McGregor & McGregor - [2012] FamCAFC 69

FAMILY COURT OF AUSTRALIA

MCGREGOR & MCGREGOR

[2012] FamCAFC 69

FAMILY LAW – APPEAL – practice and procedure – procedural fairness – where Federal Magistrate used academic literature to underpin findings of alienation by one parent against the other – where Federal Magistrate relied upon academic literature as a basis for orders – no forewarning to parties as to use of material – no opportunity to reply – appeal upheld – remitted for rehearing by another Federal Magistrate.

FAMILY LAW – CHILDREN – with whom children live – children’s views – failure to allow evidence of children’s views based on academic writings.

FAMILY LAW – EVIDENCE – judicial notice discussed – expert evidence – opinion evidence – failure to properly admit academic opinions – unfair prejudice.

FAMILY LAW – PROPERTY – contributions – where Federal Magistrate did not properly explain treatment of various contributions of the parties and the weight to be attached to those contributions.

FAMILY LAW – COSTS – appellant’s success on appeal arose because of errors by Federal Magistrate – appropriate to grant certificates to both parties under Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and the rehearing.

Evidence Act 1995 (Cth) ss 48, 55, 76, 79, 135, 136, 144
Family Law Act 1975 (Cth) s 69ZT

Ainsworth v Burden [2005] NSWCA 174
Allesch v Maunz (2000) 203 CLR 172
Barclay & Orton [2009] FamCAFC 159
Carpenter & Lunn (2008) FLC 93-377
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Galvin v The Queen [2006] NSWCCA 66
HG v The Queen (1999) 197 CLR 414
KB v TC (2005) FamCA 458
Kioa v West (1985) 159 CLR 550
Mains & Redden [2011] FamCAFC 184
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Noetel and Quealey (2005) FLC 93-230
Oaks & Udall [2011] FamCAFC 211
Papakosmas v The Queen (1999) 196 CLR 297
Prentice v Cummins (No 5) (2002) 124 FCR 67
R v Suteski (2002) 56 NSWLR 182
SCVG & KLD [2011] FamCAFC 100
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157
X & X (2000) FLC 93-017

APPELLANT:

Mr McGregor

RESPONDENT:

Ms McGregor

FILE NUMBER:

MLC

2636

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

28 May 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ, Faulks DCJ & Ainslie-Wallace J

HEARING DATE:

5 October 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

23 September 2010

LOWER COURT MNC:

[2010] FMCfam 1029

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Hutchins

SOLICITOR FOR THE APPELLANT:

Perisic & Thomas Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Smallwood

SOLICITOR FOR THE RESPONDENT:

Wilmoth Field Warne Lawyers

Orders

The appeal be allowed in relation to parenting and property orders.
The orders, both as to parenting and property, of Federal Magistrate O’Dwyer of 23 September 2010 be set aside.
The applications for parenting and property orders are remitted to the

Federal Magistrates Court for rehearing before a Federal Magistrate other than Federal Magistrate O’Dwyer.
Until further order, either as to interim or final orders, there be interim orders in terms of Orders 2 to 12 inclusive of the orders of Federal Magistrate O’Dwyer made 23 September 2010.
The appellant father be granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the father in respect of the costs incurred by him in relation to the appeal.
The respondent mother be granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981, being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the mother in respect of the costs incurred by her in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981, being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the new trial ordered.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McGregor & McGregor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 95 of 2010
File Number: MLC 2636 of 2009

Mr McGregor

Appellant

And

Ms McGregor

Respondent

REASONS FOR JUDGMENT

introduction

Mr McGregor (“the father”) appeals from parenting and property orders made by O’Dwyer FM on 23 September 2010.
The father and Ms McGregor (“the mother”) are the parents of three children: B (born in 1998), N (born in 2003) and C (born in 2004).
The parties began to live together in 1993, married in March 1999 and separated in December 2009. It seems that up until around 2005, they lived together harmoniously. In October 2005 the mother applied for an order for her personal protection from the father, with the need for an order said to have arisen from an assault on her by him. It appears from the reasons of the Federal Magistrate that at this time the parties were experiencing some financial pressure associated with a business operated by them and also, apparently, because the father believed the mother was conducting an affair. In any event, the relationship between them deteriorated significantly after that time, culminating in the mother leaving the marital home in December 2009 and taking the youngest child, C, with her. In February 2010, the mother agreed that C should return so as not to be separated from her brothers. The three children lived with their father until the time of the orders of the

Federal Magistrate on 23 September 2010.
The Federal Magistrate ordered that the three children live with the mother and spend time with the father. It is from this order that the father appeals.

His Honour found that the father had embarked on a deliberate course designed to alienate the children from their mother.
The Federal Magistrate also heard and determined the financial matters between the parties. Having found that the principal asset of the parties was the marital home, his Honour ordered that it be sold and from the proceeds, a sum of $15,000 be held by the mother on trust to provide money for counselling for the children, and otherwise that the proceeds be divided 65 per cent to the mother and the balance to the father. The father also appeals this order.

Parenting Orders

In order to give some context to the grounds of appeal, it is necessary to have regard to the findings and reasoning of the Federal Magistrate.

His Honour’s Reasons

It is to be observed that very few of his Honour’s findings of fact were impugned in the appeal. It was not so much the findings but the conclusions based on those findings that were challenged before us.
The Federal Magistrate found that the father had alienated the children from the mother and that this had occurred as a result of him demeaning the mother in front of the children, by either encouraging them to use or not stopping them from using similarly demeaning remarks to her, and by other acts from which his Honour found the father had deliberately encouraged the children to think badly of their mother.
A number of witnesses were called by each party. His Honour preferred those who supported the mother and her claims that the father had been aggressively violent, both physically and verbally, to her and that he had caused the children to behave in a similar way. Similarly, his Honour preferred the evidence of the mother to that of the father. These credit findings were unchallenged.
The Federal Magistrate found that the children’s language to and conduct towards the mother “can only reflect the language of the husband and their repetition in front of the wife by the children is an example of the children aping their father’s conduct” (at [15]).
At [18] his Honour dismissed the father’s accusations that the mother had a drinking problem and noted that to counter the allegation, the mother had undergone drug and alcohol screens, all of which had proved negative.

His Honour continued:
It is not unusual for children, in an alienation scenario, to embellish stories against the alienated parent to the alienating parent to ingratiate themselves. (See Fidler and Bala, ‘Children Resisting Postseparation contact with a parent: Concepts, Controversies and Conundrums, Family Law Review, Vol. No. 1, January 2010 10-47).
His Honour found at [36] that the father had engaged in an:
…unrelenting process of denigration of the mother in the presence of the children. That denigration has taken the form of violent, aggressive and abusive language in the presence of the children, and also the encouragement of the use of similar language and aggression by the children to their mother.
At [38] his Honour said:
There is much literature on what is generally described as alienation by one parent of the other from their children; how to identify it, what the characteristics of it are and what are the best ways of addressing it. A recent paper by Fidler and Bala (Family Law Review, Vol. 48 No. 1, January 2010 10-47) canvasses much of the literature and approaches to adopt when faced with an alienation case.
His Honour then proceeded at [39] to refer to a work by Warshak (cited in the Fidler and Bala article) on how to identify alienation. His Honour observed that that author set out a number of criteria by which “bona fide identification of parental alienation” may be recognised [original emphasis]. His Honour quotes (it seems) Fidler and Balas’ summary of Warshak’s criteria:
(i)a persistent, not occasional, rejection or denigration of a parent that reaches the level of a campaign;
(ii) an unidentified (unreasonable) or irrational rejection by the child;
(iii)rejection by a child that is a partial result of the alienating parent’s influence. …as in he defines this as “a disturbance in which children, usually in the context of sharing a parent’s negative attitudes, suffer unreasonable aversion to a person, or persons, with whom they formerly enjoyed normal relations or with whom they would normally develop affectionate relations”
This definition considers not only the role of the child, but explicitly identifies the role of the alienating parent, a necessary component of the problem. Importantly, Warshak’s definition further identifies two critical aspects:
(i)a change from a previously good relationship where the child shares a warm and healthy attachment, or would have been expected to develop a good relationship, and
(ii)a possibility that the aversion may also be applied to others (such as other family members), and not only to parents. This recognition that a child once had a secure attachment to the now-rejected parent, notwithstanding personality or parenting flaws, is of particular relevance for accurate assessment and when remedies are considered, a point to which we return later. [errors in original]
His Honour noted at [40] that Fidler and Bala referred to other means by which alienation may be recognised but his Honour concluded that “for the purposes of this judgment, Warshak’s definitions are sufficient”. His Honour then applied findings drawn from the evidence to Warshak’s criteria.
His Honour concluded at [41]: “I am satisfied that this case is a classic case of parental alienation perpetrated by the husband against the wife”.
His Honour then turned to consider the “effects of alienation” and quoted extensively from Fidler and Bala on this issue. His Honour also referred at [43] to other research discussed in the Fidler and Bala article that was based on surveyed responses from adults who had been alienated as children. The Federal Magistrate concluded at [44]:
The affects [sic] on children of alienation in the short and long term are very damaging to psychological health and it is incumbent on this court to redress such in the best interests of the children. The issue for me is to determine the best way of doing so.
The Federal Magistrate had the advantage of a report by and evidence of an expert, Dr R, who interviewed the parties and the children, and provided the court with an opinion on the relationship the children had with each parent.
At [48] the Federal Magistrate said:
In her written report Dr R raised the issue of potential alienation by the husband without exploring it further, other than to highlight aspects of the children’s behaviour that may be indicative of it. Significantly, in my view, Dr R observed a very warm relationship with the wife and C, that B was friendly and N moved to be closer to his mother during the time spent together. Not behaviour, I would suggest, indicative of the relationship the husband would have me believe exists between the children and the mother.
His Honour then said at [50]:
In her oral evidence given before me, Counsel for the wife put various contentions about the behaviour of the children and the husband, in the context of alienation, seeking Dr R’s response. It is edifying to repeat that aspect of her evidence. I am of the view that the contentions put to Dr R are a true reflection of the facts of this case, and Dr R’s responses are confirmatory of alienation.
His Honour then quoted extensively from Dr R’s evidence.
His Honour at [51] noted that although Dr R’s answers reflected on the possibility of a change in the relationship of the mother and the children if the father changed his attitude, his Honour rejected it as a possibility and found that the father had no insight into his conduct and no motivation to change.
His Honour then, under the heading “Given alienation, should there be a change of residence”, said:
52. Fidler and Bala discuss the options open to the Courts when alienation is found. There is a description of the various levels of alienation, as well as associated troubling behaviours such as “realistic estrangement” and “enmeshment”. From the evidence I am satisfied that in this case there is clear, and severe alienation on the part of the husband and that he did not exhibit sufficient insight or motivation for change that would assure me the children’s behaviour would moderate in any way, whilst residing with him; that would ensure a meaningful relationship between the children and their mother into the future.
53. Of course, any change of residence carries with it risks. I am of the view that the least detrimental long-term option is to place these children with their mother who is the one more likely to promote overall a healthier psychological development and adjustment, including, but not limited to a healthy relationship with the husband.
54. To leave the children residing with their father would be to leave them with a parent whose parenting is not only compromised, but in my view emotionally abusive, and consequently, the risk associated with not separating the children from their father is far greater than any potential risk of changing their residence to their mother.
At [55] his Honour then turned to a consideration of the wishes of the children. His Honour noted that he had not had the assistance of an independent children's lawyer and said that in any event, he felt sure that the children would have unequivocally said that they preferred to live with their father than with their mother. His Honour continued, “However, this is to be expected where there is alienation and the literature is replete with examples of such”.
His Honour said [56]:
My brother Federal Magistrate Altobelli in a paper entitled “When a Child Rejects a Parent” delivered to the College of Law, Advanced Family Law CLE, 14 August 2010 discusses the dangers of seeking the wishes of children in alienation cases. In referring to expert psychological opinion on the issue, he concludes that:
“Thus, in Australia, the usual processes for ascertaining the views of the child i.e. the family or expert report, and the Independent Children's Lawyer becomes, for the alienated child, potential vehicles for harm.
The concerns about giving a voice to the alienated child go further. The concerns about adversarial legal processes have been noted above. Johnston and her colleagues (see Johnston, Roseby and Kuehnle, ‘In the name of the child’ at p.367) warn that a contributing factor to child alienation is an adversarial litigation process in which powerful professionals are seen as allies or enemies. The risk is that giving an alienated child a voice allows them to “buy in” to this potentially harmful process, or to “take sides”, and to engage in the “tribal welfare” [sic] that so typically occurs in these cases. The great risk of giving a voice to the alienated child is that it consolidates and validates in their own minds their own negative convictions, and gives them a platform.
In any event, as Johnston and her colleagues note, even when the views of the alienated child are ascertained, their inaccurate reasoning and loose logic is hardly the sort of view that is credible, or would be given weight to.” [original italics]
His Honour stated that he had highlighted the “concern expressed by

FM Altobelli” because counsel for the father had expressed a concern about the lack of an independent children's lawyer to inform his Honour of the children’s wishes. His Honour observed that “[c]learly the issue of the children’s wishes as expressed, or likely to be expressed, in a case of alienation is problematic” (at [57]).
At [58] his Honour discussed the weight he should give to the children’s wishes and found that it would be wrong to accept uncritically what they said.

His Honour noted other evidence that pointed to an underlying desire in the children to have a meaningful relationship with the mother. His Honour then said:
Also the literature highlights the experience of some alienated children about the relief they experience when it is stopped and they are free to love their alienated parent. Also the literature gives examples of where alienated children, when placed into the residential care of the apparently rejected parent, settle quickly and effectively in their new environment. It goes without saying, it is my hope that this will occur in this case.
After considering the impact of the proposed order for change of residence on the children and the introduction of a counsellor to assist them, his Honour said at [64]:
The literature warns about professionals becoming caught in the web of an alienating parent and the risk run that they become partisan and an instrument used to reinforce the alienation.
His Honour referred to criticism of a psychologist who was engaged by the father to work with the children, and continued:
The criticism levelled against Ms [P] was her failure to engage the mother in any way with the process undertaken and her inability, even within her own written report to see the inconsistency where two children alleged the same incident happening to them when clearly that could not be the case. Ms [P] failed to be alert to the experience of others that when this occurs, it is consistent with children’s responses to alienation. (Again see Fidler and Bala, op. cit)
Finally, at [65] and [66], his Honour turned to consider s 60CC of the

Family Law Act 1975
(Cth) (“the Act”). When evaluating the matters contained in s 60CC(3), his Honour framed the discussion of each in terms of his acceptance that the children had been alienated against the mother by the father. When considering s 60CC(3)(m), his Honour said:
No other facts or circumstances were considered relevant, save to say that the husband’s case centred on allegations of physical abuse of the children by the wife (and others), which I find unsubstantiated. The children’s recounting of such to various people is reflective of their alignment with the husband and the alienation they have experienced. The literature confirms this as a potential factor in alienation cases and I am of the view it is in this case.

The Appeal

By an amended notice of appeal, the father raises five grounds.

Ground 1

This ground of appeal states that:
His Honour failed to accord the Husband natural justice/procedural fairness and/or failed to apply s.144(4) of the Evidence Act (Cth) 1995 in that:
(a) The Husband was not given the opportunity to cross examine respond to, or introduce contrary evidence in relation to:
(i) the academic writing by Fidler and Bala;
(ii) unidentified “literature”;
(iii) FM Altobelli’s paper;
where those writings individually and collectively formed basis for Orders and findings ultimately made;
(b)The Husband was not given an opportunity to inform the court of what discipline he imposed on the children for their misbehaviour with the Wife and where his Honour made a critical adverse finding against the Husband on this issue. [errors in original]

Did the Academic Writings Form the Basis for the Orders?

The gravamen of this ground is that the Federal Magistrate placed significant reliance on the papers by Fidler and Bala and by Altobelli FM, and based his conclusion that the children had been “alienated” from their mother on the authors’ opinions of what behaviour constituted “alienation”. Further, having come to the conclusion that the father had deliberately caused this to occur, his Honour’s consideration about what should happen in the case was premised on that conclusion. It was further argued that since the paper of Fidler and Bala was not the subject of evidence, counsel for the father was unable to ask questions of witnesses (particularly the expert), introduce other evidence to contradict the assertions of those authors, or make informed submissions on that issue to the Federal Magistrate. It was argued that procedural fairness required his Honour to have alerted the parties to his intended use of and reliance on the articles, and to have invited further submission or argument.
For the wife, it was argued that while the Fidler and Bala article was not in evidence, everyone in the courtroom was aware that “alienation” was a live issue, as cross-examination of the expert should have made plain to the father. The wife cited a passage of transcript in which counsel for the father said: “Clearly there’s some sort of alienation here because the children’s behaviour….”, and argued that this demonstrated that counsel for the father was well aware that alienation was an issue in the case.
However, as the mother submits that the academic writing, literature and article of Altobelli FM did not form the basis of the findings, but that the findings of alienation were based on the evidence, it is helpful to consider a more extensive extract of Dr R’s evidence.
As we have noted at [19] of these reasons, his Honour said that Dr R “raised the issue of potential alienation by the husband without exploring it further, other than to highlight aspects of the children’s behaviour that may be indicative of it”.
Dr R said at [46] and [47] of her report:
46. Mr [McGregor’s] presentation was equally challenging due to his overwhelming and seemingly uncontained anger and hostility he impressed as harbouring towards the mother. …his uncontained anger and hostility towards the mother throughout the interview raised questions of how contained he is generally when in the presence of the children, and the impact this may be having on them.
47. …In this highly conflictual relationship, where the children may be demonstrating their feelings though [sic] a concerning behavioural repertoire, Mr [McGregor] made little mention of the impact this conflict may be having on them. … As such, Mr [McGregor] may be unconsciously providing the children with confusing messages that are perhaps leading to the creation of a sense of alienation from their mother. When this is combined with the mother’s acknowledged difficulties when confronted by highly emotionally charged and challenging behaviours, exhibited by [N] in particular, a series of confused messages about the mother being a safe figure may have been set in motion for each of the children.
It seems to us that this is the only point in her written report at which Dr R used the word “alienation”.
His Honour asked of Dr R:
Are you familiar with long-term studies carried out in America where alienated children are interviewed in adult life and despite displaying their aggression against the parent against whom they are alienated, they have expressed concerns that, “I wish somebody had have made a decision to stop it and give us back to the parent,” that they were alienated against? Are you familiar with any sort of research along those lines?---There are a number of studies come out more recently that talk about that, but again, adult-based, not child-focussed. I mean, it’s always a danger with people having additional layers upon layer upon – and adults. There are also equally a number of studies showing that a proactive approach at this stage, where one works towards mediation and counselling as prevention from going further deterioration of family is also equally beneficial. …So that’s the competing –the ...
His Honour then suggested to Dr R that his Honour might find that there was no prospect of the parents mediating their differences. Dr R explained that she was referring to therapeutic mediation as part of a multi-system approach in which the children were seen individually, and continued:
…[i]t would be much more therapeutic than just two people trying to agree and – absolutely, but it – there is a new style, but there are two competing theories about which works best. I haven’t seen studies yet saying which is the preferred model, adult-based retrospective studies or the current push towards more therapeutic work with both families – both parents, sorry…
Dr R then commented that the family exhibited high conflict and reflected on the effects of that on the children.
His Honour referred to the children’s behaviour towards the mother and asked Dr R whether that might be reflective of a sense of abandonment or frustration. Dr R replied that what the children were feeling had not been fully investigated. Further, Dr R had concerns that there was little information about the children:
These children have been exposed to turmoil and uncertainty for such a long time that it’s not an overnight process. I think a minimum six months with working with someone on a weekly basis before we could really obtain that kind of information.
His Honour asked:
Can I just put this to you: the children’s behaviour towards the mother, on her evidence, and no doubt supported by the father too, because it suits him to do so, is pretty deplorable and very sad, but I am struggling to find out why that is so. I'm really struggling to find out why it is so, and their behaviour has continued, if not got worse, while under the care of their father. To what degree do you that reflects on him?---Is it a reflection on the care of the father, or is it a combination of the increasing conflict between the two parents that’s actually increasing that behaviour ?
Well - - -?---And that’s what I would probably ask myself as a therapist.
His Honour repeated the question and Dr R said:
I think there is a lack of insight on both parents’ parts where many aspects of their behaviour towards the children and the conflict that they impact upon them.
In answer to questions asked by the father’s counsel, Dr R said that both parents had the capacity to send mixed messages to the children and that in high-conflict families it was usual to see a lack of capacity in each parent to promote the other to the children. Dr R agreed with the Federal Magistrate when his Honour asked about the children’s complaints that the mother is abusive towards them:
Well, is it possible that those children told those things because they were programmed and trained to do so by the father?---I would see that as a possibility, absolutely.
It is apposite to note first that at no stage during her cross-examination by counsel for the mother, nor in the questions asked by his Honour, was

Dr R’s opinion sought as to whether the children had been “alienated” from the mother in the sense suggested to her by counsel. What precisely was “the literature about alienation” to which counsel referred was not then clarified and certainly not put in clear terms to Dr R.
Secondly, it is clear to us that the term “alienation” does not enjoy one accepted meaning. In argument on appeal, counsel for the mother did not accept that when she used the word in the course of the hearing, she was using it as a term of art. She said, and we do not necessarily disagree, that it is not a “diagnostic term” but argued that it is one derived from observed behaviours. That indeed may be the case, however, the types of behaviours and assumptions drawn from them are in our opinion not necessarily all consistent with nor encompassed by the term “alienation” when used in everyday parlance. For example, when one uses the term in its ordinary usage, one wonders whether the user would think that it also included rejection of friends who were associated with the person against whom the children had been turned.
Further, it is clear that even Dr R did not understand the word when the topic was broached with her by counsel during cross-examination. After

Dr R gave a particular answer, counsel said:
Yes, that’s not really the alienation I am talking about. The alienation I am talking about is when the children say they have been abused by one parent because the other parent is, in fact, alienating them?
After the close of the evidence but before submissions, counsel for the father applied to his Honour to re-open his case to elicit through Dr R evidence of B’s wishes. In the course of opposing the application, counsel for the mother said:
With respect to effecting orders, you Honour, I have, in fact, and I don’t know if your Honour is familiar with this article, but it is of enormous – I will be submitting – assistance in cases of this kind, and it’s an article contained in the Family Court Review, volume 48(1), January 2010, pages 10 to 47, and it’s published by the Association of Family and Conciliation Courts in Canada. And I have a copy of it, but it’s unfortunately drawn all over.
Counsel continued:
The context is that it explains and enlightens one on the concept of alienation and on the complete lack of worth of what the children say in that context, and we know, whilst it’s been urged upon that particularly [B] has views, it’s interesting to note that [B], in fact, was the subject of careful attention by Dr [R] and she says, in fact, [B] was the one who appeared apprehensive and made no eye contact with her, when it was suggested he see his mother, glanced at his father as if seeking permission which was not initially given, then when he did go and see his mother, it was a warm and fruitful meeting.
It is not clear from the transcript whether counsel for the mother gave a copy of the article to which she referred to either the Federal Magistrate or counsel for the father.
His Honour then turned to counsel for the father and, in the course of rejecting his application to re-open his case, said:
It is very obvious what the position of the children is, and it does touch on what weight I should give the wishes of the children in the context of what is argued to be an alienation syndrome. So the children might express, indeed, very strong views about living with their father, but what weight is the issue, for me, is to what those wishes should be given. [our emphasis]
An examination of the evidence of Dr R does not support his Honour’s conclusions that she “highlight[ed] aspects of the children’s behaviour that may be indicative of it” (at [48]) nor that her responses were “confirmatory of alienation” (at [50]).
Nor do we accept the assertion that by using the word “alienation” it follows that counsel appearing for the father understood the nuance associated with the word as it was used by his Honour and counsel for the mother in questioning of the expert. However, even if it were, neither counsel for the mother nor for the father (nor indeed his Honour) were in a position to assert the correctness of the conclusions contained in the article by Fidler and Bala because it had not been tested or scrutinised in any way during the hearing. Indeed, more importantly, as we will discuss, its status was never established.
We accept, as counsel for the father submitted, that the academic writings did form the basis for his Honour’s orders.

Was Natural Justice and Procedural Fairness Afforded?

The principles of natural justice and procedural fairness are well known.
In Kioa v West (1985) 159 CLR 550, Mason J said at 582:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it...
Again, although well known to the point of being trite, Kirby J’s expression of the principle in Allesch v Maunz (2000) 203 CLR 172 at 184 - 185 is apposite:
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.
The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a court of law. It may even be an implied attribute of the Judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers. The principle governed the Family Court of Australia in determining the rights of the present parties. [footnotes omitted]
Natural justice requires that anything relied upon by court in reaching its decision be made known to the parties to the proceedings prior to the making of the decision, so that parties may oppose reliance upon it, produce evidence in relation to it and/or make submissions about it. Reliance upon material which does not emerge in that manner amounts to appealable error.
There are many decisions in which the Full Court has expressed concern about the use of extrinsic materials in the context of affording natural justice.
In Barclay & Orton [2009] FamCAFC 159, in allowing an appeal on the basis of reliance upon academic writings without giving the parties an opportunity to read and respond to the material, the Full Court said at [71]:
While of course it is entirely desirable that judges have the assistance of expert evidence it is not appropriate, in my view, that a Federal Magistrate inform himself about some academic writings and not provide those writings to the parties nor allow other expert evidence to be called. As it is quite clear his Honour relied upon his own appreciation of this expert evidence in making what was an important decision to the parties in this case, that is, what arrangements should be made during Christmas holidays, the appeal must be allowed.
In Oaks & Udall [2011] FamCAFC 211 at [11], the Full Court said that had the appeal been agitated:
[i]t would have succeeded on an issue of principle, namely, the learned Federal Magistrate’s erroneous reliance upon extrinsic materials in circumstances which offended the rules of natural justice.
In that case at first instance (Udall & Oaks [2010] FMCAfam 1482), the Federal Magistrate had explored the “contention regarding the use of terms such as ‘parental alienation syndrome’ as originally enunciated by Richard Gardiner” (at [44]) and then, in the following 39 paragraphs of his Honour’s reasons for judgment, had quoted from numerous journal articles and, in some instances, other articles referred to by the authors of those journal articles.

Judicial Notice and s 144 of the Evidence Act 1995 (Cth)

In our view, s 144 of the Evidence Act has no relevance to the matters raised in the appeal, however we refer to it because it was raised in submissions for the appellant in a way that reflects what we observe to be a common misapplication of the section.
Section 144 of the Evidence Act concerns itself with matters of common knowledge and says:
(1)Proof is not required about knowledge that is not reasonably open to question and is:
(a)common knowledge in the locality in which the proceeding is being held or generally; or
(b)capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2)The judge may acquire knowledge of that kind in any way the judge thinks fit.
…
(4)The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
In recommending the inclusion of this section, the Australian Law Reform Commission (“ALRC”) said:
Under the proposal judges can inform themselves about common knowledge and about knowledge that is capable of verification from authoritative sources… It is also proposed that where the judge makes his own enquiries to acquire either category of knowledge he should inform the parties where there is a risk of unfair prejudice.
(ALRC Interim Report No. 26, Evidence, Volume 1, 1985, at 545)
It is important to note from the outset that the information to which the section refers is of a kind not reasonably open to question and is capable of verification from authoritative sources. Examples abound of the type of information to which this section, and before it the common law, included as “judicial knowledge” or information shared between the judge and the rest of the community.
The requirements of s 144(1)(a) limit the potential operation of the section and may only be able to be determined after evidence of “common knowledge” generally, or in “the locality” is received. In practice there would be few issues in respect of which reference to extrinsic materials would not be “reasonably open to question”. This we think would be particularly so in relation to social science issues in parenting proceedings.
In X & X (2000) FLC 93-017 the Full Court of the Family Court considered the extent to which a judge was entitled to take judicial notice of the effects of genital herpes pursuant to s 144(1). The judge proceeded on the basis that it was generally known that genital herpes was a condition that may be incurable; that it may be dormant for lengthy periods; and it may surface from time to time. The Full Court concluded that the application of the test prescribed by s 144 would not have permitted the judge to have accepted without proof the range of facts upon which his Honour relied on the basis of his own knowledge.
In KB & TC (2005) FamCA 458 at [87] the Court said “that the benefit to be derived for a child from sibling relationships is not a matter” of general common knowledge. The Court noted, as is frequently the case with respect to parenting issues, that there are various credible schools of thought which could not be enlivened by s 144.

A more recent example is in Mains & Redden [2011] FamCAFC 184 which involved consideration of whether administering a number of conventional and almost universally administered vaccinations of children against a variety of conditions was in the child’s best interest. The conflict of expert opinion evidence in relation to the benefits and risks of immunisation precluded any prospect of the Court taking “judicial notice” under s 144 of the Evidence Act. If an issue in proceedings is controversial, it is almost inevitable that there will be differing credible expert opinions in relation to it and demonstrably it would not fall within the operation of s 144.
But if s 144 of the Evidence Act is to be applied, compliance with s 144(4) will find expression, incorporating as it does the common law rules of natural justice. Fulfilling the requirements of s 144 will not necessarily result in the court taking judicial notice that the matter is falling within operation of the section. In Prentice v Cummins (No 5) (2002) 124 FCR 67 Sackville J said at [85] that if it is:
impossible to take into account knowledge of the kind referred to in
s 144(1) without unfairly prejudicing one of the parties, I would read
s 144(4) as authorising the court to decline to take that knowledge into account, even if the requirements of s 144(1) otherwise appear to be satisfied.
It was common ground that none of the articles to which the learned
Federal Magistrate referred, and upon which his Honour relied, had ever been raised with the parties during the course of the proceedings or prior to the delivery of judgment. None had been in evidence.
It is not open to a judge to use s 144 of the Evidence Act to “inform” him or herself of matters in respect of which reasonable minds might differ. This case provides an acute example of this. Indeed during her evidence, his Honour sought Dr R’s opinion on conclusions arising from a survey of adults who, it was said, had been alienated from their parents. Dr R said that in her opinion, other, more recent studies have proffered a different view.

Opinion Evidence

In our view the kind of material that is sought to be admitted in this case, that is, the opinion of those with specialised training and knowledge in relation to child behaviour published in articles, falls to be considered as opinion evidence, not under s 144. However in this appeal nothing turns on this because, in our view, even if the evidence was a matter of common knowledge, the provisions of s 144(4) were not met.
Other than by operation of s 144 of the Evidence Act it is difficult to see on what basis academic writings could be permissibly relied upon unless tendered in evidence by one of the accepted means. This, it seems to us, is a crucial aspect of the use of such material. The process of admitting evidence allows the decision maker to reflect upon the purpose for which it is to be used and, if issues of procedural fairness arise, consider whether procedural fairness has been given.
Section 48 of the Evidence Act allows a party to adduce evidence of the contents of a document by tendering the document. The document will often contain representations. To the extent that those representations constitute hearsay, s 69ZT(1) of the Act eliminates the hearsay rule in children’s proceedings, but untested previous representations in a document may be given little weight.
Sections 135 and 136 of the Evidence Act give a discretion to exclude or limit a document’s use if the requirements of those sections are met.
Section 79 of the Evidence Act creates an exception, based on specialised knowledge, for the admission of opinion evidence otherwise precluded by s 76(1), and says as follows:
(1)If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
(2)To avoid doubt, and without limiting subsection (1):
(a)a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse); and
(b)a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following:
(i)the development and behaviour of children generally;
(ii)the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.
The following mandatory requirements must be established before evidence of the opinion may be admitted under this provision:
a)The person has specialised knowledge.
b)The specialised knowledge is based upon the person’s training, study or experience.
c)The opinion is “wholly or substantially” based on the person’s specialised knowledge.
Furthermore, an expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based and the opinion in question so that it is possible for the court to determine whether the opinion is “wholly or substantially based on specialised knowledge based on training, study or experience” per Gleeson CJ in HG v R (1999) 197 CLR 414, 427.
In addition, not only should the facts on which the opinion is based be identified, the reasoning process leading to the formation of the opinion must be exposed so as to demonstrate that the opinion is based on particular specialised knowledge (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (“Makita”) at [85] per Heydon JA. The Full Court of the

Federal Court has held that many of the matters referred to by Heydon JA in Makita “involve questions of degree, requiring the exercise of judgment” and in trials by judge alone they should commonly be regarded as going to matters of weight rather than admissibility (see Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [16] and [87]; see also

Carpenter & Lunn (2008) FLC 93-377
; Noetel & Quealey (2005) FLC 93-230).

Division 12A

Section 69ZT(1) of Division 12A of the Act provides that certain provisions of the Evidence Act do not apply to child-related proceedings. Those provisions include s 69ZT(1)(c):
Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
Sections 76 and 79 are to be found in Part 3.3 of the Evidence Act dealing with opinion evidence. Accordingly ss 76 and 79 do not apply to child-related proceedings.
But the application of s 69ZT(1)(c) is confusing. The opinion rule is to the effect that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. Section 79 ameliorates the opinion rule in s 76 in respect of opinions of experts who qualify in that capacity.
Section 69ZT excludes the opinion rule and thus permits admission of evidence of an opinion to prove the existence of a fact. Paradoxically, s 79 is excluded and has no application at all. The effect would seem to be that an opinion can be admitted to prove the existence of a fact, and there is no requirement that the opinion-giver have any specialised knowledge or expertise.
The common law rule (excluding opinion evidence) does not revive as a consequence of s 69ZT(5).
If, then, evidence of an opinion is sought to be tendered, a judge must carefully address the admission of such opinion evidence and the weight to be afforded it.
In Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, the High Court, referring to expert opinion, discussed the interplay between ss 76(1) and 79(1) and said at 602 – 603:
Section 76(1) expresses the opinion rule in a way which assumes that evidence of an opinion is tendered “to prove the existence of a fact”. That manner of casting the rule does not, as might be supposed, elide whatever distinction can be drawn between “opinion” and “fact” or invoke the very difficult distinction which sometimes is drawn between questions of law and questions of fact. It does not confine an expert witness to expressing opinions about matters of “fact”. Rather, the opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding which the tendering party will ask the tribunal of fact to make. In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is “evidence that, if it were accepted could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”. That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving. [footnotes omitted]
As we have said, s 69ZT allows the admission of any opinion without the application of the opinion rule or the exception to it provided in ss 76 and 79 of the Evidence Act, unless the trial judge has determined to apply subsection (3) of s 69ZT and, as a consequence, applies the otherwise-excluded rules of evidence.

Relevance

Neither s 55 nor s 135 of the Evidence Act is excluded by s 69ZT.
Thus, before an opinion can be admitted, the trial judge must be satisfied that it meets the criteria for admission.
Material that is not relevant is not admissible in evidence. The admissibility of evidence is determined by reference to its relevance to the probability of the existence of a fact in issue in the proceedings.
What is relevant is broadly defined. Section 55 says that relevant evidence is:
evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
There must be a rational connection between the evidence sought to be adduced and the facts in issue to be determined at the trial.
Once evidence is determined to be relevant and thus admissible, it is for the finder of fact to determine the weight or importance to give that evidence and to consider whether the evidence should otherwise be excluded under s 135 or its use limited under s 136 of the Evidence Act.
Section 135 of the Evidence Act is in the following terms:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a)      be unfairly prejudicial to a party; or
(b)      be misleading or confusing; or
(c)      cause or result in undue waste of time.
It is obvious from its terms that the exercise of the discretion involves first ascertaining the probative value of the evidence proposed to be admitted, because if that is not done, it can not be weighed against the dangers referred to in the subsections.
The dictionary to the Evidence Act (echoing the s 55 definition as to relevance) defines probative value as “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. It is therefore clear that evidence which has been admitted is accepted as being relevant and, by definition, probative.

Unfairly Prejudicial

The concept of unfair prejudice is repeated in ss 135 and 136.
The sections’ application to civil matters was considered in Ainsworth v Burden [2005] NSWCA 174 where Hunt AJA (with whom Handley JA and McColl JA agreed) said at [99]:
The judge has wrongly interpreted what is comprehended by the expression “unfairly prejudicial” in s 135. It is not unfairly prejudicial to a party if the material tendered by his opponent merely proves or strongly supports the opponent’s case. The phrase “unfairly prejudicial” or the cognate phrase “unfair prejudice” is used not only in s 135 but also in s 136 and s 137, and the meaning to be given to each of those phrases must be the same — whether or not a weighing exercise is contemplated: Regina v BD (1997) 94 A Crim R 131 at 139. The prejudice to which each of the sections refers is not that the evidence merely tends to establish the case of the party tendering it; it means prejudice which is unfair to the other party because there is a real risk that the evidence will be misused by the jury in some unfair way: DPP v Boardman [1975] AC 421 at 456; The Queen v Duke (1979) 22 SASR 46 at 47-48; Scott v The Queen [1989] AC 1242 at 1258-1259; Regina v Masters (1992) 26 NSWLR 450 at 479; Pfennig v The Queen… (1995) 182 CLR 461 at 487-488, 528; Regina v BD at 139; Papakosmas v The Queen… (1999) 196 CLR 297 at [29], [91], [98]. See also ALRC 26, vol 1, pars 644, 957. [original emphasis]
In Papakosmas v The Queen (1999) 196 CLR 297 at [93] (“Papakosmas”), McHugh J said, referring to the term “unfair prejudice”, that the term may be broader than the danger of evidence being misused, and could extend to circumstances where procedural considerations might give rise to the type of unfair prejudice to which the section speaks, such as the inability to cross-examine on hearsay evidence or where, because of earlier rulings, parties were unable to cross-examine on important issues.
In R v Suteski (2002) 56 NSWLR 182 at 201, Wood CJ saw:
no reason why the inability… to cross-examine… should not have been relevant for s 135 and s 137 of the Evidence Act. However, the bare fact that a defendant cannot cross-examine a witness is not necessarily decisive of the issue…
In Galvin v The Queen [2006] NSWCCA 66 at [40] the court considered a trial judge’s rejection of a video-taped interview with a child complainant who, because the child had subsequently died, could not be cross-examined on the contents. McClelland CJ at CL, Howie and Latham JJ said:
The fact that the defence could not cross-examine MW was an important consideration but not necessarily a decisive one. However, as was pointed out in R v Suteski (2002) 56 NSWLR 82 at [127], each case has to be determined on its own particular facts depending upon the probative value of the evidence and its prejudicial effect.
Thus the inability to cross-examine is not the only instance in which unfair prejudice may be held to arise. For these purposes, it is unnecessary to traverse the varying circumstances and, as McHugh J said in Papakosmas, each matter will turn on its own facts.
However, the consideration of the discretion contained in s 135 is that it is a two-step process. First, the probative value of the evidence sought to be excluded is assessed by the judge. Second, the nature of the unfair prejudice is identified to determine whether the probative value of the evidence is “substantially outweighed” by the danger of that prejudice occurring.
What amounts to unfair prejudice is a matter to be determined and weighed in the context of the particular case.

Application to this Matter

In this case, his Honour was referred to, and in our view clearly relied on, an article written by apparently well-known and well-credentialed academics (Fidler and Bala). Because the article was not admitted into evidence there was no consideration by his Honour of:
·the opinion and its context within the article;
·the probative value of the opinion given that the authors were not going to be called to give evidence;
·how the parties might be afforded procedural fairness given the above; and vitally, as we have indicated,
·how the opinion was to be used.
Counsel for the mother submitted (summary of argument at [4] and [5]):
… The academic writing, literature, and the article of

Federal Magistrate Altobelli did not form the basis of findings. The findings as to the children being alienated from the wife were based on the evidence before the Court as to their behaviour in her presence, and towards her, their statements made to her and other witnesses, and the observations of them by Dr [R].
His Honour integrated reference to the academic writings he had access to throughout his judgment, aligning those studies and comment with his findings. He did not rely upon them to establish factual matters. They were not evidence.
We agree with the final sentence of counsel’s submissions. They were not evidence, and as we have already indicated, in respect of “the literature” and Altobelli FM’s paper, neither had been mentioned at any time during the hearing.
With respect, counsel’s submissions miss the point of this ground of appeal.
Rather than considering the evidence and making findings based on that evidence, his Honour applied the research to the evidence and determined that the children had been “alienated” in the sense described by Fidler and Bala.
To the extent that our excerpts from his Honour’s judgment has not made this abundantly clear, we point to the following paragraph, which we believe highlights the error and underscores the frank unfairness in his Honour’s approach.
At [72] in discussing his proposed orders, the Federal Magistrate said:
My orders provide, based upon the expert opinion gleaned from the research on alienation, for there to be an uninterrupted period of time by the wife with the children before the children next see their father. This is to allow them to settle into residence with the wife without the immediate presence or influence of the husband.
This “expert opinion” which formed the basis of this particular order was never put to Dr R for comment; indeed, our reading of the whole of her evidence suggests that she favoured a slow re-introduction of the children to the mother coupled with intensive assistance for the children and the parties. Obviously, counsel for the father had no notice of the “expert opinion” to allow him to ask questions of Dr R or seek other opinion to the contrary.
We are satisfied that while his Honour considered the evidence properly introduced and made findings of fact based on that evidence, his Honour then applied those facts to the criteria contained in the article of Fidler and Bala (and apparently incorporating the criteria of Warshak) and on that basis concluded that the children had been “alienated” from their mother as a result of a deliberate campaign by the father. It is clear from a reading both of

his Honour’s reasons and the way in which his Honour framed questions of

Dr R, that his Honour was not using the term in an everyday sense but in terms that connote a product of a process and a process which had predictable and dire consequences, attended by serious psychological sequellae, for children who had been subject to it. It is also clear from his Honour’s reasons that, having been persuaded of the existence of alienation in the sense used by Fidler and Bala and the apparently inevitable psychological consequences, his Honour turned to consider how to protect the children from the onset of those sequellae. That much is abundantly clear from his Honour’s questions to Dr R about the relative merits of removing the children immediately and, in that context, his Honour’s reference to studies based on interviews with adults who had been “alienated” from a parent.
In so doing, the Federal Magistrate’s later conclusions and determination were unduly confined to those that conformed to his Honour’s understanding and acceptance of the Fidler and Bala assertions. The content of the articles became, in effect, a prism through which the evidence was viewed and its complexion determined.
The article by Fidler and Bala, if tendered as opinion evidence under s 69ZT(1), would have required his Honour to consider whether to exclude the evidence under either s 55 or s 135, and if not, to consider what weight to give it. However, as no attempt was made to tender the Fidler and Bala article, none of the above matters was considered by his Honour and, most importantly for the purpose of this appeal, his Honour failed to give the other party the opportunity to make submissions about receiving it and, if received, what weight to accord it.

We set out these matters because it appears to us that there has been a misunderstanding by his Honour as to how opinion evidence of this kind may be introduced and, if ultimately found to be admissible, what weight to accord it. In this case it may have been particularly relevant that the authors were not to be called.
The failure to admit the evidence properly and to identify on what basis it was to be admitted or at all, had the consequence that the father was unable to challenge the expertise of the authors on this issue or to call other evidence from experts who might have a different view, which might have cast some doubt on the opinions sought to be relied on.
Instead, it seems to us that his Honour took considerable account of and placed significant reliance on the article by Fidler and Bala, the article of

Altobelli FM and, it appears, other, unidentified “literature” on the topic of “alienation of children”. None of it was introduced into evidence, and none was tested nor the subject of submissions or contrary evidence. It represented a failure to afford the appellant natural justice and procedural fairness.
Counsel for the mother relied upon the decision in SCVG & KLD [2011] FamCAFC 100 in support of the proposition that it was acceptable to refer to extrinsic material. In SCVG v KLD, the Full Court considered whether a Federal Magistrate erred in having regard to academic writings used as “background material” in the reasons for judgment, and whether there was a denial of procedural fairness. The Full Court said at [47]:
The complaint arises from paragraph 31 of the Reasons for Judgment of the learned Federal Magistrate in which, after referring to a number of academic articles, his Honour said:
All of this research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence. One also lives in hope that parents might learn from it.
After setting out the paragraphs in the judgment where findings were made from the evidence and conclusions were reached after applying the evidence to the relevant matters in s 60CC(3) of the Act, the Full Court said at [55]:
Quite apart from the absence of literal reference to the academic materials, the findings of fact recorded in each of these paragraphs were clearly made in reliance upon the evidence before his Honour or, in the case of the conclusions recorded in paragraph 158, were based upon such findings. In the paragraphs preceding 115 of his Reasons for Judgment, the learned Federal Magistrate recorded in some detail the evidence supportive of those findings. It is not without significance in relation to this challenge that, when invited to do so, Senior Counsel for the father was unable to refer to any other passage in the learned Federal Magistrate’s Reasons for Judgment which were asserted to have been reliant in any way upon the academic materials to which his Honour referred in paragraph 31.
That readily distinguishes that case from the present. However, importantly, the Full Court went on to say, at [56]:
We accept that it would have been preferable for the learned

Federal Magistrate to not have referred to academic writings or materials which were not raised with the parties and able to be addressed in the various ways suggested by Senior Counsel for the father. We also accept the submission of Senior Counsel for the father that reference to materials to which the parties were not privy prior to receipt of the Federal Magistrate’s Reasons for Judgment would cause some disquiet in the mind of the litigant as to just how they might, consciously or unconsciously, have influenced the judicial mind.
Given the failures to which we have referred, in our view this ground has been established.

Ground 2

It is asserted in this ground of appeal that his Honour erred in failing to take into account or properly ascertain the children’s views. To a degree, this ground is part of the error asserted in ground 1.
After concluding, based on the paper of Fidler and Bala and other unidentified literature, that what was before his Honour was a “classic case of parental alienation” (at [41]) and that the circumstances of the case presented “an alienation syndrome”, the Federal Magistrate, on the basis of a paper written by another Federal Magistrate, concluded that there was no purpose in ascertaining the children’s wishes (at [55] to [58]).
Dr R did speak to the children’s wishes during her evidence. Counsel for the husband said:
…do you think it’s a real – important consideration here is the children’s wishes, particularly [B]?---It’s always a dilemma. I think children need to be heard, but I also think parents need to be directing this and….adults. I think he is – some of the children have made their position very clear. How much of that is being influenced by what is occurring is another matter, and I think it’s important not to dismiss a child, and I think they are old enough to at least have some voice in telling us how they feel and what they want but perhaps not directing us in terms of what’s the best way to go in terms of their best needs, but I think their voice needs to be heard and taken on board by whoever is going to work with them if somebody is going to work with them. That’s very important, we not dismiss that and lose that.
As we have already indicated, by placing significant, perhaps exclusive, reliance on the published papers, the Federal Magistrate constrained his consideration of the evidence to that which conformed to that material.
It was not contested that the Federal Magistrate had an obligation imposed by s 60CC(3)(a) of the Act to consider:
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give the child’s views.
Counsel for the father argued that as there was no evidence of the children’s wishes before his Honour, there was no basis on which his Honour could find, as his Honour did at [55], that:
…there is no doubt as to what their expressed wishes are at this time. Unequivocally, if put them, they would articulate a preference to live with their father and would, I am sure, support that wish with accusations against the mother as set out in reports and material filed at Court. However this is to be expected where there is alienation and the literature is replete with examples of such.
As we have earlier set out at [25] above, following this comment, his Honour proceeded then at [56] to refer to a paper given by a fellow Federal Magistrate.
His Honour then concluded at [57] that “[c]learly the issue of the children’s wishes as expressed, or likely to be expressed, in a case of alienation is problematic”.
Neither Altobelli FM’s article to which his Honour referred with approval, nor its thrust, was referred to in any of the evidence, nor was any question directed to Dr R about it.
Of course, that is not to say that a court can not reasonably infer views of children from other evidence before the court other than through an independent children’s lawyer, and it is beyond doubt that a court may decline to give weight to children’s views if the court finds that those views are not, in truth, articulations of their real views.
We accept the submission made by the father that his Honour failed to give proper consideration to the evidence by which the views of the children could be gleaned, and to then consider and afford those views such significance as is appropriate based on the whole of the evidence.
By erroneously referring to and relying on extrinsic material not before the court in denial of natural justice, the Federal Magistrate has constrained his consideration to the views espoused in Altobelli FM’s paper, rather than analysing the evidence and forming a view based on the evidence.
We find this ground made out.

Ground 3

This ground of appeal states:
His Honour erred in that he made findings not open on, or not reasonably open on, or otherwise contrary to the evidence and by doing so, he erred in the exercise of his discretion specifically, in relation to:
(a)His finding that the husband caused the children to become alienated from the wife when there was no, or completely insufficient, and indeed contrary expert evidence upon which to base that conclusion and where his Honour is not properly qualified to make such a “diagnosis”;
(b)His finding that the husband does not tell the children to behave with the Wife and/or that he does not discipline them for misbehaving; and
(c)His finding that the husband asserts there are no positive aspects to the children’s respective relationships with their mother;
(d)His finding that the husband does not have the motivation/capacity to ‘change’ (as regards the utility of counselling/therapy);
(e)His finding that the children’s trauma will be diminished by counselling within a change of residence scenario.
At the appeal hearing, counsel for the father obtained leave to add three additional particulars to this ground:
(f)The children face a risk of isolation
(g)His finding that Mr [X] was in a therapeutic role
(h)His finding that he was confident that the relationship between the children and the mother would quickly respond to counselling.
Because of our conclusions about so much of the appeal as relates to the children’s matter, it is unnecessary to consider this ground and little argument was directed to it during the hearing. We do not propose to consider this ground further.

Ground 5 (a)

The complaint in this ground of appeal is that:
His Honour failed to provide adequate reasons as to:
(a) His reliance upon unidentified literature/expert opinion.
We consider this ground to have been substantially covered by our discussion of grounds 1 and 2.

Conclusion

As is clear, we find the appeal against the children’s orders to be made out. We turn now to consider the appropriate further disposition of the matter.
The father sought either that this court make orders in relation to parental responsibility, and that the children live with him and spend time with the mother, or that the matter be remitted for rehearing by a magistrate other than O’Dwyer FM (amended notice of appeal, annexure B).
To make orders in substitution for those of the Federal Magistrate would require this Court to exercise the Federal Magistrate’s discretion. The principles that govern the exercise of the discretion of the Federal Magistrate by an appeal court are well known.
In Allesch v Maunz (2000) 203 CLR 172 at 183 the High Court said:
30.Although, on appeal by way of rehearing from a discretionary judgment, an appellate court may, itself, exercise the discretion in question by reference to circumstances as they then exist, it is not bound to do so. It may, instead, set aside the order under appeal and remit the matter for rehearing or, in terms of s 94(2) of the Act “order a re-hearing, on such terms and conditions, if any, as it considers appropriate”. And where circumstances have or are likely to have changed between the original hearing and the disposition of the appeal, it is not uncommon for an appellate court to remit the matter for rehearing rather than, itself, exercise the discretion in question.
31.If on an appeal by way of rehearing from a discretionary judgment an appellate court is minded to exercise the discretion in question by reference to circumstances as they exist at the time of the appeal, it is necessary that the parties be given an opportunity to adduce evidence as to those circumstances. …
When asked, counsel for the father indicated that, were the Court to uphold the appeal and wish to re-exercise the discretion, he would seek a family report into the circumstances of the children, and, one imagines, their views. There was no stay of the orders and as the children have now been living with the mother for many months, further evidence as to their welfare and best interests will be necessary. In those circumstances where the evidence may be controversial, the appropriate course is for the matter to be remitted to the Federal Magistrates Court for a re-hearing. Given the time that has elapsed and these matters, we propose to put in place most of the parenting orders as interim orders pending the final hearing or any other interim orders made by a court.

Property Orders

As we have already indicated, the father also appealed against the property orders made by the Federal Magistrate.
His Honour identified that the property of the parties as modest, the major item of property being the matrimonial home. There was substantial agreement between the parties as to the value of their property.
former matrimonial home     $450,000
mother’s car  $14,000
father’s car  $16,000
father’s share  $1,734
father’s superannuation  $24,039
mother’s superannuation  $13,600
money paid to mother by reason of
Court orders in January 2010  $10,000
TOTAL:  $529,373
The only item of property in dispute was the father’s entitlement to receive $17,300 by way of compensation for a work injury.
The home is subject to a mortgage of $292,454.
The net value of the assets then was $236,919.
The Federal Magistrate determined that the father’s injury entitlement should be included in the property available for division between the parties because his Honour found, at [79], that it was immediately available to him on his request.
His Honour found that the total property had a value of $254,219.
Having found earlier that the children would benefit from a period of intensive counselling, his Honour determined that from that identified pool a sum of $15,000 should be sequestered and held to pay for the counselling.
When the Federal Magistrate came to consider the parties’ contributions, his Honour said:
82.The parties began living together in 1993. During their time together they both worked, save for when the wife was a full time carer of the children. The contribution can be said to be equal, taking into account their direct and indirect contributions. The husband, however, maintains he is entitled to an adjustment in his favour as a consequence of a greater direct contribution. He was the recipient of a net award of $170,000 for a personal injury he suffered, which sum was applied to the acquisition and building of the former matrimonial home.
83.However, I am satisfied on the evidence that the mortgage on the property was increased to help fund the purchase and conduct of the business which proved unsuccessful, and because of which the mortgage on the property increased from $70,000 to somewhere near its present level. The wife argued that such contribution should be ignored and no adjustment made in favour of the husband due to what could be considered the dissipation of that contribution through loss incurred by the business and further through the effluxion of time having regard to the length of the parties [sic] relationship, namely 17 years. I am persuaded by the wife’s argument and no adjustments should be made in the husband’s favour as a consequence.
His Honour then assessed the parties’ contributions as equal.
Turning to a consideration of s 75(2), his Honour noted:
85.The husband sought an adjustment in his favour due to his uncertain medical future. His future is uncertain and ill defined, though it appears he has intentions to retrain and find employment after he receives his anticipated compensation from a common law claim against his employer. There is uncertainty as to the likely success of such a claim and there is also uncertainty as to the length of time such a claim might take to be finalised. In any event the husband is in receipt of WorkCover payments. Because of my decision to change residence from him to the wife, he will be relieved of the extra burden of being the primary carer of the children, save for Child Support payments assessed against his income.
86.The wife, however, now has the burden of providing accommodation and being the primary carer of the children. She will carry this burden for some considerable time, having regard to [C’s] age of 6. In all the circumstances, an adjustment of 15% in her favour on the net proceeds available for distribution of $239,219 is appropriate. Whilst that adjustment may be considered at the higher end of the range, because the asset pool is so small, in order for the wife to have sufficient funds, an amount of 15% is justified.
The father challenged the property orders in grounds 4 and 5(b) in the amended notice of appeal.

Ground 4

His Honour erred in his treatment and assessment of the Husband’s financial contribution in that:
(a)He impermissibly offset, at least partially, the husband’s lump sum financial contributions against the losses of the parties in their joint venture; and
(b)In reaching a finding that contributions were equal, he, in effect, gave the Husband’s lump sum financial contribution no, or completely inadequate weight. [errors in original]

Ground 5(b)

His Honour failed to provide adequate reasons as to:
….
(b)The parties’ respective contributions and his Honour’s assessment and treatment of such contributions.

In written submissions, counsel for the father referred to his Honour’s consideration of the contribution of $170,000 by the father at [83] and argued:
52.…
(a) The Husband’s contributions cannot simply be ignored and this is particularly so given the size and timing of the Husband’s lump sum contribution; and
(b)There is no assumption of equal contributions from which an ‘adjustment’ can or should be made. His Honour was duty bound to assess the parties’ respective contributions as provided by s.79(4) of the Act.
53.Furthermore, absent a finding that the Husband acted recklessly, negligently or wantonly with regard to the parties’ joint venture (Kowaliw (1981) FLC 91-092), it was not open to his Honour to perform the offsetting exercise that he did. No doubt, had the joint venture been successful, the wife would have properly sought reward. It is unjust to effectively seed the loss of the venture to the Husband alone. In so doing, his Honour fell into error.
54.Whilst it is true that the effluxion of time in a long relationship may cause other contributions to assume greater significance than a large lump sum obtained early in the relationship, his Honour could not simply dispose of the contribution on the basis that the parties had a moderately lengthy relationship (Pierce v Pierce [1998] FamCA 74; (1999) FLC 92-844). Having recognised it existed, his Honour was required to give the lump sum contribution weight. His Honour does not otherwise identify other contributions which have the effect of reducing the weight of the Husband’s lump sum contribution. It is therefore plainly unjust that the Husband did not receive any recognition, or adequate recognition for this contribution. [errors in original]
As to his Honour’s obligation to give reasons, counsel for the father argued, after referring to the well-known authorities and principles established by those authorities, that:
57.As regards the Husband’s contributions…, his Honour has failed to provide adequate reasons such that it can be understood how he:
(a)Formed the view that the financial loss incurred by the failure of the parties’ joint enterprise offset the Husband’s lump sum financial contribution and/or to what degree; and
(b)Formed the view that the effluxion of time reduced the weight to be placed upon the Husband’s lump sum financial contribution and/or to what degree.
We agree with those submissions. His Honour’s reasons are unclear as to what relevance the increased mortgage had to the contribution which was not in dispute. His Honour’s reference to the mother’s submissions, which his Honour adopted, indicates that his Honour found that the losses occasioned by both parties in the business should effectively be quarantined to the father. Although his Honour was acting within his discretion in considering the effluxion of time in relation to the father’s contribution, it is clear that it was not only that element which persuaded his Honour to totally discount the father’s considerable contribution.

This, coupled with a failure to properly explain his Honour’s treatment of the various contributions of the parties and the weight to be attached to them, in our view constitutes an error.
Whilst we have considered whether we could re-exercise discretion in the property appeal, given that the parenting issue will be re-heard, we think it preferable that the entirety of the matter be remitted for re-hearing.
The appeal will be allowed.

COSTS

Given the errors of law we have identified, we do not intend to make any order for costs. However we do propose to grant a certificate pursuant to the

Federal Proceedings (Costs) Act 1981 (Cth)
for the appeal and the rehearing.

I certify that the preceding one hundred and sixty-seven (167) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Faulks DCJ and Ainslie-Wallace J) delivered on 28 May 2012.

Associate:
Date: 28 May 2012