Lamereaux & Noirot [2008]

FAMILY LAW - APPEAL – CHILDREN - RELOCATION – Where mother applied to relocate child’s to France to live with her – Whether error by the trial Judge in accepting and relying upon limited portions of the evidence of the mother’s treating psychologist – Where psychologist gave evidence that the mother could cope if the Court was to reconsider the issue of relocation when the child was aged ten, eleven or twelve – Where trial Judge accepted the psychologist’s contested diagnosis of the mother’s condition and prognosis – Trial Judge erred in accepting limited portions of the psychologist’s evidence.

FAMILY COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) That the appeal against the orders of the Honourable Justice Le Poer Trench made 26 April 2007 be allowed.
(2) That the respondent mother’s amended application for final orders be remitted for rehearing in the Sydney Registry of the Court before a Judge other than the Honourable Justice Le Poer Trench as soon as possible.
(3) That the Court grants to the appellant father a costs certificate pursuant to 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 him in relation to the appeal.
(4) The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
(5) The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 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 each of the parties in respect of the costs incurred by them in relation to the new trial ordered.

IT IS NOTED that publication of this judgment under the pseudonym Lamereaux & Noirot is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Appeal Number: EA 66 of 2007
File Number: SYF 2470 of 2006

Appellant

And

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Ms Noirot and Mr Lamereaux are the parents of T a 7 year old child. The mother made application to the Court for orders that she have permission to relocate the child’s residence to France. This appeal is the father’s appeal against parenting orders made by Le Poer Trench J on 26 April 2007 which permitted the mother to relocate the child’s residence to France from September 2008.
2. Although the Notice of Appeal contained eight grounds, two issues became the primary focus of argument on the hearing of the appeal. Those issues were:
   • asserted error by the trial Judge in accepting and relying upon limited portions of the evidence of the mother’s treating psychologist; and
   • a lack of procedural fairness and asserted error by the trial Judge in relying on evidence of an expert given in other proceedings without the opportunity for submissions.
3. The father sought, in the event the appeal was allowed, that the matter be remitted for rehearing, and through his counsel, indicated that he would co-operate to have any re-trial heard as soon as possible.

BACKGROUND

1. The following background is found in the trial Judge’s reasons, and is not the subject of controversy.
2. Both parties were born in France. The father commenced residing in Australia in 1984. In about February 1998 the mother moved from France to Australia to live with the father.
3. The parties were married in France in 1999, and thereafter returned to Australia where they resided until they separated in January 2005 whilst continuing to reside under the one roof in their rented matrimonial home. They physically separated in September 2005.
4. The child was born in Australia in April 2000.
5. The mother, although an Australian resident, maintained her French nationality, and during the parties’ marriage they holidayed frequently in France where they both had relatives.
6. The child holds both French and Australian passports. He was enrolled by the parties at age three and a half years (the commencement of his pre-schooling) at a French school in Sydney, and was attending that school at the date of the hearing. The French school is conducted to coincide with the French school terms, and its curriculum is in accordance with the French school system. The child is fluent in French and English.
7. At the date of the hearing the father was conducting, through a company, a restaurant located in leased premises in the eastern suburbs of Sydney. Prior to 1998 the mother was engaged in employment as a Human Resources Manager for a radio network in France. Whilst in Australia the mother undertook post graduate tertiary studies in journalism. At the time of the hearing she was engaged in full time home duties and care of the child. She did not engage in employment whilst in Australia, other than to assist the father from time to time with the restaurant business.
8. After separation the father agreed to the mother returning to France with the child at the end of 2005 or “at the latest by June 2006.”
9. The mother spent her childhood in the west of France. She has relatives including two brothers living in the west of France. The mother, with her brothers, inherited her late mother’s home in the west of France. She subsequently purchased her brothers’ interests in the property, and planned to live in the property on her return to France. The child had spent time in the French home on numerous occasions. At the date of the trial the mother was living in a small rented apartment in the eastern suburbs of Sydney.
10. In September 2005 the parties reached agreement for the child to spend time with the father. Subsequently, on 3 April 2006, interim consent orders were made which provided for the child to spend equal time with each of the parties. The parties also informally agreed that on Monday afternoons (when the child was living with the father) the mother could take the child to tennis lessons. On Wednesday afternoons (when the child was living with the mother) the father took the child to swimming lessons. When the swimming lessons ceased the father continued spent time with the child each Wednesday afternoon. It was not in dispute that the mother had attended to most of the child’s health and schooling needs.
11. In 2005 the mother reported losing weight and being upset. In early 2006 the mother consulted her general practitioner and gynaecologist. She was prescribed anti-depressant medication. In February 2006 the mother commenced seeing a psychologist, Ms DW (“the psychologist”). In March 2006 the mother commenced proceedings seeking orders that she be permitted to relocate the child’s residence to France.
12. At the date of the hearing the mother was unemployed and in receipt of Centrelink benefits. The father was paying child support of approximately $94.00 per week, and in addition, paying the child’s school fees and other expenses. From September 2005 to February 2006 the father paid the mother, who had used some inherited funds and borrowed from her brothers to meet expenses, an additional sum of $100.00 per week.

THE GROUNDS OF APPEAL

1. As we indicated at the beginning of these reasons, the father’s Notice of Appeal raised eight grounds of appeal. In his written submissions the father’s counsel noted he sought to withdraw ground 7.2 and substitute a new ground. As will become apparent in due course from our reasons, nothing turns on this proposed amendment.
2. We have already identified the principal basis on which the appeal proceeded before us. We propose to first consider the father’s complaints directed to the trial Judge’s treatment of the evidence of the psychologist (ground 2) and to thereafter consider the procedural fairness challenge (ground 4), particularly insofar as that challenge is directed to the inclusion by the trial Judge in his reasons the evidence of an expert in another case determined by the trial Judge. We will thereafter, to the extent necessary, consider the remaining grounds of appeal which assert error by the trial Judge in his application of the relevant provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).

THE TRIAL JUDGE’S TREATMENT OF THE PSYCHOLOGIST’S EVIDENCE

1. In his reasons, after setting out the relevant history of the parties and their competing proposals, his Honour turned to consider the expert evidence. His Honour first discussed the evidence of the Family Consultant, Ms B, and then turned to examine the evidence of the mother’s psychologist.
2. His Honour explained that, although he had some concern about the psychologist’s qualifications to diagnose depression, there was no challenge to her expertise to do so.
3. At paragraph 77 of his reasons, the trial Judge set out an extract from the psychologist’s affidavit, affirmed on 16 November 2006, in which she described the mother’s presentation at consultations and her symptoms including reported “feelings of guilt, lack of energy, a decrease of appetite, a disturbed sleep and an increased use of tobacco”. The psychologist noted the symptoms described, “which are common symptoms of mild depression”, had led the mother to consult her medical practitioners who had prescribed anti-depressants.
4. His Honour then recorded (in paragraphs 78-82) the psychologist’s evidence of a number of factors which had changed for the mother in June 2006, and her prognosis about the mother’s mental state if not allowed to return to France as follows:

...She refers to an occasion on 28 June 2006 where the mother asked her to visit at the mother’s new apartment. She says that the mother was very distressed on that day constantly crying and sobbing during the session. She expressed anger about the small and uncomfortable apartment she had to live in. She expressed anger about having to return to Australia after her holiday in France instead of remaining in France permanently with [T]. She asserted that she had a bleak and pessimistic view of the future.

Ms [DW] reported as follows:

“In my opinion [the mother] presents some depressive symptoms, post traumatic reaction to the loss of her partner and the risk of losing her role as a parent as she conceives it. [The mother] has never presented any apparent cognitive impairment of cognitive functions (lack of concentration, memory) and has no symptom of major depression such as panic attacks or severe somatic symptoms have been reported. No symptoms of bi polar disorder such as psychotic symptoms (hallucinations or delusions) have been diagnosed. [The mother] never mentioned any suicidal ideas or presented any risk of harm to herself or her son.”

Ms [DW] went on in her report to say that in her opinion the prognosis regarding the mother’s mental state and well-being if she is not allowed to return to France with [T] is pessimistic. She said:

“However, her (the mother) confidence as a parent and as a woman would be severely eroded as a result of extreme frustration.”

The frustration appears to be a connection with the inability of the mother to return to live in France with [T].

Ms [DW] reports “[The mother] presents with symptoms consistent with a diagnosis of minor depression.” Recommendations were made in terms of treatment for the mother should she not be permitted to return to France.

1. During the hearing the trial Judge permitted the mother (after affording the father the opportunity to make any necessary application) to rely on updating evidence given by the psychologist in a proof of evidence. His Honour noted he regarded this evidence as “extremely important”.
2. At paragraph 87 of his reasons his Honour summarised part of the further evidence of psychologist (which was contained in her proof of evidence) as follows:

Ms [DW] described the symptoms currently experienced by the mother as being symptoms of moderate depression. She said that moderate depression falls between mild and severe depression. She concluded that the mother is now at risk of severe depression if she is not allowed to return to France or if her return to France is delayed. She said, “If there is not a deadline or a longer deadline then she is at risk of presenting symptoms of severe depression and decompensation to a psychotic episode.”

1. His Honour also summarised the psychologist’s oral evidence, including her reported view that if the mother was not allowed to return to France “her capacity to parent [T] would be severely affected.” His Honour noted:

...She was asked whether she thought the mother would be able to work towards a date certain for return to France if that date certain was when [T] turned nine or ten. She said yes however she would require therapy which Ms [DW] would provide. (paragraph 95)

1. Significantly, for the purposes of this appeal, his Honour then, at paragraph 95, explained:

Given the evidence of Ms [DW] up to that point of time I am not satisfied that she understood exactly the nature of the question being asked and I am therefore unable to put any great weight on that reply.

1. Having discussed the evidence of the Family Consultant, and addressed issues of credit in respect of each party, the trial Judge considered relevant matters under s 60CC(3) (additional considerations) and under s 60CC(2) (primary considerations), before turning to the parties’ proposals. Thereafter his Honour turned to his conclusion and said:

This case ultimately crystallises to an assessment of the risk to [T’s] welfare incumbent in each of his parents [sic] proposals. Will [T] be more likely to have his development damaged by moving to France with his mother or continuing to reside in Australia. (paragraph 172)

...In my view the risk is far too great and I do not propose to expose [T] to the risk of having to live with a mother who is severely depressed. (paragraph 173)

1. At paragraph 177 of his reasons his Honour explained the essential reason for his determination that the mother should be able to relocate the child’s residence to France. His Honour said:

Were it not for the mother’s current state of depression and more importantly the prospect of her progressing into severe depression, I would have concluded that the best interests of [T] dictated that the mother not remove him from Australia at this time. I agree with the father that when [T] is 10, 11 or 12 it would be a more developmentally suitable time for him to move to France with his mother if that was then appropriate and otherwise in his best interests. [our emphasis] (Appeal Book 1:66)

Counsel’s submissions

1. In both his oral and written submissions the father’s counsel sought to attack the trial Judge’s treatment of, and reliance on, the psychologist’s evidence. In his written argument counsel attacked the trial Judge’s lack of analysis of the discrepancies in the psychologist’s evidence and other material (including her assessment of the mother’s depression conveyed to the Family Report writer in November 2006, and a report addressed to the mother’s solicitors). Before us counsel principally focused his challenge on the apparent acceptance by the trial Judge that the mother would fall into a state of serious depression if not permitted to relocate, inferentially based on the psychologist’s evidence. Counsel, by reference to the psychologist’s evidence, particularly her oral evidence, submitted that his Honour was not entitled to rely on that evidence as the foundation for such a finding.
2. The father’s counsel’s submitted:
   • the psychologist’s evidence given in cross-examination made reliance by the trial Judge on her evidence to support a finding there was a prospect the mother would lapse into severe depression unsafe, and/or
   • inconsistencies between
     • - the psychologist’s report and her prognosis conveyed to the Family Consultant, and
     • - the omission of a significant paragraph, about the mother’s ability to cope, from her affidavit, but contained in a contemporaneous report forwarded to the mother’s solicitors

required cogent examination by the trial Judge of, and findings about, those discrepancies before determining what weight, if any, could be given to the psychologist’s evidence.

The psychologist’s evidence and other material

1. Before we consider these submissions attacking the trial Judge’s orders, it is necessary we refer in some detail to the psychologist’s evidence.
2. The psychologist, who was also the school counsellor at the French school, was first consulted by the mother in February 2006. On 3 November 2006 the Family Consultant spoke to the psychologist. In the report of the Family Consultant dated 13 November 2006, the report writer noted at paragraph 16 of her report:

...Discussions with Ms [DW] indicated that in [the mother’s] case there is no clinical diagnosis of depression and that, in her opinion, the extreme sadness and stress currently experienced by the mother is a response to situational factors. Ms [DW] said that the mother is a very child-focussed, resilient woman who is mentally very strong, as evidenced by her ability to cope well as a parent despite being extremely sad. She stressed that it would be “really, very hard” for [the mother] if she had to remain in Australia but stated that, in her opinion, [the mother] is not at risk of falling into a severe depression despite her extreme unhappiness. [our emphasis]

1. No objection was taken at trial, or before us, to the hearsay material contained in the Family Consultant’s report, or its accuracy.
2. On 26 October 2007 the mother’s solicitors requested the psychologist prepare a report for the proceedings including “your diagnosis of our client’s state of mind and wellbeing”. A report (“the preliminary report”) was prepared and sent to the solicitors. The psychologist affirmed an affidavit on 16 November 2006 which incorporated material in her preliminary report.
3. It aids understanding of the father’s challenge if we set out the relevant parts of the psychologist’s prognosis set out in paragraph 15 of her affidavit :

My prognosis regarding [the mother’s] mental state and wellbeing should she not be allowed to return to France with [T] is pessimistic. Until now [the mother] seems to cope with the situation because she hopes to return to France with her son. Nevertheless, in a [sic] short term, her relationship with her child, as well as her capacity as a parent might be affected if the depressive symptoms increase significantly if she is not able to live in France. Therefore, [the mother] would probably require a more intensive therapeutic support than what she currently has to help manage and grieve her wish to live in her birth country. [our emphasis]

1. The preliminary report dated 4 November 2006 was prepared by the psychologist and provided to the mother’s solicitors. This report was produced at the trial pursuant to a call from the father’s counsel, and the psychologist was cross examined about its contents. The psychologist agreed the preliminary report included the following paragraph:

However, my prognosis regarding [the mother’s] mental state and wellbeing should she not be allowed to return to France with [T] is pessimistic. Although her relationship with her child, as well as her capacity as a parent would not be severely affected [the mother] would probably require significant support to grieve her wish to live in her natal country.

(Transcript 18 April 2007, p156) [our emphasis]

1. As we have already noted, the psychologist provided a proof of evidence during the trial. In that proof the psychologist said:
   1. [The mother] is now at risk of severe depression if she is not allowed to return to France or her return to France is delayed. If there is not a deadline or a longer deadline then she is at risk of presenting symptoms of severe depression and decompensation to a psychotic episode.

...

1. I am aware that [the mother] has postponed the time of her proposed relocation to the end of the French school year in 2008. I consider that [the mother] would be able to cope with a one year delay on her return as she will know that she is returning to France by a deadline in the not too distant future and she has agreed to this deadline.
   1. [The mother] continues to need counselling in Australia and there is a care plan currently in place and when she returns to France she will continue to need counselling. However is [sic] she is allowed to return to France in the reasonable [sic] near future and a set timeframe, then her prognosis is more positive [the mother] would have less burdens to deal with in counselling and less or no triggers for her depression.
2. At the end of the psychologist’s cross examination by the father’s counsel at trial the following evidence was adduced:

[MR CAMPTON:] Well I am asking you, as the therapist, you have no doubt that if the Court would decide that she would be able to cope, that is right?

[MS DW:]---Well from my understanding, from my perspective, I know already that my client has been put in a lot of stress and she was hoping that she could be able to - she would be able to go back to France as soon as possible, so postponing this departure for a year that is probably [sic] that she can sustain. Now further than that, I would have some concern about her and doubt that she would be able to cope.

Why is there a difference between say 12 months or 18 months or two years or 36 months or 4 years?---Well I guess in the best interest of [T] that would give time for [T] to understand and prepare him for the future I guess.

I will just stop you there; I am not asking about [T], I am asking about your client’s capacity?---Because my client made a decision based on [T’s] interests.

So as long as she gets something that she can see in the future, that will allow her to cope, is that right?---Yes.

So if the Court was to say this issue may be reconsidered, for example, when [T] is 10 or 11 or 12 that would also give her something to work to and allow her to cope, wouldn’t it?---Yes. [our emphasis]

Lastly, you certainly will be available to provide therapy and counselling for [the mother] in the future?---Yes.

You would be very confident in your capacity to provide her with assistance for as long as she remains in Australia, providing you are still practising of course?---Yes, I will.

And you would have every confidence that your assistance would provide -your therapy would provide her with significant assistance and coping mechanisms?---I would work towards that.

...

MR CAMPTON: Thank you, your Honour. Ma’am, this is a proposition that I will put to you that you may or may not agree with, you can just tell me that is the right way to answer the question, whether you agree or not agree. I want to suggest to you that you left this statement out of your affidavit:

Although her, [the mother’s] relationship with the child as well as her capacity as a parent would not be severely affected, [the mother] would probably required [sic] significant support to grieve her wish to live in her natal country.

You left that out because you knew when it came to your affidavit that to say that wouldn’t assist your client’s case. Do you agree or disagree with that?---I don’t want to answer the question.

You don’t want to answer the question, right. Thank you, your Honour.

HIS HONOUR: Now, Ms Messner, you have got some re-examination do

you?

MS MESSNER: Yes, your Honour.

...

RE-EXAMINATION BY MS MESSNER

MS MESSNER: Just a little while ago it was put to you that if - that as long as [the mother] - as long as she can get something she can see such as a reconsideration by the Court in three years that will allow her to cope, and you said “yes”?---Yes.

And that is contrary to the evidence - - -

MR CAMPTON: I object.

HIS HONOUR: Well that is not re-examination. I won’t allow that.

MS MESSNER: Well I was going - okay not contrary. Sorry, is that - - -

HIS HONOUR: That is cross-examination.

MS MESSNER: Yes, I understand that, your Honour. Do you understand what “reconsider by the Court” means?

MR CAMPTON: I object, your Honour.

MS MESSNER: That is clearing up.

HIS HONOUR: What can be - what possible misunderstanding can there be about “reconsider by the Court”; they are ordinary English words.

MS MESSNER: If I could ask the question, your Honour.

MR CAMPTON: I object to the question, your Honour.

HIS HONOUR: I won’t allow that; there is nothing - - -

MS MESSNER: Do you understand what that means?

MR CAMPTON: I object to the question.

HIS HONOUR: I won’t allow that question.

(Transcript 18 April 2007, pages 169 – 172)

Discussion

1. We have already set out a brief summary of the trial Judge’s consideration of the psychologist’s evidence. His Honour did note his concerns about the psychologist’s objectivity. We think it useful at this point to repeat his Honour’s conclusions about the psychologist’s evidence (which we have already in part set out) on the mother’s ability to cope if she did not leave Australia:

...She was asked whether she thought the mother would be able to work towards a date certain for return to France if that date certain was when [T] turned nine or ten. She said yes however she would require therapy which Ms [DW] would provide. Given the evidence of Ms [DW] up to that point of time I am not satisfied that she understood exactly the nature of the question being asked and I am therefore unable to put any great weight on that reply.

(paragraph 95)

1. Counsel for the father was critical of the trial Judge for failing to address, at all, the evidence of the psychologist’s prognosis for the mother reproduced in the Family Consultant’s report, and the psychologist’s refusal to answer the question put to her that she had left out of her affidavit the paragraph in her preliminary report because that paragraph would not have assisted the mother’s case.
2. The trial Judge in this case, as in many finely balanced international relocation cases, was faced with a difficult task. The expert providing evidence about the mother’s condition and prognosis was not an independent expert appointed by the Court, but rather an expert who had a therapeutic relationship with the mother. The trial Judge did not have the benefit of an independent children’s lawyer, as recommended in the guidelines in Re K [1994] FamCA 21; (1994) FLC 92-461; 
   (1994) 17 Fam LR 537 at 80,775, to obtain relevant evidence, and to assist his Honour in determining the orders in the best interest of the child, nor does it appear that his Honour had the benefit of transcript.
3. While it would have been useful if his Honour had addressed directly the discrepancies in the psychologist’s evidence and other material, we do not consider this asserted failure, of itself, constitutes appealable error. The report by the Family Consultant was prepared in November 2006, but what was recognised by the trial Judge as significant was the evidence adduced in the psychologist’s proof of evidence of the mother’s mental state proximate to the hearing in April 2007. We discern it was the latter evidence which was pivotal to his Honour finding the prospect of the mother progressing to severe depression determinative in concluding the best interests of the child dictated the mother should be permitted to relocate to France in September 2008. It is the latter finding, and the basis for it, to which we now turn our attention.
4. Counsel for the father in both his written and oral submissions focused on
   the concession made by the psychologist in her cross examination that the mother could cope if the matter was reconsidered when the child was ten, eleven or twelve. Counsel submitted:
   • the evidence of the psychologist was regularly adduced;
   • that any possibility of a misunderstanding did not emerge from the transcript, and the trial Judge’s ruling in re-examination foreclosed any reasonable basis for such concern at the trial;
   • the trial Judge’s determination to disregard the evidence was fundamentally inconsistent with his ruling made in re-examination.
5. We consider each of the submissions made by counsel for the father to have merit. We conclude that the trial Judge erred in ignoring the unequivocal evidence of the psychologist, to which we have earlier referred, that the mother could cope if the Court was to reconsider the issue of relocation when the child was aged ten, eleven or twelve on the basis stated by him. We have been unable to reconcile his Honour’s conclusion that such evidence resulted from a misunderstanding on the part of the psychologist with the transcript of the psychologist’s evidence, both generally and in relation to this specific issue. The conclusion with respect to this issue is also hard to reconcile with his Honour’s earlier acceptance of the psychologist’s contested diagnosis of the mother’s condition and prognosis. Neither the trial Judge’s reasons, nor anything to which counsel for the mother has referred us overcomes these inconsistencies. Thus we are satisfied that the necessary evidentiary foundation for the conclusion there was a prospect the mother would progress into severe depression if she did not relocate in September 2008 was not available to the trial Judge based on the psychologist’s evidence. We are therefore satisfied there is merit in this ground.

THE PROCEDURAL FAIRNESS CHALLENGE

1. In his written submissions, the father’s counsel agitated two limbs of his challenge to his Honour’s reasons on the basis of asserted lack of procedural fairness. We have already dealt with the first challenge directed to the trial Judge’s treatment of the psychologist’s oral evidence of the mother’s ability to cope if the relocation proposal was considered when the child was at least eleven years old.
2. The second challenge to the trial Judge’s orders centred on his reference to evidence given by an expert psychiatrist, Dr L, in another case heard by the trial Judge.
3. In his reasons for judgment at paragraph 108 the trial Judge said:

In the decision of A and A (unreported) delivered by me on
22 April 2004 I referred to some words in a report prepared for the Court by Dr [L], Psychologist. In exploring the concept of parental relationship he said there is a distinction to be drawn between “the parental role” and “the parental relationship”. He said the “parental role” was “the means by which core values and behaviours are exchanged, and influence applied”. “Parental relationship” he said was “the closeness or attachment between the children and the parent”. These distinctions are, in my opinion, very important. As will be seen later, the preservation of the parental relationship is of particular importance in the consideration of relocation cases. The preservation of the parental role is important but not crucial. It is important because it seems the ongoing parental relationship is dependent on some exposure to the “parental role”. Such a proposition has logical connection but may not be so in every case. In nearly every relocation case, one would expect there would have to be some change in the parental role for both parties, but especially so for the parent, who is left behind. [Original emphasis]

1. There was no dispute that the trial Judge had not, prior to publishing his reasons and entering the orders under challenge, brought to the notice of the parties his decision in A and A [2004] FamCA 456 and the evidence of Dr L discussed therein. In the circumstances of this case, in which his Honour’s earlier decision appears to have been known to counsel for the father, it is the evidence of Dr L which excites our interest.

Relevant law

1. The limits placed by law on reliance by a Judge on evidence, other than evidence regularly adduced by the parties to the litigation, are designed to ensure procedural fairness.
2. Part 4.2 of the Evidence Act 1995 (Cth) (“the Evidence Act”) deals with judicial notice. Section 144 of the Evidence Act provides that proof is not required about knowledge that is not open to question, and is common knowledge in the locality, or capable of verification by reference to a document the authority of which cannot reasonably be questioned, but the use of such evidence is subject to the proviso contained in s 144(4) which is as follows:

(4)  The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

1. Section 144 does not extend to allow judicial notice of the benefit of sibling relationships (see Bolitho v Cohen [2005] FamCA 458; (2005) FLC 93-224 at paragraph 87).
2. The restriction on use of evidence from other proceedings, or facts known only to the judge, as distinct from facts which can be subject of judicial notice, has been discussed in decisions of both the Australian and United Kingdom courts.
3. At the hearing counsel for the father referred in general terms to the principles espoused in common law authorities which discuss the limits on use by judicial officers of material which could not fall within the “judicial notice” provisions of the Evidence Act. Subsequently counsel directed us to three such authorities. It is appropriate we now consider relevant authorities including those authorities to which we were referred.
4. In the Marriage of Dean (1988) 94 FLR 32 at 37 the Full Court (Fogarty, Strauss and McCall JJ) discussed the use by the trial Judge, in determining the goodwill of a company, of a capitalisation rate, based on reference to a text, rather than expert evidence. The Full Court considered that the evidence relied on by the trial Judge was not such that it could fall into the scope of judicial knowledge, but rather was a matter for expert evidence. Their Honours referred to the basis for the objection to a judge referring a text book, without informing either party of his intention to do so, and quoted the following passage from Byrne, D M and Heydon, J D, Cross on Evidence, 3rd Australian ed, Butterworths, 1986 at page 101:

When the Judge [sic] undertakes such a reference to works of authority, either pursuant to the statutory provision or at common law, he is not entitled to inform himself of any contentious matter without giving the parties the opportunity to controvert or comment upon the work to which reference is being [semble: has been] made.

(We note Butterworths, Cross on Evidence, vol 1 (at 24-02-08) now includes a similar passage at [3035].)

1. Thereafter their Honours cited with approval the discussion by Bray CJ in Cavanett v Chambers [1968] SASR 97 where a Magistrate informed himself about the effect of a blood alcohol reading on the ability of the defendant to drive. Bray CJ said at 101:

It is one thing to use the section [s 64 of the Evidence Act 1929] for the purpose of discovering or verifying objective facts or figures about which there can be no real dispute, such as historical or geographical data of an uncontroversial nature or mathematical tables of life expectancy or interest calculations. Cf. Arnold v Norris (1936) SASR 287, though even there I think the principle of Chambers v Sampson (Unreported. Supreme Court of South Australia, 14th March 1966) should be observed and the parties should be given notice of the Court’s intention and an opportunity to be heard on the result of its researches. It is quite another thing for the tribunal of its own motion to seek to inform itself out of court on a question of fact or opinion vital to the issue and by no means free from controversy. This is, of course, doubly objectionable if done without the parties having any opportunity to state their views on the specific authorities consulted. But in my view, even if they are offered this opportunity, the Court should not embark on such investigations except by consent. It would be preposterous to suppose, for example, that in a claim for damages or workmen’s compensation where divergent medical opinions have been expressed by expert witnesses on each side, the Court should be at liberty without consent to pursue independent inquiries of its own on the point through medical journals or text books not referred to by the witnesses.

1. Other authorities reaffirm the requirements of natural justice namely that parties be given an opportunity to controvert or comment on any contentious matter (see Gordon M Jenkins & Associates Pty Ltd v Coleman [1989] FCA 245; (1989) 23 FCR 38 at 47-48, Australian and Overseas Telecommunications Corporation Ltd v McAuslan [1993] FCA 620; (1993) 47 FCR 492; Scott v The President, Councillors and Ratepayers of the Shire of Numurkah [1954] HCA 14; (1954) 91 CLR 300; British Thompson Houston Company Limited v British Insulated and Helsby Cables Limited [1924] 2 Ch 160 and Butterworths, Cross on Evidence, vol 1 (at 24-02-08), [33525]).
2. Whilst each of these authorities refer to extrinsic evidence such as material contained in text books, we consider it is self evident that similar principles must apply to expert evidence given in other proceedings.

Discussion

1. As we have already noted, there is no suggestion that his Honour brought to the attention of parties’ legal representatives at the trial his decision in A and A. The circumstances in which Dr L gave evidence in that case were not known to the parties, nor were the facts and circumstances which may have shaped or influenced his expert evidence known. Given the impact of those matters on the admissibility of such expert opinion evidence, and weight to which it may be entitled if admissible (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, per Heydon JA at paragraph 85 of judgment), we struggle to understand how it could have safely been relied upon by the trial Judge, even if the parties had been afforded procedural fairness with respect to it.
2. Neither party had the opportunity to question Dr L, or to put the gist of his evidence, as set out by the trial Judge in his judgment in A and A, to the psychologist or the Family Consultant to obtain their respective opinions on the nature of the parental relationship of the child with each of the parties so far as it was relevant to the likely effect on the child from separation from either parent. We consider that this denial of procedural fairness constitutes appealable error.
3. It is impossible for us (and more significantly, the parties) to discern what effect, if any, the evidence of Dr L given in A and A had on the trial Judge in determining this case. We are not satisfied that the trial Judge would have reached the same conclusions as he did, had he not had regard to the evidence he perceived Dr L to have given in the earlier case.
4. We are satisfied, having regard to the provisions of the Evidence Act relevant to judicial notice, the authorities on the use of extraneous material, and the need to afford procedural fairness to the parties, which in the circumstances of this case would have included the right to cross examine Dr L, and further cross examine the psychologist and Family Consultant, that it was inappropriate for his Honour to incorporate Dr L’s evidence into his reasons for judgment, and the course adopted by him constitutes appealable error.

OTHER GROUNDS OF APPEAL

1. Although the father’s counsel raised a number of other challenges to his Honour’s orders, it is clear to us that the errors identified in the two issues discussed above require that the appeal be allowed, and that there be a retrial as soon as possible. It is unnecessary therefore for us to determine the remaining grounds of appeal.
2. In considering the conduct of the retrial, we note, given the issues involved, the assistance likely to be afforded by the appointment of an independent children’s lawyer, and consideration by that lawyer of the appointment of an expert to adduce appropriate psychiatric or other expert evidence to assist the trial Judge.

COSTS

1. We entertained submissions from each of the parties at the conclusions of the appeal on costs. We accept this is an appropriate case for the granting of certificates to both parties under the Federal Proceedings (Costs) Act 1981 (Cth) both for the appeal and the re-trial.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

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