Shell & Armel
[2022] FedCFamC1A 83
•3 June 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Shell & Armel [2022] FedCFamC1A 83
Appeal from: Armel & Shell [2021] FedCFamC2F 317 Appeal number(s): NAA 64 of 2021 File number(s): SYC 1436 of 2017 Judgment of: AUSTIN, SCHONELL & STRUM JJ Date of judgment: 3 June 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – CHANGE OF RESIDENCE – Appeal from final parenting orders giving the father sole parental responsibility and changing the residence of the children from the mother to the father due to concerns of alienation – Whether there was a denial of procedural fairness – Whether the primary judge erred in findings of fact – Where the primary judge relied on an academic article that was not admitted into evidence – Appeal allowed on one ground only – Where the primary judge made an error of law in relying on the article that had not been admitted into evidence – Proceedings remitted for re-hearing – Costs certificate issued for the Appellant and Respondent. Legislation: Evidence Act 1995 (Cth) s 144
Family Law Act 1975 (Cth) Pt VII, ss 60CC, 69ZT, 69ZX
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9
Cases cited: Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47
Amador v Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7
Bell & Nahos [2016] FamCAFC 244
Bolitho & Cohen (2005) FLC 93-224; [2005] FamCA 458
Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78
Donaghey v Donaghey (2011) 45 Fam LR 183; [2011] FamCA 13
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
M v M (1988) 166 CLR 69; [1988] HCA 68
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
McGregor & McGregor (2012) FLC 93-507; [2012] FamCAFC 69
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257; [2021] HCA 6
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3
SCVG & KLD [2011] FamCAFC 100
SSHontestroom v SS Sagaporack [1927] AC 37
Wheldon v Dinh [2010] FamCA 740
Zantiotis & Zantiotis (1993) FLC 92–367; [1993] FamCA 32
Kelly, Joan B & Johnston, Janet R “The Alienated Child: A Reformulation of Parental Alienation Syndrome” (2001) 39 Family Court Review 240
Number of paragraphs: 77 Date of hearing: 4 March 2022 Place: Sydney (via video link), delivered in Melbourne Counsel for the Appellant: Mr Duane Solicitor for the Appellant: Penmans Solicitors Counsel for the Respondent: Ms Ticehurst Solicitor for the Respondent: Sullivan Legal Solutions Counsel for the Independent Children's Lawyer: Ms McMahon Solicitor for the Independent Children's Lawyer: Legal Aid Gosford ORDERS
NAA 64 of 2021
SYC 1436 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SHELL
Appellant
AND: MR ARMEL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN, SCHONELL & STRUM JJ
DATE OF ORDER:
3 JUNE 2022
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The proceedings be remitted to the Federal Circuit and Family Court of Australia (Division 2) for re-hearing by a judge other than the primary judge.
3.Orders 1–12 of the orders made on 4 November 2021, as amended on 21 December 2021, be set aside as and from the date upon which the proceedings are next listed before a judge exercising original jurisdiction under Pt VII of the Family Law Act 1975 (Cth).
4.The appellant mother is 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 appellant mother in respect of the costs incurred by her in relation to the appeal.
5.The respondent father is granted 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.
6.The Court grants to both the appellant mother and the respondent father costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the appellant mother and the respondent father in respect of the costs incurred by them in relation to the re-hearing.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shell & Armel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, SCHONELL & STRUM JJ:
INTRODUCTION
This is an appeal from orders made on 4 November 2021, the effect of which was to change the parent with whom the children of the relationship lived from the appellant mother to the respondent father, and restraining the mother from spending any time with the children for a period of 12 weeks before introducing arrangements for the children to spend time with her. The orders were made, in summary, due to concerns that the mother was unable to facilitate a meaningful relationship between the children and their father.
The mother appeals from these orders. The appeal is opposed by both the father and the Independent Children’s Lawyer (“ICL”). For the reasons that follow, the appeal must be allowed, albeit only on one ground.
BACKGROUND
The parents commenced cohabitation in 2011 and separated finally in early to mid-2016. There are twin children of the relationship, X and Y, born in 2011, who are now 11 years of age (“the children”).
At trial, the father sought orders for a change of the children’s residence, maintaining that such an order was necessary because the mother had alienated the children from him. The mother sought orders that the children live with her and spend no time with the father. It was common ground between the parties that the children were resistant to spending time with the father; the issue at trial being why this was so. The mother argued that this was a consequence of their realistic estrangement from the father due to family violence and abuse, to which she asserted they had been exposed. She denied that she had influenced the children in their attitude towards the father. Each parent sought sole parental responsibility for the children. At the conclusion of the evidence, the ICL sought orders, inter alia, that the father have sole parental responsibility for the children; that the children live with him; that the mother be restrained from spending any time with them for a period of 12 weeks; and that thereafter the children spend graduated, increasing time with her, culminating in alternate weekends.
Following separation, the children lived with the mother and generally spent time with the father one day on the weekend. However, the mother’s case was that, by September 2016, the children became increasingly resistant to spending time with the father and that changeovers were extremely traumatic for all involved.
The father instituted these proceedings on 7 March 2017. Orders were made providing for the children to spend time, including overnight time, with the father. From January 2018, the time they spent time with him was in the company of the mother and did not include overnights, with the mother insisting that it occur in a public place. However, in January 2019, the parents and children travelled overseas together for a holiday. Notwithstanding the mother’s allegations of family violence and abuse, she saw fit to be in the presence of the father, both on this regular basis, as well as overseas.
In late April 2019, the mother stopped attending the children’s time with the father. The primary judge founded that a pattern developed where she would deliver the children to changeover and the children would refuse to get out of the car stop, which her Honour described as a “tragi-comedy” (at [27]).
On 14 August 2020, after the release of a Family Report, interim orders were made for the father to spend time with the children two hours per fortnight, professionally supervised, and for the parents and children to participate in family therapy. Further interim orders were subsequently made for him to spend time with them for two hours, once a month, with changeovers to occur at a shopping centre.
The trial commenced on 9 June 2021. Reasons for judgment were delivered on 4 November 2021 and amended on 21 December 2021.
THE PRIMARY JUDGE’S REASONS FOR JUDGMENT
The primary judge described the father’s case, in summary, as follows. He contended that, prior to separation, he had a close relationship with the children but, thereafter, the mother had caused them to become aligned with her, by engaging in behaviours, both inadvertently and deliberately, to disrupt his relationship with the children and to encourage them to reject him.
The mother’s case was that the father was physically, emotionally and financially abusive, during and after the relationship, including to the children. It was her case that their resistance to spending time with him was a consequence of their lived experience and that she had done everything she could to support their relationship with him.
The primary judge observed that the mother’s demeanour during the hearing was noteworthy and that her anger towards the father was evident from the witness box. Her Honour considered the evidence of her friend, Ms A, about two incidents where she said she witnessed the father being aggressive and abusive.
Her Honour noted that “the mother [made] an enormous number of allegations against the father with respect to incidents that purportedly occurred during the relationship and following separation” and focussed on those incidents that were the subject of cross-examination (at [75]).
In relation to the week in January 2019, in which the parents and children holidayed together overseas, her Honour said that was “an extraordinary decision by the mother to take the children on an overseas holiday with a man she asserts that both she and the children feared because of his violent and aggressive behaviour” (at [88]).
A Family Report was prepared by a social worker and Regulation 7 Family Consultant dated 27 July 2020. The primary judge said:
140.While stating it was ultimately a matter for the Court as to the primary cause of the children’s rejection of their father, the Family Consultant offered three possible hypotheses which she set out at paragraphs 151 to 153 of her report:
[151]If the Court accepts the mother’s version of events that the father has engaged in harsh, punitive and cruel parenting toward the children and they have witnessed the father perpetrate family violence towards the mother then this would be consistent with the children being realistically estranged from the father. If the Court were to find this were to be the case then the mother’s proposal for the children to spend supervised time with the father would appear to be protective for the children and most consistent with their needs.
[152]If the Court accepts the father’s version of events that he had a positive relationship with the children prior to the relationship breakdown, that he has not behaved in an abusive manner toward the children and that the mother has deliberately sought to disrupt his relationship with the children, then it would be of benefit for the children to have a relationship with him.
[153]If the Court is of the view that both parents have contributed to the current situation then the Court will need to carefully consider how orders can be crafted to support the children in maintaining a safe and meaningful relationship with both parents.
(As per the original)
In cross-examination by counsel for the ICL, the Family Consultant said that she was concerned to read that the situation with the children’s rejection of their father had become further entrenched. She agreed that the situation had reached the point where only options “were either children are left in peace to live with their mother, or alternatively, they would live with their father, with a view to ensuring that they have a meaningful relationship with both parents” (at [143]). The primary judge said that she placed significant weight on that evidence (at [172]).
The primary judge found that, while the children would benefit from having a meaningful relationship with both parents, the only way that might be achieved was if they lived with the father, as the mother saw no value to them in having a relationship with the father, the extent of their alignment with her was unhealthy and their emotional needs were not being met.
At [217]–[218], the primary judge addressed what we consider to be the gravamen of her decision:
217.The focus of this case in assessing the competing applications is the emotional and psychological risks to the children in both the short-term and long-term. Having weighed the evidence of the parties, the Family Consultant and the session notes of the failed family therapy, I have come to the sad realisation that the only opportunity these children will have of maintaining healthy relationships with both of their parents is for them to live with their father. If they remain in the care of their mother any prospect they will have of a relationship with their father or extended paternal family will be quashed.
218.The Independent Children’s Lawyer supports the change of residence. She acknowledges that it represents a drastic change for the children but says there is a greater psychological price for these children if they were to remain in the care of the mother. She will continue to be the children’s primary role model and those dysfunctional behaviours will be reinforced. The children will lose all the benefits normally associated with a paternal presence.
(Footnote omitted)
The primary judge largely adopted the Minute of Orders proposed by the ICL, which included a moratorium of 12 weeks with respect to the mother’s time with the children.
APPEAL
It is from those orders that the mother appeals. During the hearing of the appeal, counsel for the mother informed us that he abandoned Ground 3 of the Notice of Appeal. Accordingly, we address the balance of the grounds, seriatim.
As this is an appeal from a discretionary judgment of the primary judge, we begin by referring to the principles established by the High Court in House v The King (1936) 55 CLR 499 at 504–505 applicable to such judgments:
… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …
Ground 1(a)
This ground asserts that:
1.The Primary Judge failed to accord the Appellant natural justice and/or procedural fairness in that the Appellant was not given the opportunity to cross examine or respond to:
(a)the paper “The Alienated Child: A Reformulation of Parental Alienation Syndrome” by Kelly, J B & Johnston, J R.
…
and the judgment was therefore infected by error.
The primary judge referred to the article by Joan B. Kelly & Janet R. Johnston, “The Alienated Child: A Reformulation of Parental Alienation Syndrome” (2001) 39 Family Court Review 240 (“the article”), at [144]–[149], as follows:
144.[Counsel for the ICL] then raised with the Family Consultant the issue of alienation with reference to the oft-cited article by authored by Kelly and Johnston (2001). In that article the authors describe the continuum of child-parent relationships after separation as ranging from:
•Positive relationships with both parents;
•Affinity with one parent;
•Allied children;
•Estranged children;
•The alienated child.
145.In this case the father alleges that the mother has engaged in behaviour that has had the effect of alienating or otherwise damaging the children’s relationship with him whereas the mother contends that the children are realistically estranged from the father as a result of his history of family violence and abuse.
146.Kelly and Johnston identified a number of risk factors which they said tended to create alienation:
•Child triangulated in intense marital conflict;
•Separation experienced (by a parent) as deeply humiliating;
•Highly conflicted divorce and litigation;
•Contributions of new partners, extended kin and professionals.
147.They also identified behaviours exhibited and ‘organising beliefs’ of the ‘aligned parents’ which included:
•Extremely negative views of the rejected parent freely, angrily and repeatedly expressed to the child by the aligned parent;
•Innuendos of sexual or child abuse or that the parent is dangerous in other ways;
•A belief that their child does not need the other parent in their lives;
•A belief that the rejected parent is dangerous to the child in some ways, either violent, physically or sexually abusive, or neglectful, thus justifying behaviour aimed at blocking time with the child;
•A belief of the aligned parent that the rejected parent does not and has never loved or cared about the child.
148.Though not referenced by [counsel for the ICL] in her cross-examination of the Family Consultant, Kelly and Johnston also identified a number of behaviours of the rejected parent that contribute to child alienation including:
•Passivity and withdrawal in the face of high conflict;
•Counter-rejection of the alienated child;
•Harsh and rigid parenting style;
•Rejected parent is self-centred and immature;
•Rejected parent has critical and demanding traits; and
•Diminished empathy for the aligned child.
149.The Family Consultant said that she was familiar with the article and ‘in a general sense’ had considered its relevance to the present case. …
(Footnotes omitted)
Her Honour also made reference to the article at [209]–[210], as follows:
209.Returning to the Johnson & Kelly article and in particular common features of a rejected parents. Despite the mother’s allegations that the father has been abusive and aggressive towards her and the children the evidence which suggest that he has elected to take the line of least resistance in the hope that the mother’s attitude would change and that she would eventually support his relationship with the children. The trip overseas is a case in point.
210.This raises in turn concerns for the Court about the father’s ability to manage the children’s behaviour in the face of what one would expect to be some strong resistance. The children have been allowed to dictate the terms of their relationship with the father for several years now. They have come to believe that the father does not love them or is incapable of caring for them. The father telling the children that they have been brainwashed by their mother will not assist. They will be angry at the suggestion that they are unable to think independently. The children will need to experience living with and being parented by the father. He will need to make himself available to the children and he may need to review his work commitments. While the assistance of the paternal grandmother will undoubtedly be invaluable it is his relationship with the children which will have to be prioritised.
The advocate for the ICL commenced her cross-examination of the Family Consultant in relation to the article. There was the following exchange between them:
[COUNSEL FOR THE ICL]: Now, in relation to considering whether their – the mother has engaged in what has been described – or is sometimes described as aligning behaviour or in – that she has, by her behaviour, deliberately influenced the children against – to reject the father, your – you would have considered the research of authors like Kelly & Johnson in considering whether that research is applicable to the circumstances of these children?
[THE FAMILY CONSULTANT]: In a general sense, yes.
[COUNSEL FOR THE ICL]: And you would be aware of their early work in 2001, their article, “The Alienated Child”, a re-formulation of parental alienation syndrome that was earlier postulated by Gardner. You’re aware of that early work of Kelly & Johnson?
[THE FAMILY CONSULTANT]:I’ve read it, but not .....
[COUNSELF FOR THE ICL]: In a general sense, you understand the - - -?
[THE FAMILY CONSULTANT]:Yes.
(Transcript 11 June 2021, p.227 lines 18–29)
Accordingly, it is evident that the Family Consultant had read and understood, albeit in a general sense, the article. However, she was not asked, either on behalf of the ICL or either of the parents, whether she adopted the article, nor did she expressly or implicitly do so, in whole or in part.
The advocate for the ICL then put to the Family Consultant what was said to be described in the article as “organising beliefs” around the rejected parent. Three of such beliefs were identified to the Family Consultant, namely, that:
(1)their child does not need the other parent in their lives;
(2)the aligned parent often fervently believes that the rejected parent is dangerous to the child in some way – violent, physically or sexually abusive or neglectful; and
(3)the aligned parent may have the belief that the other parent does not and has never loved or cared about the child.
Whilst, in cross-examination by the ICL, the Family Consultant made observations as to the behaviours of the mother, the father and the children and, in the case of the children, their beliefs, within the rubric of the three organising beliefs put to her, she did not express any view as to the appropriateness or otherwise of adopting theories postulated in the article, either generally or in relation to the three beliefs. Before us, the father submitted that the purpose of leading the article was to refer the Family Consultant to examples of such beliefs within the circumstances of this case and to ascertain her opinion as to how the mother’s beliefs had impacted upon the children and their perception of the father. Whilst that may have been the purpose, it was not achieved because there was no attempt by the advocate for the ICL to make nexus between the three “organising beliefs” and the circumstances of this case.
For the same reasons, we reject the submission on behalf of the ICL that, as no objection was taken by the mother’s counsel to this line of questioning, nor was any call made for the article, “the report writer’s evidence with respect to the ‘organising beliefs’ as set out in the paper and her answers went into evidence unopposed” (ICL’s Summary of Argument, paragraph 5).
The article was not tendered into evidence. Use of the article cannot be seen as fitting within s 144 of the Evidence Act1995 (Cth), which provides:
144 Matters of common knowledge
(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.
(3)The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(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.
The article does not meet the criteria in either paragraphs (a) or (b) of sub-section 144(1), together with the conjunctive criterion in the chapeau thereto. The matters therein manifestly are “reasonably open to question” and are neither “common knowledge in the locality in which the proceeding is being held or generally”, nor are they “capable of verification by reference to a document the authority of which cannot reasonably be questioned”. See Bolitho & Cohen (2005) FLC 93-224 at [86]–[87].
In McGregor & McGregor (2012) FLC 93-507 (“McGregor & McGregor”), the plurality said:
64.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.
…
66.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)
67.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.
68.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.
69.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.
70.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.
71.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.
72.But if s 144 of the EvidenceAct 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.
73.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.
74.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.
The ICL or, indeed, the father could have sought to tender the article into evidence but neither sought to do so, albeit that any such attempted tender may have been met with a successful objection thereto. Given the ICL’s cross-examination of the Family Consultant and, in particular, the absence of any concessions by her in relation to whether she agreed with the article, the “organising beliefs” discussed therein or whether, in her opinion, the criteria for such beliefs were met in this case, it is not surprising that counsel for the mother did not do so.
In McCall & Clark (2009) FLC 93-405 at [123]–[126], the Full Court said:
123.We have already set out our interpretation of “meaningful relationship”. We now turn to consider whether the Federal Magistrate’s reasons demonstrate that he gave appropriate weight to this primary consideration.
124.We have already highlighted the difficulties faced by the Federal Magistrate in determining the competing applications. The only witnesses were the mother and the father. Significantly, the Federal Magistrate did not have any expert evidence to assist him to determine the frequency and regularity which would be necessary for a child of this age, who has been in the exclusive care of his mother by reason of her actions since he was six months old, to establish a significant bond with his father. In particular, the Federal Magistrate had no expert evidence about stages of child development and attachment theory and some of the advantages to a child’s development of a meaningful relationship with both parents, and the disadvantages of such a relationship not being possible.
125.Although the parties did not call or seek to tender any evidence from an expert, the Federal Magistrate could have done so of his own volition (see s 69ZX(1)(d)). But in addition, s 69ZX(3) which is found in Division 12A (which division is concerned with the principles for conducting child related proceedings) provides as follows:
(3) The court may, in child-related proceedings:
(a)receive into evidence the transcript of evidence in any other proceedings before:
(i) the court; or
(ii) another court; or
(iii) a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b)adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
Note: This subsection may be particularly relevant for Aboriginal or Torres Strait Islander children.
126.There is no suggestion in this case that the Federal Magistrate was referred to any matter which would fall within the purview of s 69ZX(3) to inform himself of matters relevant to establishing a meaningful relationship for a three year old child with a parent, where the child has experienced a significant period of time with little interaction with that parent. Neither party tendered to the Federal Magistrate any of the well recognised peer reviewed research on the establishment of primary and significant attachments of infants and young children, nor did the Federal Magistrate raise with the parties that he could have recourse to such material. Absent such evidence the Federal Magistrate could not have informed himself of such matters since the type of research required would not, in our view, fall within the term ‘common knowledge’ in s 144(1)(a) of the Evidence Act 1995 (Cth). It may have been admissible under s 144(1)(b) after giving the necessary notice prescribed in s 144(4) of that Act.
However, even if reliance is placed on s 69ZX(1) or (3), that does not render it unnecessary for any such material to be before the court as evidence, nor does it remove the need for considerable circumspection to attend the application of that evidence to findings central to the decision.
Apart from being identified as the source of the questions based on the three organising beliefs put to the Family Consultant, no other use was made of the article by the ICL or any other counsel at trial. She was not asked, nor did she proffer any view, whether she agreed with the proposition of the organising beliefs or whether they were made out in this case.
It is clear from [144], [146]–[148] and [209] that the primary judge separately and independently accessed the article and that her analysis thereof exceeded its use in cross-examination.
The referred us to McGregor & McGregor at [33]–[34], in which the Full Court considered the use of extrinsic material, submitting that the primary judge fell into the error identified in that case. We endorse that which the plurality said there, as well as at [56]–[63], [75]–[92], [108], [112] and [116]–[121].
The difficulties arising in this case from the primary judge’s reference to, and reliance upon, the article are manifold:
(a)Whilst the primary judge at [144] referred to the article, the parties, their lawyers and we are left to speculate as to the significance of it being described by her Honour as “oft-cited”. It is trite that something oft-cited may nevertheless be wrong.
(b)The continuum of child-parent relationships after separation, described by the authors in the article and to which the primary judge referred at [144], was not put to the Family Consultant or accepted by her, nor was it otherwise in evidence.
(c)The risk factors said by authors in the article which tend to create alienation and to which the primary judge referred at [146], were similarly not put to the Family Consultant or accepted by her, nor were they otherwise in evidence.
(d)The behaviours exhibited by, and the organising beliefs of, the aligned parents said by the primary judge at [147] to be identified by the authors in the article were not put to the Family Consultant or accepted by her, nor were they otherwise in evidence.
(e)Even the primary judge acknowledged at [148] that “though not referenced by [Counsel for the ICL] in her cross-examination of the Family Consultant, Kelly and Johnston also identified a number of behaviours of the rejected parent that contribute to child alienation” (emphasis added). Nevertheless, her Honour proceeded to list such behaviours, without them having been put to or accepted by the Family Consultant or otherwise being in evidence.
(f)At [209], the primary judge returned “to the Johnson [sic] & Kelly article and in particular common features of a rejected parents [sic]” and then proceeded to find that, despite the mother’s allegations that the father had been abusive and aggressive towards her and the children, the evidence suggested that he had elected to take the line of least resistance in the hope that the mother’s attitude would change and that she would eventually support his relationship with the children, the trip overseas being a case in point. Again, the common features of rejected parents were not put to the Family Consultant or accepted by her, nor were they otherwise in evidence. It is unclear whether the “common features” of rejected parents, apparently identified by Kelly and Johnston and to which her Honour referred at [209], were different to the “number of behaviours” of the rejected parent apparently identified by Kelly and Johnston and to which her Honour referred at [148]. Again, these were not put to the Family Consultant or accepted by her nor were they otherwise in evidence.
So analysed, we reject the submission of the father that the article was not necessarily considered at large by the primary judge. That is clearly wrong. So too, we reject the submission that the article was not necessarily used to support a finding of fact or conclusion reached. It suffices that it may have been so used; we cannot tell.
That being so, it is impossible to discern to what extent the primary judge’s erroneous reference to, and reliance upon, the article contributed to her Honour’s findings at [221] that she had “no doubt that the children are alienated from the father” and “no doubt that the mother has played a central role in that occurring”, such that if circumstances were not changed, the then current trajectory would continue. We accept that there was other evidence which might have justified such findings; however, that is not to the point. The primary judge’s error vitiates her findings in this regard. Accordingly, Ground 1(a) of the appeal must be allowed.
However, in allowing the appeal on the basis of Ground 1(a), we do so not for a failure by the primary judge to accord the mother natural justice or procedural fairness; she was on notice, as was the father, about the article. Rather, we do so because her Honour’s erroneous reference to and reliance upon the article, when it was not in evidence, is an error of law.
The content of reasons for judgment, delivered some time after the conclusion of trial, will seldom be the valid premise for a complaint about the denial of procedural fairness because, as the High Court relevantly said in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257:
22.… the final instance of any right or entitlement of either party arising from the primary judge’s obligation to afford procedural fairness occurred at the time the parties made their concluding submissions. Thereafter, the trial having finished, procedural fairness had no role to play in respect of the matters the subject of the primary judge’s decision. …
(Footnotes omitted; emphasis in original)
The High Court further discussed the principle of procedural fairness in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 (“Assistant Commissioner Condon v Pompano”):
156.The rules of procedural fairness do not have immutably fixed content. As Gleeson CJ rightly observed in the context of administrative decision-making but in terms which have more general and immediate application, “[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.” To observe that procedural fairness is an essential attribute of a court’s procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them.
(Footnotes omitted)
Whilst the parties’ entitlement to procedural fairness concluded at the time of their final submissions, “if an adversarial system is followed, that system assumes, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it”: Assistant Commissioner Condon v Pompano at [157].
Ground 1(b)
This ground asserts that:
1.The Primary Judge failed to accord the Appellant natural justice and/or procedural fairness in that the Appellant was not given the opportunity to cross examine or respond to:
…
(b)the Primary Judge’s observation of the demeanour of the Appellant during the hearing which formed the basis of a finding (Reasons for Decision paragraph 66).
and the judgment was therefore infected by error.
This ground may be dealt with succinctly. At [66], the primary judge said:
66.The mother’s demeanour during the hearing was noteworthy for the Court. Her anger towards the father was evident from the way she glared at him in the witness box, her body language, pressed mouth and lowered brow all suggestions [sic] and what she said about the father left the Court in no doubt that she remains very bitter about the father’s behaviour towards her during the marriage.
The mother submits that nowhere in the submissions, nor during the course of the trial, did the primary judge raise with her counsel, her behaviour in the courtroom, such that she was denied procedural fairness. Further, it is submitted that “[t]he authorities make it clear that before relying upon conduct observed by a trial Judge of the behaviour of a party in the course of the trial an opportunity must be given to the impugned party … to be heard”, citing in support of that proposition Zantiotis & Zantiotis (1993) FLC 92-367 (“Zantiotis”) and SCVG & KLD [2011] FamCAFC 100 (“SCVG & KLD”) (mother’s Summary of Argument, paragraph 34). Accordingly, the mother submits that, in circumstances where the credit of each of the parents was an issue at trial, the reliance by the primary judge on her behaviour during the trial is an error which “potentially” infects her Honour’s finding at [190] that she did not accept that the father was violent, abusive and emotionally and financially controlling of the mother and the children, either during or after the relationship.
The present case is entirely distinguishable from Zaniotis and is similar on the facts to SCVG & KLD. Here, the primary judge’s observations of the mother were clearly made during her time in the witness box. Her Honour said that the mother’s anger towards the father was evident from the way she glared at him “in the witness box”. Her Honour then referred to “her body language, pressed mouth and lowered brow all suggestions [sic]”. Whilst it is clear that there is an error in that phrase, it is readily apparent from the preceding and following phrases that her Honour was there referring to her observations of the mother in the witness box. Her Honour continued by saying that what the mother “said about the father” left the Court in no doubt that she remains very bitter about the father’s behaviour towards her during the marriage. Counsel for the mother submitted that her Honour’s finding that the mother’s “anger towards the father was evident from the way she glared at him in the witness box” might be read as a reference to the mother glaring at the father whilst he was in the witness box. That is a strained reading of her Honour’s phrase; it does not sit comfortably with the balance of [66] and we reject it.
In the circumstances, we dismiss Ground 1(b).
Ground 2
This ground asserts that:
2.The Primary Judge erred by finding as a fact that the witness Ms A was engaged in evidence gathering for the Appellant in the absence of evidence of that fact (Reasons for Decision paragraph 70).
Ms A was a friend of the mother. She gave evidence about two incidents where she said she witnessed the father being abusive to the mother or aggressive. The first incident, in 2016, occurred at a changeover and was observed by her. Ms A described hearing the father yelling at the mother and observing the mother standing against the father’s car, with the father standing in front of her so that she could not move away and pointing his finger in her face. Her Honour found at [69] that “Ms A’s evidence in relation to that first incident was not undermined in any way in cross-examination”.
Her Honour continued:
69.… However, she described a second incident which took place on 17 May 2019 at a bar in Town C when she was out with her partner Mr B. She alleged that the father grabbed Mr B around the neck and pulled him in close and said something. Mr B later reported that: “Mr Armel told me to watch my back.”
Ms A’s evidence in relation to the alleged second incident was confined to two short paragraphs of her affidavit:
5.On 17 May 2019 I attended a bar in Town C with my partner, Mr B, and two other friends. We arrived at the bar about 10pm.
6.During the evening I noticed Mr Armel at the bar. At about 10:15pm I observed Mr Armel approach my partner Mr B while Mr B was standing at the bar. Mr Armel suddenly and aggressively grabbed Mr B around his neck and pulled Mr B in close and said something to him. I could not hear what he said as the music was quite loud. Mr Armel then returned to his table. Mr B said to me “Mr Armel told me to watch my back.” We left the bar shortly afterwards.
Ms A’s evidence in cross-examination in relation to the second incident was as follows:
[COUNSEL FOR THE FATHER]: What I’m suggesting is that you took some photographs of Mr Armel?
[MS A]: No.
[COUNSEL FOR THE FATHER]: And at the time you first saw Mr Armel do you he agree he was about two to three metres away?
[MS A]: Yes.
[COUNSEL FOR THE FATHER]: And it was the case that one of Mr Armel’s friends saw what was going on and said, “If you want a decent photo, you can just ask”?
[MS A]: No.
[COUNSEL FOR THE FATHER]: Do you recall someone saying that to you?
[MS A]: No.
[COUNSEL FOR THE FATHER]: And at that point your partner, Mr B, approached Mr Armel?
[MS A]: No.
[COUNSEL FOR THE FATHER]: I’m suggesting he was the one who grabbed Mr Armel by the shirt?
[MS A]: No.
[COUNSEL FOR THE FATHER]: And in your affidavit you say that you left the bar shortly afterwards?
[MS A]: Yes.
[COUNSEL FOR THE FATHER]: And I’m saying that’s because security removed them both from the venue?
[MS A]: No.
(Transcript 11 June 2021, p.222 lines 23–40)
In relation to the second incident, her Honour said:
70.Counsel for the father challenged Ms A that she had seen the father at the bar a few months earlier and had taken photos of him. When the father saw Ms A on 17 May 2019 he had said to her “If you want a decent photo just ask”. Mr B then approached the father, grabbed him by the shirt and security asked them both to leave. Ms A denied that she had seen the father on an earlier occasion, that she had taken photos of him or that she or her partner had been the aggressors in the incident. I did not find Ms A’s denial at all convincing and accept that it was entirely possible that she was engaged in evidence gathering for the mother, was later confronted by the father about it which lead to an incident between the father and Mr B.
Notwithstanding the more expansive arguments of the mother in her Summary of Argument, her ground of appeal in this regard is narrow and there was no application to amend it. It is simply that the primary judge erred by finding “as a fact that the witness Ms A was engaged in evidence gathering for the Appellant” (emphasis added), in the absence of evidence of that fact. Her Honour did no such thing. Rather, she did not find Ms A’s denial of the matters put to her in cross-examination by counsel for the father to be convincing. In the circumstances, that those matters were not the subject of evidence by the father did not require the primary judge to accept the evidence.
The principles regarding the advantages of a trial judge over an appellate court are well-known. In Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178, McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ concurred) referred, in relation to the power of appellate courts, to the judgment of Lord Sumner in SSHontestroom v SS Sagaporack [1927] AC 37 at 47:
... “not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.”
McHugh J said at 178:
Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied “that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion; [Watt or Thomas v. Thomas [1947] A.C. 484, at p. 488].
His Honour further said at 179:
... when a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked. …
In Devries v Australian National Railways Commission (1993) 177 CLR 472 Brennan, Gaudron and McHugh JJ observed at 479:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
(Footnotes omitted)
In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 (“Earthline”), having extensively reviewed the history of “appellate review of facts”, and the “emphasis on the duty of appellate review and its constraints”, Kirby J explained “the trial judge’s real advantages” in relation to the credit of witnesses. In the course of his judgment, his Honour said:
90.The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary of electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge has been driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified.
(Footnotes omitted)
Further, insofar as this ground of appeal asserts that the primary judge found, as a fact, that Ms A was engaged in evidence gathering for the mother, it is misconceived. Her Honour did no such thing. Rather, having found Ms A’s evidence in cross-examination in that regard not to be convincing, her Honour merely accepted it was “entirely possible” she was engaged in evidence gathering for the mother and was later confronted by the father about it, leading to an incident between her partner and him.
In addition to the primary judge’s benefit of observing Ms A in the witness box, she also had the benefit of observing her at the back of the Court, which was brought to the attention of all Counsel. There was the following exchange between them:
HER HONOUR: Sorry. I’m just going to stop you for the moment. Ms A is making notes in the back of the court. Are you taking a transcript of the evidence, Ms A?
MS A: No.
HER HONOUR: Can you put away whatever you’re working on, please? Thank you. Sorry, could you repeat the question?
(Transcript 11 June 2021, p.236 lines 36–43)
We also note that Ms A’s evidence in relation to the alleged second incident was as to what she observed transpire between the father and Mr B and what Mr B later told her the father had said to him. We accept the submission on behalf of the father that, in circumstances where this was not an incident directly involving the mother or the children, this incident, even if accepted, would not have had any impact on the findings the primary judge made, or was required to make, with respect to family violence between the parents. Further, even if Ms A’s evidence were accepted at its highest, with respect to both incidents deposed by her, we agree that it would not alone have supported a finding that the father was violent, abusive and emotionally controlling or that the children were realistically estranged by reason thereof. This is especially so in circumstances where the primary judge found, notwithstanding the mother’s allegations of family violence, that:
·it was an “extraordinary decision” by the mother to take the children overseas with a man she asserted both the children and she feared because of his alleged violent and aggressive behaviour (at [88]);
·the children’s level of rejection of the father (where they were not able to recall any positive memories, rejecting everything about the father and his family) was not, on the evidence of the Family Consultant, what would ordinarily be seen (at [171]);
·the allegations of violence against the children appeared to be in the nature of excessive force and manhandling when engaged in play, such that her Honour rejected that there was any deliberate intent on the part of the father to harm them (at [187]);
·there were occasions when the children had positive experiences with the father, including during their holidays with him to the recreational area D and overseas (at [198]).
In this respect, her Honour concluded:
190.There are no apprehended violence orders and neither party has criminal antecedents for violence or aggressive behaviour. Both deny the allegations of family violence. There is no independent evidence that the father has acted aggressive or violently outside the home save for the evidence of Ms A. The father denied the incidents and the Court has reservations about the veracity of Ms A’s evidence. I do not accept that the father was violent, abusive and emotionally and financially controlling of the mother and the children. I do not accept that that was the case either during or after the relationship.
In the circumstances, we dismiss Ground 2.
Ground 4
This ground asserts that:
4.The Primary Judge erred in finding that the Respondent was not violent, abusive emotionally and financially controlling of the Appellant the consequence of that finding being that the Primary Judge did not consider that the children’s reluctance to spend time with the father was realistic estrangement and a response to their lived experience. (Reasons for Decision paragraph 190).
This ground of appeal overlaps substantially with Ground 2 and, accordingly, can be dealt with relatively succinctly.
For the reasons we have given above, it was clearly open to the primary judge, on the evidence, to find that the father was not violent, emotionally abusive or financially controlling of the mother and her Honour gave sufficient reasons for her findings. Further, as we have observed above, her Honour accepted the evidence of the Family Consultant that the children’s level of rejection of the father, (where they were not able to recall any positive memories, rejecting everything about the father and his family) was not what would ordinarily be seen if the mother’s allegations of family violence were accepted.
We also reject the submission that the primary judge was required to make findings in relation to each of the mother’s allegations, rather than the broad findings she made at [190]. Properly understood, the decision of the Full Court in Amador v Amador (2009) 43 Fam LR 268 (“Amador v Amador”), upon which the mother relies, does not support this ground of appeal. Referring to the oft-cited passage of the High Court in M v M (1988) 166 CLR 69 at 76–77, the Full Court in Amador v Amador said:
87.The above passage from the High Court is sometimes quoted to support an argument that it is unnecessary for a trial judge to make positive findings in relation to allegations, inter partes, of assault and other serious matters of domestic violence. Consequently the court is urged not to allow any exploration of any such allegation. A close reading of the decision makes it apparent that is not what fell from the High Court.
88.It is clear from the decision of the Full Court in In Marriage of A (1998) 22 Fam LR 756; (1998) FLC 92-800 that, in appropriate cases, it may be important to make findings of this nature if they are available and necessary to determine what is in the best interests of the child. It is important to note that A was not a case where allegations of abuse of children was made. The allegation was that the father had attempted to murder the mother. The Full Court said in A:
3.22We consider that his Honour's approach was inappropriate. while it is correct to say that the Family Court is not a criminal court, and that its primary task is not to determine guilt or innocence, that is entirely different from an approach which declines to examine that issue at all. The whole emphasis of the decision of the High Court in M and M is its identification of the essential issue in cases of this sort as being whether the evidence establishes “an unacceptable risk”.
(Emphasis added)
The Full Court concluded:
94.A finding by a trial judge in a children’s case under the Act that a party has assaulted another party or a person can have significant impact on the findings made on the matters the court is required to consider under s 60CC of the Act. The provisions of ss 60CC(2)(b), 60CC(3)(f),(i),(j) and (m) would require a consideration of the impact of any finding of fact as to violence perpetrated by a party seeking a children’s order.
95.The best interests of a child the subject of an application for a parenting order must require that the court determine relevant allegations of violence where that can be done. The consequence of placing a child under the supervision and/or care of a person who has been violent may be far reaching and very detrimental to the child’s welfare. The more serious the allegation of violence the more important it will be to the child to investigate and determine the allegation. As stated earlier we regard an allegation of rape by the father of the mother to be a very serious allegation which should, if possible, be determined.
96.It is important, in our view, not to confuse what has been said by the High Court and the Full Court as to the obligations on a trial judge to make positive findings of fact in relation to allegations of abuse or sexual abuse against a child where parenting orders are sought and where the test to be applied is “unacceptable risk”, with the circumstance in a parenting case where allegations have been made of domestic violence and/or assault by one party upon another. In the latter case it will be necessary for the court to make findings where the evidence enables that to be done.
Whilst the mother complains about the primary judge’s “broad finding” at [190], that must be viewed in the context of her Honour’s other findings, to which we have adverted above.
In the circumstances, we dismiss Ground 4.
CONCLUSION
The mother having succeeded on Ground 1(a), the appeal must be allowed.
In her amended Notice of Appeal, the mother seeks a remitter. This was confirmed by her counsel at the hearing of the appeal. In the circumstances, we shall order that the matter be remitted for trial before a judge other than the primary judge. The mother also seeks that Orders 1–12 inclusive, made by the primary judge, be set aside. We shall order that this occur as and from the date upon which the proceedings are next listed before a judge exercising original jurisdiction under Part VII of the Family Law Act 1975 (Cth).
In anticipation of submissions as to costs, the mother and the father filed schedules of costs. The mother sought an order for her costs and, in the alternative, a costs certificate. Given that the appeal succeeded only on Ground 1(a) which, as we observed, was not a denial of natural justice or procedural fairness, properly understood, but an error of law simpliciter, to which the father cannot be said to have in any way contributed, it is appropriate to grant costs certificates to each of the mother and the father for both the appeal and the re-hearing. However, we do not grant a certificate to the ICL, given the way the Family Consultant was cross-examined by her in relation to the article, which contributed to the error the subject of appeal Ground 1(a).
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Schonell & Strum. Associate:
Dated: 3 June 2022
8
10
3