Mother Opposes Final Parenting Orders
Berry & Andrews [2022] FedCFamC1A 120 (3 August 2022)
The mother filed an appeal from final parenting orders giving the father sole parental responsibility and changing the residence of the child from the mother to the father. The Court, in determining whether the appeal should be granted, assessed the primary judge’s reliance upon an academic article.
Facts:
The parties commenced a relationship and cohabitation in 2008 and separated about 2 years later in 2010. The only child of the relationship is [X] who was born on ... 2010. According to the chronology, that would be no more than 6 months prior to the final separation. By reference to orders made in 2012 and 2014, the child has lived with and spent time with each parent for a considerable amount of her life, until early 2020.
In December 2019 the child commenced spending time with the Father in accordance with the then current (and almost over 5 years old) court order, for the child to spend the first half of the 2019 Christmas school holidays with the Father. On 5 January 2020 which was when the child would return to the Mother for the commencement of the second half of the 2019 school holidays, the Mother refused to accept the return of the child and ceased communication with her. In 2020 arrangements were made for the child to spend time with the Mother on the child’s birthday, those arrangements being prompted by the child contacting the Mother.
The Mother refused to return the child to the Father and/or to comply with the order dated 28 May 2014 (the then current order) regarding the child spending time with the Father. In around mid-2020, the Mother removed the child from school, enrolled the child in [distance education], and left the [City B] area for a lengthy period to go on a road trip with the child and the Mother’s son. Ultimately the Mother and the children were in the Northern Territory. On 17 December 2020, the Father commenced contravention proceedings.
The contravention related to the child not spending any time with the Father for in excess of 6 months, contrary to the 28 May 2014 order. The Father commenced the current proceedings by filing an Initiating Application (Family Law) on 16 February 2021. The primary judge made final parenting orders giving the father sole parental responsibility and changing the residence of the child from the mother to the father which the mother now appeals.
Issues:
I. Whether or not there was a denial of procedural fairness.
II. Whether or not the primary judge relied on an academic article that was not admitted into evidence.
Applicable law:
Family Law Act 1975 (Cth) s 60CC - pursuant to which his Honour considered that the child would benefit from a meaningful relationship with both parents, but that continuing to live primarily with the appellant would mean the child would not spend time with her father.
Analysis:
The article identified in Grounds 1(a) and 2 was referred to by the primary judge in his reasons for judgment. All parties agree that neither the article nor any intention by the primary judge to rely on it was identified to any party prior to the delivery of his Honour’s reasons for judgment. Assuming that his Honour relied upon the article, the parties agreed that a breach of procedural fairness was made out. However, not every breach of the rules of procedural fairness will lead to a new trial. The breach of procedural fairness needs to be material.
The article was not part of the body of evidence before the primary judge. Having regard to the orders made by the primary judge and our analysis of his reasons for those orders, his Honour’s reliance upon the article when it was not in evidence before him did not lead to a miscarriage of justice such that it is appropriate to set those orders aside and direct a new trial of the appellant’s application. The appellant did not argue that the orders were not in the child’s best interests given the primary judge’s unchallenged consideration of the matters raised by ss 61DA(1) and 60CC of the Act. The subject error has not resulted in, or provided the foundation for a conclusion that, a substantial miscarriage of justice had occurred.
Conclusion:
The mother has leave to amend the Amended Notice of Appeal filed on 31 March, 2022 to add a further ground of appeal as follows: The learned judge’s reference to and reliance on the article authored by J B Kelly and J R Johnston entitled “The Alienated Child: A Reformulation of Parental Alienation Syndrome’’ when it was not in evidence was an error of law.
The Amended Notice of Appeal filed on 31 March, 2022 is dismissed. The mother pays the father's costs of and incidental to the appeal fixed in the sum of $14,561.07 within 28 days of the date of this order.
