What happened

This appeal arose from parenting proceedings between Ms Naparus (the mother) and Mr Frankham (the father) about their only child. The key factual axis was whether the father suffered from psychological or psychiatric conditions that would render unsupervised care of the young child risky. A single psychiatrist, Dr Q, prepared a report for the Independent Children's Lawyer (ICL) on 28 August 2018 which concluded there were no concerns about the father's fitness for custody or unsupervised care ([5]). That report, however, was not provided to the mother until the morning the trial began on 22 October 2018. The trial judge marked the report Exhibit A and accepted it into evidence. The mother objected and expressly sought to cross-examine Dr Q; the transcript records that her objection was neither adjudicated nor was cross-examination secured. The mother was self-represented, was given a 90 minute adjournment to look at the report, and throughout the trial repeatedly made clear she wished to challenge the report ([7]–[10], [14]–[16]).

The primary judge ultimately accepted Dr Q's opinion and made parenting orders that provided for equal shared parental responsibility and unsupervised time for the father, while the child would live with the mother in Victoria unless the mother moved to Western Australia ([2], [5]). On appeal the Full Court focussed on one ground: denial of procedural fairness. It allowed the appeal, set aside the primary judge's orders, remitted the proceedings for rehearing before a different judge, dismissed the mother's application to adduce further evidence on appeal as superfluous, and granted costs certificates to both parties for the appeal and for the rehearing ([Orders]; [3], [28]–[29]).

Why the court decided this way

The Full Court's decision rested on well-established principles about procedural fairness, expert evidence and the court's control of questioning under s 26 of the Evidence Act 1995 (Cth). Two core strands of reasoning led to the decision.

First, factual: the manner in which Dr Q's report was handled denied the mother a fair opportunity to test a key piece of evidence central to the contested factual issue, the father's psychological fitness. The report was prepared nearly two months earlier but only produced on the morning of the trial; the mother had only a short adjournment and was self-represented; the report was admitted as an exhibit without adjudication of her objection and without any opportunity to cross-examine the report writer despite her clear and repeated requests ([7]–[10], [16]).

Second, legal: the court emphasised that, although there is no absolute right to cross-examine (the Evidence Act gives the trial judge a discretion under s 26), that discretion must be exercised so as to guarantee the parties a fair trial. The Full Court followed the analytical approach in GPI Leisure and O'Ryan J's articulation in LGM & CAM about the proper exercise of that discretion: the relevant 'right' is to a fair trial rather than to cross-examine per se; nevertheless, where refusing cross-examination would undermine the fairness of the hearing that refusal is not tenable ([17]–[20]).

Applying those principles, the Full Court concluded that the denial of any practical opportunity to test Dr Q's opinion was a denial of procedural fairness. Because the contested issue was an essentially factual one (the acceptance or rejection of an expert witness's opinion about the father's psychological condition), the court relied on the High Court's statement in Stead that appellate courts find it difficult to be satisfied that a denial of natural justice could have had no bearing on the outcome where the issue was factual acceptance of a witness's evidence ([24]). The mother identified specific material matters she would have raised with Dr Q, historical medical records, the father's disability pension status, admissions in cross-examination of mood instability, and those matters were not apparent in Dr Q's report ([21]–[23]). The Full Court therefore could not be satisfied the denial was immaterial, treated it as an error of law that vitiated the primary judge's orders and ordered a rehearing before a different judge ([23], [26]).

Finally, because the appeal succeeded on a legal error, the interlocutory application to adduce further evidence on the appeal was dismissed as irrelevant to the legal error, and costs certificates were granted under the Federal Proceedings (Costs) Act 1981 (Cth) for both parties for the appeal and the rehearing ([28]–[29]).

Before and after state of the law

Before: The principles governing cross-examination of witnesses, and the trial judge's discretion under the Evidence Act, were established by authority such as GPI Leisure and LGM & CAM, and broader natural justice principles were articulated in cases like Stead. It was accepted law that a trial judge can control questioning to secure a fair trial, and that the absence of a right to cross-examination is to be balanced by the trial judge's obligation to ensure fairness.

After: This Full Court decision applies those principles concretely in the family law context, reinforcing that a court's exercise of its s 26 discretion must demonstrably secure fairness, especially where a self-represented litigant is suddenly confronted with expert evidence central to contested factual issues, and where the litigant requests cross-examination. It emphasises that late service of expert reports and failure to adjudicate objections, combined with denial of cross-examination, will ordinarily amount to a denial of procedural fairness that vitiates orders unless immateriality can be shown ([16], [17], [23]–[26]).

Thus practitioners should treat late disclosure of expert reports with caution: trial judges must ensure adequate opportunity to test such evidence, and failure to do so risks reversal and a remittal for rehearing.

Key passages with plain-English translation

Key passage (Full Court): "Although the appeal comprised numerous grounds, it is unnecessary to address more than one of these grounds. The appeal must succeed by reason of the mother's denial of procedural fairness..." ([3]). Plain-English: The Full Court said it only needed to decide the single issue of procedural fairness because that issue alone was sufficient to overturn the trial outcome.
Key passage: "The mother's denial of procedural fairness is evident from the combined circumstances of her belated provision with Dr Q's report, the failure to deal with her objection to the admissibility of the report, and her denial of any opportunity to challenge Dr Q's evidence in cross-examination..." ([16]). Plain-English: Because the expert report arrived late, the court never ruled on the mother's formal objection, and she was not allowed to question the psychiatrist, she was treated unfairly.
Key passage: "The denial of procedural fairness is an error of law which vitiates the appealed orders, unless it can be shown the denial did not have any bearing upon the result..." ([23]). Plain-English: If a party is denied natural justice in a way that could affect findings of fact, that legal error nullifies the decision unless the other side proves the error could not have changed the outcome.
Key passage: "The material denial of procedural fairness... ruptures the integrity of the trial process and requires the appeal to be upheld and a re-hearing..." ([26]). Plain-English: A serious unfairness undermines the fairness of the whole trial and means the case must be tried again.
Key passage: "The parties should be granted costs certificates... for both the appeal and the re-hearing..." ([29]). Plain-English: The Full Court decided it was appropriate to certify that costs for both the appeal and the new hearing should be able to be paid under the Federal Proceedings (Costs) Act, given the legal outcome and the parties' positions.

What fact patterns trigger this precedent

This decision will be triggered in family law (and analogous) proceedings where:

Expert opinion is central to a determinative factual issue (here, the parent's psychological fitness) and
The expert report is provided late (especially the morning of trial), and
The receiving party is not afforded an adequate opportunity to read the report and to test it, and
The receiving party objects to admissibility and seeks cross-examination but the objection is not adjudicated and cross-examination does not occur.

Particular sensitivity applies where the litigant is self-represented; short adjournments (e.g. 90 minutes) are unlikely to be sufficient for effective response to newly-produced expert evidence ([7]–[9]).

If those features occur and the withheld testing could plausibly have led to amendment or qualification of the expert's opinion, the Full Court indicates the result is likely to be set aside and a rehearing ordered ([21]–[26]).

How later courts have treated it

As this decision is itself an appellate Full Court judgment delivered in 2020, practitioners should expect it to be cited in subsequent family law and trial fairness arguments. The Full Court explicitly applied and followed earlier authorities (GPI Leisure; LGM & CAM; Stead; Concrete) and aligned the evidence-control principles of s 26 with the broader natural justice obligation. Lower and later courts are likely to rely on the Full Court's approach when considering similar complaints: (a) focus on whether the opportunity to test an expert was effectively denied, and (b) whether the denied testing could have materially affected the expert's opinion and therefore the outcome.

Given the decision also arranged for costs certificates, it is likely to be cited where a successful appellant seeks public funding of costs under the Federal Proceedings (Costs) Act in analogous circumstances.

Still-open questions

Degree of prejudice required: The Full Court found the father's inability to prove immateriality because the mother could point to significant facts absent from the expert report. How detailed must a party's proposed cross-examination be on appeal to avoid the denial being held immaterial? The court required more than speculation; the mother identified specific omitted matters. Future cases will clarify the threshold of specificity needed to show potential materiality ([21]–[23]).
Trial management where reports arrive late: The decision criticises the 90 minute adjournment as inadequate for a self-represented litigant ([8]). It is open how courts should manage late disclosure in practice, options include longer adjournments, adjourning the trial, compelling adjournments, or refusing admission of late material. The judgment points the way (ensure a fair trial) but precise procedural steps remain subject of judicial management practice.
The exercise of s 26 discretion: Although the Full Court applied GPI Leisure and LGM & CAM principles, judges will have to balance competing factors in myriad ways. The case clarifies boundaries but leaves open the precise balancing methodology and the circumstances where cross-examination may legitimately be refused without causing unfairness ([17]–[20]).
Relevance to represented litigants: The decision emphasises the vulnerability of self-represented litigants confronted with late expert reports. Whether the same outcome would follow where an experienced represented party had equivalent time and opportunity to respond remains a question for subsequent fact patterns.

Practitioners should therefore treat late expert disclosure as a serious procedural risk, ask for adjudication of objections at the time of tender, insist on the opportunity to cross-examine where the expert addresses central factual issues, and be prepared to seek adjournment or other relief where necessary to preserve fairness.

Judgment (53 paragraphs)

[1]

Naparus & Frankham [2020] FamCAFC 32 (18 February 2020)

[2]

[2020] FamCAFC 32

[3]

FAMILY LAW - APPEAL - PARENTING - Procedural Fairness - Where the parties' mental health was in issue - Where the primary judge relied on the report of a psychiatrist determining the father was of sound mental health - Where that report was only given to the mother on the morning of the trial - Where the mother objected to the primary judge's receipt of that report - Where that objection was not determined - Where the mother then sought to cross examine that psychiatrist but was denied the opportunity - Consideration of a litigant's right to cross examine a witness - Where it cannot be said that such cross examination could not have materially affected the outcome - Where it is unnecessary to consider the remaining grounds of appeal - Appeal allowed - Matter remitted for rehearing.

[4]

FAMILY LAW - APPEAL - COSTS - Where the appeal succeeded on a point of law - Where both parties sought costs certificates - Where the circumstances warrant a costs certificate for each party.

[5]

Evidence Act 1995 (Cth) s 26

[6]

Family Law Act 1975 (Cth) Part IV

[7]

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

[8]

Boensch v Pascoe (2019) 94 ALJR 112; [2019] HCA 49

[9]

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

[10]

GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15

[11]

LGM & CAM [2008] FamCA 185

[12]

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

[13]

[2019] FCCA 434

[14]

(1) The Application in an Appeal to adduce further evidence filed on 28 June 2019 be dismissed.

(2) The appeal be allowed and the orders made on 28 February 2019 be set aside.

(3) The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge.

(4) The Court grants to the appellant mother a costs certificate pursuant to the provisions 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 mother in respect of the costs incurred by her in relation to the appeal.

(5) The Court grants to the respondent father 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 father in respect of the costs incurred by him in relation to the appeal.

(6) The Court grants to each of the parties a costs certificate pursuant to 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 rehearing ordered.

[15]

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

[16]

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

[17]

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).

[18]

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

[19]

By an Amended Notice of Appeal filed on 21 June 2019, Ms Naparus ("the appellant mother") appeals from all orders made by a judge of the Federal Circuit Court of Australia on 28 February 2019 determining her dispute with Mr Frankham ("the respondent father") over the parties' only child, who was then not quite four years old, under Part VII of the Family Law Act 1975 (Cth).
The appealed orders essentially provided for the parties to have equal shared parental responsibility and for the child to live with the mother in Victoria. Provision was made for the child to spend unsupervised time with the father, but for the child to instead live with him if the mother moved to live in Western Australia, as was her expressed desire. The mother was dissatisfied with both her confinement to residence with the child in Victoria and the regime providing for the child to spend unsupervised time with the father.
Although the appeal comprised numerous grounds, it is unnecessary to address more than one of these grounds. The appeal must succeed by reason of the mother's denial of procedural fairness, though not for all of the reasons advanced in her Summary of Argument.
At trial, the parties were in heated dispute about whether the mother was maliciously thwarting the child's relationship with the father. The mother denied it, contending she was only taking reasonable steps to ensure the child's protection from harm. It was her case that the father suffered from some form of psychological or psychiatric condition, exacerbating his tendency to act violently, impulsively or irresponsibly, which conduct was inimical to his unsupervised care of such a young child.
Because the father's psychological stability was a simmering issue throughout the litigation, earlier procedural orders made in April 2018 required both parties to submit to psychiatric evaluation by a single expert witness. Dr Q was engaged for that purpose by the Independent Children's Lawyer ("the ICL"). Dr Q prepared her report about the father on 28 August 2018 and it was tendered in evidence at the trial by the ICL (Exhibit A). As the primary judge's reasons reveal (at [63]-[64]), Dr Q concluded the father did not suffer from Bipolar Disorder, "questioned" whether he suffers from Attention Deficit Disorder, and had no concerns for the child in his "custody or unsupervised care". In reliance upon that evidence, the primary judge was ultimately not satisfied the father's mental health precluded him from parenting the child adequately (at [69]) and found the mother "overstated the risks" of harm posed by the father (at [304]). Hence the orders making generous provision for the child's interaction with him.

[20]

HER HONOUR: Yes, thank you, [counsel for the ICL]. Is this matter ready to proceed?

[21]

[COUNSEL FOR THE FATHER]: Yes, it is, your Honour.

[22]

[COUNSEL FOR THE ICL]: It is, your Honour, save can I say that there's a psychiatric assessment of the father that's not yet filed that has arrived that the mother will need time to look at, but other than that, yes, your Honour.

[23]

HER HONOUR: All right. Well, look, I will stand the matter down, in any event, during the rest of the callover so that you can have a look at that.

[24]

There is no explanation for why Dr Q's report, compiled nearly two months before, had not already been served upon the mother. Although the primary judge stood the trial down for about 90 minutes, that was hardly sufficient time for a self-represented litigant to contemplate the implications of the expert evidence and how to alter her trial preparations to cope with it.
Upon resumption of the hearing, Dr Q's report was not initially discussed. The primary judge embarked upon an explanation to the mother, as the applicant, about the trial process. Just before she was ushered into the witness box to begin her oral evidence, the ICL's counsel interjected to tender Dr Q's report. The report was received into evidence and marked as an exhibit, even before the mother was asked whether she consented or objected to its tender, though she then interrupted and joined the discourse as follows:

[25]

HER HONOUR: All right. Thank you. All right. And in terms of this psych report, I will mark it exhibit A.

[26]

EXHIBIT #A PSYCHIATRIC REPORT OF THE FATHER BY DR Q

[27]

[COUNSEL FOR THE ICL]: Thank [you] your Honour.

[28]

[THE MOTHER]: Excuse me, your Honour. Do I need to - I mean, would that report writer be available for cross-examination if I have questions in regards to that?

[29]

HER HONOUR: Well, that's a matter you could discuss with [the ICL] if - - -

[30]

[THE MOTHER]: Can I object to it being entered into evidence?

[31]

HER HONOUR: Is it intended that the report writer will be available for cross-examination?

[32]

[COUNSEL FOR THE ICL]: Your Honour, that document was provided to me this morning. I don't think anybody has made any inquiries of Dr Q in relation to their availability.

[33]

HER HONOUR: All right. Well, perhaps if those inquiries could be made, that would be helpful.

[34]

Despite the mother's objection to the admissibility of the report, it remained an exhibit without any adjudication of her objection, and despite the primary judge asking the ICL's counsel to ascertain Dr Q's availability for cross-examination at some point during the trial, the transcript does not reveal that the issue was ever broached again. It was overlooked by the mother and neither the primary judge nor counsel returned to the issue.
During her cross-examination of the father, the mother pursued him about his alleged history of psychological instability. The father conceded he had "mood swings", occasionally suffered from "extreme depression", experienced "rage", and "gets crazy", for which he also conceded he had consulted a "psychologist or counsellor". The mother tendered as exhibits some of the father's historical medical records, which were the foundation for the concessions elicited from him in cross-examination (Exhibits L and M).
At the end of the third day of trial, the following conversation ensued between the primary judge, counsel, and the mother:

[35]

[COUNSEL FOR THE ICL]: No other witnesses. There's a further affidavit of [a witness].

[36]

[COUNSEL FOR THE ICL]: And that affidavit is going in, as [I] understand it, without the necessity for that witness to be cross-examined.

[37]

HER HONOUR: All right. Thank you. That's correct, Ms Naparus?

[38]

[COUNSEL FOR THE FATHER]: Well, that concludes the witnesses, your Honour.

[39]

Dr Q was not mentioned in that discussion and, quite feasibly, the mother's concession about there being no need for the cross-examination of any further witnesses was confined to the witnesses in the father's case. She had never deviated from her expressed desire to cross-examine Dr Q. Nevertheless, the trial was adjourned until the following morning for final submissions.
The mother was last to make submissions. Deep into those submissions, when addressing the father's psychological stability, the following exchange occurred between the primary judge and the mother:

[40]

HER HONOUR: All right. And what do you say of the report that has been submitted by Dr Q of [the father's] current status, irrespective of what his previous status was?

[41]

[THE MOTHER]: No. Yes, yes. Again, he has been diagnosed as - has treatment been recommended? Has he been referred for treatment? Does he require treatment? I'm not sure if that's stated in the - - -

[42]

HER HONOUR: So is your submission in relation to that that, from your perspective, you're questioning whether his mental health has been properly diagnosed and properly treated? Is that what you're saying?

[43]

(Transcript 25 October 2018, p.296 line 41 to p.297 line 11)

[44]

Self-evidently, the primary judge was alive to the conflict between Dr Q's expert opinion evidence and the mother's beliefs, but the mother's earlier expressed desire to cross-examine Dr Q still went unsatisfied.
As can be seen, the mother's denial of procedural fairness is evident from the combined circumstances of her belated provision with Dr Q's report, the failure to deal with her objection to the admissibility of the report, and her denial of any opportunity to challenge Dr Q's evidence in cross-examination when she was clearly entitled and had expressed her clear wish to do so.
With respect to the mother's entitlement to challenge Dr Q's evidence in

[45]

cross-examination, s 26 of the Evidence Act 1995 (Cth) ("the Evidence Act") contains the statutory power for a court to control the questioning of witnesses. In GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 ("GPI Leisure"), Young J identified (at 22) a comprehensive list of factors relevant to determining whether or not cross-examination of a witness will be allowed, there emphasising that the relevant "right" of a party is to a fair trial as distinct from a right to cross-examine. Young J observed (at 18):

[46]

Apart from the particular matters of practice which have grown up in England, it appears quite plain that all the rules as to cross-examination are not rules dealing with rights of parties at all, but are guidelines to judges as to how they should, in fairness, conduct trials before them...

[47]

Although GPI Leisure was decided before the introduction of the Evidence Act, the decision has since been cited with approval, including by O'Ryan J in LGM v CAM [2008] FamCA 185 at [197]- [199]. As O'Ryan J observed:
1. Young J's list of factors makes clear that there is no right to cross examine but rather the right to a fair trial and that it is the trial judge's duty to ensure all parties have a fair trial. Most relevantly, the trial judge must so exercise his [or her] discretion in and about the examination and cross examination of witnesses so that a fair trial is assured.
After reviewing GPI Leisure and other authorities, O'Ryan J summarised the applicable principles in respect of not permitting cross-examination of a witness as follows:
1. ... Cross examination is the testing of a witness as to the facts in issue or credit. There is no right of cross examination and it is permitted by a Judge in the exercise of his or her discretion to ensure that parties have a fair trial. A witness that is called to give evidence may be cross examined. In general, the party or legal representative of the party may cross examine a witness not called by that party. It is not necessary that the witness has given evidence against the party seeking to cross examine. It is permissible to ask leading questions in cross examination but there is no absolute right.
2. The Court has a wide discretion decide whether or not permission will be granted to cross examine witnesses. There is no right to cross examine witnesses in the course of a hearing, but rather the right of all parties to a fair trial.
We accept O'Ryan J's articulation of the principles as correct.
In this case, there is no suggestion from the transcript or from the reasons for judgment that the primary judge purported to exercise discretionary power pursuant to of the to refuse the mother permission to cross-examine Dr Q. In any event, for the reasons identified, it was necessary, in order to secure the mother's right to a fair trial, that she have the opportunity to cross-examine Dr Q.

[48]

The contents of the father's historical medical records from 2014, tendered in evidence (Exhibits L and M); 2. The father's alleged admission that he began receiving a Disability Support Pension instead of a Newstart allowance in or about 2015;

[49]

The disability which qualified the father to receive the pension was some ill-defined form of disturbed mental health;

[50]

The father's description of himself as a "Disability Pensioner" in the introduction to his affidavit filed in January 2018; and 2. The father's admissions to the mother in cross-examination about his experience of "mood swings", "extreme depression", and "rage", for which he previously consulted a psychologist or counsellor.
Dr Q's expert report makes no reference to any of those facts or circumstances, suggesting she was oblivious to them. Dr Q was seemingly only informed, presumably by the father, of him feeling depressed at some indistinct time before 2012, due to his separation from family members because of work commitments. That being so, Dr Q's expert opinions were apparently formed on an incomplete and misleading history.
It may be that, had the mother been able to cross-examine Dr Q about those undisclosed facts and circumstances, Dr Q's opinion evidence would not have changed. But that is not the question relevant to the outcome of the appeal. Importantly, Dr Q's evidence might have been amended in some material respect. The denial of procedural fairness is an error of law which vitiates the appealed orders, unless it can be shown the denial did not have any bearing upon the result, which conclusion the father could not establish.
As the High Court of Australia said in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 ("Stead") at 145-146:

[51]

Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference ... It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.

[52]

Here, like the appellant in Stead, the mother was denied the chance to challenge expert opinion evidence which bore upon her ability to make good her case in respect of the factual issue about the stability of the father's psychological health. Had Dr Q been privy to all of the evidence available to the mother about the father's psychological history, it might have made a difference to Dr Q's opinions and hence the findings made by the primary judge.
The material denial of procedural fairness, much like ostensible judicial bias, ruptures the integrity of the trial process and requires the appeal to be upheld and a re-hearing of the proceedings (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at 611-612).
It is strictly unnecessary to consider the remaining grounds of appeal because they are not now dispositive and the resolution of those grounds either will not or ought not affect the re-hearing which must now occur (Boensch v Pascoe [2019] HCA 49; (2019) 94 ALJR 112 at [7]- [8]). Besides, the unfortunate lack of correlation between the grounds of appeal and the submissions contained within the mother's Summary of Argument would have made consideration of the other grounds a needlessly laborious task.
Since the appeal is upheld on a ground of legal error to which further evidence is irrelevant, the mother's interlocutory application to adduce further evidence in the appeal becomes superfluous and should be dismissed.
The parties should be granted costs certificates under the (Cth) for both the appeal and the re-hearing, as the appeal succeeded on a question of law, the mother made no application for costs against the father because she conceded he had no financial capacity to meet such an order, and both parties sought costs certificates.

[53]

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren CJ, Kent & Austin JJ) delivered on 18 February 2020.

Boensch v Pascoe

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