Steen & Crespo
[2025] FedCFamC1A 90
•23 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Steen & Crespo [2025] FedCFamC1A 90
Appeal from: Steen & Crespo [2025] FedCFamC2F 51 Appeal number: NAA 48 of 2025 File number: NCC 193 of 2023 Judgment of: CAMPTON J Date of judgment: 23 May 2025 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where during the trial the father amended his final orders sought for the children to live with him and sought the same interim order – Where the mother contends that the judge's intervention in the trial occasioned a denial of procedural fairness occasioning a miscarriage of justice – Where the mother prosecutes other grounds as to apprehended bias, a failure to afford procedural fairness, error of fact, and an error of law – Where the father and the Independent Children’s Lawyer oppose the appeal – Where an interim hearing was conducted during the trial with orders made for the children to continue to live with the mother – Where there was a hiatus in the trial, it being adjourned part-heard – Where orders were made as to the filing of further evidence – Where findings were made that the children continuing to live with the mother posed an unacceptable risk of harm to their emotional and/or psychological safety – Where the mother’s case as to the amelioration of risk was not accepted – Appeal dismissed – Mother to pay the costs of the father and the Independent Children’s Lawyer in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VII, Div 12A, ss 60CC, 68LA, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23
Cases cited: A v A (1998) FLC 92-800; [1998] FamCA 25
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221
Bienstein v Bienstein (2003) FLC 93-124; [2003] HCA 7
CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67
Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29
Cizek & Mihov (2024) FLC 94-206; [2024] FedCFamC1A 151
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Finch & Finch (2020) FLC 93-949; [2020] FamCAFC 60
Galea v Galea (1990) 19 NSWLR 263
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32
Hatfield & Rivas (2024) FLC 94-224; [2024] FedCFamC1A 202
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
Helbig & Rowe [2016] FamCAFC 117
House v The King (1936) 55 CLR 499; [1936] HCA 40
Huda & Huda and Laham (2018) FLC 93-837; [2018] FamCAFC 85
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Lainhart & Ellinson (2023) FLC 94-166; [2023] FedCFamC1A 200
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Pachris & Tajir (No 3) [2023] FedCFamC1A 230
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Royal GuardianMortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
SCVG & KLD (2014) FLC 93-582
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 121 Date of hearing: 12 May 2025 Place: Sydney Counsel for the Appellant: Mr Cummings SC with Mr Levick Solicitor for the Appellant: Powe & White Family Lawyers Counsel for the Respondent: Mr Cox SC with Mr Willoughby Solicitor for the Respondent: Bryant McKinnon Lawyers Counsel for the Independent Children's Lawyer: Ms Davey Solicitor for the Independent Children's Lawyer: Hannaway Lawyers ORDERS
NAA 48 of 2025
NCC 193 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS STEEN
Appellant
AND: MR CRESPO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
23 MAY 2025
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.Within 28 days of the date of these orders, the appellant pay the respondent’s costs fixed at $34,175.
3.Within 28 days of the date of these orders, the appellant pay the Independent Children’s Lawyers costs fixed at $4,290.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Steen & Crespo has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
By way of a Notice of Appeal filed on 12 February 2025, as amended on 9 April 2025, Ms Steen (“the mother”) appeals from orders made on 17 January 2025 pursuant to Pt VII of the Family Law Act 1975 (Cth) (“the Act”) by a judge in the Federal Circuit and Family Court of Australia (Division 2) regulating the parenting of X (“X”), born in 2013, currently 12 years old, and Y (“Y”), born in 2016, currently nine years old (collectively, “the children”).
Not all the orders made on 17 January 2025 are the subject of appeal. The orders under challenge provide for:
(a)The mother and Mr Crespo (“the father”) to have joint decision-making for all major long-term issues in relation to the children;
(b)The children to no longer live with the mother, with whom they had lived since the separation of their parents in early 2021, and to commence living with the father;
(c)On condition that the mother complete a five-week moratorium of no contact with the children, for the children to then spend time with the mother each alternate weekend from Friday to Sunday, for half of each school holiday period, and on special occasions; and
(d)The father to retain possession of the children’s Australian passports and Country K passports until 1 October 2025.
The father and the Independent Children’s Lawyer (“the ICL”) opposed the appeal.
The primary judge found that the mother posed an unacceptable risk of harm to the children as “there is a material possibility that the children’s emotional and/or psychological safety will be imperilled through her actions” (at [52]). The primary judge accepted the Family Report writer’s evidence that at November 2023 X had an “intense dyadic” relationship with the mother, “characterised by emotional merging”, the dynamic creating and maintaining “a vicious cycle” (at [81]). The primary judge accepted the Family Report writer’s evidence that Y was aware of her sister’s torment, was helpless to stop it, and may follow in her sister’s footsteps by rejecting her father.
The primary judge concluded that active changes to the dysfunctional system were required to protect the children from the dynamic, otherwise, their emotional and/or psychological safety would be significantly damaged (at [61]).
The primary judge did not accept the evidence of the Family Report writer or the mother’s case that an end to litigation could, or was a possibility to, resolve that risk (at [62]) as the dynamics went much further than simply the litigation. The reasons record that the cycle identified by the Family Report writer continued notwithstanding that the mother had the benefit of the contents of the Family Report, her experience of the evidence at trial, being cross-examined, and of receiving psychological support, and notwithstanding X having the benefit of ongoing therapy. That finding was reinforced by X’s interactions with the mother during a hiatus in the trial and in the time spent with the father over the 2024/2025 Christmas period pursuant to interim orders made on 22 November 2024. The primary judge did not accept that the risk could be ameliorated by way of the regime proposed by the mother’s final orders sought (at [85]).
The primary judge balanced the risk of emotional harm caused by upending the status quo with the unacceptable risk of emotional and potential psychological safety by the status quo remaining in place (at [87]), finding that a circuit breaker was required (at [88]). The ultimate determination that the children live with the father (at [89]) was scaffolded through mandatory orders as to the terms of communications between the parents and third parties, for the provision of the reasons for judgment to each of the children’s treating practitioners, psychologists, or counsellors, and for the regime to be facilitated and supported by professionals who are aware of the dynamics in the family, including the children’s therapist, Ms B, who gave evidence in the trial. Consequently, the primary judge determined that a change of the living arrangements for the children best promoted their interests.
For the reasons that follow, the appeal will be dismissed.
BACKGROUND
The father was born in 1979 and is currently 45 years old. The mother was born in 1981 and is currently 43 years old. They married in mid-2012 and separated in April 2021 (at [10]).
The parents and children were living in a rural community. Prior to separation, the father commenced a relationship with Ms C. Ms C was employed in the father’s business and had a close relationship with the mother. Ms C’s daughter, was X’s best friend.
The relationship between the parents in the post-separation period was characterised by significant conflict and acrimony, principally influenced by the circumstances of the separation and the mother’s animosity to the father’s new partner (at [11]–[13]).
The primary judge found that in the weeks following separation the father displayed limited insight into how his decisions affected the children, however that he had thereafter developed insight into his actions and expressed some remorse (at [15]). The primary judge recorded that from the time of separation until the Family Report interviews in November 2023, the mother engaged in behaviours which “were averse to the parties’ coparenting relationship and/or the children’s relationship with the father” (at [18]).
The parents agreed to the mother moving with the children one and a half hours away from the rural community upon the basis of the children spending time with the father. This initially occurred every weekend, and then every alternate weekend, the change being a function of distance and logistics. No interim parenting orders were in place prior to the trial. Findings were made that the children settled well into their new homes and schools and whilst they had a loving relationship with the father, X had shown resistance to, and was negative about, spending time with the father. Issue existed as to whether the mother had capacity to facilitate, encourage, and support the children’s relationship with the father, particularly X, considering her negative expressions about the father. Both parties sought that the children live with them.
A Family Report dated 29 November 2023 recommended that the children continue to live with the mother and spend time with the father, subject to qualifications as to the mother’s alcohol use (which dissipated as an issue at trial) and as to whether the mother could facilitate a meaningful relationship between X and the father.
On 30 May 2024 the father amended his response seeking an order for the children to live with the mother.
At the time of the trial the father was living with Ms C and her three children. The mother had remarried and was living with Mr D and his two children.
At the commencement of the trial the mother sought orders for sole decision-making responsibility, for the children to live with her and spend specified time with the father. The father sought equal shared parental responsibility, for the children to live with the mother and spend specified time with him. The preliminary position of the Independent Children’s Lawyer (“the ICL”) broadly adopted the orders sought by the father.
The trial was listed for four days to commence on 18 November 2024. It continued for six days, the first tranche being from 18 to 22 November 2024, being then adjourned part heard, concluding on 13 January 2025.
At the commencement of the third day of the trial, being Wednesday, 20 November 2024, the father amended his substantive relief to seek an order that the children live with him on an interim and final basis. The ICL also amended the orders sought providing for the children to live with the father and spend time with the mother.
The mother made an application for an adjournment of both the interim and final relief sought by the father. The adjournment of the interim hearing was refused. Orders were made providing for the father to serve a written proof of evidence in relation to the steps he would take to attempt to ameliorate the impact upon the children of his proposal for them to live with him and supporting his proposal for the children’s schooling. Further orders were made that morning providing for:
Interim hearing
3. By 9.00am Thursday 21 November 2024 the mother and the Independent Children’s Lawyer shall file and serve their proposed Minute of Interim Orders.
4. Not before 2.15pm tomorrow the father’s interim application for a change in the children’s residence shall be heard.
Trial - Part 2
5. The trial will resume for hearing in Newcastle at 9.30am on Monday 13 January 2025.
6. Leave is granted to the mother to file and serve by 3 December 2024, any Application in a Proceeding seeking permission to rely on the evidence of any other witness together with any affidavit(s) in support.
7. Should Order 5 apply, then:
a. By 9 December 2024 the other parties are to file and serve a Response to an Application in a Proceeding or a Submitting Notice, and
b. Any application for interlocutory relief shall be heard by video-link at 9.30am on 11 December 2024.
8. By 23 December 2024 the mother is permitted to file and serve any amended Minute of Final Order.
9. By 6 January 2025 the mother and the father are permitted to file and serve a supplementary affidavit by themselves about relevant matters that have occurred since the first part of the trial concluded.
10. By 9 January 2025 the parties are permitted to file and serve any amended Minute of Final Orders.
(Emphasis removed)
The trial then continued. On 20 November 2024 the mother gave further evidence-in-chief. The father gave evidence-in-chief, including adopting a proof of evidence (Exhibit F9), and was cross-examined by counsel for the mother into the next day, 21 November 2024. He was then cross-examined by counsel for the ICL and was re-examined. The mother was re-called and gave further evidence-in-chief, including adopting a proof of evidence (Exhibit M7). The Family Report writer was cross examined by each of the father, the mother, and the ICL.
At the conclusion of the interim hearing on 22 November 2024 orders were made (as amended on 2 December 2024) providing for:
1. All previous interim parenting orders are discharged.
Lives with
2. [X] born [...] 2013 (‘[X]’) and [Y] (‘[Y]’) born […] 2016 (collectively ‘the children’) shall live with the applicant [MS STEEN] (‘the mother’).
Spends time with
3. Until the conclusion of Term 4 2024 (as exercised by the children’s school), the children shall spend time with the respondent [MR CRESPO] (‘the father’) as agreed between the parents in writing but failing agreement THEN as follows:
a. Each alternate weekend from the conclusion of school on Friday (or 9.00am on that Friday if a non-school day) until the start of school the following Monday, but if Monday is a non-school day, THEN until the start of school the next day, commencing Friday 22 November 2024.
b. Every Wednesday from the conclusion of school (or 3.00pm) until 7.00pm commencing Wednesday 27 November 2024.
4. For the Summer school holidays in 2024, the children shall spend time with the parents as follows –
a. With the father from the conclusion of school (or 3.00pm) Wednesday 18 December 2024 until 3.00pm Friday 17 January 2025, and
b. With the mother for the remainder of the school holidays.
Changeover
5. Should a changeover not take place at the children’s school, THEN it will take place at the [E Location].
6. For the changeovers during the Term 4 school holidays:
a. Each parent shall remain inside their motor vehicle,
b. Each parent is to appoint a nominee (known to the children) to facilitate a face-to-face changeover so that the children’s electronic devices can be exchanged,
c. In appointing a nominee, each parent is to satisfy themselves that the person can adhere to the terms of their role including to be respectful towards each other, mindful of the children’s emotions and agreeable to facilitate each parent’s compliance with the order about the terms of changeovers (such as being on time, having the children ready to transition and exchanging the children’s devices between each other and not leaving the devices in the custody of the children).
Recovery Order
7. If the father is unable to take possession of the children (or either of them) in accordance with these Orders, between the date of these Orders and 17 January 2025, then the father is to forthwith and contemporaneously notify the mother, the independent children’s lawyer and the chambers of […] in writing (via email to […]) of that circumstance.
8. Pursuant to s 67U of the Family Law Act 1975 (Cth) (‘the Act’), a warrant shall issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary, by force:-
a. To find and recover the child/ren [X] born […] 2013 and [Y] born […] 2016, collectively ‘the children’,
b. To deliver the child/ren to the father [MR CRESPO] at [Property F] in the State of New South Wales, or such other place (reasonably accessible by the father) as the person effecting such recovery nominates; and
c. To stop and search any vehicle, vessel, or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child/ren may be found.
9. The Recovery Order referred at Order 8 is to lie in the Registry and not be executed unless the Court receives notice from the father pursuant to Order 7.
Watchlist Order
10. [MS STEEN] of [Property G] in the State of New South Wales born […] 1981 and [MR CRESPO] of [Property F] in the State of New South Wales born […] 1979 and their servants and/or agents are prohibited and an injunction shall issue restraining them (and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth)), from removing or attempting to remove or causing or permitting the removal of the child/ren [X] born […] 2013 and [Y] born […] 2016 (collectively ‘the children’), from the Commonwealth of Australia, AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name/names of the said child/children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's/children's name/names on the Watchlist for the said period, or until the Court orders its removal.
Communication with the mother
11. The children shall speak to the mother by telephone/Facetime/other electronic means between 9.00am and 9.30am on Christmas Day 2024 with the mother to initiate the call to one of the children’s electronic devices.
12. To facilitate the above order, at the changeovers for the Term 4 school holidays, the mother’s nominee shall physically hand to the father’s nominee all the children’s electronic devices including but not limited to [X]’s mobile telephone and [Y]’s iPad.
Ongoing psychological treatment
13. The parents shall ensure that the children continue to attend upon [MS B] (‘the children’s psychologist’) for all scheduled appointments and shall otherwise comply with all reasonable directions of the children’s psychologist.
Parental communication
14. Each parent shall communicate via the co-parenting application AppClose to discuss issues relating to the children, except in the case of emergency where a phone call directly to the other parent is acceptable.
15. Each parent shall notify the other of any changes to their mobile telephone number, address or email address within 24 hours of such change occurring.
16. Each parent must keep each other informed of either child requiring medical attention as soon as reasonably practical, and provide to the other copies of any reports, referrals, results or correspondence related to serious medical issue or injury. Medical attention is defined as including any presentation by a child at an emergency department or medical clinic, admission to any hospital or medical clinic and/or consultation with a health professional such as a general physician or nurse.
17. Each parent shall provide relevant medical practitioners with all consents necessary for the other party to be present and discuss the child’s medical condition and treatment with that medical practitioner.
18. Each parent shall be permitted to liaise directly with the children’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress.
19. Each parent is at liberty to attend the said children’s school or extra-curricular activities for the purpose of any function or activity normally attended by the parents including but not limited to any end of Year 6 presentation, “clap-out”, graduation ceremony and/or dinner.
Injunctions
20. The parents are mandated, and an injunction shall issue requiring them to ensure that the child/ren attend school on each day that they must, FAILING WHICH the parent in whose care the child/ren are in is to:
a. By 10.00am that day, email the other parties via the email address specified within their respective Notice of Address for Service explaining why the child/ren have not attended school, and
b. As soon as practicable, email a medical certificate explaining the reason the child/ren have not attended school to an authorised officer of the school and to the parties via the email address specified within their respective Notice of Address for Service.
21. The parents are restrained, and an injunction shall issue prohibiting them from:
a. denigrating each other or a member of the other parent’s family in the presence or hearing of the child/ren or from allowing the child/ren to remain in the presence or hearing of a third person doing so,
b. using the child/ren to communicate with or pass messages to, the other parent about adult and parenting matters including where there is any suggestion of parental conflict,
c. speaking to the child/ren about these proceedings (including the trial) and the Applications brought by each parent and/or the independent children’s lawyer,
d. using any form of physical discipline against the child/ren.
Communication to others
22. Excluding the children’s psychologist, the parties may provide a copy of these Orders to the children’s medical and allied health professionals as well as to their educational and extracurricular activity service providers.
23. The independent children’s lawyer is to forthwith provide a copy of these Orders and exhibit ‘ICL-3’ to the children’s psychologist under cover of a letter which expressly disavows that person from disclosing or discussing the contents of either document to or with the child/ren.
Miscellaneous
24. All outstanding interim and interlocutory applications are dismissed.
(Emphasis in original)
On 12 December 2024 orders were made granting leave to the mother to file and serve an affidavit of the children’s treating psychologist, Ms B. On 16 December 2024, the mother filed an affidavit from Ms B.
On 6 January 2025 each of the father and the mother filed further affidavits.
On 13 January 2025 the father adduced an amended proof of evidence (Exhibit F15). On that day each of the mother, the father, Mr D (the mother’s current partner), Ms H (a witness in the mother’s case), and Ms C (the father’s current partner), gave evidence-in-chief and were cross-examined. No application was made to further cross-examine the Family Report writer. The trial was completed, and judgment was reserved at 6.54 pm.
THE APPEAL
The purpose of a Notice of Appeal is to identify with precision in the grounds of appeal the errors that are asserted to have been made by the primary judge. It sets out the metes and bounds of the appeal (Pachris & Tajir (No 3) [2023] FedCFamC1A 230). The importance of identifying the error in the judgment under appeal by way of the construction of the grounds of appeal ought not be discounted or overlooked.
A presumption exists at law that a primary judge’s decision is correct, and the onus rests on the appellant to show otherwise (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621). The relevant principles governing appeals from discretionary judgments are well settled. Error of the type identified in House v The King (1936) 55 CLR 499 (“House v The King”) at 504–505 must be established. That an appellate court might have arrived at a different outcome by virtue of affording some, less, or more weight to matters of fact does not justify the reversal of the decision of the primary judge. The weight or importance afforded to evidence is a matter quintessentially for the primary judge, unless an appellant can demonstrate that the primary judge was “plainly wrong” (CDJ v VAJ (No 1) (1998) 197 CLR 172).
The Further Amended Notice of Appeal filed on 9 April 2025 contained seven grounds of appeal. Grounds 4 and 7 were abandoned during the hearing of the appeal.
The grounds as to a failure to afford procedural unfairness and apprehended bias shall be dealt with first as they are matters which go to the integrity of the trial process (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577).
CONSIDERATION
Ground 1 – “The learned Trial Judge erred in unduly intervening in the conduct of the trial thereby causing a miscarriage of justice”.
The Full Court in Finch & Finch (2020) FLC 93-949 set out the relevant principles in determining whether a primary judge’s interventions amount to a lack of procedural fairness, and thus a basis for appellate intervention (adopting the principles summarised in Galea v Galea (1990) 19 NSWLR 263 (“Galea”) and Royal GuardianMortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 (“Royal Guardian”)). The mother identified the overlap between the contended “undue intervention” by the primary judge and Ground 2 as to apprehended bias, the latter leading to a separate basis of appellate challenge.
The mother does not complain as to a frequent degree of intervention by the primary judge. The essence of the ground is that the primary judge’s interventions were sufficient to give rise to a conclusion that there was a miscarriage of justice in the circumstances of this case (Royal Guardian at [220]).
The mother contends that the primary judge:
(a)Introduced or raised the spectre of a change of the children’s living arrangements, enlarging the litigation to be a “relocation case”;
(b)Then encouraged the father to change his relief sought; and
(c)Implicitly supported the father, leading the process of conducting an interim hearing during the final trial.
In her Summary of Argument the mother cited what the Full Court said in Lainhart & Ellinson (2023) FLC 94-166 (“Lainhart & Ellinson”):
28Courts exercising jurisdiction under the Act must decide justiciable disputes, by conventional adversarial procedure, between imperfect litigants on the available evidence according to law by making prescriptive and enforceable orders within statutory power to quell the controversy…
In Lainhart & Ellinson the Full Court cited the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635:
19The normative structure of the Australian legal system is that it is adversarial in nature… The independence and impartiality of the (court) is protected, in part, by the confining of [the court’s] role to deciding the case on the basis of the evidence which each party elects to tender… the adversarial system… does not permit the judge to engage in ‘an inquisitorial role in which [the judge] seeks… to remedy deficiencies in the case of either side. The judge hear[s] and determine[s] the issues raised by the parties’ and does ‘conduct an investigation or examination on behalf of society at large’.
(As per the original) (Footnotes omitted)
In support of the ground the mother also identified that said by Austin J in Hatfield & Rivas (2024) FLC 94-224, being an appeal regarding the dismissal of a contravention application:
16The normative adversarial process is for the judge to remain detached from the contest and to determine that justiciable cause on the evidence the parties see fit to adduce (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 at [19]). Excess judicial intervention can vitiate the judgment by transcending the boundaries of the distinct, yet inter-related, doctrines of apprehended bias and the denial of procedural fairness (Edinger & Duy (2023) 68 Fam LR 55 at [20]–[31]; Huda v Huda (2018) FLC 93-837 at [20]–[28]) but, as the father correctly acknowledged, whether the lines are crossed is a “question of fact and degree” in the circumstances peculiar to the case at hand (Edinger & Duy at [21]).
It is necessary to further unpack the conduct of the litigation and the trial to give context to this challenge.
As recorded earlier in these reasons, at the commencement of the trial on Monday 18 November 2024, each of the mother, the father, and the ICL sought final orders for the children to live with the mother, and did not express any explicit qualification to such order.
In opening, counsel for the ICL referred to a proof to be circulated recording a meeting and communications between the ICL and the children on the Friday before the trial (Transcript 18 November 2024, p.16 line 17 to p.17 line 2). By commencement of the second day of the trial, prior to any oral evidence being adduced, the proof had been circulated (Transcript 19 November 2024, p.60 line 43 to p.61 line 35). The proof became Exhibit ICL3. It recorded amongst other things:
[X] expressed extreme distress upon being told that her parents wish for her to see her Dad each alternate weekend. She started crying and was extremely upset, saying “I don’t want to see my dad” and saying she was hoping to be told she didn’t have to go anymore. She said she hates him and hates going up to the [property]. She wants no time at all, no Wednesday, no block holidays and no time at Christmas. She wants to be with Mum this Christmas.
…
[X] said that she hates [Ms C]. She said [Ms C] is grumpy all the time, really loud, precious about her own kids and mean to them and [Y]. She has big mood swings – never happy. She doesn’t even laugh at a joke. [Y] said similar things about [Ms C] being unhappy and feeling like [Ms C] doesn’t like her.
The primary judge accepted (at [40]), unchallenged on appeal, that Exhibit ICL3 was “an accurate recording of the interviews between the children and the ICL”. At the hearing of the appeal the mother described Exhibit ICL3 as a pivotal event in the trial.
The mother commenced her cross-examination on the second day of the trial. Exhibit ICL3 was adduced into evidence, absent objection, during the father’s cross-examination of the mother. Counsel for the father asked the mother questions as to her capacity to facilitate a relationship between the father and the children, but not any questions with specific identification of the content of Exhibit ICL3.
Counsel for the ICL commenced the cross-examination of the mother enquiring as to the mother’s history of mental health challenges sourced from clinical notes and her current access to psychological and other therapeutic supports. The cross-examination progressed as to the mother’s mental health being a relevant factor in the proceeding, at which time the following exchange occurred:
[THE MOTHER]: …I do feel like my mood situation is situational and would hope that, once this matter settles, I will have an improved mental health.
[COUNSEL FOR THE ICL]: And it starts with needs time off her [tertiary education], not coping with multiple stressors?
[THE MOTHER]: Yes.
[COUNSEL FOR THE ICL]: And then connects with the court proceedings. The multiple stressors and your not coping were sufficiently serious for you to mention this to the doctor that prepared this note?
…
[COUNSEL FOR THE ICL]: But of course, you will need to go on and explain why you’re not seeing a psychologist.
[COUNSEL FOR THE MOTHER]: Your Honour, I object to this line of questioning continuing. The mother’s health – mental health isn’t an issue in these proceedings. The mother ..... position that the mother continue to live with the mother. The court has no jurisdiction to make any injunctions in relation to having mental health if they live with the mother. So the relevance .....
[THE PRIMARY JUDGE]: [Counsel for the ICL], what is the point? What is the point of the line of questioning?
[COUNSEL FOR THE ICL]: Critical capacity of the mother, if your Honour pleases.
[THE PRIMARY JUDGE]: Well, I’m just looking at your minute of order.
[COUNSEL FOR THE ICL]: Yes. That’s a position – predominant position adopted by the independent children’s lawyer - - -
[THE PRIMARY JUDGE]: Yes. Sure.
[COUNSEL FOR THE ICL]: - - - prior to the trial commencing.
[THE PRIMARY JUDGE]: So you’ve had the mother agree to various ..... that might be a bit tricky is the Mother’s Day thing. But she has agreed to a whole raft of very discrete orders - - -
[COUNSEL FOR THE ICL]: Yes.
[THE PRIMARY JUDGE]: - - - about parental capacity. So what is there left in circumstances where it seems to be an agreed position the children are going to live with her, unless your instructor is having cold feet about that?
[COUNSEL FOR THE ICL]: Yes. I think that’s the case and the submission is that your Honour is large about that, in any event.
[THE PRIMARY JUDGE]: Well, you better get on your skates then. 3.35, your cross-examination finishes.
[COUNSEL FOR THE MOTHER]: Did I hear correctly?
[THE PRIMARY JUDGE]: You sure did.
[COUNSEL FOR THE FATHER]: You did.
[THE PRIMARY JUDGE]: 3.35, [counsel for the ICL]. Keep going with your line of questioning.
[COUNSEL FOR THE MOTHER]: I’m not prepared to meet a change of residence application.
[THE PRIMARY JUDGE]: Well, ma’am, the ICL is at large to do whatever they want to do.
[COUNSEL FOR THE MOTHER]: Well, no. They’re a litigant – with the greatest respect to my friend, they’re a litigant in these proceedings bound by certain rules and particularly procedural fairness. If there’s some - - -
[THE PRIMARY JUDGE]: No.
[COUNSEL FOR THE MOTHER]: If there is a change of position, there is an evidentiary prejudice to the mother.
[THE PRIMARY JUDGE]: Well, you know what you can do, what you can do is you can re-examine. That’s what you can do.
[COUNSEL FOR THE MOTHER]: Certainly, but not on a – re-examination won’t cure a change of residence application.
[THE PRIMARY JUDGE]: They’re the ICL. They can do what they like, frankly. They’re here for the best interest of the children.
[COUNSEL FOR THE MOTHER]: Your Honour.
[THE PRIMARY JUDGE]: He can ask his questions. If you want to have some time to contemplate what has just come out of his mouth, I’m in your camp in the sense of news to me, but the ICL is at large.
[COUNSEL FOR THE MOTHER]: Certainly, in terms of – the ICL, with the greatest respect, should be putting their money where their mouth is if that’s the case that they’re running.
[THE PRIMARY JUDGE]: Ma’am, this is the whole – and I’m not one of these judges that says to ICLs, “Where’s your minute of order.” I won’t do that because - - -
[COUNSEL FOR THE MOTHER]: Certainly.
[THE PRIMARY JUDGE]: They are there for the best interests of children, and things change all the time in trials. So I’m not going to make them be bound to an preliminary view. And if that means there’s some awkwardness between everybody else at the bar table and me, so be it.
[COUNSEL FOR THE MOTHER]: Certainly, your Honour. I will deal with any application that might come from the ICL at that time.
(Transcript 19 November 2024, p.86 line 13 to p.88 line 21) (Emphasis added)
The mother contends that the “introduction” of the concept of an order that the children live with the father had its genesis in the primary judge’s remark saying, “unless your instructor [the ICL] is having cold feet about [the ICL’s minute of order provided at the start of the trial]”.
The ICL then continued the cross-examination of the mother, including as to the statements made by X in Exhibit ICL3 as to her father and as to spending time with him. The mother said she was doing everything she could and would willingly take on suggestions (Transcript 19 November 2024, p.103 lines 10–11).
The mother develops her complaint by way of the ground from the other passages of the transcript to establish the primary judge encouraging or leading the father to amend his relief sought for the children to live with him, including:
[THE PRIMARY JUDGE]: No. First of all, I just want to say that I’ve only heard part of one person’s case. Everybody at the bar table knows that these things – it’s all the slippery slide and it goes up and down, and one minute your client’s on a winner and the next minute I’m, “God, why do you say that?”. So I just want the father to know, and the people sitting behind him, whoever they may be, that I have a very, very open mind to the dilemma that appears to be emerging in this case. One of the difficulties is that I don’t know what the ICL wants to do, and frankly, I don’t know if the father wants to take the opportunity, because it means, unless something dramatic happens, these children not only are confronted with a change of residence, but this is a relocation case which has just suddenly emerged.
…
[THE PRIMARY JUDGE]: I mean, [counsel for the mother] has a very good point, because how does she meet whatever it – and I appreciate the ICLs position. But how does she meet in re-examination the potentiality of whatever your client’s instructions might be?
[COUNSEL FOR THE FATHER]: Well, your Honour, with respect, a litigation is an ever-changing feast, especially in this jurisdiction.
[THE PRIMARY JUDGE]: Yes, I know. But has your client put on any evidence on about, “This is the school they’re going to go to.” Is he going to take them to [School J]? I don’t know.
[COUNSEL FOR THE FATHER]: I understand your Honour’s point about that, and that’s a matter about which the matters – steps can be taken to resolve that issue.
[THE PRIMARY JUDGE]: Yes. So this is my – I’m happy for the father to hear this because he needs to understand what is at stake. It may well be that this matter turns into an interim hearing, rather than a final hearing, because the evidence is not sufficient for me to make a decision on a final basis. I don’t know.
[COUNSEL FOR THE FATHER]: I hear your Honour. In terms of your Honour’s – this matter is listed for four days.
[THE PRIMARY JUDGE]: We’ve lost one.
[COUNSEL FOR THE FATHER]: We’ve made great use – well, we lost one of those, certainly.
[THE PRIMARY JUDGE]: Yes, I’m happy to see you Friday. It’s going to screw up whatever is happening for me back in Newcastle on Friday, but - - -
[COUNSEL FOR THE FATHER]: That’s what I was going to inquire of your Honour. Because if it progresses down a certain path - - -
…
[COUNSEL FOR THE FATHER]: And can put on proof and we deal with it that way, rather an interim and then going away and potentially coming back. It can still be resolved this week, your Honour, in my respective submission. Just not in the ordinary course, perhaps. But these are all, at this point in time, hypotheticals.
[THE PRIMARY JUDGE]: They are, because I don’t know what your client’s attitude is. So in terms of that, if I – listening to what you’re saying, I’ve still got two witnesses in the mother’s case. I don’t know how everyone else is placed for Friday. Mr Associate is laughing at me because he’s saying, “We’re supposed to be in Newcastle.” What was I going to say?
[COUNSEL FOR THE FATHER: Suits me, your Honour, but - - -
[THE PRIMARY JUDGE]: I just - - -
[COUNSEL FOR THE ICL]: Yes, and it suits me.
[COUNSEL FOR THE MOTHER]: Your Honour, if that change of – if a change of residence is contemplated by – on any application - - -
[THE PRIMARY JUDGE]: Well, it doesn’t work for the ICL if he doesn’t have a home to put the kids into.
(Transcript 19 November 2024, p.105 line 22 to p.107 line 29) (Emphasis added)
The mother submitted at the hearing of the appeal that this section of the transcript records “powerful words in the father’s presence”. She further said that the primary judge, not the father or the ICL, introduced the proposal of an interim hearing before any amended relief had been promoted by the father.
The mother contends that it was only after hearing this exchange that the father amended his position. It was submitted that this conclusion was also supported by the following exchange confirming the ICL had yet to amend their position:
[COUNSEL FOR THE ICL]: No, your Honour, we’re on the horns of a dilemma, and that is, we haven’t formed a view.
(Transcript 21 November 2024, p.3 lines 37–38)
The primary judge then directed the father to notify the mother and the ICL if he wished to change the relief he was seeking by the following morning.
The mother properly concedes that evidence can emerge or change during a trial and that in turn can lead to parties changing their position during the trial.
The High Court in Johnson v Johnson (2000) 201 CLR 488 (“Johnson”) in the context of apprehended bias but also relevant to judicial intervention, said:
13At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly [(1989) 167 CLR 568 at 571] Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case” [(see also Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 15; 32 ALR 47 at 53, per Murphy J)].
Challenges to judgments based on a complaint of judicial intervention are never easy to evaluate. They require the consideration of the whole of the transcript and the reasons to conclude there is a miscarriage of justice in the way the trial proceeded (Royal Guardian; Huda & Huda and Laham (2018) FLC 93-837 (“Huda”)).
Child related proceedings also mandate consideration of the principles for conducting such proceedings as provided in Div 12A of Pt VII of the Act. These include:
69ZN Principles for conducting child‑related proceedings
…
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
…
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
…
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
…
69ZQ General duties
(1) In giving effect to the principles in section 69ZN, the court must:
(aa) ask each party to the proceedings:
(i) whether the party considers that the child concerned has been, or is at risk of being, subjected to, or exposed to, abuse, neglect or family violence; and
(ii) whether the party considers that he or she, or another party to the proceedings, has been, or is at risk of being, subjected to family violence; and
(a) decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
(b) decide the order in which the issues are to be decided; and
(c) give directions or make orders about the timing of steps that are to be taken in the proceedings; and
(g) deal with as many aspects of the matter as it can on a single occasion; and
(2) Subsection (1) does not limit subsection 69ZN(1).
That said, the evaluation of whether interventions occasion a miscarriage of justice in the way a child related trial proceeded involves an assessment and balancing of the appropriate role and limits of judicial engagement and management, with the need for the appearance of detachment, and the provision of fairness (Royal Guardian at [18]).
The transcript does not support the mother’s submission on appeal that there was “no suggestion from anybody” of a change to the live with arrangements other than originating from the primary judge. It objectively records that the notion of the children not living with the mother began with the ICL (Transcript 19 November 2024, p.87 lines 9–14).
The ICL correctly identified that ss 68LA(2) and (3) of the Act expresses that an ICL:
(a)Must form an independent view based on the evidence available to them of what is in the best interests of the child and act in the proceedings in a way that they believe best promotes the interests of the child; and
(b)Is obliged by statute to adopt a course of action that is in the best interests of the child and make submissions to the Court suggesting the adoption of that course.
The transcript records the ICL engaging and complying with their obligations under the Act.
While the primary judge may have been imprecise in exchange as to the ICL being at liberty to amend their relief sought during the trial absent leave, no objection was taken by the mother as to the amendment of the relief sought by the father or the ICL.
The capacity of the mother to facilitate or support the relationship between the children, and especially X, and the father was always a real issue in the litigation. The fact and content of Exhibit ICL3, which was adduced absent objection, generated a substantial shift in the evidentiary landscape, and presented significant challenges for the parties and the primary judge.
The transcript records the process and considerations of the primary judge dealing proactively with this late evidence adduced early during the trial in compliance with, and discharging the obligations mandated in, Div 12A of Pt VII of the Act. The primary judge was required to engage with and manage the introduction of this evidence in the context of the longstanding issue of fact at trial. The responses of the primary judge to the difficulties presented and articulated are intuitive and judicious:
•[COUNSEL FOR THE MOTHER]: - - - our exchanged before – earlier. But the difficulty is, is that my client has a certain evidentiary prejudice if the case changes in that way. If I was meeting a live-with application, I would – this application, the mother’s application, would have been prepared differently.
(Transcript 19 November 2024, p.107 lines 43–46)
•[COUNSEL FOR THE MOTHER]: Your Honour would need that information. Your Honour would need information likely, if I were to run my client’s case competently, perhaps some evidence about the mother’s parenting capacity should that order be made, because that would also be an appropriate matter that your Honour considers. And so – and also noting that your Honour has not heard the rest of the evidence. There’s a lot of focus on what my client has done - - -
(Transcript 19 November 2024, p.108 lines 8–13)
•[THE PRIMARY JUDGE]: Yes, I know that, but I’m also conscious this is a very different case.
[COUNSEL FOR THE FATHER]: But it seems as if [counsel for the mother], sort of, was heading toward a path that you had raised about interim orders being the appropriate response to that and that - - -
(Transcript 19 November 2024, p.109 lines 20–25) (Emphasis added)
•[THE PRIMARY JUDGE]: I don’t even know what the father says because I haven’t heard his evidence. But if there’s risks in both households, well, I just wash my hands of it and say, “See you later.” Which is not ideal at all. So if we stand in the list till 10 am, so the father can contemplate what he wants to do. The mother has heard the discourse which arose out of your line of – your objection to where the ICL is going. So she should have some sense that there’s an issue, but there may not be an issue. I don’t know. But I also appreciate your position It’s not ideal either. Which may well mean that we have a discrete – we either run the trial, which I appreciate you’re likely to oppose, we have an interim hearing instead. But I can’t necessarily just discount, if – if someone is changing their position and it’s premised on best interest. Then I’m stuck, I would have thought.
[COUNSEL FOR THE MOTHER]: Well, with the greatest respect – no, your Honour.
[THE PRIMARY JUDGE]: .....
[COUNSEL FOR THE MOTHER]: Your Honour does have procedural fairness - - -
[THE PRIMARY JUDGE]: Yes. Sure.
[COUNSEL FOR THE MOTHER]: - - - matters to consider and - - -
[THE PRIMARY JUDGE]: That’s right, which is why it might be that I go – okay. I don’t want to do this, but we will have an interim hearing.
[COUNSEL FOR THE MOTHER]: And certainly. And then the mother would have to just have that opportunity, as your Honour knows.
[THE PRIMARY JUDGE]: Sure. Absolutely.
[COUNSEL FOR THE MOTHER]: And that’s – I need the opportunity to contemplate the position, which is why I was so surprised by and objected to - - -
[THE PRIMARY JUDGE]: Sure.
[COUNSEL FOR THE MOTHER]: - - - the line of questioning - - -
[THE PRIMARY JUDGE]: Yes.
[COUNSEL FOR THE MOTHER]: - - - where your Honour would know that the children were spoken to on Friday, and I heard what fell from the court about not requiring the ICL to have a position at the beginning, but certainly, it wouldn’t go past your Honour that the ICL circulated a minute and formed a view after that interview. And it also wouldn’t be – go past your Honour that there are no orders requiring my client to provide these .....
[THE PRIMARY JUDGE]: Sorry. There’s no order as - - -
[COUNSEL FOR THE MOTHER]: There are no parenting orders in this matter. Yet.
[THE PRIMARY JUDGE]: Yes.
[COUNSEL FOR THE MOTHER]: It’s a very difficult situation, and I don’t envy your Honour’s deliberations.
[THE PRIMARY JUDGE]: I don’t envy your position either. You’ve just been thrown a bomb.
[COUNSEL FOR THE MOTHER]: I appreciate .....
[THE PRIMARY JUDGE]: Potentially, it may be that we might be talking about nothing. I don’t know what’s going to happen.
[COUNSEL FOR THE MOTHER]: I really hope so, but I am concerned, your Honour.
[THE PRIMARY JUDGE]: Yes, your Honour.
[COUNSEL FOR THE MOTHER]: And I don’t know where I stand on any such application.
[THE PRIMARY JUDGE]: No.
[COUNSEL FOR THE MOTHER]: But I do have concerns about what the father has heard - - -
[THE PRIMARY JUDGE]: Yes. Okay.
[COUNSEL FOR THE MOTHER]: - - - and how that might influence - - -
[THE PRIMARY JUDGE]: All right.
[COUNSEL FOR THE MOTHER]: - - - his conduct of his case.
[THE PRIMARY JUDGE]: Thanks, [counsel for the mother]. [Counsel for the ICL], are you available on Friday, if that becomes an issue?
[COUNSEL FOR THE ICL]: I am, as is my instructor.
[THE PRIMARY JUDGE]: Yes. Good. Okay. Thanks, [counsel for the ICL]. So, [counsel for the father], if I made a direction that, if your client – that your client – sorry. Withdraw that. That by 9 o’clock tomorrow morning, your client is to at least – your client is to inform the other parties to these proceedings about what, if any, change to his relief he’s – I should say, I don’t even know the pronouns. So is your client a he and a his?
[COUNSEL FOR THE FATHER]: He most certainly is, your Honour.
(Transcript 19 November 2024, p.111 line 1 to p.112 line 45) (Emphasis added)
Counsel for the mother expressly identified the fine and difficult balancing exercise thrust upon the primary judge, with the primary judge acknowledging the challenges confronting the mother.
On the morning of 20 November 2024, the father provided a minute of order seeking interim and final orders that the children live with him. The mother made an application for an adjournment.
The primary judge identified that if there was an adjournment it may be that the mother might want to adduce further evidence in chief because the case had changed dramatically (Transcript 20 November 2024, p.4 lines 36–38). Counsel for the father and the ICL agreed that the mother ought to have the opportunity to adduce further evidence in chief (Transcript 20 November 2024, p.4 line 46 to p.5 line 6). The primary judge then enquired as to further evidence the mother may propose to adduce. The mother identified potential expert evidence as to the impact on the quality of her parenting capacity, the impact on the relationship with the children should the relief sought by the father be granted, and evidence of psychologists regarding how to scaffold and support the children (Transcript 20 November 2024, p.5 line 41 to p.6 line 2). The mother said she would need to time to obtain that evidence and assess it (Transcript 20 November 2024, p.6 lines 42–43).
In a discussion about an adjournment of the trial for completion until January, counsel for the mother confirmed such adjournment would accommodate the mother, implicitly to consider and adduce any further evidence as she considered appropriate (Transcript 20 November 2024, p.12 lines 1–23).
At the hearing of the appeal the mother submitted that the primary judge encouraged, and implicitly supported, the ICL and the father amending their positions to seek for the children to live with the father. I do not accept that a reading of the whole of the transcript supports either conclusion.
This parenting trial, as can be the case, was a particularly fluid and dynamic process. The primary judge was aware of the difficulties confronting the mother’s counsel being “thrown a bomb” (Transcript 19 November 2024, p.112 lines 8–9), “the bomb” (by reference to the reasons delivered 22 November 2024) being Exhibit ICL3, and not the father’s amended relief.
The transcript records the primary judge’s repeated confirmation as to considerations of fairness (Transcript 19 November 2024, p.105 lines 22–31, p.106 lines 16–18, p.108 lines 15–22, and p.110 lines 1–35) including impelling the father to pin his colours to the mast if he was to amend his relief sought and making orders and listings to ensure that all parties had the opportunity to adduce further evidence-in-chief, a capacity to test that evidence and make submissions, as they considered appropriate.
I do not accept the construction of the transcript as identified by the mother establishes that the primary judge did not remain detached from the contest and that the trial was accordingly unfair. The mother has not established, in the circumstances of this case, that the primary judge was leading or directing the case.
The primary judge properly and appropriately progressed the evidence as it unfolded and evolved in response to matters raised by the ICL and the parents. The primary judge then in turn identified the matters that required adjudication and determined those issues in the trial as they arose in an orthodox way, engaging in exchange with the advocates as to the management of the trial and ensuring that each party had an opportunity to be heard, prior to determining those matters. What the mother has identified in the transcript does not go any further than active case management identified by the High Court in Johnson and as prescribed by Div 12A of Pt VII of the Act. The primary judge could not, in the circumstances of this case, sit like a sphinx.
Ground 1 fails.
Ground 2 – “There was a reasonable apprehension that the Trial Judge’s decision was affected by bias by the Trial Judge’s conduct and that apprehension was revived in the judgment to cause the actual decision to be tainted by pre-judgment or bias.”
The test for apprehended bias is whether “a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 (“Ebner”); see also Charisteas v Charisteas (2021) 273 CLR 289).
As is well established, application of the doctrine of apprehended judicial bias involves two steps (Ebner at 345). First, an appellant must identify what it is said might lead a judge to decide a case other than on its legal and factual merits. Secondly, they must articulate a logical connection between the identified conduct and the feared deviation from impartiality.
Contentions are insufficient to establish apprehended bias. Apprehended bias must be firmly established (Bienstein v Bienstein (2003) FLC 93-124).
The mother relied upon the same matrix of conduct identified in Ground 1 to establish a reasonable apprehension of bias during the trial. It was submitted that the way in which the primary judge raised the issue of a change of with whom the children would live and the primary judge’s canvassing of the interim hearing at a time when no change of the live with application had been made by any party, could be seen as conduct creating an apprehension of bias being indicative of a concern as to the primary judge forming a view as to with whom the children would live with which was not open to persuasion.
The mother accepted that, as no application for disqualification of the primary judge was made during the trial, her capacity to raise apprehended bias was waived (see Vakauta v Kelly (1989) 167 CLR 568 (“Vakauta”)). As to Ground 2, she contends that the apprehension of bias was revived in the judgment (Vakauta at 573). Her Summary of Argument records:
55.The biased conduct will be revived if the reasons “have the effect of conveying an appearance of impermissible bias in the actual decision to a reasonable and intelligent lay observer.”
56.Whilst the Trial Judge makes a number of findings in relation to the [mother’s] conduct, she does not engage with the [mother’s] case.
57.Counsel for the [mother] made detailed submissions to the Trial Judge (T586 to 600).
(Footnote omitted)
The revival of the apprehension by way of the reasons was said to be the failure of the primary judge to “fully consider” the mother’s case by not engaging with her submissions made at the conclusion of the trial in the reasons, demonstrating that the primary judge had a closed mind to the mother’s case.
The identified matters subject of complaint are as to the father smacking X, the “interpretation given to [Exhibit] ICL3” and that only one option of a number of options or recommendations identified in the evidence of the Family Report writer was considered.
Apprehended bias aside, reliance on a failure to take into account a relevant consideration of the character as contended by the mother, if established, would reveal error of the type identified in House v The King. It would not, by orthodox principle, generate an apprehension of bias.
In any event, findings were made as to the prospective risk to the children in the father’s care (see Ground 5), as to Exhibit ICL3, and as to the other evidence regarding the children’s views (see Grounds 3 and 6). The range of the recommendations of the Family Report writer are recorded and considered in the reasons (at [7(g)], [46], [61], [81], and [86]), including that promoted by the mother and not accepted by the primary judge.
The particulars identified to underscore the ground are, in reality, complaints as to weight masked as bias. They are not matters that might cause a fair-minded lay observer to reasonably apprehend a primary judge might not bring an impartial and unprejudiced mind to the resolution of the case.
Ground 2 encounters other challenges. The mother failed, by way of Ground 1, to establish that the primary judge raised, encouraged, or implicitly supported the father’s change of residence application. An apprehension as to bias cannot be revived by way of the judgment if it is not established during the trial.
A consideration of the accumulation of the conduct of the primary judge as identified in Ground 1 and the reasons fails to establish an apprehension that the primary judge would not decide the parenting dispute other than on its merits. The reasonable lay observer considering the matters identified in the transcript and reading the reasons for judgment would have an understanding as to the actual circumstances that led to the context of the change in relief sought by the father and the ICL and the progression of the determination of that parenting dispute.
The ground fails.
Ground 3 – “The [mother] was denied procedural fairness when the [father’s] application was amended to include an order that the children reside with him and a mistrial ensued by the appellant:- (a) Having prepared her case for trial on the basis that the primary justiciable issues between the parties was the question of parental responsibility and time. (b) Loss of the opportunity of obtaining further expert evidence before the trial. (c) Made forensic decisions as to relevant evidence (d) Made forensic decisions as to the admission of evidence such as exhibit ICL 3. (e) The trial proceeding in a way which was inherently unfair.”
Procedural fairness only requires each party to be given an adequate opportunity to be heard, and to present their cases (Kioa v West (1985) 159 CLR 550 at 582), being directed to the procedure of the hearing, and not the fairness of the outcome (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]). It is only the opportunity to present evidence and argument that the interest of justice requires, not the actuality of it.
As to sub-ground (a), the challenges presented in the conduct of the trial are recorded earlier in these reasons. Notwithstanding the strength of the submission that the mother had prepared her case based on issues as to parental responsibility and time, her capacity and desire to facilitate a relationship between the father and the children was a basal integer of these issues. The subsidiary factual disputes in the proceeding were always disputed issues in the proceeding.
As to sub-grounds (b) and (c), as identified in the chronology of the trial, directions were made on 20 November 2024 giving both parties opportunities to adduce further evidence for the purposes of both the interim hearing and the trial. The mother accepted these opportunities by way of a proof of evidence relevant for the purposes of the interim hearing (Exhibit M7). It was considered for the purposes of the trial. She adduced her own further affidavit evidence filed on 6 January 2025 and adduced further evidence from the children’s psychologist, Ms B. She also had ample time and opportunity to apply for an adjournment of the trial on or before 13 January 2025, or to seek leave (if necessary) to adduce further evidence from experts including from her own treating practitioners, or by way of seeking to further cross-examine the Family Report writer on 13 January 2025. The mother cited a contended lack of opportunity to give evidence as to the “deluge of text messages” between she and X during her spending time with the father at Christmas 2024/2025 (at [59] and [60]), found to be a consideration as to the mother’s ability and willingness to facilitate and support X spending time with the father. The mother had the opportunity to give evidence-in-chief giving context to the messages, to cross-examine the father as to their content, or seek to question the Family Report writer as to their subject matter. She elected not to do so. The complaint has no merit. On any view the mother had the opportunity to adduce, or apply to adduce, evidence she considered appropriate.
As to sub ground (d), in so far as it is a retrospective complaint as to the admission of Exhibit ICL3 into evidence, the mother on appeal is bound by her conduct at trial (Metwally v University of Wollongong (1985) 60 ALR 68 (“Metwally”).
Further, the foundation of the complaint of the mother is otherwise grounded from a false premise. On appeal the mother had asserted that the finding that Exhibit ICL3 was “an accurate recording of the children’s views” was not open on the evidence (Ground 4 as withdrawn). That was not the finding of the primary judge. The primary judge found Exhibit ICL3 was an accurate recording of the interview. The ICL was not required for cross-examination by the mother as to the context of, or content of, Exhibit ICL3. Counsel for the mother cross-examined the Family Report writer on the contents of Exhibit ICL3 on 21 November 2024. As to the children’s views, the primary judge considered:
How should I treat the children’s views?
39 Impartial evidence of the children’s views has been gathered from the family report, discussions held between them and the Independent Children’s Lawyer (‘ICL’) in November 2024 (just before the trial was to commence), and the tendered business records of various persons.
40 Exhibit ‘ICL 3’ is accepted by me as being an accurate recording of the interviews between the children and the ICL. There was nothing to suggest that I should discount any of the other impartial evidence mentioned above.
(Footnote omitted) (Emphasis added)
The Family Report writer’s evidence was, as contained in her report, prepared at a time when both parties sought that the children live with them (at [41]) and was the subject of cross-examination at trial (at [42]). The business records of various persons were from treating therapists. The reasons also record evidence from the mother as to the children’s views. The mother made submissions as to the reduced weight to be attributed to Exhibit ICL3 (Transcript 13 January 2025, p.176 lines 32–33). The conclusion as to the children’s views are balanced and weighed by the primary judge (at [41], [45], and [48]).
The contentions as to any failure to afford the opportunity to put on further expert evidence, or make any forensic decisions, as to Exhibit ICL3, are specious. This particular, as to a failure to afford fairness, is misconceived.
As to sub-ground (e), the mother’s Summary of Argument did not provide any particulars to support the broad assertion contended by way of the sub-ground, except that the balance of her submissions at the hearing of the appeal echoed the complaints made by way of Ground 1. It has no merit.
Ground 3 is not established.
Ground 5 – “The Trial Judge erred in fact in finding that the Appellant posed an unacceptable risk of harm to the children (paragraph 52 of the Judgment) that finding not being open on the evidence.”
The finding under challenge is:
52 I am satisfied that the mother poses an unacceptable risk of harm because there is a material possibility that the children’s emotional and/or psychological safety will be imperilled through her actions.
The finding under challenge as to the assessment of risk and its magnitude being unacceptable is an evidence-based conclusion informed by historical factual findings. It is not the product of an exercise of discretion (Isles & Nelissen (2022) FLC 94-092 (“Isles”) at [85]). Flowing from that seminal finding is the consequential finding that the children needed protection against the risk.
The ground does not challenge the findings as to the amelioration of that risk.
Notwithstanding, the Summary of Argument of the mother directed submissions in support of the ground by either a challenge of inadequate reasons, a discretionary error by way of a failure to take into account a relevant consideration, or as to weight. At the hearing of the appeal the mother confirmed that the ground is by way of an error of fact and no other appellate challenge.
To establish this ground, the finding of fact subject to challenge must be demonstrated to be not open on the evidence (Edwards v Noble (1971) 125 CLR 296).
The mother’s Summary of Argument did not comply with any part of r 13.23 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The rule provides:
13.23 Summary of argument and list of authorities
…
(3) If a party intends to challenge any findings of fact, the summary of argument must:
(a) identify the error (including any failure to make a finding of fact); and
(b) identify the finding that the party contends should have been made; and
(c) state concisely why the finding, or failure to make a finding, is erroneous; and
(d) refer to the evidence to be relied on in support of the argument (including any reference to the relevant pages of the appeal book and transcript).
(Emphasis added)
The evaluative prospective conclusion under challenge at [52] is derived from a culmination of subsidiary and intermediate findings (Isles) as recorded earlier in these reasons, not subject to challenge on appeal at [18], [20], [33]–[38], [45], [47]–[51], [55]–[69], [79]–[82], [85]–[88].
For the sake of completeness, so as to engage with the mother’s submission on appeal in support of this ground, she identifies one portion of the evidence of the Family Report writer, being that the difficulty in the relationship between the mother and X could resolve once the litigation is finalised. The Family Report provided:
153. The writer’s preference, all other things being equal, would be for the children to live with the mother. This is because such an arrangement promotes the greatest opportunity for stability for the children, as it is representative of the status quo. This preference, however, only remains in place if the Court is convinced the mother will facilitate the children having a meaningful relationship with the father and if there are no concerns about the mother’s use of alcohol.
(Footnote omitted)
The mother does not engage with the following finding of the primary judge:
61 Reflecting on paragraph 153 of the family report – I am satisfied that active changes to this dysfunctional system need to occur to protect the children from this dynamic otherwise, the children’s emotional and/or psychological safety will be significantly damaged.
As recorded earlier in these reasons, the primary judge, having weighed the opinions of the Family Report writer with the balance of the other evidence, concluded that the unacceptable risk of harm to the children if they continued to live with the mother could not be ameliorated by either the conclusion of these proceedings or the regime as proposed by the mother, finding that “despite [the mother’s] best efforts, the dyadic relationship endures” (at [79]).
Factual findings are not wrong “merely because an appellant can point to some countervailing evidence” (Cizek & Mihov (2024) FLC 94-206 at [21]). The mother did not point to anywhere in the Appeal Book or the transcript as to why the impugned finding of fact was demonstrably wrong by incontrovertible facts or uncontested testimony, was glaringly improbable, or was contrary to compelling inferences (Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550).
No appellate error is made out. Ground 5 fails.
Ground 6 – “The learned Trial Judge erred in law by failing to consider the mandatory considerations in s 60CC and therefore fell into error.”
The Further Amended Notice of Appeal did not contain any particulars as to this ground. The extent of the Summary of Argument in support of the ground was:
100. The Trial Judge failed to properly consider, in particular, Section 60CC(2)(d).
101.The [mother] made a number of submissions in relation to the capacity of the [father] to provide for the children’s needs.
102.That evidence supporting those submissions will be developed in oral submission.
At the hearing of the appeal, the mother obtained leave over objection to amend the ground to provide further particulars, contending that the primary judge also failed to consider ss 60CC(2)(b), (c), and (f) of the Act. Those subsections are:
60CC How a court determines what is in a child’s best interests
…
General considerations
(2) For the purposes of [considering what is in the best interests of the child], the court must consider the following matters:
…
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
…
(f) anything else that is relevant to the particular circumstances of the child.
At the hearing of the appeal the mother confirmed that the ground was not a complaint as to inadequate reasons and was not a discretionary failure as identified in House v The King. The ground was expressly directed to a failure to apply the legislation. Notwithstanding, as will be seen, the submissions made at the hearing of the appeal in support of the ground resonated as discretionary challenges.
The primary judge, unchallenged on appeal, identified the issues in dispute:
5 In broad scope, the issues for determination by me were:
•What are the children’s current developmental, psychological and/or educational needs?
•How should I treat the children’s views?
•What is the nature of the children’s relationship with the father?
•Does the mother pose an unacceptable risk of psychological harm and/or emotional harm to the children?
•Do the parents pose a risk of harm to the children through exposure to parental conflict?
•Can the parents communicate with each respectfully, co-operatively and/or effectively?
•What would be the impact upon the children arising from each party’s proposal?
The first enquiry was whether there was objectively an unacceptable risk of harm to the children, and if there was, for the Court to take steps proportionate to the degree of risk (Bielen & Kozma (2022) FLC 94-123 at [51] citing Helbig & Rowe [2016] FamCAFC 117 and A v A (1998) FLC 92-800). The consideration of s 60CC(2) factors is undertaken through this prism.
The requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion (SCVG & KLD (2014) FLC 93-582). The contention as to a failure to “properly consider” is, in reality, directed to the weight placed on different evidence by the primary judge. That an appellate court might have given them some, less, or more weight does not establish error of the kind identified in House v The King unless the outcome is unreasonable or plainly unjust, which is not contended to be the case here (Hedlund & Hedlund (2021) FLC 94-065 at [37]).
At the hearing of the appeal the father submitted that the mother did not contend before the primary judge that he had a diminished parenting capacity. To the extent the mother’s submissions in support of the ground are outside the case she conducted before the primary judge, she ought not be able to raise such an issue on appeal (Metwally).
As to s 60CC(2)(b), the mother submitted that the primary judge focused on the views of X, and that Y’s wishes were not considered in the judgment. She submitted that [64] is not reflective of Y’s views, being:
For [Y], she is already aware of her sister’s torment and feels helpless to stop it and so she too, may follow in her sister’s footsteps and reject her father because she knows that will mean that she can stay with her sister and be seen to support her sister’s position.
(Footnote omitted)
The primary judge had considered the views of each X and Y as contained in the Family Report (conducted at a time when each of the parents sought for the children to live with them) (at [39], [41], [66], and [67]). The children’s views are further considered in the reasons at [44], [45], [50], [63], and [79]. The s 60CC(2)(b) particular was always forlorn.
As to s 60CC(2)(c), the mother contended that no assessment was undertaken as to a consideration of factors such as “how they’re going at school, where they’re going to school next year, what sort of support they’re going to get in each household”. The reasons reveal that the primary judge expressly considered the developmental, psychological, and emotional needs of the children (at [33]–[38]), including that X is an anxious child (at [33]) not the subject of diagnosis and had “somewhat fluid views about which high school to attend, and that none of these expressions related to a high school close to the father’s home” (at [34]), that Y has been diagnosed with dyslexia and is supported by a private tutor and literacy program at School J (at [36]), and that a change in residence meant the children would have to change school (at [78]). The children’s emotional needs are considered at [87], [95], and [99]. The particular does not have merit.
As to s 60CC(2)(d), the capacity of either parent was determined through the lens of the assessment as to unacceptable risk and its mitigation. Nevertheless, the particular has no merit. The primary judge made findings as to the father’s capacity at [7(a)], [7(g)] (accepting the opinions of the Family Report writer), [10], [15], [19], [20], [22], [31], [46] (again, accepting the opinions of the Family Report writer), [47], [49], [50], [65], [76], [88], and [90]. The primary judge’s findings as to the mother’s capacity are at [18], [20], [55], [56], [68], [71]–[74], [85], and [87]. The particular fails.
As to s 60CC(f), the particular was difficult to distil. If I understood the submission correctly, the mother said that the primary judge did not consider her submission that the change of residence from the mother to the father would be a “seismic” change (Transcript 13 January 2025, p.180 lines 25–26). The particular can be dealt with in short compass. The primary judge was expressly cognisant of the contention that such a change would be “seismic” but did not accept it would be “catastrophic” (at [77]), and acknowledged that such a change would require the children to relocate 90 minutes from their current residence, renew or find new friendship ground, and attend a new school (at [78]). The primary judge balanced the risk of emotional harm caused by upending the status quo with the unacceptable risk to emotional and potentially psychological safety by keeping the status quo in place (at [87]). The ultimate determination that the children were to live with the father (at [89]) is scaffolded through restraints, other mandatory orders as to international travel, orders as to communications between the parents and third parties, for the provision of the reasons for judgment to each of the children’s treating practitioners, psychologists, or counsellors and for the regime to be facilitated and supported by professionals who are aware of the dynamics in the family.
Ground 6 as amended has no merit. It fails.
CONCLUSION
The appeal, as amended, fails. It will be dismissed.
COSTS
In the event the appeal was unsuccessful, both the father and the ICL sought the mother pay their costs fixed in the sum of $34,175 and $4,290 respectively.
The relevant principles as to costs are well settled. While the starting position established by s 117(1) of the Act is that each party pays their own costs, s 117(2) allows the Court to make such orders as to costs as it considers just if there are circumstances which justify it doing so. In considering what order for costs, if any, should be made, the Court is required to have regard to the matters set out in s 117(2A) of the Act and give weight as it considers appropriate to any relevant factor. It is well settled that no single factor in s 117(2A) has priority, nor must more than one factor be satisfied. Rather, any one factor may be sufficient.
The mother opposed the orders for costs, submitting that each party should pay their own costs. The mother identified that on 6 March 2025 she was ordered to pay the costs of the father of $7,000 and the costs of the ICL of $1,479 on her stay application being dismissed. No other submission was made as to the financial circumstances of the mother or the father.
The mother has been wholly unsuccessful in the appeal. The circumstances justify an order for costs.
In the event costs were ordered against her, she did not dispute the quantum sought by either the father or the ICL. An order will be made for the mother to pay the father’s costs fixed at $34,175 and the ICL’s costs fixed at $4,290, within 28 days.
I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 23 May 2025
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