Nuan & Lei
[2023] FedCFamC1A 211
•1 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Nuan & Lei [2023] FedCFamC1A 211
Appeal from: Lei & Nuan (No 2) [2023] FedCFamC2F 628 Appeal number: NAA 137 of 2023 File number: BRC 7418 of 2021 Judgment of: CHRISTIE J Date of judgment: 1 December 2023 Catchwords: FAMILY LAW – APPEAL – FINAL PARENTING ORDERS – Procedural fairness – Whether the primary judge’s involvement in cross-examination amounted to procedural unfairness – Where some of the primary judge’s interventions can be characterised as having “moved into counsel’s shoes” – Where the appellant was permitted to file and rely on all evidence he wished to rely upon and no act of the primary judge prevented the appellant from same – Where the primary judge did not preclude the appellant’s counsel from making submissions on the appellant’s behalf – Where the primary judge’s interventions did not deny the appellant a fair trial nor were they productive of a miscarriage of justice – Unacceptable risk – Whether the primary judge erred in finding there was an unacceptable risk in the children spending unsupervised time with the appellant – Where the underlying facts upon which the primary judge relied were not flawed – Where the primary judge had before him uncontroversial evidence as to threatening and abusive conduct of the appellant and unsatisfactory evidence as to possible recurrence of that conduct – Long-term supervision – Whether the primary judge making an order for the children’s time with the father to be supervised indefinitely constituted error – Where it was open to the primary judge to make an order for indefinite supervision – Whether the primary judge failed to consider that the respondent may remove the children to Country E where she is a citizen – Where the evidence did not establish there was a risk the respondent would unilaterally change the children’s place of residence overseas – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) s 60I Cases cited: Adacot & Sowle [2020] FamCAFC 215
B and B (1993) FLC 92-357
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bant & Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222
Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Edinger & Duy [2023] FedCFamC1A 194
Ellis v The Queen [2015] NSWCCA 262
Galea v Galea (1990) 19 NSWLR 263
Granville & Blakeslee (2017) 57 Fam LR 55; [2017] FamCAC 162
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Yein & Zihao (2019) FLC 93-889; [2019] FamCAFC 20
Number of paragraphs: 89 Date of hearing: 14 November 2023 Place: Sydney (via audiovisual link) Counsel for the Appellant: Mr Hartwell Solicitor for the Appellant: Banga Legal Counsel for the Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr George Solicitor for the Independent Children's Lawyer: Jenny Boulton Solicitor ORDERS
NAA 137 of 2023
BRC 7418 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR NUAN
Appellant
AND: MS LEI
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
1 DECEMBER 2023
THE COURT ORDERS THAT:
1.Appeal NAA 137 of 2023 is dismissed.
2.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Nuan & Lei has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an appeal against final parenting orders of a judge of the Federal Circuit and Family Court of Australia (Division 2) made on 20 April 2023.
The appellant father seeks that the appeal be allowed and the matter remitted for rehearing by a judge other than the primary judge. The appellant also seeks that this Court make injunctive orders in relation to the removal of the children from the Commonwealth of Australia and the children’s passports.
The respondent mother is self-represented in these proceedings. At the hearing the respondent indicated that she opposes the appeal.
The Independent Children’s Lawyer (“ICL”) is also a respondent and seeks that the appeal be dismissed.
THE TRIAL
The proceedings before the primary judge related to the parenting arrangements for the two children of the parties’ marriage, namely X and Y (“the children”), aged eight and six respectively as at the time of the original hearing.
During the parties’ relationship the appellant was primarily responsible for day-to-day care of the children who remained in his care following separation.
The mother sought time with the children by agreement and, when the father did not engage with the procedure for prefiling negotiation set out in s 60I of the Family Law Act 1975 (Cth) (“the Act”), the mother filed an Initiating Application on 7 June 2021 seeking orders for equal shared parental responsibility, the children to live with the father and the children to spend time with the mother on one day each weekend.
On 14 September 2021 consent orders were made which provided for the children to spend time with the mother for short periods of time (of no more than two hours) at a shopping centre. The matter was adjourned until December 2021 and a Court Child Expert was appointed for the preparation of a Child Impact Report. An order for the preparation of a Family Report was made on 15 December 2021.
Commencing on about 13 October 2021 and continuing throughout October 2021, the father began to report to third parties a narrative concerning the mother and these proceedings which referred to “murder-suicide”. This culminated in a police attendance upon the father’s home in October 2021 and the father’s subsequent hospitalisation pursuant to an involuntary treatment order.
The children were placed with their mother and have lived with her since the father’s hospitalisation. The father has had some limited supervised time.
The primary judge found that the children should remain living the mother and their time with the father should remain supervised by a contact service.
THE APPEAL
The appellant filed an Amended Notice of Appeal on 1 September 2023 which set out four grounds of appeal as follows:
1. The learned Trial Judge erred in finding that there was an unacceptable risk of harm to the children in spending unsupervised time with the Father because such finding was plainly or manifestly wrong.
2. The learned Trial Judge erred in making an order for the children’s time with the Appellant to be supervised in a contact centre indefinitely (which is the practical effect of Order 4 of the Final Orders made on 20 April 2023) as this order was not justified in the circumstances and the decision was otherwise plainly or manifestly wrong and as such the decision was not a proper exercise of judicial discretion.
3. The frequency and nature of the learned Trial Judge’s involvement in the cross examination of the Father and Ms. [S] (the family report writer) were such as to render the trial unfair.
4.The learned Trial Judge has failed to consider the Appellant’s submissions at trial that the Respondent, a [Country E] citizen, may remove the children to [Country E] via a Hague Convention Country and thus defeat the orders made for the children to spend time with the father.
Ground 3
Ground 3 contends the trial was rendered unfair by the frequency and nature of the primary judge’s involvement in the cross-examination of the father and the family report writer. In certain circumstances excessive judicial intervention may amount to a denial of procedural fairness.
Consistent with principle, grounds of appeal in relation to procedural justice should be dealt with first: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577.
In Galea v Galea (1990) 19 NSWLR 263 (“Galea”) Kirby A-CJ (with whom Meagher JA agreed) set out a number of principles drawn from the authorities and in relation to the right to a fair trial and judicial intervention. The following principles as set out at 281 of Galea are applicable:
1.The test to be applied is whether the excessive judicial questioning or perjorative [sic] comments have created a real danger that the trial was unfair. If so, the judgment must be set aside.
…
3.Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and “into the perils of self-persuasion”.
4.The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion.
5.It is also relevant to consider the point at which the judicial interventions complainted [sic] of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones, namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel’s brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions.
6.The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change. But there is no unchanging formulation of them. Thus, even since Jones and Tousek, at least in Australia, in this jurisdiction and in civil trials, it has become more common for judges to take an active part in the conduct of cases than was hitherto conventional. In part, this change is a response to the growth of litigation and the greater pressure of court lists. In part, it reflects an increase in specialisation of the judiciary and in the legal profession. In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay or unnecessary prolongation of trials deriving in part from new and different arrangements for legal aid. The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements.
(Citations omitted)
The orders appealed from are orders made in child-related proceedings. In Adacot & Sowle [2020] FamCAFC 215 (“Adacot & Sowle”) the Full Court said of a judge’s role in child-related proceedings:
9.…there is a statutory mandate that the primary judge actively direct, control and manage them (s 69Z[N](4) of the Family Law Act 1975 (Cth) (“the Act”)) and with as little formality and legal technicality and form as possible (s 69Z[N](7) and s 97(3) of the Act). This active control, however, cannot be so intrusive that it jeopardises a fair trial. Whilst there is a wide latitude in how a primary judge conducts a case, particularly in child-related proceedings, there is no warrant to descend to what has been described as “palm tree justice” (R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 257).
In this context I turn to the evidence. The appellant’s Summary of Argument complained at [36] that the primary judge “interfered many times throughout the proceedings”. I read the expression “interfered” to be a contention that the primary judge should not have posed questions to the witness, as to do so amounted to procedural unfairness. The appellant took me to numerous transcript references to support the submission that the primary judge’s interventions were frequent and of a nature that, either individually or collectively, rendered the trial unfair.
It is useful to consider the exchange which is particularly highlighted in the appellant’s Summary of Argument. During cross-examination of the appellant by counsel who appeared on behalf of the ICL about the absence of a report from the appellant’s treating psychologist, the primary judge asked some questions of the witness. Those questions appear to be in an effort to clarify the evidence which had been given. The witness explained the absence of a report as a consequence of his having (at one time) been self-represented in the proceedings. The primary judge explained the usual process for expert evidence and reminded the witness that he has been represented, culminating in this exchange:
HIS HONOUR: You’ve had legal representation, it would seem to me, for quite some time. You had one lot of solicitors which you dispensed with their services, and you’ve had this new lot of legal representation. I’m trying to work out why it is that you didn’t tell any of them about Dr [T] and, “Hey, maybe we should get a report”. Now, if you can enlighten me on that, I would like to – if you can’t enlighten me, just say, “I can’t enlighten you,” but don’t leave me hanging?
THE APPELLANT: My apologies, sir. You’re just very intimidating.
HIS HONOUR: Well, come on. It’s like being bullied by Humphrey B. Bear?
(Transcript 19 April 2023, p.130 lines 36–44)
There is a distinction to be drawn between a witness feeling intimidated and the conduct of the person asking questions being itself objectively intimidating. The first circumstance is apt to occur with some frequency during cross-examination by counsel. One would hope that, on those occasions where the primary judge puts questions to a witness, the nature of the exchange is not intimidating in nature. The clarification as to the reasons for the absence of evidence by the father’s treating psychologist was relevant and necessary.
The exchange between the witness and the primary judge continued:
HIS HONOUR: You’ve been asked to do something that you, as a parent, are saying, “Yes, I can do that. I can accept the sort of responsibility that needs to happen.” If my child is sick and I need to show this, then I go and take them to a doctor and I ask the doctor, “Tell me what’s wrong so that I can show someone else that that child is sick.” That’s what a parent does. You can’t even do that for yourself, and yet you’re telling me that you can do that as a parent. This is the sort of thing that I have to have a look at to see whether what you say you can do as a parent you can actually do, so can you enlighten me or not? It’s a yes or no question?
THE APPELLANT: I will try, sir. Yes. I will try if you give me a chance.
HIS HONOUR: It’s – no. It’s on now. The trial is on now. It has been on for quite some time. The listing of this trial was done quite some time ago by Judge Middleton, okay?
THE APPELLANT: So sir - - -
HIS HONOUR: November 2022. Can you enlighten me why you don’t have a report from Dr [T], yes or no?
THE APELLANT: No.
HIS HONOUR: Okay. Good. Just move on.
(Transcript 19 April 2023, p.130 line 46 to p.131 line 16) (Emphasis added)
The primary judge, regrettably, does appear to have “moved into counsel’s shoes” to use the expression of Kirby A-CJ in Galea. This alone does not persuade me that the trial which the appellant received was unfair. I have taken into account the timing of the primary judge’s interventions when reaching this conclusion. The cross-examination by counsel for the mother was complete and the intervention occurred toward the end of the appellant’s cross-examination by counsel for the ICL.
The primary judge was tasked with making orders which were in the best interests of two young children in circumstances where the father’s threatening conduct and subsequent hospitalisation were at the centre of the inquiry. The Family Report recommendations were contingent upon satisfactory evidence of engagement with mental health services on the part of the appellant. While ordinarily the lawyers ask questions to obtain admissible evidence, a primary judge will not be in error to ask a relevant question of a witness where that question has not been put and the answer is pertinent to the court’s determination particularly given the overriding obligation of the primary judge to satisfy himself that the orders are in the best interests of the children.
I will turn now to the other examples of judicial intervention raised by the appellant in support of the contention that judicial intervention rendered the trial unfair.
The first two of the transcript references of the appellant deal with an issue which arose during the proceedings concerning real property registered in the name of the appellant but held in trust on behalf of a charitable organisation. The primary judge was indicating to counsel displeasure with the fact that the appellant had not provided instructions on this issue. I am not privy to whether this issue was a live one prior to the cross-examination of the parties. It is not addressed in the affidavit material nor the parties’ case outlines. It was part of the father’s case that the mother was financially controlling and denied him funds. The mother contended that the father could have alleviated his financial issues by disposing of the trust property. If I have understood what was put during cross-examination, it was contended that the father was able to deal with the property as if it were his own. I do not think the evidence established that the father had any beneficial entitlement to the assets of the charitable organisation. To the extent that the primary judge was critical of the father for failing to provide discovery or instructions about this topic, I accept he was (led by the mother’s counsel) unduly critical. However, this, in my view, factual error on the part of the primary judge is peripheral to the central and serious issues upon which the primary judge’s reasons and orders were grounded and appellable error is not demonstrated.
There are some additional examples relied upon by the appellant which can be categorised as the primary judge intervening when the answers which were given in cross-examination seemed highly incongruous such as when the appellant, during cross-examination by the mother’s counsel, explained his comments concerning killing himself and his former spouse in this way:
…Yes, I did say some horrible things and I’m really sorry I did. I work in in an environment that is very politically incorrect on [worksites] and we have [a] very poor sense of humour when it comes to things like that and I realise it’s not a joke…
(Transcript 18 April 2023, p.55 lines 42–45)
The primary judge’s subsequent questions record the judge’s incredulity at the witness connecting his repeated and detailed comments concerning murder-suicide and humour. I do not think they are an improper interference. I take a similar view in respect of the primary judge’s intervention when the appellant referred to his spouse “hiding out” at a domestic violence shelter after the police informed her of the husband’s extensive references to homicide: Transcript 18 April 2023, p.81 lines 6–15.
I do not understand what the difficulty is with the primary judge’s questions at Transcript 18 April 2023, p.83 lines 37–47. Nor do I appreciate what the appellant’s specific concern is about the questions which were recorded at Transcript 18 April 2023, p.84 lines 21–39 and I did not receive any submissions about them.
The appellant’s Summary of Argument refers to parts of the transcript of the father’s cross-examination on 19 April 2023. The portions at Transcript 19 April 2023, p.103 and p.105 read as an effort to determine whether evidence of the mother was in issue and in the latter case to otherwise clarify the evidence and do not appear to be otherwise worthy of note.
The appellant was cross-examined at some length by counsel for the ICL about the records which related to the father’s interactions with health professionals in October 2021. Towards the end of that lengthy cross-examination which came close to the end of the lay evidence, the father was cross-examined about his comment: “[a] hitman would be cheaper than paying for lawyers for the court case”. His Honour posed a question at this stage about the father having “sufficient wherewithal in [his] mind that [he] could make a joke” at that time and the cross-examination continued. I do not see that the intervention was prejudicial to the appellant.
The interventions which are relied upon by the appellant at Transcript 19 April 2023, p.121 line 16 to p.122 line 34 related to the father’s involvement of the children in the dispute between the parents and his mental health at the time. It is plain from the primary judge’s questions that he was exploring with the witness whether he believed his representations at the time to be truthful or factual or whether he conceded they were the product of mental health vulnerabilities. In a sense the interventions may be seen, coming as they did toward the end of the lay evidence, as an example of the primary judge indicating what he believed the evidence to date had demonstrated – in effect providing the father and his lawyers with an opportunity to answer questions and make submissions as appropriate.
The appellant also relies upon the judge’s lengthy questioning of him at Transcript 18 April 2023, p.88 lines 3–21 and p.91 line 39 to p.93 line 26 where the primary judge posed questions to the appellant towards the end of cross-examination by counsel who appeared on behalf of the mother. The first of those questions related to a previous representation of the father in family violence proceedings which he initiated against the mother and appear designed to determine whether the father accepted that he had not previously made an allegation he now advanced. The primary judge returned to that theme:
HIS HONOUR: So, you have wilfully made a false statement?
THE APPELLANT: In that - - -
HIS HONOUR: Is that correct?
THE APPELLANT: In that respect, yes, your Honour, I - - -
HIS HONOUR: Well, what do you mean in that respect? Either it’s false or it’s not false?
THE APPELLANT: I – I gave the reasons why I thought - - -
HIS HONOUR: It is either false or it’s not false. So, is it false?
THE APPELLANT: It’s true that the incident happened. It’s false that I didn’t declare it because I didn’t have any evidence to – I didn’t have my daughter to prove it, I didn’t want to involve [X].
HIS HONOUR: Okay. So, you are willing to swear falsely if it is something that suits your purposes?
THE APPELLANT: I wanted to protect my child from being – I didn’t know I could be cross-examined.
HIS HONOUR: Yes. So, the answer is, yes, you are willing to swear falsely if it suits your purposes?
THE APPELLANT: To protect my children.
HIS HONOUR: Is that right?
THE APPELLANT: Yes, your Honour.
HIS HONOUR: You are willing to do something that is morally wrong and wrong against the law if it suits your purposes?
COUNSEL FOR THE APPELLANT: Your Honour, I apologise for intervening, but we’re getting very close to a certificate time.
HIS HONOUR: I know, but I’m not going to – if it is that I’m going to get a certificate, I will make the certificate, but it’s getting very frustrating that I’m not getting straight answers.
(Transcript 18 April 2023, p.92 line 34 to p.93 line 14)
The judge’s interventions were again most unfortunate and plainly cross the line between guiding and controlling the proceedings including by asking questions to clarify important evidence. They are properly characterised as stepping into the shoes of counsel and to the extent that the appellant’s Summary of Argument at [38] characterises some of the primary judge’s interventions as “not [having] maintained the required level of detachment” I accept that the characterisation is apposite. The next question is to ascertain whether those interchanges created a real danger that the trial was unfair and resulted in a miscarriage of justice. To determine that issue it is necessary to understand the scope of the dispute and the impact if any of intervention at that stage of the proceedings on the carriage of the proceedings as a whole.
One of the significant factors in respect of the primary judge’s interventions both in respect of the cross-examination of the father and in respect of the cross-examination of the Court Child Expert is the point in the trial when they occurred.
The father was the respondent in the trial and hence the last lay witness in the case. The interventions of the primary judge by way of direct questioning of the father occurred in the main toward the conclusion of the father’s time in cross-examination. The significance of this lies in the fact that by the time the judge was posing questions to the Court Child Expert he had the advantage of having heard almost all the evidence in the case and the parties had indicated that they did not propose requiring the single expert psychiatrist, Dr P, for cross-examination.
The appellant also points to the questions which the primary judge posed to the Court Child Expert as being an improper foray outside the judicial role.
The Court Child Expert gave evidence at the conclusion of the lay evidence on the middle day of the hearing. She was affirmed after the lunchtime adjournment. The cross-examination on behalf of the ICL was undertaken first and was brief. Counsel who appeared on behalf of the mother volunteered to cross-examine the expert next. Counsel was seeking that the witness offer an opinion about the significance of the father’s conduct in October 2021 assuming he was seeking mental health support in the period prior to his hospitalisation. The Court Child Expert said:
Well, that depends of the level of support and how meaningful it is in assessing – in assisting him in, kind of, addressing those emotional vulnerabilities, because many people access support but, at times, it is not meaningful. So he needed to access meaningful support prior to the deterioration of his mental health to reach that crisis point.
(Transcript 19 April 2023, p.141 lines 29–33)
The primary judge’s questions at this point sought to clarify what was meant by the use of the expression “meaningful support”. The inquiry was an important one given the issues in the case.
The next example cited in the appellant’s submissions was an intervention when the primary judge drew to the attention of counsel for the mother that he had posed two questions to the witness. There is no way to construe the intervention as unfavourable to the appellant. At the end of the passage complained of the primary judge says:
HIS HONOUR: If I suggest to you that the mother’s evidence is that the father has – can be changeable in his presentation – and she said that to you, didn’t she – that sometimes she doesn’t know what he’s going to – what she’s going to get. So might it be that you just observed that from the father? You observed him on a day when he wasn’t expressing those views?
COURT CHILD EXPERT: Yes, possibly. But that was reported verbally by the children and the mother.
HIS HONOUR: Because the risk that we are talking about goes back to those threats made in October 2021, doesn’t it. And that is a risk of homicide of the mother and of suicide of the father. And that’s the risk that needs to be mitigated or ameliorated. That’s correct, isn’t it?
COURT CHILD EXPERT: Yes. Yes. That’s – yes.
(Transcript 19 April 2023, p.144 lines 5–15)
The primary judge indicated to the Court Child Expert his appreciation of the mother’s evidence and asked the expert to express a view as to whether that impacted on her opinion. This is an orthodox inquiry of a court appointed expert who cannot be expected to appreciate the evidence the parties had given at the hearing.
If the proposition put to the Court Child Expert was unavailable on the evidence then the appellant’s complaint may have had merit but if it is no more than a complaint that the primary judge (and not one of the counsel) put a precis of part of the mother’s evidence to the Court Child Expert then it does not establish error.
The remaining reference to transcript relating to the judge’s questions of the Court Child Expert relate to the questions which were posed when all the parties had finished their cross-examination. Again, much of the transcript is the primary judge providing the Court Child Expert with a summary of updated evidence and asking the expert to reflect on whether that impacts her recommendations. Counsel for the ICL took up the opportunity which the primary judge then gave for further questions of the expert.
After this appeal was heard and while judgment was reserved the appellate division of this Court heard and determined a matter of Edinger & Duy [2023] FedCFamC1A 194 (“Edinger”). In that matter the Court made reference to the helpful reasons of Ward JA in Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 from which their Honours Aldridge, Schonell and Carter JJ at [21] distilled the following principles:
(a)a judge who conducts a cross-examination will be less able to assess the evidence, and a witness who is being cross-examined by a judge will react differently than to cross-examination by counsel; per Lord Greene MR in Yuill v Yuill [1945] P 15 at 20;
(b)the judge’s role is to listen to the evidence, and only ask questions that are necessary for clarification or have been overlooked, and to otherwise exclude irrelevant evidence. The judge ought not assume the robes of an advocate; per Denning LJ in Jones v National Coal Board [1957] 2 QB 55 at 63–64;
(c)whether there has been excessive judicial intervention will depend on the context, number, and circumstances of the intervention. Interruption early in a witness’ evidence may be less readily excused than one later, and the judge must ensure the appearance of an impartial and unprejudiced mind; per Kirby A-CJ in Galea v Galea (1990) 19 NSWLR 263 at 281–282;
(d)excessive judicial intervention will give rise to a miscarriage of the trial if the questioning unfairly undermines the proper presentation of a party’s case, or is such an egregious departure from the judge’s role that it unduly compromises the judge’s advantage of being able to objectively evaluate the evidence; per Kourakis CJ in R v T, WA (2014) 118 SASR 382 at [38]; and
(e)it is a “core principle” of the adversarial system that “the judge remains aloof from the fray and neutral during the elicitation of the evidence”; per Lord Brown in Michel v The Queen [2010] 1 WLR 879 at [31].
It is necessary to consider the complaint in the context of the transcript as a whole, the issues in the case and the reasons for judgment. Given the father ultimately did not challenge the children’s residence with their mother it cannot be said that this intervention had a bearing on the central determination of the primary judge. The submissions which were made by the appellant in the Summary of Argument contended that the primary judge failed to maintain detachment and conducted the cross-examination in a manner “liable to result in self persuasion”: Galea at 281 per Kirby AC-J. These submissions were not expanded upon orally and so it is not immediately apparent how the appellant contends the interventions resulted in the unfairness.
In considering the interventions within the context of the trial as a whole, I am satisfied that the father was permitted to file and rely on all evidence he wished to rely upon and no act on the part of the primary judge prevented the father from placing evidence before the court.
I am equally satisfied that the father, who was legally represented by counsel, was permitted to cross-examine the mother and the family report writer and did not seek to cross-examine the single expert psychiatrist.
Whereas in Edinger the primary judge posed questions to the mother to elicit the answers upon which the primary judge in that case ultimately grounded her determination, that was not the case in this hearing. In a similar vein the appellant in Edinger argued, and the appellate court accepted, that the judicial intervention had the effect of limiting counsel’s opportunity to test evidence central to the ultimate determination. No such submission is made in this case.
Finally, I am satisfied that the father’s counsel was permitted to make submissions on the father’s behalf. Consequently, I am not persuaded that the questioning complained of undermined the proper presentation of the appellant’s case at trial.
What is the denial of procedural fairness which was said to have deprived the appellant of the possibility of a successful outcome?
It is my view that “a properly conducted trial could not possibly have produced a different result”: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147.
I am conscious that subsequent authorities have suggested a more rigorous test. In Adacot & Sowle the Full Court said:
171.A challenge to a primary judge’s impartiality goes to the heart of the trial process and even if other challenges to the primary judge’s orders failed and even if the judge is found to be correct “… this does not assuage the impression that there was an apprehension of bias” (see Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577 per Kirby and Crennan JJ at [117]).
In this case the judge’s interventions do not speak to an impartial position but to the primary judge’s focus on determining – sometimes by questions from the bench – whether the evidence established future risk of harm to the children. The primary judge’s questions may in the main be characterised as him exercising “active control” as that term is understood in Adacot & Sowle at [9].
In Yein & Zihao (2019) FLC 93-889 the Full Court dismissed an appeal after finding that notwithstanding the primary judge’s conduct and reasons being irregular and at times unnecessary and irrelevant, no injustice had been done to the appellant.
Conway v The Queen (2002) 209 CLR 203 is authority for the principle that a new trial will not be ordered where an error of law or fact or other wrong has not resulted in any miscarriage of justice. As the Court of Criminal Appeal said in Ellis v The Queen [2015] NSWCCA 262 at [65]: “…A miscarriage of justice will occur in circumstances where the conduct of the judge prevents a party from properly presenting his or her case…”. That was not the position here.
It is material here that the father had, uncontroversially and unequivocally, behaved in ways which were violent and threatening as regards the mother and frightening for the children. There was nothing objective in the mother’s conduct to provoke the father’s response, in fact to the contrary. This conduct led to police and medical intervention. The objective circumstances raise the spectre of serious risk to the mother and the children.
Those central uncontroversial facts make it difficult for the appellant to demonstrate that the interventions of the primary judge denied him a fair trial or were productive of a miscarriage of justice. As discussed below, under Ground 1, the evidence as to how the father had addressed the identified risk to date and what the possibility of recurrence might be were not matters which the father himself properly addressed in either his evidence or his submissions.
Having determined that, in my view, the appellant received a fair trial before the primary judge, this ground is not established and it is necessary to consider the remaining grounds of appeal.
Ground 1
Ground 1 asserted that the primary judge “erred in finding that there was an unacceptable risk of harm to the children in spending unsupervised time with the [appellant] because such a finding was plainly or manifestly wrong”.
As developed in oral submissions at the hearing of the appeal, counsel for the appellant argued that the finding of unacceptable risk by the primary judge relied on three flawed pillars:
(1)That the father was not suffering from a mental illness at the time he expressed negative views about the mother and of consequence these were his true feelings and he would continue to express them;
(2)That the father’s test scores in psychometric testing administered by the single expert psychiatrist, in particular the “Paulhus Deception Scale”, may be used to understand the whole of the father’s evidence; and
(3)That the father continued to take ‘pot shots’ at the mother during the hearing.
The appellant’s counsel submitted that these three pillars supported the primary judge’s finding and each of them is flawed such that the decision is manifestly wrong.
The first pillar
The primary judge recorded the evidence about the father’s attitudes to the mother in the second half of 2021, as expressed by him and recorded in documents which came into evidence. They included his descriptions of the mother as a “malignant narcissist”, “a liar”, “a cunt” and a person who was seeking to take his children away from him, not so she could care for them, but so they would be placed in care and who was denying him and the children funds to which they were entitled. The primary judge recorded that the father’s expressed attitudes and views were sufficient to lead the dit to which he was admitted to conclude “that either these things are true, but they are just fantastic, or there is a deep-seated psychosis”: [94]. In the paragraph which follows the primary judge said of the father: “…he does not have a mental illness. These are things he truly believes.”
The father’s views about the mother, as expressed in late 2021 can be seen in the text exchanges to which the primary judge made reference at [47] and include:
You have poisoned the kids against you with your craziness.
…They will not be sad at your funeral…
You have fucked up their lives.
…Kids hate you and will always hate you…
It was these extreme views coupled with the themes of murder-suicide which caused concern to the mental health unit, the police, the mother and the primary judge. The appellant’s submission on this appeal was that it was not open to the primary judge to conclude that the father was not suffering from a mental illness at the time he made the threats and expressed the views in reliance upon a report which concluded that the father was not presently (or at the time of trial) suffering from a mental illness.
There was no letter of instruction to the expert before the Court. Dr P was appointed by Senior Judicial Registrar McDiarmid on 22 April 2022 per Order 19 which only says “[t]hat the father attend upon a psychiatrist as and when requested by the Independent Children’s Lawyer for the purpose of a psychiatric assessment”.
That report was dated 17 October 2022 and drew on an interview with the father in October 2022 by video and collateral information identified in the report. Dr P was not asked for an opinion as to whether the documents indicated that the father was suffering from a mental health disorder in October 2021. Dr P concluded that the father did not presently meet DSM-5 criteria for any serious mental illness personality or substance abuse disorder.
There were a number of important caveats in the report, which are referred to in the reasons for judgment:
Mr [Nuan]’s risk to self and others was assessed as increased but not to the extent that he would require inpatient admission or treatment under the mental health act at the time of the assessment although his risk profile can change, within a very short period of time, depending on circumstances.
…
Mr [Nuan] has good prognostic factors, an intact personality, a willingness to adhere to a mental health intervention plan, good support from his family, no comorbid substance uses or medical problems, and he has gained good insight.
His poor prognostic factors would be maladaptive coping and defence mechanisms, more so at times when he is faced with multiple or significant psychosocial stressors.
However, I am of the opinion that his prognosis will remain good.
The argument about the first pillar has been constructed too narrowly. There were two deeply concerning issues at play which relate to potential risk of harm and to parenting capacity: the first was the father’s attitudes to the mother (and his exposure of the children to those attitudes); the second was his repeated references to murder/suicide in the context of his antipathy to the mother. The question of whether one or other of these factors was a product of mental illness or aggravated by mental illness was not a topic about which any party (including the appellant) filed evidence.
It is not open to the appellant to advance an argument on appeal that the primary judge ought to have appreciated that he was mentally ill in 2021 and is not mentally ill in 2022 and hence the children are not at risk. It is not open because the appellant did not accept he was mentally ill in 2021 at trial. The highest acknowledgment of that possibility were his references to “psycho-social stressors”. As counsel for the ICL submitted, the appellant is bound by the conduct of the trial below, in accordance with the well-recognised principles in Metwally v University of Wollongong (1985) 60 ALR 68 at 71:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so…
The second pillar
In Dr P’s report she provided the results of cognitive and psychometric testing undertaken in respect of the father. Under the heading “Paulhus Deception Scales (PDS)” the report reads:
The PDS is a 40‐item self‐report instrument that identifies individuals who, when responding to assessments and rating scales, distort their responses. It is designed to be administered concurrently with other instruments to indicate the validity of the results of the other instruments. The PDS score is correlated against a measure of desirable responding and can be broken down into two specific scales: impression management (IM) which represents a well‐known category of social desirability measures aimed at the crude form of dissemination known as faking or lying; and self‐deceptive enhancement (SDE) which represents an unconscious favourability bias closely related to narcissism. A high IM score and high SDE score.
Mr [Nuan]’s responses indicated a high IM and a high SDE score. Such a profile can be conceptualized as a “repressor pattern.” Individuals scoring high on both subscales tend to be restrained and generally well‐socialized but, when they do have problems, they lack the insight to deal with them and appear rigid. They may also appear sanctimonious about others’ problems. In sum, they have a trait‐like style towards self‐enhancement as well as a tendency to be influenced by situational demands leading them to respond in a socially acceptable manner. Mr [Nuan]’s tendency to unconsciously impress needs to be taken into context of the situation of the mental health assessment for family legal proceedings.
(Italics in original)
The primary judge makes a number of references to those results in the reasons for judgment.
The appellant contends that the primary judge was not entitled to use the opinions of Dr P about the appellant’s results on the deception scale to understand the evidence he gave at trial.
The first difficulty of the submission is that the father elected not to cross-examine Dr P about the content of the report. The failure to challenge evidence through cross-examination does not require the primary judge to accept that evidence but if the evidence is not inherently improbable or inconsistent with other objective evidence then the primary judge is entitled to have regard to it.
If the primary judge had used the conclusions regarding the “Paulhaus Deception Scale” to wholesale reject all the father’s evidence the argument may have merit but this is not what occurred. For example, at [131] the primary judge’s observation is merely that the opinion of Dr P relating to the father’s impression management accords with the primary judge’s own experience at trial.
The third pillar
The appellant submitted that the conclusion of the primary judge that the father continued to take “pot shots” at the mother during the hearing was inaccurate. Counsel for the mother in closing submissions before the primary judge submitted that the father “took multiple opportunities to invite [the primary judge] to form a negative view” of the mother (Transcript 20 April 2023, p.163 line 19) and provided examples. The submission is not made out.
Having examined what the appellant said were the flawed pillars upon which the primary judge’s findings relied I have concluded, firstly, that they are not flawed as was contended and secondly, that the fundamental basis upon which the primary judge concluded as he did was the uncontroversial evidence about the threatening and abusive conduct of the father and the residual concerns that, without proper explanation, recurrence was a matter of significant concern. It follows that Ground 1 is without merit.
Ground 2
Ground 2 of the appellant’s Amended Notice of Appeal was particularised as follows:
The learned Trial Judge erred in making an order for the children’s time with the Appellant to be supervised in a contact centre indefinitely (which is the practical effect of Order 4 of the Final Orders made on 20 April 2023) as this order was not justified in the circumstances and the decision was otherwise plainly or manifestly wrong and as such the decision was not a proper exercise of judicial discretion.
There appeared to be three potential bases upon which the appellant contended that the making of the long-term supervision order constituted error:
(1)It is a remedy of last resort;
(2)It was inconsistent with the recommendation of the Court Child Expert; and
(3)It was unnecessary since the father was able to restrain himself.
The primary judge recognised, consistent with principle, that the Court is not usually persuaded to make long term supervision orders: see B and B (1993) FLC 92-357. So much is evident from his use of the word “rare” in [132].
But the fact that long term orders for supervision are unusual is not a basis upon which a court would decline to make such an order where the evidence supported its making. The authorities which deal with this issue, as his Honour Tree J observed in Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96 at [19] cited with approval in Bielen & Kozma (2022) FLC 94-123 at [67], “are not legislative edicts and each case must be decided on its own facts”.
The Court Child Expert concluded that there had been no further incidents similar in nature to the events of October 2021 and that the father had developed some insight. She recommended unsupervised time in her report.
The Court Child Expert did not have the benefit of seeing the evidence tested. In that regard the primary judge had an advantage. This is particularly the case since counsel who appeared on the appellant’s behalf before the primary judge said in submissions:
COUNSEL FOR THE APPELLANT: I appreciate the court has – would have grave concerns about my client’s evidence…
HIS HONOUR: Yes.
COUNSEL FOR THE APPELLANT: But despite his obfuscation on the witness stand, the one thing he was clear, in my submission, is that he loves his children, he wants to care for his children and see them…
(Transcript 20 April 2023, p.160 line 44 to p.161 lines 1–3)
Further, the recommendations of the Court Child Expert were qualified by her report. In particular at [42] she said:
If the father’s treating mental health professionals provided sufficient information in relation to the father’s engagement over the past 12 months and current stability, then the issue is what happens when he encounters a highly stressful time again.
The appellant did not, as discussed above, file evidence from his treating practitioner. And the question of what may occur if the appellant encountered a highly stressful time remained unsatisfactorily answered.
The nature of the risk must be appreciated. In Bant & Clayton (2015) 53 Fam LR 621 per Tree J at [171]:
171.Risk assessment involves determining first, the degree of the likelihood of the postulated event, and second, the prospect and magnitude of harm that may flow if the event occurs. The weighing of those two considerations – even accepting they may be imprecisely expressed within parameters – will inform whether the risk is adjudged to be acceptable or not. However that conclusion cannot be made in the abstract.
Here, given the nature of the incident in October 2021, the magnitude of the harm that may flow if the events were repeated create an appreciable risk. It is not just the appellant’s negative attitudes about the children’s mother which necessitated the supervision of the children’s time but the possibility that the repeated references to homicide and suicide were ideas to which the appellant may (if stressed) return.
The primary judge was entitled, as a consequence of the father’s evidence (oral and written), and in particular his adherence to his application that the children live with him until the final day of the trial, to have significant incredulity about the extent of the father’s insight and scepticism about his capacity to act with restraint in the future.
It was not for the primary judge to explore less intrusive orders if he had concluded on the basis of the evidence that the children best interests required orders for time, but their safety required orders for supervision.
Ground 4
Ground 4 asserted that the primary judge “failed to consider the Appellant’s submissions at trial that the Respondent, a Chinese citizen, may remove the children to [Country E] via a Hague Convention Country and thus defeat the orders made for the children to spend time with the father”.
It is not wholly accurate to say that the primary judge failed to consider this issue but it was clearly peripheral to the central issue in the case. The reasons contain many references to the mother’s connections with and travel to Country E: [2], [4], [7], [8], [9], [42].
The father reported to the mental health unit in October 2021 that the mother was “threatening to take [the children] with her to [Country E] to be raised by her parents” but there is no evidence before the primary judge of any such threat. It seems that the father also let the children know of his fear in that regard.
The ICL’s submissions acknowledge that the primary judge’s reasons for judgement do not explicitly engage with the application the appellant made for orders which would prevent the children from travelling to Country E.
The father’s case at trial was not grounded in any evidence which established a risk that the mother would unilaterally change the children’s place of residence overseas. The mother was seeking that the children have Australian passports and be permitted to travel. The primary judge made that order. The father did not oppose travel per se, just travel with the mother.
The father’s case rose no higher than an assertion that the mother may remove the children. More was required before the Court would have properly found that the mother should be restrained – as sought by the father. If the father had cogent evidence and made a substantial argument about the mother being a flight risk, then the primary judge would have been in error not to refer to his reasons for rejecting same: DL v The Queen (2018) 266 CLR 1 at [131]. That was not the case here: See also Granville & Blakeslee (2017) 57 Fam LR 55 and Banks & Banks (2015) FLC 93-637 at [48].
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 1 December 2023
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