Manderville & Borah
[2021] FedCFamC1A 59
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Manderville & Borah [2021] FedCFamC1A 59
Appeal from: Borah & Manderville [2020] FCCA 3248 Appeal number(s): NOA 83 of 2020 File number(s): BRC 1678 of 2015 Judgment of: AINSLIE-WALLACE J Date of judgment: 11 November 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the mother appeals final parenting orders – Procedural fairness – Where the mother had lawyers pursuant to s 102 NA of the Family Law Act 1975 (Cth) – Where those lawyers withdrew – Where there was no denial of procedural fairness – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 102NA, 117 Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
M v M (1988) 166 CLR 69; [1988] HCA 68
Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth) (1963) 113 CLR 475; [1963] HCA 41
Sali v SPC Ltd (1993) 116 ALR 625 [1993] HCA 47
Number of paragraphs: 76 Date of hearing: 13 October 2021 Place: Sydney Counsel for the Appellant: Dr Lake Solicitors for the Appellant: Kea Legal Counsel for the Respondent: Mr Drysdale Solicitors for the Respondent: Hopgood Ganim Lawyers ORDERS
NOA 83 of 2020
BRC 1678 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MANDERVILLE
Appellant
AND: MR BORAH
Respondent
ORDER MADE BY:
AINSLIE-WALLACE J
DATE OF ORDER:
11 NOVEMBER 2021
THE COURT ORDERS THAT:
1.Appeal NOA 83 of 2020 be dismissed.
2.Within 28 days of this order, the mother pay the father’s costs of the appeal fixed in the sum of $24,227.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Manderville & Borah has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE J:
By Notice of Appeal filed 7 December 2020, as amended on 6 August 2021, Ms Manderville (“the mother”) appeals final parenting orders made by a primary judge in the Federal Circuit Court of Australia on 1 December 2020 in proceedings with Mr Borah (“the father”).
There are two children of the parties’ relationship, X aged 13 years and Y aged 9 years.
The parenting orders provided that both children live with the father and he have sole parental responsibility for them. The primary judge ordered that the children spend time with the mother during school terms as agreed between the parties or if there is no agreement each alternate weekend. School holiday time was to be agreed and, again if there is no agreement the children would spend the first half of each school holiday with the mother and the second with the father. Other orders were made which accommodate time on special occasions, school activities and the like.
The parties met in 2006 in City N, UK and commenced their cohabitation there in May 2007. In July 2008 the mother who was then pregnant with X, returned to live in Australia. The father travelled to Australia, arriving three weeks after the older child’s birth. The parties finally separated in April 2014.
The father commenced parenting proceedings in February 2015 and on 27 May 2015 consent orders were made which provided that the children live with the mother and spend time with the father in a regime which commenced with a few hours three times each week and ended in day only time. By May 2016 the children were spending each alternate weekend with the father.
Further consent orders were made in March 2017, on a final basis, which provided that the children live with the mother and spend each alternate weekend with the father and half of the school holidays.
In December 2018, the older child left her mother’s home and went to the father’s and refused to return to her mother. As a result further proceedings were instituted and on 31 January 2019 orders were made that the older child live with the father and the younger child live with the mother with the children to spend each weekend and every school holiday period together either with the mother or the father.
At the final hearing, the parties effectively conceded that they were unable to cooperate with each other in relation to the major issues concerning the children and each party proposed they have sole parental responsibility. Her Honour found no evidence to support a regime of shared care between the parties.
Significant to the primary judge’s conclusion that the children should live with the father and he have sole parental responsibility for them, was the mother’s lack of emotional regulation. There was considerable evidence before the primary judge of the mother’s highly reactive response to particular incidents and her Honour set out at length an exchange between the mother and a member of the police who had pulled her over for speeding and, as the primary judge said at [81], “the mother could have answered the questions and gone on her way. Instead she engaged in confrontational exchanges with the police officer over about 30 minutes with [the younger child] in the car”. The mother live streamed the confrontation to her Facebook group.
Her Honour set out the evidence of the family consultant on the issue of the mother’s capacity to regulate her emotions at [83]:
For the children, this is highly likely to foresee a tumultuous and challenging childhood experience.
And that’s the parents’ kind of conflict you’re talking about. But what I’m interested in is their inability to perhaps develop effective conflict resolution and emotional regulation skills. With respect to that inability, you say that’s going to compromise the children’s long-term development? Yes, your Honour. What we’re seeing from [the older child] particularly on the information that I was given around her behaviour – certainly some of that mirroring of an inability to manage big emotions as they come up.
Yes? And to then be able to resolve conflict in a constructive way that doesn’t get escalated, that doesn’t become, you know, a big drama. When that then – those skills and – or lack thereof get transferred, for example in a school setting or in a future interpersonal relationship, that’s going to then recreate these difficult positions and situation for [the children], if he follows in those footsteps, where they’re then going to have a high level of conflict or a lack of emotional connection with a number of people because they cannot form and sustain healthy relationships with other people because they don’t have those foundational skills to manage conflict, which is part of everyday life. And so then we see that there’s high likelihood that they’re going to have difficulties with people in authority, with school, with engaging in more of those high-risk behaviours, particularly in those later adolescent years, because they’re just unable to understand and manage and contain their own emotions when they’re feeling distressed.
Her Honour concluded that the mother’s apparent inability to contain her emotional response would adversely affect and pose a risk to the children of emotional harm.
Additionally there were allegations that the mother had been violent to X. X had made these complaints to the family consultant. The mother said X was lying. The primary judge did not accept that submission and concluded that X was at risk of physical and emotional harm in her mother’s care.
Y made no similar complaints about the mother and the primary judge found that the mother had not physically assaulted Y.
The primary judge found no risk of physical or emotional harm to either child in the father’s care.
Although at the time of the hearing, the children were living separately, the primary judge concluded that their relationship with each other must be protected and, coupled with her other findings, persuaded her that it was in the children’s best interests that they live together with the father
THE APPEAL
The Amended Notice of Appeal raised five grounds of challenge to her Honour’s orders however at the hearing of the appeal, counsel who appeared for the mother sought to rely on only one ground, Ground A, which contends that the primary judge failed to afford the mother procedural fairness during the hearing and, as a result she was significantly prejudiced.
Before considering the particular submissions made on this ground, it is as well to set out the relevant legal principles.
There is no better starting point than Kirby J where he said:[1]
35. It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
(footnotes omitted)
[1] Allesch v Maunz (2000) 203 CLR 172
The right to be heard is not absolute.
So too is it important to understand that the requirements of procedural fairness are to be determined by reference to the statutory framework within which a decision-maker exercises a relevant power and the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case.[2]
[2] Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth) (1963) 113 CLR 475 at 503
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. This overriding principle governs the procedure as well as the substantive issues.
The High Court reflected on the particular nature of child related proceedings and said:[3]
Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression. 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.
(citations omitted)
[3] M v M (1988) 166 CLR 69 at 76
Finally, and relevantly to the arguments advanced on appeal, two matters must be emphasised. First, as is well established, a decision to adjourn proceedings requires a consideration of matters wider than the interests of the parties but needs to be mindful of the needs of other litigants waiting to be heard, the proper management of court lists and to which must be added in parenting proceedings, the best interests of the children. [4] Secondly and significantly, procedural fairness is not the sole preserve of the aggrieved party. A decision to adjourn a matter will almost inevitably cause prejudice to the party wishing the matter to proceed and careful balancing of competing prejudices is required.
[4] Aon Risk Services Ltd Australia v Australian National University (2009) 239 CLR 175; see also Sali v SPC Ltd (1993) 116 ALR 625
The foundation of the asserted failure to afford procedural fairness is in what occurred on the second day of the final hearing. Reference to some undisputed matters provides helpful context.
·As mentioned above, the proceedings commenced in February 2015 on the father’s application. Consent orders were made from time to time and the final hearing of the parenting and property settlement proceedings commenced in August 2020. On 16 March 2018 the proceedings were listed for a final hearing for two days commencing on 5 June 2018. However this date was vacated on the commencement of the then trial call over pilot.
·At all times the father was represented and funded his own legal costs. At the time of the hearing before the primary judge, he had spent some $450,000 on legal fees. The mother had been unrepresented for the most part. An Independent Children's Lawyer had earlier been appointed and appeared until 2017. No party had sought the appointment of an Independent Children's Lawyer to participate in the final hearing.
·A Family Report had been prepared and released to the parties some 13 months before the listed hearing date, in August 2020.
·Because allegations of family violence had been made by each party against the other and the mother being then without representation, she was provided with the assistance of lawyers to appear for her pursuant to s 102NA of the Family Law Act1975 (Cth) (“the Act”), which is designed to prevent parties directly cross examining each other where an allegation of family violence has been made.
·If the hearing before the primary judge was adjourned, it would not be relisted until the middle of 2021. In addition, there was some uncertainty expressed by the primary judge as to whether the mother would be provided with lawyers under the s 102NA scheme at the adjourned hearing.
·The children were at the time of the hearing before the primary judge twelve and eight years old. Their living circumstances had changed from time to time by reason of the various interim orders. There were competing applications between their parents which would mean that one of them would perhaps move to live with the other parents. It was also a matter which involved a high degree of conflict between the parents and the evidence before the primary judge made it clear that the children had not been shielded from some if not most of that conflict and dispute. It is overwhelmingly clear that their best interests required some certainty in their lives through final orders.
When the final hearing commenced, the father, as applicant gave evidence first and was
cross- examined on the first day. The mother gave evidence and her cross-examination while commenced on the first day of hearing, was not completed on that day.
Counsel and a solicitor provided through the s 102NA scheme appeared for the mother on the first of the two days of hearing and on the morning of the second day, he and his instructing solicitor sought to withdraw from the proceedings citing an ethical conflict. Counsel said that the mother had withdrawn her instructions from him and his solicitor which the mother denied. From the mother’s comments to the trial judge, it certainly appears that she was dissatisfied with the performance of the lawyers. In any event, they were granted leave to withdraw.
It is what followed counsel’s withdrawal from the proceedings that was said to have given rise to the procedural unfairness and consequent prejudice to the mother. In short it was asserted that at this point the primary judge should have adjourned the hearing and in failing to do so denied the mother procedural fairness.
Failure to adjourn the proceedings
In arguing that to fail to adjourn the proceedings was procedurally unfair, counsel for the mother on appeal referred to an earlier application to adjourn the proceedings made by the mother’s counsel when the hearing commenced. Counsel then appearing argued that there were deficiencies in the evidence which should be addressed before the hearing could proceed.
Counsel for the mother in seeking the adjournment relied on three matters: that there had been significant changes in the family’s circumstances since the release of the report of which the family consultant was not aware, had not addressed and which should be the subject of an updated report; the absence of an Independent Children's Lawyer and the volume of documents which comprised the mother’s case.
Broadly in respect of each of the evidentiary deficiencies raised by the mother’s counsel in relation to the report of the family consultant, the primary judge said that they could be addressed in cross-examination of the consultant.
In the result, concern as to the lack of an Independent Children's Lawyer and the volume of material in the mother’s case fell away somewhat on the appeal.
It was submitted that her Honour’s determination that any identified defects in the evidence could be cured by competent counsel, ought to have caused her to consider whether the mother acting for herself could navigate those evidentiary defects and whether procedural fairness dictated that the hearing be adjourned once her lawyers withdrew.
A significant hurdle to making good this argument is the mother’s evidence that she did not want an adjournment.
After the mother’s lawyers withdrew from the proceedings, considerable time was spent by the primary judge in discussing with the mother’s and father’s lawyers the various options for the continuation of the hearing. It has to be noted that the first part of the discussion was attended by some confusion about the impact of the departure of the mother’s lawyers and the operation of s 102NA. However, one option canvassed by the primary judge was to complete the mother’s cross-examination, take the evidence of the family consultant and make interim orders which, her Honour said, would give the mother an opportunity to obtain lawyers.[5] At this point the mother said she could not get lawyers and complained that those who had just helped her were not prepared and had not read any of the subpoenaed material and had not “read the case”.[6] She continued and said that while she appreciated their help she was not going to get legal representation.[7] To which the primary judge said: “Well, then let’s proceed with the trial”.
[5] Transcript 20 August 2020, p.120 lines 1–2
[6] Transcript 20 August 2020, p.120 line 26
[7] Transcript 20 August 2020, p.120 lines 22–24
The mother said that she wished to cross-examine the father, which in effect required him to be recalled for further cross-examination, his earlier cross-examination having been completed by the mother’s then counsel. The primary judge told the mother that it was not possible until she had a lawyer. The mother said that she wanted “to get out of here too” to which the primary judge said:[8]
HER HONOUR: I take it you don’t want to finalise the trial today? You want to actually adjourn it and have another go at the father in terms of cross-examination?
[THE MOTHER]: No, I don’t want to come back to this court either really.
[8] Transcript 20 August 2020, p.122 lines 9–14
The primary judge again asked the mother what she wanted: “do you want to finalise the trial today or do you want an adjournment?”[9]
[9] Transcript 20 August 2020, p.122 line 25
The primary judge then referred to the mother’s request to have the father recalled for further cross-examination by her and the difficulties posed by s 102NA and the objection of the father’s counsel to that occurring.[10]
[10] Transcript 20 August 2020, p123 lines 10–44
Her Honour said that if the mother wanted to pursue that option, she could adjourn the hearing to allow the mother to make an application to permit her to cross-examine the father but cautioned her that if she was successful, the case would not be heard until the middle of the following year.
Her Honour said:[11]
What will happen today, no matter what… is I will be doing an interim arrangement and that interim arrangement will be after I’ve heard from the expert.
Her Honour continued:[12]
So today we’re going to do an interim hearing and both of you can cross-examine the expert about a couple of things that might be relevant for an interim….
After hearing from the father’s counsel, the primary judge said to the mother:[13]
… So that’s another option and that seems to me to be the one that might be the most effective one. [Counsel for the father] finishes his cross-examination of you, you and [counsel for the father] then both have an opportunity to cross-examine the expert, I then adjourn the matter to allow for …submissions
[11] Transcript 20 August 2020, p.123 lines 38–43
[12] Transcript 20 August 2020, p.124 lines 27–29
[13] Transcript 20 August 2020, p.126 lines 35–39
The matter adjourned for a short while. On resumption, the primary judge asked the mother what was her position and she replied by referring to being unrepresented and said “ I have no idea.”[14] However, the mother said that she opposed the making of an interim order.
[14] Transcript 20 August 2020, p.127 line 37
Her Honour told the mother that she would conduct a final hearing in which the father’s counsel would complete his cross-examination of her, then the expert would give evidence and “I will allow you to make any application to reopen and re cross-examine after we’ve done all that today.”[15] Her Honour said then she would adjourn the matter for submissions and to make the application.[16]
[15] Transcript 20 August 2020, p.128 lines 32–33
[16] Transcript 20 August 2020, p.130
The primary judge said that she would have a transcript taken out so that the mother could give it to a legal adviser. She asked the mother if she was comfortable with that, and the mother said she was.
Returning then to the submission that the primary judge erred in not adjourning the hearing. It was argued that even though the mother told the primary judge she was comfortable in continuing the hearing it could not be assumed that she genuinely understood what she was being asked, given that there had been considerable discussion of various options before the matter was briefly adjourned to allow the mother to consider her position.
Counsel for the mother on appeal said:[17]
Not that [the mother] didn’t understand, but that in the circumstances, it’s reasonably open that notwithstanding that now-lay litigant or self-represented litigant said “yes”, that the circumstances were such that – particularly in the absence of any advice from her Honour during that period of stand-down to get any legal advice - - -
[17] Appeal transcript 13 October 2021, p.12 lines 10–14
It seems then that the appellant argued that her Honour erred in not adjourning the hearing even though the mother did not ask nor apparently wanted it adjourned, the error being that her Honour failed to understand that when the mother said she understood she perhaps did not.
The mother’s Summary of Argument seems to acknowledge that the mother did not want the hearing to be adjourned it was said:
20. It is somewhat less clear as to whether a trial judge ought to impose an adjournment in circumstances such as occurred here, or ought to make certain considerations in that regard. However, the “Principles for conducting child-related proceedings” in the Act provides that the court must give effect to the principles in that section, the most-relevant here being:
Principle 2 – The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
21. Due to the failure of the trial judge to follow Principle 2, it is submitted that the end result of proceeding with the trial in these particular circumstances resulted in a lack of procedure fairness and prejudice against the mother.
(italics in original)
No submission either oral or written identifies how the primary judge failed to apply “Principle 2” nor how any such failure resulted in prejudice and I do not understand what is meant by this submission.
In oral submissions counsel for the mother contended that what her Honour ought to have done was when she stood the matter down to let the mother consider her position, she should have urged the mother to get legal advice. That, it was submitted would be the “proper approach” by her Honour so that the mother could be advised as to whether she should seek an adjournment or if not then how to conduct the balance of the hearing.[18]
[18] Appeal Transcript 13 October 2021, p.12 line 45
However, that since neither an adjournment nor an adjuration to the mother to obtain legal advice was given by the primary judge, the appellant argued that the mother was prejudiced by being required to complete the hearing while unrepresented in the following ways:
·The mother was not afforded adequate protection during cross-examination;
·The mother’s witness (her grandmother) was not afforded adequate protection during cross-examination;
·The mother was not afforded an opportunity to properly re-examine herself or her grandmother without the legal knowledge “which, without any doubt, would have been done had the mother been represented”;
·The mother had no ability to adequately cross-examine the family report writer without sufficient time to prepare to do so; and
·The mother had no ability to recall the father for further cross-examination in the circumstances where she had questions to put to the father that her inadequate counsel did not.
Protection during cross-examination
The underlying contention was that because the mother was not represented, she was deprived of being protected from objectionable questions being asked during cross-examination.[19]
[19] Appeal transcript 13 October 2021, p28 lines 15–16
The written submission points to no question put to either the mother or her grandmother which, had she been represented would have been the subject to objection. In oral submission and by way of illustration of the point, counsel for the mother referred to a point in the mother’s cross-examination[20] where she was asked questions about livestreaming to her Facebook group the confrontation with a police officer when she was stopped by police for speeding.
[20] Transcript 20 August 2020, p.136 lines 10–12
When cross-examined on this matter, the mother refused to answer the question claiming inter alia that to answer it would incriminate her.
The following exchange occurred:[21]
[21] Transcript 20 August 2020, p.136 Lines 10–41
HER HONOUR: I do want to know the answers to these questions - - -?
[THE MOTHER]: ---I cannot self-incriminate - - -
HER HONOUR: Can I just - - -?
[THE MOTHER]: myself.
HER HONOUR: Can you just listen to what I’m about to say?
[THE MOTHER]: Yes. Yes.
HER HONOUR: We have a certificate under the Evidence Act – and you don’t know about that because you’re not a lawyer - - -?
[THE MOTHER]: ---No.
HER HONOUR: - - - but I do?
[THE MOTHER]: ---Yes, okay.
HER HONOUR: And that certificate - - -?
[THE MOTHER]:---Yes.
HER HONOUR: - - - allows me to give you a certificate so that you can actually self-incriminate yourself in this court - - -?
[THE MOTHER]: ---Yes.
HER HONOUR: - - - and it can’t be used anywhere else. So I can issue the certificate and require you to answer the questions?
[THE MOHER]: ---Okay.
HER HONOUR: So - - -?
[THE MOTHER]: ---Under common law, I cannot self-incriminate myself or talk about a matter that is in another court.
Yet the mother refused to answer the question. Eventually the video of the live stream was played to the Court and tendered.
When asked what “protective” role a lawyer would have had in this exchange, counsel said:[22]
I put that up as a generic proposition, but the specific issue here was that in circumstances where [the mother] …had misunderstood the law, it would have been a circumstances where if she had been represented, the matter may well have been stood down so she could get advice on that limited matter…
[22] Appeal transcript 13 October 2021, p.30 lines 1–5
Perhaps a lawyer may have sought that leave, although given that the question did not require the mother to incriminate herself and, as the transcript shows, in the result the mother never answered the questions, would perhaps not have intervened. In any event, the question was not objectionable and the illustration says nothing about the point sought to be made. Equally no objectionable question was identified in the cross-examination of the grandmother.
This submission in truth amounted to no more than speculation about what might happen without any evidentiary foundation that it did.
A proper opportunity to re-examine
It was accepted that on the second day of hearing, before the mother returned to the witness box to continue being cross-examined, the primary judge suggested that she keep notes of her answers so that if she felt that she had not fully answered a question, she could raise those matters at the end of her evidence. No criticism of the primary judge was made in adopting this course, but it was argued was that her Honour’s suggestion did not extend to the evidence that the mother gave on the previous day and thus the mother would not think to include any points for re-examination relevant to that cross-examination.
Again, this was an arid argument because counsel on appeal pointed to no issue or questions asked of the mother in her cross-examination on either day which would have been amenable to re-examination and which were not raised by the mother.
What did occur was that when the mother’s cross-examination was concluded, the primary judge reminded her about re-examination. The mother produced a number of documents which she wished to tender and arose from her cross-examination. There was nothing in the transcript to suggest that the mother did not understand the point of re-examination.
Cross-examination of the family consultant
The thrust of the complaint is that at the point at which the mother was invited to ask the consultant questions, her Honour said “do you need any time to prepare any questions for her?” to which the mother replied: “I’m all right”, the primary judge was not entitled to take that answer at face value and accept that the mother was in fact ready but rather it was submitted:[23]
… that’s a question not to a legal practitioner, but to a lay litigant who some hours before had been represented. And even though it is clear from the transcript that there were questions [the mother] wanted asked of the father – so she obviously had a view of questions to be asked – your Honour couldn’t infer that, in the circumstances of this day, that [the mother] had actually prepared a proper cross-examination of the court appointed expert. Particularly in circumstances where that expert was likely to be determinative of the case.
[23] Appeal transcript 13 October 2021, p.24 line 42 to p.25 line 2
It was contended that a litigant like the mother who started the proceedings with lawyers and was then became unrepresented: [24]
…could not reasonably have been said to have had the opportunity to prepare this cross-examination, and again, while her words were, “I’m all right, yes”, her Honour ought not necessarily – having regard to an obligation to provide procedural fairness, have taken that on face value.
[24] Appeal transcript 13 October 2021, p.26 lines 39–42
When asked to demonstrate the point by reference to the mother’s questioning of the family consultant, counsel for the mother referred to only one point being a question put by the mother to the consultant about how external factors such as domestic violence can compromise emotional regulation, the mother said:[25]
[THE MOTHER]: … my question is if all those stressors went away, then do you think the person would still have an emotional regulation, as you term it?
HER HONOUR: I think that’s a hypothetical question. I’m not going to allow that. …It’s about the facts of this case
[25] Transcript 20 August 2020, p.222 line 39 to p.223 line 3
Counsel for the mother observed that hypothetical questions are often asked of experts and said that the primary judge ought to have allowed it. How this particular question showed that the mother was not properly prepared to cross examine the consultant and her Honour was wrong to accept that she was, was never explained.
It is however worth observing at this point that either through the questions asked by the primary judge or by the father’s counsel, all of the updating circumstances referred to by the mother’s counsel in the earlier adjournment application, were put to the consultant and on which she expressed an opinion. So any concerns of the mother’s prior counsel that updating circumstances were not considered by the consultant, the subsequent cross-examination cured the asserted evidentiary defects.
Returning then to the argument that the primary judge should not have accepted the mother’s answer that she was ready to cross examine the consultant and needed no time to prepare as being the case, it is useful to have regard to the content of the mother’s cross-examination of the consultant. The transcript shows that the mother’s questions of the consultant were relevant to the issues to be determined by the primary judge and addressed the mother’s contentions about the circumstances of the children. For example, the mother had made plain in her discussions with the primary judge that she did not agree that she and the father would be able to co-parent and asked questions of the consultant to support her position.
The mother said she was ready to cross examine. The transcript shows that she was. What more, one wonders, could her Honour have done?
Not only was it not a want of procedural fairness to accept what the mother said, subsequent events demonstrate the correctness of her Honour’s approach and leaves the argument on appeal unsupported.
Cross-examination of the father
Despite her oft expressed wish, the mother could not cross examine the father because the law did not allow it. The very purpose of the s 102NA scheme is to prevent a party directly cross examining the other party. Notwithstanding the clear legislative provisions, the primary judge afforded the mother the opportunity of obtaining legal advice and to make an application should she choose. She did not.
Counsel for the mother however argued that by the end of the second day of hearing when the primary judge reminded the mother that when she made her submissions she could make any application she wished and the primary judge would determine it, the mother may have not understood which application that the judge was talking about. Not one skerrick of evidence was raised in support of what was, in effect, speculation.
This submission however rests on the assumption that the cross-examination of the father by the mother’s lawyers was inadequate. The mother had the assistance of counsel to prepare the submissions to the primary judge. They point to no topic or area of questioning of the father that should have been advanced but which was not nor do the submissions even in the broadest of terms say that the cross-examination that was conducted was, in any way, inadequate.
Neither did counsel for the mother on appeal point to any inadequacies of the earlier counsel’s cross-examination notwithstanding that the particular of the ground asserted that the cross-examination was conducted by “inadequate counsel”. In those circumstances, that submission should not have been made by counsel and represented an unwarranted slight on previous counsel.
These written submissions they stand directly in contradiction of the contentions made on this point in the appeal.
In short then, nothing put either in writing or in oral submissions establishes that the primary judge failed to afford the mother procedural fairness and the appeal will be dismissed.
It might be in many hearings, whether a party is represented or not, that there is the potential of procedural unfairness, but until it is demonstrated by reference to the facts of or evidence in the case, but hypothetical and unable to sustain a proper challenge on appeal.
COSTS
In the event that the appeal was dismissed, counsel for the father sought an order for costs against the mother. Counsel for the mother was without instructions on this point and declined to make submissions, but was taken to have opposed an order for costs.
While the question of costs between parties in proceedings in this court are governed by s 117 of the Family Law Act 1975 (Cth), the principle of which is that parties ought each pay their own costs, a court may make an order for costs where it is of the opinion that such an order would be just having regard to the provisions of s 117(2A). Here, the mother’s appeal was not only wholly unsuccessful, it was entirely devoid of merit and I propose to make an order as sought being $24,227.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ainslie-Wallace. Associate:
Dated: 11 November 2021
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