be a difficult one. However the long term benefits are plain and referred to in my judgment.

44.His Honour then provided his conclusions in which he was highly critical of the mother for her continued hostility towards the father and her failure to foster the father’s role in the child’s life. He concluded that he had no confidence at all that she would not soon fall back into her historically proven attitude were contact orders to simply be made in favour of the father. He said that the mother’s behaviour that led to the father’s second residence application in 2000 was “nothing short of disgraceful”. His Honour said:

380.It is so plain that the mother has an utter inability to understand the importance of the father’s role in [the child’s] life, to foster his image to [the child], to support contact and accept him as a valuable and important part of [the child’s] growing, development and maturity.

45.It seems that the trial Judge was particularly influenced by letters written by the mother.

387.For the wife now to say, in effect, “that was history and things will change”, is unacceptable. The letters buttress the emotional damage that the mother, despite her assumed professional experience, has rendered upon [the child] concerning his relationship with the father.

46.In paragraph 390 his Honour said that the evidence of the forensic psychologist “made it perfectly clear that without contact with his father, he may suffer quite serious difficulties later in life”.  He went on to repeat “…if [the child] were to live with his mother, she does not have the ability nor the capacity to foster or encourage contact between the father and [the child]”.

47.His Honour was dismissive of the mother’s proposals put forward in the course of her evidence and proposed orders, including that she would support a contact regime. 

403. … I see her as having demonstrated a determination to eliminate, insofar as it is possible, the father from [the child’s] life.

…

409.…the mother is incapable of permitting [the child] to love his father, to foster their relationship, and to inculcate in him an understanding of the value and importance of [the child’s] life of the fatherly role.

48.His Honour, in contrast, was extremely complimentary of the father, stating:

417.… I do not doubt he has a deep and abiding love for [the child]. … It was not suggested by any counsel that he could not adequately nurture the child and lead him into being a functioning and productive member of our community.

418. It is obvious, and which has never sought to be understated, that the task confronting him is a considerable one. In my view he has all those necessary qualities to meet the challenge, and succeed.

49.His Honour also said that he took into account the fact that the mother had been for all of the child’s life his primary carer, she has provided for his housing needs, his daily nurture and his education. 

420.… [The child] is happy at school. He loves his maternal grandparents and no doubt his little sister […]. He has satisfactorily achieved various of his milestones…

50.His Honour then returned to examine what he said were the three options in the case. Importantly, the third option was proposed by the forensic psychologist after comprehensive deliberation in her oral evidence for the trial Judge’s consideration. It is the third option, for the reasons outlined below, that his Honour selected as most appropriate order in the circumstances.

421.I now deal with the three options proposed by [the forensic psychologist] in her Second Report, all of which were extensively considered in the evidence and argued in final submissions. It seems to me that all of the options have the potential to negatively affect the long-term best interests of [the child] and that there is, put simply, an element of the unknown associated with each of them. I have made it clear that what has occurred thus far and as an established fact, however, is that for a substantial period of [the child’s] life, he has not been able to enjoy the regular, positive and consistent relationship with his father.  I have already dealt with the fact that [the child] presents, as an alienated child, quite estranged from the father, the issue of responsibility for which is plain, in my judgment. 

422.Option 1 was that the mother retain residence of [the child] and that no order be made in favour of the father for contact. That option had superficial appeal in that the current status quo was maintained with no short-term trauma to [the child]. The evidence of [the forensic psychologist] was clear, however, that, in the long-term, [the child] would be vulnerable to being unable to form lasting attachments and otherwise to anxiety and depression. There would be no conflict in his life and there would be an end to litigation. Significantly for my purposes, this option was not supported by [the forensic psychologist] and furthermore, as submitted by [the mother’s counsel at trial], it was not proposed by [the] other party to the proceedings. I nonetheless have a duty to canvass it.

423.Whilst the mother did propose at the commencement of the proceedings that there be contact ordered, “as may be considered appropriate”, and ultimately proposed an order for contact in generous terms, I am not persuaded that this was not what she would have preferred in reality. Be that as it may, in the result no one party sought that order and the evidence of [the forensic psychologist] in relation to this proposal was, in any event, compelling.

424.The second option was that the mother retain residence of [the child] with contact to the father. In her report, [the forensic psychologist] opined that attempts to establish contact between [the child] and his father were likely to be difficult with a “very small chance of success”. I have dealt extensively with this area earlier in my judgment and I am satisfied that the mother would not, on the evidence I have heard, be able to set aside her own emotional needs to support a relationship between [the child] and his father. I have given the submission of [the mother’s counsel] on this option my gravest consideration, particularly as set out by him in his written submissions (Exhibit M7). In my view, the evidence persuades me, and notwithstanding, that I should reject this proposal.

425.[The mother’s counsel] submitted that such a proposal would permit [the child] to deal with his “splitting, provided that the relationship with his father is nurtured and encouraged by the mother”. I have no confidence at all that the mother would so act, and which determination I have already clearly spelled out in this judgment. To directly deal with [the mother’s counsel’s] very frank submissions, from all the evidence I have read and heard in court, I do not have “faith” in the mother's ability to facilitate and encourage [the child’s] relationship with his father. That is a finding I make having heard a considerable volume of evidence over some seven days.

426.The third option is to change residence, and which is what I propose to order.  It is a fine line decision to which I have given my anxious consideration, aware of all the difficulties attendant upon it, as with the other two options. [The forensic psychologist] too had given it her most vigilant and measured consideration and particularly her evidence concerning the manner in which she had anguished over her ultimate recommendation. After considerable thought, she supported the option for change of residence cognisant of all the surrounding risk factors and advantages.

427.I found the evidence of [the forensic psychologist] to be of great value and assistance to me and in particular, in this fine line decision, that such an order would enable [the child] to be able to integrate his sense of self, his sense of both his parents and to have a relationship with them. It would enable him to have an integrated sense of other people and of the events in his life. That is what she saw as important.  I accept that evidence and in coming to my conclusion, it is also plainly obvious that over the period of litigation in this court, I too became seized with a whole raft of further, helpful and significant facts.

428.In his written submissions, [the mother’s counsel] carefully spelled out the “inherent difficulties”, as he said, with that proposal, all of which I have taken into account in coming to my determination. I am also conscious of the fact that following a period styled as “the circuit-breaker”, contact will be resumed on a graduated basis and which alone will bring into account the potential for the mother continuing to undermine the father. However, I am going to require her to undertake professional assistance and I otherwise exceed to the submission of [the child representative] that the matter return to me or some other judge of this court, for further consideration. I am mindful of the requirement to make final orders, but in my view the facts of this case present an exception and in the result, I propose to make the orders indicated by me. 

429.In my analysis of the evidence, given before me, I have made a number of findings on the issue of credibility. I prefer, as I said, the evidence of the father to that of the mother. In the course of [the child representative’s] careful submissions, she also addressed this issue too and in particular analysed the mother's evidence pointing out that prior to February 2001 she had no major concerns over the father's contact with [the child]. She submitted, correctly in my view, it's inconsistency with the history of the proceedings and best illustrated by her letter, Exhibit “CR1”.  In my view the mother's evidence on this issue, as with others to which I have referred, such as her evidence concerning the use of the father's surname, was quite disingenuous.  Her contravention of and attitude towards orders of this court was reprehensible. I have little, if any, confidence in her as a reliable witness. She had a clear propensity to say that which best suited her position, irregardless of its accuracy or truth.

430.In his final submissions, [the mother’s counsel at trial] commenced by observing that the mother was asking "for one last chance to have residence of [the child]”.  He went on to frankly submit that if there was not enough evidence to support that submission, then her application must fail.  In my view, the revealing history of past events, the opportunities provided to her so apparent, yet ignored, together with the whole of the evidence before me guides me to the harbour of my determination.  I do so in the knowledge of the painful impact it will have upon the mother. She has failed to genuinely embrace the value and importance of parental ties. She has failed to understand or act within the principles set out in s 60B of the Act, to which I have referred. The steering principle is the best interests of [the child], which is and remains the paramount consideration. The evidence, in totality, is clear and in the discreet circumstances of these proceedings, I propose to order that [the child] reside with his father and to make the contact and other facilitating orders proposed by the Child Representative.

51.It is quite clear that the trial Judge appreciated that the three options each presented significant difficulties in their operation as well as potential detrimental effects upon the child’s psychological welfare. The third option proposed by the forensic psychologist was focussed on the long term welfare of the child and acknowledged the probable trauma to be suffered by the child in the short term and possibly in the longer term as well.

GROUNDS OF APPEAL4.   

52.Whilst the Notice of Appeal contained 13 grounds, counsel for the mother, both in his written summary of argument and the oral submissions made to us, sought to argue the appeal on two bases. The first ground advanced was that the learned trial Judge erred in law in failing to disqualify himself upon an application by the applicant that he do so (Ground 11). The second ground advanced was an amalgam of grounds 2, 3 and 5 which said:

2.That the learned trial Judge erred in law in that he made findings not open on the evidence.

3.That the learned trial Judge erred in law in that the orders made are not in the best interests of the child;  and

…

5.That the learned trial Judge gave no, or no sufficient, consideration of the potential grave adverse consequences upon the child of his proposed orders.

53.Although ground 11 was argued at the outset we will deal with the other grounds first.

APPELLATE PRINCIPLES5.   

54.The principles relating to appeals from discretionary judgments such as this, are not uncertain. In order for an appeal to succeed, the Full Court must be satisfied that some error of fact or law, or a miscarriage of justice occurred in the proceedings the subject of the appeal. Disagreement only on matters of weight or a preference for a different result do not usually justify the reversal of a discretionary judgment.

55.The requirements to be met before interfering are explained by Dixon, Evatt and McTiernan JJ, in House v The King (1936) 55 CLR 499 at 504 where they said:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. [emphasis added]

56.Kirby J said the following in AMS v AIF (1999) 199 CLR 160:

150.… [A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.

SUBMISSIONS6.   

57.The child representative did not support the appeal being allowed and argued that on the uncontested findings made by the trial Judge, the orders were in accordance with the evidence and principles.

58.Submissions from the appellant mother’s counsel focussed on two main complaints – that the intervention of the trial Judge at trial was inappropriate, evidenced bias and resulted in unfairness to the mother (Ground 11); and that the findings, upon which the order of changed residence were based, were not open to his Honour on the evidence (Ground 2), were not made in the best interests of the child and did not sufficiently consider the potential grave adverse consequences upon the child (Grounds 3 and 5). In particular, counsel contended the finding that the child “would” be able to “have an integrated sense of other people and of the events in his life” in the longer term and following the re-integration of his father into his life, went beyond the scope of the potential that the forensic psychologist reported. It is this latter argument that we first deal with, below.

59.Counsel for the respondent father submitted, in regard to the latter grounds, that those of his Honour’s findings which were conceded or unchallenged by the mother were of themselves sufficient to support the orders made. In relation to the former ground, counsel rejected the assertion that a “fair minded lay observer” would apprehend that his Honour “did not bring an impartial and unprejudiced mind to the … proceedings” and submitted that it was not the order refusing the application to disqualify the trial Judge which was the subject of appeal.

a) Grounds 2, 3 and 5

60.It was urged upon us by counsel for the mother that at no point did the trial Judge examine and evaluate the prospects that a move by the child to the father would advance the quality of the relationship that the child had with both parents nor the effects upon the child and the possible negative consequences of such a move. 

61.It was submitted that before the Court could contemplate moving the child from the only caregiver the child had known and placing the child in the care of a parent who had had no contact at all with the child for a period of two and a half years, the Court ought to have properly evaluated the potential damage to the child if such a move took place. Absent any evaluation it could not be said that the order made was the one in the circumstances that would best advance the welfare of the child. It was submitted that unless one could reasonably understand the harm that might flow from such a move, it was impossible for the Court to evaluate whether the harm of not making the move might or would outweigh the harm of making the move. 

62.It was further submitted that even if the parties failed to provide the Court with any evidence necessary to make such evaluation, the trial Judge should have been alert to the obvious risks that might flow from the forced change in the only system of care that the child had ever understood and so requested assistance from the professional witnesses as to the ramifications of making such a change.

Conclusions

63.At the hearing of the appeal before us both counsel for the father and for the child representative accepted the proposition that the trial Judge did not in his reasons for judgment identify the risk factors to the child inherent in the change of residence but rather concentrated on the potential risk to the child if a move did not take place. 

64.At its highest, the matter was considered by the forensic psychologist when she was asked some questions by counsel for the child representative:

In your report though you do say that – I mean, in terms of doing it now you do say in your report that to do so, to move residence is going to have short, medium, and long-term reverberations for this child emotionally. Can you expand on what they are and then I’ll ask you the same in regard to the other matter? ---Well, as I’ve said you will need to minimise [the child’s] contact with his mum and paternal family for a period of time and that is going to be difficult for [the child].  He will experience loss, he will have to settle into a new home, re-establish relationships with his siblings, his father, his father’s partner, change of schools.  It will take time.

I think it’s accepted that they would be short and medium term, [forensic psychologist], I’m more interested in the long term because the long term is bleak without his dad but I’m wondering with his dad what is the long term that you’re concerned about? ---The long term I’m concerned about is how his mother and paternal family will handle it and what support they give [the child]. So if he’s continued – if he, you know, he then goes – he’s residing with his dad, he goes home to his mum on whatever schedule it is and there is continued exposure to the tensions at contact exchanges and continued exposure to the undermining of the relationship then that is also going to be difficult for [the child]. 

Because he is going to what, reject dad or reject mum?  ---Yes.

65.His Honour then asked what if it did not work because of factors beyond the control of the litigation process?

---Well, this is why I’m saying that the contact would have to be minimised.  It think it would work because there was enough there to build upon and I think [the father] has got the capability of settling him down and working with the dynamics of his own family.  Settling a child into the dynamics of his family.

66.Then in response to the counsel for the child representative, the witness said:

Out of the three options, I think that the change of residency is the one that I would support and I prefer. I realise that there are problems with it but there are problems with all three options and this one has the best chance of [the child] perhaps integrating some of the splitting and having a better integrated sense of himself and others. It has the chance of [the child] having a relationship with both his parents and all of his siblings and extended family.

67.Then she said at the end of that cross examination:

Just to confirm, you say that in fact your preference at this point is change of residence? ---I think so. I have struggled with all of this for a long time and I think that’s where I’ve got to, that in order for [the child] to be able to integrate his sense of self, his sense of both his parents, and have a relationship with both parents and have an integrated sense of other people and events in his life, he needs that change of residence.

68.The argument put forward by counsel is that the risks of long term emotional difficulty for the child inherent in either a change or a failure to change are not explained or adequately discussed by the trial Judge. It is clear that the trial Judge properly concluded on the evidence that the risks to the child of not having an appropriate relationship with his father are great but nowhere is it fully explained in the judgment what the risks are to the child of being removed from the only settled environment that he has ever known.

69.Fogarty J said in Sampson and Sampson (1977) FLC 90-253 at 76,358 when dealing with a conflictual access situation:

5.In many cases this problem arises because the custodial parent quite irrationally and wrongly creates such difficulties about access that its continuance has a demonstrable detrimental effect upon the child.  Even in cases where the situation is brought about in this way the same considerations apply.  The matter is to be determined having regard to the welfare of the child, not by considerations of either sympathy for the innocent non-custodial parent or feelings of frustration or annoyance with the custodial parent.

6.In such a case the question of the future custody of the child again must be determined only upon a test of the welfare of the child.  It ought not to be determined by unconscious feelings of punishing the custodial party who appears to have brought the situation about or rewarding the innocent non-custodial party.  In cases where the welfare of the child dictates that the child should remain in the custody of the former custodian that must be the result even though the consequence may be that the non-custodial party, innocent of any wrong doing, is severed for at least the time from continued connection with his or her child.

7.In cases where the attitude of the custodial party is genuinely but unreasonably held, the relevance, and in my view the only relevance, of that attitude of the custodial parent is that such wilful or irrational behaviour may indicate such a defect of personality or character as to indicate that that person may not be a suitable custodian for the child.  Similarly where the non-custodial party is prepared and able to assume the duties of a custodian and is prepared to agree to access to the other party that circumstance may be of such overall advantage to the long term welfare of the child that it may, take with all the other relevant factors, justify the Court in altering the custodial position.

70.In our opinion there remains the obligation on a trial Judge to fully evaluate the competing proposals, to weigh up the pros and cons of each circumstance and to then dispassionately make the decision that the trial Judge concludes will best advance the welfare of the child. In circumstances where the evidence led does not provide the court with sufficient material to make such an evaluation, it becomes incumbent upon the Judge to draw his or her concern to the attention of the parties and, in particular, a child representative where one has been appointed, so that the Court has evidence of a specialist nature upon which it can properly act. 

71.The circumstances in which such evidence may become necessary are not present in every case. This case was most unusual in that a change of residence was sought after a significant period of a lack of contact brought about in part by the child’s express views albeit that those views were said to be reflective of the mother’s attitude. In those circumstances the forced change of the child from the only environment he had ever known to an environment which he saw as hostile might have the most serious short and long term ramifications for the child. Unless the Court was properly attuned to those ramifications with the assistance of expert evidence, it seems unlikely that the Court could determine the issue.

72.As the mandate of the court was to make an order that best advanced the welfare of the child it became incumbent upon the trial Judge to either inquire himself further of the forensic psychologist as to the likely ramifications for the child’s short and long term welfare if the change of residence either succeeded in creating a relationship with both parents or continued to leave the child hostile to one or other of the parents; or for the child representative to place such evidence before the court particularly as this radical step was advocated by them. It was only after he was armed with that information that the trial Judge could properly then evaluate the situation and reach a decision about it or ask that further evidence be called from an expert in that area. So much of the forensic psychologist’s opinion was based on her view of ‘parental alienation’, a concept of which we are aware is at the least controversial.

73.In our view the appeal must be allowed on this ground, especially as the consequences for this family are so serious. Regrettably, there is no choice but to order a new trial.

b) Ground 11 - Bias

74.An application was made on 5 January 2005 for the trial Judge to disqualify himself. His reasons for refusing to do so are contained in a separate judgment on 27 January 2005.

75.At the commencement of the argument counsel for the appellant referred to passages from Jones v National Coal Board [1957] 2 All ER 155 at 159. It is useful to repeat the guiding principles contained in that authority (emphasis added):

We are quite clear that the interventions, taken together, were far more than they should have been. In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries. Even in England, however, a judge is not a mere umpire to answer the question, ‘How’s that?’ His object above all is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role. Was it not Lord Eldon LC, who said in a notable passage that ‘truth is best discovered by powerful statements on both sides of the question’ (see Ex p Lloyd (1822), Mont 70, n) and Lord Greene MR, who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations. If a judge, said Lord Greene should himself conduct the examination of witnesses, ‘he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict’ [in Yuill v Yuill [1945] 1 All ER 183 at 189].

Yes, he must keep his vision unclouded. It is all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth: and the less dust there is about the better. Let the advocates one after the other put the weights into the scales — the ‘nicely calculated less or more’ — but the judge at the end decides which way the balance tilts, be it ever so slightly. So firmly is all this established in our law that the judge is not allowed in a civil dispute to call a witness whom he thinks might throw some light on the facts. He must rest content with the witnesses called by the parties; see Re Enoch & Zaretsky, Bock & Co.[1910] 1 KB 327. So also it is for the advocates each in his turn, to examine the witnesses, and not for the judge to take it on himself lest by so doing he appear to favour one side or the other; see R v Cain (1936), 25 Cr App Rep 204 R v Bateman (1946), 31 Cr App Rep 106 and Harris v Harris Apr 8, 1952, The Times, Apr 9 (1952) by Birkett LJ, especially. And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost; see R v Clewer (1953), 37 Cr App Rep 37. The judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well. Lord Bacon spoke right when he said that:

‘Patience and gravity of hearing is an essential part of justice and an over-speaking judge is no well-tuned cymbal.’

Such are our standards. They are set so high that we cannot hope to attain them all the time. In the very pursuit of justice, our keenness may out-run our sureness, and we may trip and fall. That is what has happened here. A judge of acute perception, acknowledged learning, and actuated by the best of motives, has nevertheless himself intervened so much in the conduct of the case that one of the parties — nay, each of them — has come away complaining that he was not able properly to put his case; and these complaints are, we think justified.

…

Nevertheless, it is obvious for more than one reason that such interventions should be as infrequent as possible when the witness is under cross-examination. It is only by cross-examination that a witness’s evidence can be properly tested, and it loses much of its effectiveness in counsel’s hands if the witness is given time to think out the answer to awkward questions; the very gist of cross-examination lies in the unbroken sequence of questions and answer. Further than this, cross-examining counsel is at a grave disadvantage if he is prevented from following a preconceived line of inquiry which is, in his view, most likely to elicit admissions from the witness or qualifications of the evidence which he has given in chief. Excessive judicial interruption inevitably weakens the effectiveness of cross-examination in relation to both the aspects which we have mentioned, for at one and the same time it gives a witness valuable time for thought before answering a difficult question, and diverts cross-examining counsel from the course which he had intended to pursue, and to which it is by no means easy, sometimes, to return.

76.At p 161 the Court of Appeal said:

There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. The widow and the National Coal Board stand in this respect on the level. No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.

77.In Firth and Firth (1988) FLC 91-971 where the Full Court referred to other well known cases on this topic (at 77,027 – 77,028):

The submission began by complaining about the quantity of the questioning by the trial judge and that many of his questions were leading. In R v Power [1940] St R Qd [111 at 120], Blair CJ said:

‘It cannot be denied that a Judge has a right to ask witnesses questions, and there is certainly no numerical limitation upon such right. If the record be carefully examined it will show that most of the Judge’s questions followed upon the cross-examination of Mr Timbury, and were designed to explain and supplement answers already given in order to eliminate possible confusion in the minds of the jury.’

And later in the same judgment it was pointed out that there may be occasions when leading questions should not be put to witnesses by a judge, but there is no rule that goes so far as to say that in all cases leading questions must not be asked. In the later case of The Queen v Olasiuk (1973) 6 SASR 255, the Full Court of South Australia had cause to consider the question of the extent of a judge’s questioning of witnesses and said (at p.261):

‘There were complaints that the learned Judge ‘unduly and unnecessarily interfered in the conduct of the trial’. Ever since the decision in Jones v The National Coal Board there has been a growing tendency to make such complaints to courts of appeal. It seems necessary to say again that a judge is entitled to ask questions of witnesses if he thinks fit, not merely questions directed to clearing up ambiguities, but questions, and searching questions at that, directed to the merits of the case, so long as he does not take the examination, or even more importantly, the cross-examination, out of the hands of counsel or prevent the proper conduct or presentation by them of their respective cases (R v Clewer [(1953) 37 Cr App R]; R v Van Beelen [(1973) SASR 353]). In extreme cases an appellate court will interfere but extreme cases are by definition extreme cases, and complaints of this nature should be reserved for them and not made common form.’

78.Further, the Full Court in Firth (supra) at 77,028, continued:

In this case, there was no complaint that the Judge’s questioning had interrupted the free flow of cross-examination or had prevented proper presentation of the interveners’ case, and thus fell within the proscription of Jones v The National Coal Board. The quantity of questioning must be a question of degree before it offends the principle of Jones’ case. The fact that 17 [per cent] of the transcript was devoted to the judge’s questioning would not of itself lead to this conclusion and constitute a miscarriage of justice. In our view, however, the long and at times repetitious examination of witnesses undertaken in this case by the trial Judge apparently as a matter of course is undesirable and not to be encouraged. This does not in any way inhibit the proper role of a judge, but excessive questioning for its own sake can lead to the dangers outlined by Lord Denning in his judgment [in Jones’ case].

The next submission was that the questioning of the wife was not objective. … 

Having read the totality of the transcript as we were invited to do by counsel, this does not appear to us to be a complaint that can be justified.

79.In Johnson v Johnson (No 3) (2000) FLC 93-041 at 87,631 – 87,632 the Court said:

[11]     …. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

[12]     That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.” The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.

[13]     While the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

80.Counsel for the appellant mother drew our attention to 14 passages in the transcript that were said to demonstrate that a reasonable bystander would have perceived that the trial judge had inappropriately taken sides in the proceeding.

81.The first passage referred to the cross examination of the father by counsel for the child representative, on the second day he was in the witness box, concerning assertions contained in the mother’s correspondence that the child had been witnessing domestic violence disputes on contact visits and had been physically hurt by his younger half brother. In the course of the child representative cross examining the father about the general level of activity in the household during contact periods, his Honour intervened, commencing with a statement:

You see, I think it’s self evident, […], that households with young kids in them are - and I use the word carefully - boisterous?---Yes.

82.The passage to which our attention has been drawn then develops into the trial Judge asking the father to describe what occurs in his household on contact weekends. The description lasts for some six pages of transcript with occasional directive questions from the trial Judge inquiring of some physical circumstances surrounding the contact and the manner in which the child mixed in with the other children on contact. His Honour asked the father about whether he had received any Christmas or birthday cards from the child or had encouraged the child to make such cards for the mother and finally asked him about his feelings for the child. Although the child representative, at the conclusion of the passage complained of, thanked his Honour for “making me superfluous”, the child representative continued her cross examination of the father for another 15 pages of transcript. At no time during or at the conclusion of the child representative’s cross examination did counsel for the mother complain about his Honour’s intervention or seek leave to cross examine further on any of the matters that had been given in evidence by the father in response to his Honour’s question.

83.The second passage to which our attention was directed under the heading of his Honour’s questioning of the father, was the passage being a discussion between the trial Judge and counsel for the child representative about the contents of the letter written by the mother to the father’s solicitors on 16 November 1999.  Whilst the trial Judge describes the contents of the letter in disparaging terms, they were part of a series of correspondence which counsel for the mother either described or conceded as being “putrid”.

84.Counsel for the mother drew our attention to the manner in which the trial Judge had questioned the mother in the course of her viva voce evidence. 

85.The mother’s evidence commenced immediately before lunch on 23 November 2004 and occupied all the afternoon of 23 November, the entire morning of 24 November and most of the day of 25 November. She was subsequently recalled in January.

86.Counsel for the mother particularly drew our attention to eight passages of the evidence in which it was said that his Honour’s questioning of the mother would lead an informed bystander to draw the conclusion that his Honour had inappropriately prejudged the issues and was thus demonstrating bias. The first of those passages occurred during examination in chief where the witness was being asked by her counsel about the contents of a letter she wrote on 16 November 1999. The particular passage complained of seems to be no more than the Judge seeking clarification from the witness as to what she intended by her writing.

87.The second passage complained of appears immediately before cross examination the mother commenced. His Honour invited the mother to reflect upon the content of the letters she wrote to the father’s solicitors and asked whether they represented “an accurate representation of reality”.  Having told the witness that the letters were of great concern to him he invited her to make further comments about them. Nothing in the nature of the questions nor the manner in which they appear to have been asked, could have comfortably led to any conclusion of bias within the tests propounded by the cases referred to above.

88.The next matter drawn to our attention commences at the mother being cross examined about the contents of the welfare report prepared by the forensic psychologist. She gave evidence that she had concerns about the forensic psychologist’s objectivity. When asked if she didn’t doubt the forensic psychologist’s objectivity she replied “[t]here’s certain statements in there that raise questions to me”. She then pointed out matters in the report that she said raised questions of objectivity and when counsel appeared to be leaving the topic, his Honour said:

HIS HONOUR:   You’re leaving the topic of the failure to address the report objectively.

[FATHER’S COUNSEL]:

That’s what I understood was the extent of she said were the two issues.

HIS HONOUR:   That’s not my understanding.

[FATHER’S COUNSEL]:

Okay.Were there other parts of the report that you say

demonstrates a lack of objectivity by [the forensic psychologist]?---There was one area where she made reference to me saying that [the child] had the residence hearing hanging over his head which I did not say.

HIS HONOUR:   Well let’s find it?---I made it very clear.

[FATHER’S COUNSEL]:

Where’s that?  It’s paragraph 60, your Honour?---Yes it is.

HIS HONOUR:   Yes?---‘[the mother] went on to say that contact between [the child] and his father was reinstated at the point when [the child] was still angry and distrustful due to the residency hearing hovering over his head.’  Do you deny saying that?---I made it explicitly clear that [the child] did not know about the residence hearing.

HIS HONOUR:   Well, I think unless I’m persuaded to the contrary, I won’t be taking much notice of the psychometric testing – these Minnesota Multiphasic Personality Inventories Mark II and all these other psychometric tests. It may be of assistance,  I don’t know. I’d be happy to hear from [the forensic psychologist] as to what weight I should give to them. That’s about it as to your view that you doubt her objectivity?---It just raised questions in my mind, yes, as to her objectivity.

I understand that.  Well raised doubts – not questions – was your initial – unless you’re going to change it, is it doubts or questions?  Raised doubts or raised questions?---Raised questions.

Right now ‘doubts’ nor becomes ‘questions’.  As a professional, you don’t see a difference in what you have just adumbrated and highlighted as being factual dispute as opposed to a doubt or question as to her objectivity, because for the life of me I sit here a little gobsmacked about that.  I see that as a bit of a dispute between the parties as to what was said and what was not said.  Don’t see it in any way entertaining an attack or questionability as to her objectivity?---When she draws a correlation to my apparent future behaviour or my previous behaviour, it does raise concerns, to me.

That will be a matter of fact-finding.  You see, I’m sure that you would understand that any opinion is only as good as the foundation of facts upon which it is built.  You nibble away and erode the foundation of the opinion, you destroy the opinion. Even you would know that, would you not?---Yes. 

Doesn’t that bear any weight with your evidence that you have doubted her objectivity?---I’m sorry, I’m not quite sure what you’re asking me.  Alright, yes [counsel for the father].

89.In the passage just quoted there does appear to be at least a lack of patience being shown by the trial Judge to the witness.  The issue of whether she “doubts” or “questions” is something about which the Judge appears to be mistaken.  The reference at the end of the passage that “even you would know that” seems to be an unnecessary and gratuitous insult.

90.The next passage complained of is of the mother still being cross examined by counsel for the father. She was being asked about a letter she wrote on 14 September 2001 to the father’s solicitors which included a statement:

[The child] is already a withdrawn child who selects not to speak to his teachers as a result of six years of emotional abuse.  Yet your client and his partner failed to see the impact of their behaviour and choose to deny rather than address the concerns.

91.The father’s counsel then suggested to the mother that she was putting the blame for the child’s elective mutism directly on the father and his partner. The witness replied:

[MOTHER]:Not the elective mutism; certainly the problems with [the child’s] emotional development, which includes the elective mutism.

That they’re to blame for it, the emotional---?---In part, its partially to blame. There’s been a number of other factors that have impaired [the child’s] emotional development, that is one factor. 

HIS HONOUR:   Are you saying they’re in part to blame for the elective mutism?---No, no, no – in part to play for [the child’s] problems with his emotional development, which I believe includes the elective mutism---

HIS HONOUR:   They’re to blame for [the child’s] emotional development, which is what?---Which includes---

Which includes elective mutism?---Mm.

That’s saying the same thing another way.  In other words that they’re responsible for the elective mutism?---But---

You see, it just has to be that way in plain English. If they’re to blame for [the child’s] emotional development, which includes elective mutism, they’re to blame for the elective mutism. It’s obvious that it follows as a perfectly sane, rational, logical conclusion, does it not?---I just see the elective mutism as one part of the problems with [the child’s] emotional development. So I don’t believe it lays the blame solely on the elective mutism at all.

92.His Honour then asked several questions of the mother challenging her logical processes in not blaming the father for the elective mutism but blaming him for the emotional development of the child. His Honour, apparently unsatisfied with the explanation, persisted in explaining the apparent inconsistencies in her position to the witness who responded:

[MOTHER]:I believe the elective mutism was brought about also by the conflict but I can’t pin a direct blame on [the father] for the elective mutism.

What conflict?---The conflict between – in the relationship between [the father] and I. 

It was brought about or commenced by reason of conflict between the father and yourself, and in relation to that conflict you blame the father?---No, I – not direct – not totally.

I haven’t heard any suggestion that you are blameless.  The correspondence and all that I’ve heard thus far is that you’ve cast blameworthiness upon the father.  Because if that’s so, he therefore is responsible for the elective mutism and all that’s happened is that [the father’s partner] has been subdivided out of the equation at some point of time.  I’m just trying to look at it in a logical way?---I’m just looking at it – I’m trying to get it across that [the child] has been exposed to conflict all his life.

Did you hear the father’s answer? ---?--- It’s been ---

--- to the questions that were put to him? ---Yes.

About what his view, for what it was worth, in terms – because he’s not an expert – of how the elective mutism came about? ---Yes, I heard that.

What did you think of that? ---I believe that he does – there are---

What did you think of his answer? Did you – or put more directly, did you see it as sound? ---Yes, I do.

So did I.

93.After some further questions from the father’s counsel as to the father’s interpretation of the elective mutism and whether that showed an insight into some of the child’s needs, the mother was asked whether she had concerns about the father’s insights into the needs of the child and replied that those concerns were set out in the correspondence. His Honour then called for production of Exhibit CR “1” and said:

HIS HONOUR:   Well, your concerns about his insight into [the child’s] needs are really summarised in one of your pieces of correspondence and certainly in others, and to which I addressed your attention in the witness box yesterday, namely that your concern about his behaviour, his lack of insight, lack of responsibility, totally self-absorbed, thinking only of his own rights, tacit disregard for the rights of [the child], too consumed with intense resentment towards you, can't see past his hostility, can't see the impact on [the child’s] life et cetera. They're the sort of lack of insight. You see if all those are correct, I don't think he could have custody of a cat, frankly, I mean, they're a pretty strong litany of abuse - of demonstrable parental failures. Is that how you see him?---Certainly not to that extreme.

But you did - you said it. You said you meant it?---But I did because this was the information that I was getting from [the child].

The trouble is, that’s the epicentre of this case. You appear, madam, to be acting on information and slavishly devoted to it - my term. Not only from what [the child] tells you, but from anyone else tells you, and which comes out in florid terms which struck me as alien rhetoric. That’s all. Just a comment.  They're the sorts of matters however that you have in mind when you refer to concerns about his lack of insight - yes or no?---Yes.

Yes - well, as I said, if he is seized with those failed – if he has such failed qualities then he may as well leave the court now, because if any person - parent has those sorts of qualities I can't see them succeeding in any court in this land. It’s just an observation I make. It may be that I can be persuaded - and I’m very much open to persuasion. I want you to understand I have no concluded view one way or the other. I’m listening earnestly and carefully to the evidence. I read it earnestly and carefully every night and every morning. Thank you.

94.The following day the cross examination by counsel for the father continued and the mother was being asked to explain comments about strategies that she had discussed with the child to help him alleviate his fears of going to his father’s home. There was discussion about the child retreating to a cubby house and then the witness said:

[MOTHER]:I talked about safety plans.  If he felt really concerned to go to the phone, contact 000, ring me.  He didn’t feel safe to do that however.  Go to his room---

HIS HONOUR:   Wait a minute. I really don’t take Pitmans, but this is enlightening ‘I’ve talked about safety plans when he was frightened’---?---Mm. 

’---such as ring 000’?---Mm'hm.

‘Go to his room’?---Mm'hm.

What, lock his door? Did you say that?---Just go to his room.

‘Ring 000’. I mean, I’ve never come across anything like this. A little boy, six years of age saying to his mother, ‘I feel frightened,’ you know, ‘when [dad’s partner] and dad – [“dad’s first name”]’ -I forgot, of course, he calls his father [by his first name] – ‘[…] are fighting.’ ‘Do you feel frightened? Well, let’s talk about strategies. Go to the cubbyhouse. You can ring 000.’ Emergency, police emergency. Call out the Feds. I mean, this is extraordinary, madam?----He was very upset. It wasn't trivial.

What other plan could you possibly conceive as a matter of real enlightenment and insight to discuss such an incident with six-year-old boy? Anything else?---

When a six-year-old boy is telling me how scared he is feeling ---

Well, you had no other alternative than to do that. Is that your evidence?---No, that’s not my evidence. I was trying to assist---

There was an alternative?--- - - him to cope.

Was there another alternative than to tell him to ring 000. Yes or no?---Yes.

What was that? What alternative then was available that you didn't elect to take?---He could have removed himself from the situation by going somewhere safe.

But he does by going to his room or to the cubbyhouse. Anything else? Long silence. Answer no, is it?---Yes. No.

All right. So the strategies are (1) go to your room (2) go to your cubbyhouse (3) ring 000. They're the three alternatives?---The primary - no. The 000 was an extreme example.

Madam, you said it?---Yes, I did say it. I’m trying to clarify what I said.

I’m concerned about it. A six-year-old boy picking up the phone, 000, police emergency and this six-year-old boy then expressing something down the phone?---He was terrified. He was very upset. He wasn't---

[Counsel for the father], proceed.

[FATHER’S COUNSEL]:

Thank you, your Honour.

Were there any other strategies that you discussed with [the child]?---Not that I can think of, no.

When [the child] said that he was scared with the fighting, you're talking about similar comments that he made to [the forensic psychologist], are you, in paragraph 89 of her report. You've got the report in front of you?

HIS HONOUR:   This is the second report, is it?

[FATHER’S COUNSEL]:

The second report, sir, yes.

HIS HONOUR:   Wait a moment.

[FATHER’S COUNSEL]:

Page 18, paragraph 89?--I beg your pardon, sorry? Page 18, paragraph 89. This is where [the forensic psychologist] reports in relation to what [the child] said to her, ‘[dad’s partner] and them used to fight commenting one day [dad’s partner] was fighting about me because I heard her say my name.’ Is that similar to what [the child] told you?---Similar. That’s one aspect of what he told me, yes.

Is that when he'd come home and report to you after contact?---He did report about the fighting but in more detail.

Is that what he would report to you after contact, when he came home from contact? Is that what he would say to you?---Not specifically, no.

What do you say specifically he would say to you?---He would tell me that they were fighting, he would tell me how it made him feel. At times, he would tell me what he thought they were fighting about.

HIS HONOUR: Madam, I want to take a note of this as accurate as I can. ‘They were fighting’, yes? ‘He would tell me they were fighting’, what else? ‘What they were fighting about’?---Sometimes he would hear his name.

Right?---He would use bad words.

Yes?---He would tell me how he had heard [the father’s partner] on the phone one time telling someone, he didn't know who, that she hated living here and that she couldn't stand it any more or words to that effect. That he felt scared.

Yes. Anything else?---Not that I can think of at the moment.

Does that exhaust your memory of these things that he would say to you?---There's a lot more that I’m forgetting.

You just take your time. We will sit here a little longer. What else would he say? Well, half a minute has gone by so far. Is there anything else you wish to say?---Well, he talked about how often it happened, that it happened nearly every weekend he was there.

Just say what it was that he said because this goes to the foundation of why you would tell a six-year-old boy to ring emergency, state emergency; the police and fire brigade---Justification for ringing emergency was how frightened he felt. These are coming out in my words. I actually witnessed how he was telling me this and the genuine fear on his face.

It may be that he fed upon your reactions, ever thought of that?---No, I don't believe he could act that.

You were calm and rational, are you saying that?---Absolutely.

Yes, I suppose, you were?---Absolutely, I was calm and rational and I don't believe he could have acted that level of emotion. That was a genuine display of emotion and fear.

How did he manifest his fear?---! can't answer how he manifested his fear.

Well, the boy was portraying ‘a genuine display of emotion and fear’. What I’m asking you is what physical observations did you make to conclude; that is what were the physical manifestations if any or other manifestations if any for you to conclude ‘a genuine display of fear’?---Tears.

Tears?---Nightmares.

What?---Nightmares. Wanting to sleep with me. Heightened startled response. If I called out to him from another room, I’d scare him, which I think was out of proportion to how he should have reacted.

Yes.

95.The final passage to which we were taken in support of the proposition that his Honour had inappropriately entered into the arena took place when the child representative was cross examining the mother about an apparent inconsistency in her evidence relating to her concerns about contact not arising until 2001 when her letters written in 1999 made it clear that the mother was expressing grave concerns about the viability of contact at that earlier time. In the course of the cross examination his Honour turned to the witness and asks three somewhat lengthy questions of the witness:

HIS HONOUR: What I can't understand - you see it’s the letters that balance off and give credibility to an alternative view that you put in court before me. The letter of 16 November 1999 could not, for example, have been written by you bearing in mind that you may be before the court in 2004, before a court on a pretty serious residence case. It was an expression of your real feelings. So I have you for one time saying that during the period 1998 to 1999 you are not saying you had significant concerns. It was put to you, that you – not saying you had concerns - and that was said the other day as well, and made pretty clear to me. Yet the letters that have been put forward in this chain of continuity suggest one thing, but really end up on the pinnacle with the letter of 16 November 1999, when it does nothing but express concerns about various issues. If the father's like that - like all that you say he is in this particular letter, you must have concerns about contact. It’s just gainsaid, I mean this is one lengthy diatribe of allegation after allegation, the likes of which I haven't seen, and you've stood by these suggestions as being ones that you meant, particularly the ones in the first complete paragraph on page 3, but when you read the other sentences, and various of the paragraphs, they're all consistent, yet how can it be said that you had no concerns?—Well ---

This father's a monster. He's an absolute monster. I mean, he may as well walk out of the court now if I made findings of this nature?---Some of the letters were some time ago. There was a lot of anger. I acknowledge there was a lot of anger there as well, and in context of the history, and what I deemed as significant then, perhaps in hindsight and my experience now, you think, well, really, was that a big deal. I mean, I can't comment. I just know that I must have been feeling something fairly strongly at the time to put all that down in writing, and----

I'm just wondering whether you were operating as a case worker. You know what l mean. I’m not saying this offensively at all. It’s just a concept that’s come into my mind. The use of the words ‘disclosure’ et cetera, not only the letters, but throughout your evidence as well, which I described as alien rhetoric, and by that I mean alien rhetoric to what I hear in court from mothers and fathers. I don't hear the term, ‘Well, Billy disclosed to me and Billy does not perceive his father to be a stable parent.’ I hear things like, ‘Billy told me that dad did this,’ or whatever. But did you ever separate yourself out of some sort of protective worker condition to being a mother of [the child]?---The only reason I’ve got through this is I’ve just relied on whatever coping mechanism and strategy I could. It’s been very, very hard, and maybe I’ve got to, you know, try and detach myself from it, because it does hurt me. If my son is hurting, I hurt, and, you know, perhaps how I’ve coped with it and how I’ve handled it hasn't been ideal, but I’ve tried to deal with this the best way I can and that’s all I can say. It’s been very, very hard – it’s almost been hell on earth with all of this. So I just have tried to get through it as best I could.

This is a case where it’s at the end of the line, and perhaps you may learn when within this process - as painful as it may be - in the child process, the reality of another view is emerging with singular clarity. Do you follow me?—No, I don’t, I’m sorry.

All right. I’m sure counsel do?—Mm'hm.

96.When considering the nature of the exchanges between the trial Judge and the witness it is necessary to remember that in her professional life she works as a case manager for the Department of Human Services. She has a Bachelor of Arts majoring in psychology, Bachelor of Teaching at primary level and a Bachelor of Social Work. Several of the exchanges between his Honour and the witness need to be viewed in light of the trial Judge seeking to understand the complex processes that were described by the expert witnesses interacting on the child’s life. It must be remembered that, as the authorities suggest, children’s cases are not strictly adversarial in their nature. Fogarty J observed this in Re Z (1996) FLC 92-694 at 83,282:

In M and M (1988) FLC 91-979; (1988) 166 CLR 69 at FLC 77,080 and CLR 76 the High Court re-emphasised the distinctiveness of child-related proceedings:

‘Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 1 ALR 318; 47 ALJR 499; McKee v McKee [1951] AC 352 at 364-65. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child.’

See also the discussion of Nicholson CJ and Fogarty J in Re P (a child); Separate Representative (1993) FLC 92-376. At 79,896 it was said that:

‘Although proceedings in the Family Court in property and maintenance matters are adversarial in their nature rather than inquisitorial - see In re Watson; ex-parte Armstrong (1976) FLC 90-059 it is important to note that the remarks of the High Court were confined to property and maintenance. Proceedings in relation to the welfare of children are not strictly adversarial, having regard to the Court’s obligation to treat the welfare of the child as the paramount consideration: M and M (1988) FLC 91-979. This overriding principle governs the procedure as well as the substantive issues.’

97.The Family Law Act mandates in s 68F that the court must consider certain matters in determining how to make orders that will coincide with the child’s best interest.  The court is required to evaluate for instance the capacity of each parent to provide for the needs of the child, including the child’s emotional and intellectual needs. This may require some searching and penetrating questions to be asked of the parties, especially in a case as overridden with difficulties as this one was. The very fact of the trial Judge in a long, lengthy hearing occasionally stepping into the fray in order to try better to understand the thought processes of the parties, especially where they were articulate enough to be able to express themselves with some understanding of the issues involved, ought not to have left the reasonable bystander with the presumption or the assumption that the Judge was acting unfairly towards the parties or either of them. 

98.The final aspect of the bias appeal was to direct our attention to the trial Judge’s use of language asserted to be inappropriate.

99.Our attention was first drawn to a passage in the transcript of the fourth day of trial where his Honour said:

What I’m concerned about is how that, and I rather suspect that the fact is that it is domestic rivalry.  I mean a six-year-old and a three-year-old, for goodness sake, you know, having a bit of a barney, has been elevated into almost reportable – a domestic abuse by [the child’s paternal half brother].  I mean that’s the imputations that I get out of the letters?  --Yes.

And that is just an extraordinary suggestions [sic] that borders the fantasy land.  It borders incredulity.  But what [the child representative’s] putting, has some basis in the sense that [the child’s paternal half brother is] in one household, one adult, himself and his mum and the baby?  --Yes.

100.This was said in the course of the cross examination of the father by the child representative.

101.In discussion between the trial Judge and the child representative, his Honour, when discussing one possible outcome to the case being that the father simply cuts his ties with the child, said:

It’s been my experience in this court, most fathers do. In those circumstances, a significant whack – and I use that in the most dramatic sense - part of a child’s life is exiled and sent to Siberia where it will die.  That’s just not on in terms of fulsome development.

102.Then the father’s counsel was commencing his cross examination of the previous partner of the father and a member of his household during the periods that the contact was occurring. Cross examination commenced by counsel for the mother asking the question whether she liked the mother. When his Honour indicated that he did not think the question was helpful, the mother’s counsel persisted, to which his Honour said:

HIS HONOUR:   Okay then, I follow that, and then it will be open as to the matters raised by your client in her letters concerning this witness.

[MOTHER’S COUNSEL]:

Yes.

HIS HONOUR:   Alright, that’s all at sea, all at large.

[MOTHER’S COUNSEL]:

Yes, your Honour, certainly.  I can’t do anything about the letters, they’re before your Honour. 

HIS HONOUR:   No, they are an indictment on the face of them.

[MOTHER’S COUNSEL]:

Yes, if your Honour pleases.

HIS HONOUR:   That other one brings to light the continuum, the litany that is spelled out in those letters is quite extraordinary.

[MOTHER’S COUNSEL]:

Yes.

103.Then in the course of cross examination of the mother, during which the child representative was asking about the fax that the maternal grandmother had sent to the father containing some rather strident language, his Honour asked whether the mother was aware of the letter. She replied that she was, to which his Honour said: 

HIS HONOUR:     A bit like the apple and the tree.

Just on reflection, looking at this whole train of correspondence, you regret it?---I can say I regret it now.

What do you regret about it?---Well, I guess my mother – I do agree, and my mother has been abused by [the father] in the past, and – but I guess all it did was further inflame the situation, and that we shouldn’t have sunk to that level.

104.Then in the course of some further cross examination of the mother her attention is drawn to a letter in which she reacted to the father seeking to explain why he had returned the child late after a period of contact because of some car trouble. It seems the mother’s reaction was to write back to the father, according to the question, saying:

‘If indeed you did have car trouble then you should have some supporting documentation of the fact, as obviously your car was repaired in time to get [the child] to the police station at 6.45.  I expect this documentation to be provided as well as an undertaking…that you will abide by court orders and return [the child] at the court appointed time.  I do not care if you have to catch a taxi to Melbourne.  Until such documentation has been received, your weekday contact is suspended.’

105.Counsel asked the witness what she was thinking and before she could answer the trial Judge said:

It seems to me [Ms child representative], if I may make the comment, almost a Hitlerian slavish devotion to control.

106.It was urged upon us by the mother’s counsel at the appeal, that the comment was all the more insulting because of the Germanic background of the mother and her family. At the least it could be said to be in very poor taste.

107.Finally we were taken to a passage where again in the cross examination of the mother by counsel for the child representative the following took place:

[CHILD REPRESENTATIVE]:        

Is it possible you see, can I just preface my question by saying this – this court is confronted with three very difficult propositions, and the one that is perhaps the most palatable to everybody, including the experts, is that [the child] be able to live with you, and have a real relationship with his father through contact.  She says that that’s the one least likely to work given the history that we have.  You are saying here to the court, you’re saying here today, now, your view is that contact will work, or may, or you are being optimistic.  You’re putting that as a proposition that you would prefer, isn’t it?---provided there is no conflict.

HIS HONOUR:   Keep going on about conflict.  Let’s move on.

108.In the course of rejecting the application that he disqualify himself Guest J made reference to a passage from Halsbury’s Laws of Australia Vol 20 at para 325-11295 where the learned authors state:

A fair trial is denied, if at any stage of the trial when the judge still ought to have been open to persuasion, the judge had, as a result of excessive questioning, inappropriate comment or refusal to entertain argument, given the appearance that his or her mind was already made up.

109.It is helpful to refer to Galea v Galea (1990) 19 NSWLR 263 at 281 Kirby ACJ, (as he then was) in dealing with whether or not excessive intervention by a trial judge may mean that a trial miscarries, reviewed various authorities and identified, at p 281, a number of guidelines. They are as follows:

1.  The test to be applied is whether the excessive questioning or perjorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside:  see E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (NZCA).

2.  A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, greater latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached:  see R v Matthews (1983) 78 Cr App R 23; E H Cochrane Ltd v Ministry of Transport.

3.  Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and "into the perils of self-persuasion":  see Sir Robert Megarry, “Temptations of the Bench” (1978) 16 Alta L Rev 406 at 409; see also U Gautier, “Judicial Discretion to Intervene in the Course of the Trial” (1980) 23 Crim LQ 88 at 95-96 and cases there cited.

4.  The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion:  see In the Marriage of Lonard (1976) 26 FLR 1 at 10-11; 11 ALR 618 at 626 (FFC); see discussion [1976] ACLD DT 630; cf Ex parte Prentice; Re Hornby (1969) 90 WN (Pt 1) (NSW) 427; [1970] 1 NSWR 654.

5.  It is also relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones, namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel's brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions: see Yuill (at 185) and Gautier (at 117).

6.  The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change. But there is no unchanging formulation of them. Thus, even since Jones and Tousek, at least in Australia, in this jurisdiction and in civil trials, it has become more common for judges to take an active part in the conduct of cases than was hitherto conventional. In part, this change is a response to the growth of litigation and the greater pressure of court lists. In part, it reflects an increase in specialisation of the judiciary and in the legal profession. In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay or unnecessary prolongation of trials deriving in part from new and different arrangements for legal aid. The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements: see Whitehorn v The Queen (1983) 152 CLR 657 discussed in R v R (1989) 18 NSWLR 74 at 84F per Gleeson CJ.

110.Even though several of the remarks of the judge were intemperate and uncalled for, the serious questions raised by the conceded facts in the case were such that a reasonable bystander could not have concluded at any point that the trial Judge had given the appearance that his mind was already made up. He may well have formed strong preliminary views that the mother was the author of her own misfortune in that as conceded by her counsel, her writings throughout the period of the relationship of the parties portrayed certain attitudes that were less than indicative of co-operation and were justifiably the subject of criticism from an early stage in the course of the proceedings.

111.It must also be remembered that these proceedings were conducted in a court where the evidence in chief was in affidavit form. The judge was expected to have read it before the commencement of the trial. The reading of the affidavits could well lead to preliminary views being formed which would likely colour the attitudes expressed by the judge to the various witnesses. Provided that the judge was seen to be keeping an open mind to the issues and allowing them to be fully ventilated before expressing a concluded view, then we see no error in approach if he expresses preliminary views that seem to be favourable to one side in the proceedings.

112.In this case the mother’s own writings damned her. Her counsel conceded that proposition. It was not surprising to see that the trial Judge was critical of those writings from an early stage. Such apparent criticism ought not however have lead a well informed impartial observer to conclude that the outcome of the case was a foregone conclusion at anytime prior to the judgment being pronounced.   

113.In conclusion, we are not inclined to allow the appeal on the basis of Ground 11.

ORDERS7.   

114.The proposed orders are:

1.     That the appeal be allowed.

2.     That the orders made by the Honourable Justice Guest on 27 January 2005 be set aside.

3.     That the matter be remitted to the Melbourne Registry for a rehearing.

4.     The appellant be at liberty to file and serve written submissions as to costs of this appeal within twenty-one (21) days of this date.

5.     The respondent and the child representative be at liberty to file and serve written submissions in answer thereto and in relation to costs generally within fourteen (14) days thereafter.

6.     The appellant be at liberty to file and serve written submissions in reply thereto within a further seven (7) days.