Incompetence or Strategy? Family Court Confirms That Forensic Errors Don’t Equal a Miscarriage of Justice

In Barnabas & Phineus [2025] FedCFamC1A 215, Justice Campton of the Federal Circuit and Family Court of Australia (Division 1, Appellate Jurisdiction) dealt with a father’s appeal against supervised contact orders. The father alleged his trial counsel’s incompetence led to an unfair trial and that the primary judge gave insufficient weight to his medical evidence. The appellate court dismissed the appeal, holding that not every alleged forensic mistake by counsel amounts to a miscarriage of justice, and that appellate intervention is reserved for errors that materially affect the result. The judgment underscores the high threshold for appeals based on alleged incompetence of counsel and reaffirms the House v The King principles of appellate review in discretionary family law decisions.

📜 Facts and Issues

Facts

• The parents, Mr Barnabas and Ms Phineus, separated in 2022, with one child born in 2021.
• At trial, the mother was granted sole parental responsibility and relocation to Victoria, while the father was permitted supervised contact at a contact centre.
• The primary judge found the father posed an unacceptable risk due to his mental illness, drug use, and history of family violence.
• The father appealed, asserting that:

1. His trial counsel was incompetent, failing to rely on key affidavits from his mother and sister.
2. The judge gave insufficient weight to his treating doctors’ opinions (Dr G and Dr L).
3. Counsel failed to challenge the single expert psychiatrist’s report (Dr E).

• The Independent Children’s Lawyer (ICL) and the mother opposed the appeal.

Issues

1. Did the alleged incompetence of trial counsel cause the father to be denied a fair trial or produce a miscarriage of justice?
2. Did the primary judge err by giving insufficient or improper weight to the father’s treating medical evidence?
3. Should the Court have admitted new evidence on appeal that was excluded at trial?

⚖️ Law

Statutory Framework

• Family Law Act 1975 (Cth): ss 60CC, 60CG – safety and best interests principles.
• Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth): r 13.23 (appeal procedure).
• Federal Circuit and Family Court of Australia Act 2021 (Cth): s 35 – discretion to admit new evidence on appeal.

Key Precedents

• House v The King (1936) 55 CLR 499 — appellate error categories.
• OP v TP & The Child Representative (2002) 30 Fam LR 281 — incompetence of counsel test.
• CDJ v VAJ (1998) 197 CLR 172 — scope of admitting new evidence on appeal.
• Kellerman & Kellerman [2024] FedCFamC1A 126 — discretion and weight of evidence in parenting orders.
• Maddax & Danner [2016] FamCAFC 176 — miscarriage from counsel’s conduct.

🔍 Application

1️⃣ Alleged Incompetence of Counsel

The father claimed trial counsel ignored instructions to rely on affidavits from his mother and sister. Justice Campton found no evidence supporting that claim — the affidavits were not critical to the outcome and, in fact, would not have altered the result.

Citing OP v TP and TKWJ v R, the Court reaffirmed that mere dissatisfaction with counsel’s conduct does not establish a miscarriage unless the conduct deprived the party of a fair trial or likely changed the result.

“The father has failed to establish that the forensic decision, howsoever made, not to rely on the affidavits… affected the decision in the judgment” (at [Ground 1(a)]).

2️⃣ Weight Given to Expert Evidence

The father argued that the primary judge undervalued the opinions of his treating clinicians (Dr G and Dr L) and over-relied on the single expert (Dr E).

Justice Campton noted that weight is quintessentially for the trial judge (Kellerman & Kellerman; Gronow v Gronow). Dr E’s evidence was found admissible despite his retirement, as it met s 63 of the Evidence Act 1995 (Cth) and formed part of the single expert process.

The appellate judge confirmed that the trial judge had critically evaluated each expert’s evidence, finding Dr E’s opinions well-supported and the treating doctors’ opinions overly reliant on the father’s self-reporting.

3️⃣ Admission of New Evidence

The father sought to introduce emails and affidavits on appeal. Justice Campton allowed some procedural evidence but refused late oral applications, citing prejudice to the mother and ICL and the need for orderly appellate procedure under r 13.23(4).

💬 Analysis of the Judgment

Justice Campton’s reasoning reflects a strong emphasis on finality, procedural fairness, and evidentiary integrity.

• The decision clarifies that strategic choices by counsel—even if misguided—do not amount to incompetence unless they fundamentally compromise fairness.
• The Court distinguished between forensic discretion and legal error, warning that relitigating tactical decisions on appeal undermines the integrity of the trial process.
• The Court also reinforced that in appeals from discretionary judgments, weight complaints rarely succeed unless the result is plainly unreasonable (House v The King; Hedlund & Hedlund [2021]).

By dismissing the appeal, Justice Campton upheld the primacy of child safety and judicial discretion in parenting determinations.

🧠 Take-Home Lesson

“Dissatisfaction with one’s lawyer does not equal injustice — only errors that change the result can.”

This case teaches family law practitioners and litigants that:

• The threshold for appellate interference is high; forensic or tactical missteps are insufficient unless they cause real prejudice.
• Parties must ensure clear instructions and contemporaneous records if alleging counsel error.
• Parenting decisions rest on broad discretion — appellate courts will not reweigh evidence simply because another conclusion was possible.