Zuen & Lhao

[2020] FamCAFC 84

FAMILY COURT OF AUSTRALIA

ZUEN & LHAO [2020] FamCAFC 84

FAMILY LAW – APPEAL – PARENTING – FAMILY VIOLENCE – Appeal by mother against parenting orders providing for the parties’ teenaged child to live with the father – Where family violence alleged by the mother and generally denied by the father was a central issue at trial – Where the primary judge failed to indicate whether he accepted or rejected much of the mother’s evidence – Findings of fact – Inadequacy of reasons – Role model – Where expert evidence of the risk of psychological harm to the child in the father’s care went unremarked – Best interests of a child is a comparative evaluation – Relevant considerations – Appeal allowed – Matter remitted for rehearing – Independent Children’s Lawyer and engagement with the child.

FAMILY LAW – APPEAL – COSTS – Costs certificates issued to the mother and the Independent Children’s Lawyer for the appeal and to all parties for the rehearing.

Family Law Act 1975 (Cth) ss 60CC(2), 60CC(2)(b), 60CC(2A), 60CC(3)(j), 60CC(3)(k), 60CG and 68LA(4)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8 and 9
Family Law Rules 2004 (Cth) r 22.13

A v A (1998) FLC 92-800; [1998] FamCA 25
Amador v Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196
B and B (1993) FLC 92-357; [1993] FamCA 143
B & K [2001] FamCA 880
Bant & Clayton (2019) FLC 93-924; [2019] FamCAFC 198
Blanch v Blanch and Crawford (1999) FLC 92-837; [1998] FamCA 1908
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
JG and BG (1994) FLC 92-515; [1994] FamCA 160
Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46
M v M (1998) 166 CLR 69; [1988] HCA 68
Patsalou and Patsalou (1995) FLC 92-580; [1994] FamCA 118
Sahrawi & Hadrami (2018) FLC 93-857; [2018] FamCAFC 170

APPELLANT: Ms Zuen

RESPONDENT: Mr Lhao

INDEPENDENT CHILDREN’S LAWYER: Phillip A Wilkins & Associates

FILE NUMBER: SYC 6260 of 2017

APPEAL NUMBER: EAA 61 of 2019

DATE DELIVERED: 17 April 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney (via videolink)

JUDGMENT OF: Ryan, Aldridge & Stevenson JJ

HEARING DATE: 3 April 2020

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 5 June 2019

LOWER COURT MNC: [2019] FamCA 314

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Jackson

SOLICITOR FOR THE APPELLANT: Sharah & Associates Solicitors

THE RESPONDENT: In person (by telephone)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Fermanis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Phillip A Wilkins & Associates

Orders

1. The appeal be allowed.

2. The orders dated 5 June 2019 be set aside.

3. The proceedings be remitted for rehearing before a judge of the Family Court of Australia other than the primary judge.

4. There be no order as to costs.

5. The appellant be granted a costs certificate pursuant to the provision 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 in respect of the costs incurred by them in relation to the appeal.

6. The Independent Children’s Lawyer be granted a costs certificate pursuant to the provision 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 Independent Children’s Lawyer in respect of the costs incurred by them in relation to the appeal.

7. The appellant, respondent and Independent Children’s Lawyer be granted costs certificates pursuant to the provision 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 parties in respect of the costs incurred by them in relation to the rehearing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 61 of 2019
File Number: SYC 6260 of 2017

Ms Zuen

Appellant

And

Mr Lhao

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. By Notice of Appeal filed on 3 July 2019, Ms Zuen (“the mother”) appeals against parenting orders made on 5 June 2019.  The orders relate to the parties’ son, X (“the child”) who was born in July 2006.  Mr Lhao (“the father”) is the child’s father and the respondent to the appeal.  He seeks to uphold the orders.  An Independent Children’s Lawyer (“ICL”) was appointed to represent the child’s interests at trial and in the appeal.  The ICL supports the mother’s appeal and agrees with her that the orders should be set aside and the proceedings remitted for rehearing before a judge other than the primary judge.

2. The orders of the primary judge provide that the father have sole parental responsibility for the child, the child live with him and spend time with the mother as may be agreed between the parties or at the initiative of the child. At the time of the hearing, the child lived with the father and did not spend time or communicate with the mother. The order that the child continue to live with the father was in accord with the child’s views. It was uncontroversial that while the child lived with the father, the child’s relationship with the mother fractured and the child was led to believe that his mother abandoned him and he was now “implacably opposed” to any form of contact with the mother [145]. However, in the father’s care, the child was “apparently achieving well”, at least academically [145].

3. The primary judge was concerned that an order for the child to live with the mother as proposed by her, the ICL and the single expert, Dr B, “could be dangerous” if the child took matters into his own hands; which we understand to be concern that the child might run away [145]. In addition, his Honour was not satisfied that the mother had accommodation suitable for them both.

4. Although the primary judge did not explain his reasons for the order as to time, with history as a guide, there was no basis upon which his Honour could have been satisfied that for so long as the child lived with the father, the child would have any contact or a relationship with the mother.  Apart from the wealth of evidence to this effect, the father’s offensive statement at the commencement of the trial demonstrates the point.  The father said:

   THE INTERPRETER ([FATHER]): I hope the orders be that my son suffer no more abuse. I respect what the court wants to do in this regard and also – I also respect what my son wants to do. I will have nothing to say if, eventually, my son decides to live with his mum, but she is a very extreme radical character who relies – whose livelihood relies on abuse and manipulation and deception, should be – which means she should be subject to the criticism of the entire humanity and the entire society and - - -

   …

   THE INTERPRETER ([FATHER]): I always emphasised that I will respect what the court wants. I’m certain that the court would not put my child at the hands of someone who is – who craves for abuses. A liar. Unfit to take care of children.

   (Transcript 15 April 2019, p.3 line 20 to p.4 line 22)

5. It is useful to record at the outset that the parties separated on 20 May 2016 at which time the mother and child left the family home.  It was uncontentious that hitherto the mother had been the child’s primary carer and was the child’s primary attachment figure.  The mother, who was born in Country Z, did not have family in Australia and at separation, had no support network and little understanding of the legal and social services available to women on separation or victims of family violence, which she is.  With limited English language skills, the mother struggled to establish herself and post‑separation, she moved from refuge to refuge.

6. Notwithstanding a serious assault by the father on the mother on 1 June 2016, for which the father was convicted of assault occasioning actual bodily harm, the mother facilitated contact for the child with the father, with changeover at the R Organisation.  Thus arrangements were made for the child to have dinner with the father on 23 June 2016.  After the father collected the child he telephoned the mother and told her that he would not return the child to her at the R Organisation and for her to meet him later that evening at a library.  The mother did not feel safe meeting the father alone at night and she declined.  Despite her entreaties, the father refused to return the child to her at the R Organisation.  The child has been with the father ever since.  It would seem that it is this incident which the father says is when the mother abandoned the child.

7. Without the child in her care, the mother no longer satisfied the requirements for her supported accommodation, and by September 2016 she was homeless.  In the meantime she sought advice concerning the return of the child which came to nought until in July 2017, when she saw a social worker attached to the NSW Legal Aid Domestic Violence Unit.  Equipped with a grant of legal aid, on 22 September 2017 the mother commenced proceedings in the Federal Circuit Court of Australia for orders that the child live with her and spend time with the father.

8. From when the father retained the child until the trial, the mother saw the child on four occasions.  None were arranged with the father and all involved the mother approaching the child unannounced.  Some went well and the latter two, in July 2017 and 2018 did not.  The mother and child have not seen each other since.  This is notwithstanding interim orders made on 1 November 2017 which provided that the child spend time with the mother each Wednesday afternoon and alternate weekends.  Family therapy was ordered in March 2018, but that too did not occur.

9. An important feature of the mother’s case is that she is the victim of prolonged family violence, to which the child had been exposed.  Allied to this is her contention that in the father’s care, the child was and continues to be exposed to an unacceptable risk of psychological abuse.  The mother’s evidence and stance accords with the opinion expressed by Dr B.  Although the primary judge was satisfied that the father assaulted the mother on 1 June 2016, he did not make findings as to family violence and psychological abuse consistent with the mother’s case.  But nor was it rejected.  As we will shortly discuss, it is the mother’s contention that in important respects the primary judge failed to engage with her case or make necessary findings compelled by the evidence.

10. Dr B said the best outcome for the child is that he live with the mother, albeit neither outcome was without risk.  The point being that for the child, the road ahead was somewhat fraught.  Although an order that the child live with the mother would “cause him some short term psychological harm” it minimised the serious risk of long term psychological harm.  In answer to a question from counsel for the ICL, the single expert explained that if the child remained living with the father:

    [DR B]: Well, I think, obviously, it will result in the complete severing of the relationship with his mother, so he will lose his mother and his mother’s family. He is of the belief that his mother psychologically abused him, or physically abused him, sorry, and psychologically abused him, and that belief will remain intact if he remains with his father. The other concern is that I see, and certainly the notes from other professionals would suggest also, that [the child] is now a child who struggles to talk about his emotions; struggles to communicate about what is happening for him. It seems that he has been put in situations where he has been forced to tell people certain this [sic] about his mother and his father. And I’m – my fear is that he will continue to shut down psychologically as time goes on as a result of those experiences, and therefore, that’s where the – what you were alluding to before, in terms of the long-term difficulties with relationships, obviously, will unfold. So my fear is that we will have a child who grows into an adult who struggles with emotions, who has difficulties communicating about what’s happening for him, and that will impair his ability to cope with normal life events.

    (Transcript 15 April 2019, p.25 lines 29–43)

11. At this juncture we should explain that this appeal has taken longer to come on for hearing than the ordinary course because the mother failed to file her Draft Appeal Index in time and by the operation of r 22.13 of the Family Law Rules 2004 (Cth) (“the Rules”) her appeal was deemed abandoned. On an application by the mother, an order to reinstate her appeal was made on 4 September 2019.

The grounds of appeal

1. Before considering the grounds in detail, it needs to be understood that this is an appeal against the exercise of discretion to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court only on matters of weight by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).

2. The mother presented 14 grounds of appeal, the particulars of which were expanded on in her Summary of Argument filed 26 November 2019.  Before us, counsel for the mother distilled what was said to be the pivotal grounds of appeal to the propositions now set out.  Namely, that the primary judge erred:

   ·by failing to make findings concerning the mother’s evidence of extensive family violence and to consider the effect on the child of growing up under the care and tutelage of a violent role model;

   ·by failing to consider and analyse an essential integer of the mother’s case; namely the immediate and long term damaging effect on the child of him living with a psychologically abusive parent (the father);

   ·having failed to consider these matters, his Honour’s conclusion as to the best interests of the child is flawed as it did not balance the factors which weighed in favour of the orders made with important factors that weighed against the orders made; and

   ·in giving reasons which are insufficient.

3. If these matters are established, it is unnecessary and undesirable to consider the remaining grounds of appeal.  This is because, subject to one issue, the remaining grounds raise questions of fact that are best left for the judge on remitter without comment by us.

4. The other issue concerns the mother’s contention that once a court determines that a parent poses an unacceptable risk to the child of any type, the child cannot remain with that parent.  Before us counsel for the mother agreed that this contention misstated the law, which remains as stated in M v M (1998) 166 CLR 69 at 78 (“M v M”).  There, the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:

   Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. …courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   (References omitted)

5. Although it is accepted that the unacceptable risk test has been widely adopted and applied to issues other than sexual abuse (A v A (1998) FLC 92-800), as was said in Bant & Clayton (2019) FLC 93-924 at [39], it is to be remembered that the concept of “unacceptable risk” referred to in M v M was expressed within the framework of resolving “the wider issue” namely, what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (M v M at 76; B and B (1993) FLC 92-357). The point being that a finding as to an unacceptable risk of a different type of harm might not determine the outcome of the case, particularly where other risks with even potentially more serious adverse consequences for the child are established. Lest the latter point be misunderstood it is beyond dispute that in cases concerning the welfare of children, family violence and the effect of exposure to family violence must be considered and given weight (B & K [2001] FamCA 880 and the provisions cited at [19] below).

6. The effect of this is that Ground 2, cannot be sustained.

Family violence 

1. The issues raised in relation to family violence concern the approach taken to fact finding, the adequacy of the trial reasons and how family violence was treated in the final determination as to the best interests of the child.  We will consider these issues simultaneously and adopt the same approach when we come to consider the challenges raised concerning the risk of psychological harm.

2. The combined effect of s 60CC(2)(b) and s 60CC(2A), s 60CC(3)(j) and s 60CC(3)(k) and, s 60CG of the Family Law Act 1975 (Cth) (“the Act”) is that where there is evidence of family violence between a child’s parents and a risk of exposure to the child of family violence, that evidence must be considered, assessed and weighed appropriately. Indeed, even without statutory recognition of the importance of family violence in an application for parenting orders, the manner in which the mother and ICL presented their cases meant family violence was a central issue at trial that needed to be addressed. No one involved misapprehended that this was so and extensive submissions were made in relation to the issues. Family violence was examined by Dr B and there was substantial evidence on the topic.

3. Three witnesses were called in support of the father’s evidence that the mother perpetrated family violence against him and the child.  Those witnesses’ evidence was not accepted and, there is no complaint on appeal that it should have been.  Nor is any complaint made that the primary judge erred by failing to accept the father’s evidence on this topic.

4. As counsel for the mother acknowledge in the appeal, the primary judge recorded much of the evidence given about incidents of family violence, particularly that given by the mother or called in her case.  However, of the numerous incidents of family violence recounted by the mother, the primary judge only found in her favour in relation to violence that was witnessed by others and which the father admitted.  Namely, the assault of 1 June 2016.  Of that incident his Honour found:

   30.The mother returned to the family home on 1 June 2016 to collect a Medicare card.  On that date the father assaulted the mother, including hitting her with a vacuum bottle.  It was the father’s evidence that the child was not at home during that assault.  The father was subsequently convicted after pleading guilty to a charge of assault occasioning actual bodily harm.

   …

   72.The father assaulted the mother on 1 June 2016, causing her actual bodily harm.  [The child] lived with the mother in a refuge after the assault.  It is highly likely that [the child] was exposed to that assault, if only in the senses referred to in s 4AB (4)(c) and (e).

   …

   121.The mother says that on the morning of 1 June 2016 she had a conversation with the father in [Language Q] and arranged to attend at the apartment to collect a Medicare card, being assured that he would not be at the home.  However, the father was at home and he grabbed the mother by the hair and started dragging her towards the apartment.  The mother ran towards the lift and the father chased her with a large metal thermos bottle.  The father started striking the mother on the head with the bottle.  He forced her hands away from her face and head and smashed the thermos repeatedly over her face and head.  The bottle became deformed, the lid fell off and water spilled over the mother and the floor.  The father again grabbed the mother’s hair and twisted it around his wrists before pulling her out of the lift.  The building manager and security staff arrived in another lift and the police were called.  Police told the mother that the father had been arrested.  The mother gave a statement and an ADVO was sought.  On 15 June 2016 a final ADVO issued against the father for the protection of the mother for a period of two years.  The mother did not give evidence in assault proceedings and she was not informed about the result of those charges.

   122.The father’s only concession about violence inflicted by him on the mother related to the events of 1 June 2016.  The father agrees that he was convicted of assault occasioning actual bodily harm after making a plea of guilty in respect of a charge arising out of the events of 1 June 2016.

   123.It is the mother’s evidence that she was terrified of the father during the incident on 1 June 2016, was extremely traumatised and continues to experience headaches and anxiety as a result of that assault.

   (As per the original)

1. His Honour understood that in the five years during which the mother was in contact with the Department of Family and Community Services, the only family violence of which they were aware was that perpetrated by the father towards the mother [80]. Furthermore, evidence was given by the single expert that the mother’s account of family violence was coherent and consistent with what is known about family violence and victims’ experience of it. Yet, and notwithstanding his Honour’s summary of the mother’s evidence of very serious and prolonged physical, verbal and psychological abuse (see [114]–[120]), the conflict between that evidence and the father’s denials was not resolved. That is to say, there are no findings that this violence did or did not occur and other than to record parts of what the mother said on the topic, that evidence plays no part in the evaluation of the case.

2. Blanch v Blanch and Crawford (1999) FLC 92-837 (“Blanch”) per Lindenmeyer J has received widespread appellate support and his Honour’s statement at 85,745 extracted below reflects the current law:

   …[W]here a case of sustained and severe domestic violence by one party is advanced by the other, the Court is obliged to give a clear indication whether it accepts or rejects that case and, in either event, to explain why it has reached that conclusion.

3. A party does not require his or her evidence to be corroborated before evidence of family violence can be accepted and positive findings made (Keating & Keating (2019) FLC 93-894). And where allegations of family violence and/or assault by one party of another have been made, it will be necessary for the court to make findings where the evidence enables that to be done (Amador v Amador (2009) 43 Fam LR 268; Sahrawi & Hadrami (2018) FLC 93-857). There are cases where, having addressed and considered all of the available evidence, the court cannot find that an alleged act of family violence was perpetrated. It seems to us that the mother’s evidence on this topic was able to support the findings for which she contended. As the trier of fact, it was the task of the primary judge to decide which evidence he accepted and which he rejected, but it was not open to him to fail to evaluate the mother’s evidence of family violence or to address the factual controversy.

4. It is accepted that a trial judge is not required to give reasons on every issue raised at trial.  Some can simply be put aside, for example, as inherently flawed or irrelevant.  But that is not the situation here.  Furthermore, the nature and extent of family violence and the risk to the child arising therefrom were fundamental to the mother’s case.  The single expert was very concerned about what these matters said about the father as a role model for the child.  As long ago as Blanch it was established that where family violence is identified as an issue, regardless of whether or not it is raised by those appearing, the question of the suitability of a violent parent as a role model requires consideration. 

5. These matters were also fundamental to the task of weighing up the advantages and disadvantages of each parties’ proposal, to the application of s 60CC(2) and the ultimate outcome (see also JG and BG (1994) FLC 92-515; Patsalou and Patsalou (1995) FLC 92-580) but do not feature. We agree with the mother and the ICL that the failure to deal with this highly relevant consideration and give reasons for the approach adopted amounts to appealable error.

Unacceptable risk of psychological harm

1. Pivotal to the mother’s case at trial is that the evidence, particularly hers and that of Dr B, established that if the child continued to live with his father “a multi[tude] of emotional and psychological horrors await [the child] in his life ahead” (mother’s Summary of Argument filed 26 November 2019, paragraph 13).  It is contended that the primary judge “did not conduct properly deliberate the evidence beyond merely quoting” and again failed to evaluate that evidence against evidence that weighed in favour of the outcome ordered (mother’s Summary of Argument filed 26 November 2019, paragraph 13).

2. As counsel for the mother acknowledged, at [82] the primary judge recorded Dr B’s analysis of this issue.  Relevantly at paragraph 134 of the Family Report dated 25 October 2018, set out at [82]:

   134....On the basis of the information available to me, I hold grave concerns for [the child], as similarly to the police’s view, it would seem that [the child] is being psychological manipulated by [the father] and has been aligned with (sic) and alienated from the mother.  Through this process, [the mother] has been actively excluded from [the child’s] life and maligned, in addition to [the child] being inappropriately involved in adult issues, including the family court process, such that he has now come to believe that his mother is responsible for the abusive behaviour in the home.

   135.On the basis of the aforementioned, I make the assumption that [the child] enjoyed a close and nurturing relationship with his mother during childhood but that this relationship is now been soured by the influence of his father, such that there is no tangible bond at present and has not been for some years.  It is likely that [the child] has felt a need to align with his father to this end in order to avoid the negative consequences of angering his father, which were probably demonstrated by [the child] witnessing his father’s violent abuse of his mother throughout childhood.  With respect to the bond between father and child, [the child] describes being comfortable with his father and wanting to live with him but he also told me the pair barely engages with or interacts with one another in the home and have nothing to say to each other.

   136.In sum, it is my opinion that [the mother] has been a committed and dedicated mother, who has prioritised her son’s needs but that she was rendered vulnerable by being exposed to reported domestic violence, being in a country without any external supports and without sufficient language skills and without a full understanding of her rights or the legal and child protection systems in this country.  [The father] has seemingly taken advantage of this and he continues to do so in all likelihood, including by possibly attempting to manipulate my assessment process in this case…

   (As per the original)

3. Of this, the primary judge said that “the evidence tends to support” the single expert’s observations that if the child remains with the father, “the father will cause psychological harm to him by continuing to denigrate the mother and to estrange [the child] from her” [83]. However, the single expert’s evidence went further than what his Honour accepted at [83] and included, as his Honour appears to accept at [98], that there was a risk that the child would become an adult who struggles with his emotions and coping with life events. But the single expert’s opinion went much further. This included the child having feelings of low self‑worth, poor self‑esteem, negative self‑talk and matters of that ilk (Transcript 15 April 2019, p.36 line 38). Furthermore, difficulties with later relational functioning particularly with close relationships and the ability to have mature reciprocal intimacy in relationships, sexual or otherwise (Transcript 15 April 2019, p.36 lines 43–45). Those risks were assessed as being “quite significant” long term risks (Transcript 15 April 2019, p.33 lines 23-24).

4. This was compelling expert opinion uncontroverted by other expert opinion.  It went unremarked in the trial reasons and forms no part of his Honour’s determination of the ultimate issue.

5. The conclusion that it was in the best interests of the child to remain in the father’s care is a comparative conclusion made after weighing the merits and contraindications for each proposal.  An evaluation of the merits of a conclusion of preference ultimately depends on the reasons on which it rests.  His Honour’s reasons do not demonstrate that he understood the full effect of the psychological harm to the child if he remained in the father’s primary, indeed exclusive care.  Perhaps this explains the failure to consider those matters when deciding that the child’s best interests were served by an order in favour of the father.  Whatever the reason, the failure to address this evidence and to then explain why it was or was not accepted and to then weigh it along with other highly significant matters is an error in fact finding, the process of reasoning and renders the ultimate conclusion unsustainable.

6. The effect of this is that these challenges are made out, the consequence of which is that the proceedings must be remitted for rehearing to be determined by another judge.

Conclusion and costs

1. The mother has established appealable error and the appeal will be allowed and the orders set aside.

2. We agree with counsel for the mother and the ICL that there is no option other than to remit the proceedings for rehearing.  We think it appropriate to observe that there were ways of resolving this extremely difficult case consistent with the primary judge’s conclusion as to the child’s best interests.  But that outcome was and is not a fait accompli.  There are significant factors which could sway the case one way or another.  The challenge on the rehearing will be to ensure that all relevant evidence and issues are considered before a conclusion as to the best interests of the child is determined.  To this end, we think that if it is at all possible, an urgent Family Report should be obtained (ideally from a family consultant or single expert experienced in parental alienation and family violence) and this hearing afforded priority.

3. It will be important that the ICL takes an active role in ensuring this outcome and particularly, it is important for him to engage with the child. As was said during the appeal hearing, we think his decision to not meet with the child during the currency of the proceedings below was regrettable, as was his decision to not confer with the child in relation to the appeal. Although the ICL is not obliged to act on the child’s instructions in the proceedings (s 68LA(4) of the Act), this does not mean that child is to be denied the opportunity to establish a professional relationship with their ICL. It is through this relationship that the child is given an important opportunity to receive an impartial understanding of the court process that affects them deeply. As well as giving the child another opportunity to participate (in addition to, for example, via a family report) in that process in a proper manner. For a clever teenager to be denied that chance falls below what is expected of ICLs. If such an approach was to become commonplace (which we trust it is not) it would inevitably undermine young people’s confidence in the justice system.

4. In the event that the appeal was successful, there is no application for costs; it being the common position that an order for costs would not be appropriate.  We agree.

5. The mother and the ICL sought certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for both the appeal and remitted hearing. The father, who was self‑represented in the appeal, did not seek a certificate for the appeal but joined in the application for a certificate in relation to the rehearing. The conditions for certificates are established and orders will be made accordingly.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Stevenson JJ) delivered on 17 April 2020.

Associate:

Date: 17 April 2020