Naparus & Frankham
[2020] FamCAFC 32
•18 February 2020
FAMILY COURT OF AUSTRALIA
| NAPARUS & FRANKHAM | [2020] FamCAFC 32 |
| FAMILY LAW – APPEAL – PARENTING – Procedural Fairness – Where the parties’ mental health was in issue – Where the primary judge relied on the report of a psychiatrist determining the father was of sound mental health – Where that report was only given to the mother on the morning of the trial – Where the mother objected to the primary judge’s receipt of that report – Where that objection was not determined – Where the mother then sought to cross examine that psychiatrist but was denied the opportunity – Consideration of a litigant’s right to cross examine a witness – Where it cannot be said that such cross examination could not have materially affected the outcome – Where it is unnecessary to consider the remaining grounds of appeal – Appeal allowed – Matter remitted for rehearing. FAMILY LAW – APPEAL – COSTS – Where the appeal succeeded on a point of law – Where both parties sought costs certificates – Where the circumstances warrant a costs certificate for each party. |
| Evidence Act 1995 (Cth) s 26 Family Law Act 1975 (Cth) Part IV Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9 |
| Boensch v Pascoe (2019) 94 ALJR 112; [2019] HCA 49 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 |
| APPELLANT: | Ms Naparus |
| RESPONDENT: | Mr Frankham |
| INDEPENDENT CHILDREN’S LAWYER: | Hartleys Lawyers (Did not participate) |
| FILE NUMBER: | MLC | 1462 | of | 2016 |
| APPEAL NUMBER: | SOA | 10 | of | 2019 |
| DATE DELIVERED: | 18 February 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Alstergren CJ, Kent & Austin JJ |
| HEARING DATE: | 19 July 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 February 2019 |
| LOWER COURT MNC: | [2019] FCCA 434 |
REPRESENTATION
| THE APPELLANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | Mr Moore |
| SOLICITOR FOR THE RESPONDENT: | Nick Graham Legal |
| THE INDEPENDENT CHILDREN’S LAWYER: | Hartleys Lawyers (Did not participate) |
Orders
The Application in an Appeal to adduce further evidence filed on 28 June 2019 be dismissed.
The appeal be allowed and the orders made on 28 February 2019 be set aside.
The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by him in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the rehearing ordered.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Naparus & Frankham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 10 of 2019
File Number: MLC 1462 of 2016
| Ms Naparus |
Appellant
And
| Mr Frankham |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
By an Amended Notice of Appeal filed on 21 June 2019, Ms Naparus (“the appellant mother”) appeals from all orders made by a judge of the Federal Circuit Court of Australia on 28 February 2019 determining her dispute with Mr Frankham (“the respondent father”) over the parties’ only child, who was then not quite four years old, under Part VII of the Family Law Act 1975 (Cth).
The appealed orders essentially provided for the parties to have equal shared parental responsibility and for the child to live with the mother in Victoria. Provision was made for the child to spend unsupervised time with the father, but for the child to instead live with him if the mother moved to live in Western Australia, as was her expressed desire. The mother was dissatisfied with both her confinement to residence with the child in Victoria and the regime providing for the child to spend unsupervised time with the father.
Although the appeal comprised numerous grounds, it is unnecessary to address more than one of these grounds. The appeal must succeed by reason of the mother’s denial of procedural fairness, though not for all of the reasons advanced in her Summary of Argument.
At trial, the parties were in heated dispute about whether the mother was maliciously thwarting the child’s relationship with the father. The mother denied it, contending she was only taking reasonable steps to ensure the child’s protection from harm. It was her case that the father suffered from some form of psychological or psychiatric condition, exacerbating his tendency to act violently, impulsively or irresponsibly, which conduct was inimical to his unsupervised care of such a young child.
Because the father’s psychological stability was a simmering issue throughout the litigation, earlier procedural orders made in April 2018 required both parties to submit to psychiatric evaluation by a single expert witness. Dr Q was engaged for that purpose by the Independent Children’s Lawyer (“the ICL”). Dr Q prepared her report about the father on 28 August 2018 and it was tendered in evidence at the trial by the ICL (Exhibit A). As the primary judge’s reasons reveal (at [63]-[64]), Dr Q concluded the father did not suffer from Bipolar Disorder, “questioned” whether he suffers from Attention Deficit Disorder, and had no concerns for the child in his “custody or unsupervised care”. In reliance upon that evidence, the primary judge was ultimately not satisfied the father’s mental health precluded him from parenting the child adequately (at [69]) and found the mother “overstated the risks” of harm posed by the father (at [304]). Hence the orders making generous provision for the child’s interaction with him.
The procedural unfairness experienced by the mother relates to how the expert evidence of Dr Q was handled. In particular, it was belatedly furnished to her and, even though she disputed it, she was effectively denied any opportunity to challenge the efficacy of the evidence.
The mother was self-represented at the trial, which commenced on 22 October 2018. Immediately after counsel for the father and the ICL announced their appearances, the ICL’s counsel informed the primary judge that she was in possession of Dr Q’s report relating to the father which, at that time, had neither been filed nor served, as the following excerpt of the transcript reveals:
…
HER HONOUR: Yes, thank you, [counsel for the ICL]. Is this matter ready to proceed?
[COUNSEL FOR THE FATHER]: Yes, it is, your Honour.
[THE MOTHER]: Yes.
[COUNSEL FOR THE ICL]: It is, your Honour, save can I say that there’s a psychiatric assessment of the father that’s not yet filed that has arrived that the mother will need time to look at, but other than that, yes, your Honour.
HER HONOUR: All right. Well, look, I will stand the matter down, in any event, during the rest of the callover so that you can have a look at that.
…
(Transcript 22 October 2018, p.2 lines 10-23)
There is no explanation for why Dr Q’s report, compiled nearly two months before, had not already been served upon the mother. Although the primary judge stood the trial down for about 90 minutes, that was hardly sufficient time for a self-represented litigant to contemplate the implications of the expert evidence and how to alter her trial preparations to cope with it.
Upon resumption of the hearing, Dr Q’s report was not initially discussed. The primary judge embarked upon an explanation to the mother, as the applicant, about the trial process. Just before she was ushered into the witness box to begin her oral evidence, the ICL’s counsel interjected to tender Dr Q’s report. The report was received into evidence and marked as an exhibit, even before the mother was asked whether she consented or objected to its tender, though she then interrupted and joined the discourse as follows:
…
HER HONOUR: All right. Thank you. All right. And in terms of this psych report, I will mark it exhibit A.
EXHIBIT #A PSYCHIATRIC REPORT OF THE FATHER BY DR Q
[COUNSEL FOR THE ICL]: Thank [you] your Honour.
[THE MOTHER]: Excuse me, your Honour. Do I need to – I mean, would that report writer be available for cross-examination if I have questions in regards to that?
HER HONOUR: Well, that’s a matter you could discuss with [the ICL] if - - -
[THE MOTHER]: Can I object to it being entered into evidence?
HER HONOUR: Is it intended that the report writer will be available for cross-examination?
[COUNSEL FOR THE ICL]: Your Honour, that document was provided to me this morning. I don’t think anybody has made any inquiries of Dr Q in relation to their availability.
HER HONOUR: All right. Well, perhaps if those inquiries could be made, that would be helpful.
…
(Transcript 22 October 2018, p.7 lines 9-34)
Despite the mother’s objection to the admissibility of the report, it remained an exhibit without any adjudication of her objection, and despite the primary judge asking the ICL’s counsel to ascertain Dr Q’s availability for cross-examination at some point during the trial, the transcript does not reveal that the issue was ever broached again. It was overlooked by the mother and neither the primary judge nor counsel returned to the issue.
During her cross-examination of the father, the mother pursued him about his alleged history of psychological instability. The father conceded he had “mood swings”, occasionally suffered from “extreme depression”, experienced “rage”, and “gets crazy”, for which he also conceded he had consulted a “psychologist or counsellor”. The mother tendered as exhibits some of the father’s historical medical records, which were the foundation for the concessions elicited from him in cross-examination (Exhibits L and M).
At the end of the third day of trial, the following conversation ensued between the primary judge, counsel, and the mother:
…
HER HONOUR: Are there any other witnesses?
[COUNSEL FOR THE ICL]: No other witnesses. There’s a further affidavit of [a witness].
HER HONOUR: Yes.
[COUNSEL FOR THE ICL]: And that affidavit is going in, as [I] understand it, without the necessity for that witness to be cross-examined.
HER HONOUR: All right. Thank you. That’s correct, Ms Naparus?
[THE MOTHER]: Sorry?
HER HONOUR: That’s correct, is it?
[THE MOTHER]: Yes.
HER HONOUR: Yes. All right. Thank you. All right.
[COUNSEL FOR THE FATHER]: Well, that concludes the witnesses, your Honour.
…
(Transcript 24 October 2018, p.259 lines 18-37)
Dr Q was not mentioned in that discussion and, quite feasibly, the mother’s concession about there being no need for the cross-examination of any further witnesses was confined to the witnesses in the father’s case. She had never deviated from her expressed desire to cross-examine Dr Q. Nevertheless, the trial was adjourned until the following morning for final submissions.
The mother was last to make submissions. Deep into those submissions, when addressing the father’s psychological stability, the following exchange occurred between the primary judge and the mother:
…
HER HONOUR: All right. And what do you say of the report that has been submitted by Dr Q of [the father’s] current status, irrespective of what his previous status was?
[THE MOTHER]: No. Yes, yes. Again, he has been diagnosed as – has treatment been recommended? Has he been referred for treatment? Does he require treatment? I’m not sure if that’s stated in the - - -
HER HONOUR: Right.
…
HER HONOUR: So is your submission in relation to that that, from your perspective, you’re questioning whether his mental health has been properly diagnosed and properly treated? Is that what you’re saying?
[THE MOTHER]: Yes, yes.
…
(Transcript 25 October 2018, p.296 line 41 to p.297 line 11)
Self-evidently, the primary judge was alive to the conflict between Dr Q’s expert opinion evidence and the mother’s beliefs, but the mother’s earlier expressed desire to cross-examine Dr Q still went unsatisfied.
As can be seen, the mother’s denial of procedural fairness is evident from the combined circumstances of her belated provision with Dr Q’s report, the failure to deal with her objection to the admissibility of the report, and her denial of any opportunity to challenge Dr Q’s evidence in cross-examination when she was clearly entitled and had expressed her clear wish to do so.
With respect to the mother’s entitlement to challenge Dr Q’s evidence in
cross-examination, s 26 of the Evidence Act 1995 (Cth) (“the Evidence Act”) contains the statutory power for a court to control the questioning of witnesses. In GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 (“GPI Leisure”), Young J identified (at 22) a comprehensive list of factors relevant to determining whether or not cross-examination of a witness will be allowed, there emphasising that the relevant “right” of a party is to a fair trial as distinct from a right to cross-examine. Young J observed (at 18):
Apart from the particular matters of practice which have grown up in England, it appears quite plain that all the rules as to cross-examination are not rules dealing with rights of parties at all, but are guidelines to judges as to how they should, in fairness, conduct trials before them…
Although GPI Leisure was decided before the introduction of the Evidence Act, the decision has since been cited with approval, including by O’Ryan J in LGM v CAM [2008] FamCA 185 at [197]-[199]. As O’Ryan J observed:
199.Young J’s list of factors makes clear that there is no right to cross examine but rather the right to a fair trial and that it is the trial judge’s duty to ensure all parties have a fair trial. Most relevantly, the trial judge must so exercise his [or her] discretion in and about the examination and cross examination of witnesses so that a fair trial is assured.
After reviewing GPI Leisure and other authorities, O’Ryan J summarised the applicable principles in respect of not permitting cross-examination of a witness as follows:
207.… Cross examination is the testing of a witness as to the facts in issue or credit. There is no right of cross examination and it is permitted by a Judge in the exercise of his or her discretion to ensure that parties have a fair trial. A witness that is called to give evidence may be cross examined. In general, the party or legal representative of the party may cross examine a witness not called by that party. It is not necessary that the witness has given evidence against the party seeking to cross examine. It is permissible to ask leading questions in cross examination but there is no absolute right.
208.The Court has a wide discretion decide whether or not permission will be granted to cross examine witnesses. There is no right to cross examine witnesses in the course of a hearing, but rather the right of all parties to a fair trial.
We accept O’Ryan J’s articulation of the principles as correct.
In this case, there is no suggestion from the transcript or from the reasons for judgment that the primary judge purported to exercise discretionary power pursuant to s 26 of the Evidence Act to refuse the mother permission to cross-examine Dr Q. In any event, for the reasons identified, it was necessary, in order to secure the mother’s right to a fair trial, that she have the opportunity to cross-examine Dr Q.
The father contended in the appeal that the mother was not denied procedural fairness but, even if she was, the denial was immaterial to the outcome. That submission should be rejected because the mother satisfactorily answered it. When asked in the appeal how she would have challenged Dr Q in cross- examination if afforded the opportunity, the mother said she would have confronted her with the erroneous factual assumptions upon which her benign opinions about the father’s psychological health were based by reference to undisclosed historical facts, such as:
a)The contents of the father’s historical medical records from 2014, tendered in evidence (Exhibits L and M);
b)The father’s alleged admission that he began receiving a Disability Support Pension instead of a Newstart allowance in or about 2015;
c)The disability which qualified the father to receive the pension was some ill-defined form of disturbed mental health;
d)The father’s description of himself as a “Disability Pensioner” in the introduction to his affidavit filed in January 2018; and
e)The father’s admissions to the mother in cross-examination about his experience of “mood swings”, “extreme depression”, and “rage”, for which he previously consulted a psychologist or counsellor.
Dr Q’s expert report makes no reference to any of those facts or circumstances, suggesting she was oblivious to them. Dr Q was seemingly only informed, presumably by the father, of him feeling depressed at some indistinct time before 2012, due to his separation from family members because of work commitments. That being so, Dr Q’s expert opinions were apparently formed on an incomplete and misleading history.
It may be that, had the mother been able to cross-examine Dr Q about those undisclosed facts and circumstances, Dr Q’s opinion evidence would not have changed. But that is not the question relevant to the outcome of the appeal. Importantly, Dr Q’s evidence might have been amended in some material respect. The denial of procedural fairness is an error of law which vitiates the appealed orders, unless it can be shown the denial did not have any bearing upon the result, which conclusion the father could not establish.
As the High Court of Australia said in Stead v State Government Insurance Commission (1986) 161 CLR 141 (“Stead”) at 145-146:
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference … It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.
Here, like the appellant in Stead, the mother was denied the chance to challenge expert opinion evidence which bore upon her ability to make good her case in respect of the factual issue about the stability of the father’s psychological health. Had Dr Q been privy to all of the evidence available to the mother about the father’s psychological history, it might have made a difference to Dr Q’s opinions and hence the findings made by the primary judge.
The material denial of procedural fairness, much like ostensible judicial bias, ruptures the integrity of the trial process and requires the appeal to be upheld and a re-hearing of the proceedings (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 611-612).
It is strictly unnecessary to consider the remaining grounds of appeal because they are not now dispositive and the resolution of those grounds either will not or ought not affect the re-hearing which must now occur (Boensch v Pascoe (2019) 94 ALJR 112 at [7]-[8]). Besides, the unfortunate lack of correlation between the grounds of appeal and the submissions contained within the mother’s Summary of Argument would have made consideration of the other grounds a needlessly laborious task.
Since the appeal is upheld on a ground of legal error to which further evidence is irrelevant, the mother’s interlocutory application to adduce further evidence in the appeal becomes superfluous and should be dismissed.
The parties should be granted costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for both the appeal and the re-hearing, as the appeal succeeded on a question of law, the mother made no application for costs against the father because she conceded he had no financial capacity to meet such an order, and both parties sought costs certificates.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren CJ, Kent & Austin JJ) delivered on 18 February 2020.
Associate:
Date: 18 February 2020
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