Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd

Johnson & Johnson (1997) FLC 92-764; [1997] FamCA 32

Johnson & Johnson (2000) 201 CLR 488; [2000] HCA 48

Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Krupin & Krupin [2022] FedCFamC1A 136

Minister for Immigration v SZMTA (2019) 264 CLR 421; [2019] HCA 3

National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296; [1984] HCA 29

Perkins v County Court (Vic) (2000) 2 VR 246; [2000] VSCA 171

R v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VicRp 10; [1973] VR 122

Re F: Litigants In Person Guidelines (2001) FLC 93-072; [2001] FamCA 348

Re JRL; Ex Parte CJL (1986) 161 CLR 342; [1986] HCA 39

Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3

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

Mirko Bagaric, Ross on Crime (Thodieon Reuters, 9th edition, 2022

1. The appeal be allowed.
2. The proceedings be remitted for hearing by a judge of the Federal Circuit and Family Court of Australia (Division 2), other than the primary judge.
3. The orders made by the primary judge on 24 March 2025 be set aside on and as from the date upon which further parenting orders are made by the Federal Circuit and Family Court of Australia (Division 2).
4. A costs certificate be granted to the appellant 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 the Act to the appellant in respect of the costs incurred by him in relation to the appeal.
5. A costs certificate be granted to the respondent pursuant to 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 the Act to the respondent in respect of the costs incurred by her in relation to the appeal.
6. A costs certificate be granted to the appellant 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 the Act to the appellant in respect of the costs incurred by him in relation to the new trial ordered.
7. A costs certificate be granted to the respondent 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 the Act to the respondent in respect of the costs incurred by her in relation to the new trial ordered.

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

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an appeal from final orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 24 March 2025 ("Orders") pursuant to Pt VII of the Family Law Act 1975 (Cth) ("Act").
2. The proceeding was listed for trial commencing on 28 October 2024 and thereafter proceeded over four days, between 29-30 October and 18-19 November 2024.
3. On the last day of the trial, final orders were made by consent that provided, inter alia, for the respondent mother to have sole decision-making responsibility for all major long-term issues regarding the children, X, born in 2016, and Y, born in 2019, and for them to live with her.
4. The remaining issues reserved for determination by the primary judge that day included, primarily, what time, if any, was to be spent between the appellant father and the children. The respondent, supported by the Independent Children's Lawyer, primarily sought that the children spend no time and have no communication with the appellant, save for the provision of presents, cards and letters on specified special occasions. The appellant sought, inter alia, that the children spend time with him in alternate weekends and during school holidays.
5. In the result, the Orders provide that the children spend no time with the appellant and have no communication with him, other than that he be permitted to send them presents, together with a card or letter, for their birthdays, Christmas and Easter each year.

1. This is an appeal from a discretionary decision. Accordingly, error of the type identified in House v The King (1936) 55 CLR 499 at 504-505 must be established. There, the majority of the High Court said:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. ...

1. The amended Notice of Appeal comprises 11 grounds, of which two were abandoned at the commencement of the hearing of the appeal.
2. Grounds 1, 4 and 6 assert a denial of procedural fairness. In particular, Ground 1 contends that the primary judge erred in conducting the proceedings, in part, in the absence of the appellant, whilst he was self-represented, thereby denying him procedural fairness and resulting in a miscarriage of justice. Grounds 4 and 6, which overlap and are inter-related with Ground 1, contend that, in not ordering a psychiatric assessment of the appellant, nor affording him the opportunity to adduce psychiatric evidence, which was discussed in part in his absence, he was denied procedural fairness.
3. Grounds of appeal in relation to procedural fairness are challenges to the integrity of the administration of justice, and thus should be dealt with first, before other discrete grounds of appeal: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [1]-[2], [117], [172]; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]-[10].
4. In Krupin & Krupin [2022] FedCFamC1A 136 at [36]-[37], Tree J said, on appeal:
   1. A failure to afford procedural fairness is an error of law (Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277; (1999) 56 ALD 321).
   2. Procedural fairness requires each party to be given an adequate opportunity to be heard, and to present their cases (Kioa v West (1985) 159 CLR 550 at 582). However, it is only the opportunity to present evidence and argument which the interests of justice requires, not the actuality of it. Thus where a party has had a sufficient opportunity to put forward his or her case, it may be necessary for the court to make a decision for the sake of doing justice to the other party and to other litigants (Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 174 ("Aon Risk") at [94]).
5. At the commencement of the hearing, counsel for the respondent properly conceded that any denial of procedural fairness, if established, would be dispositive of the appeal.
6. Although the Orders the subject of the appeal accord with those sought or supported by the Independent Children's Lawyer at trial, the Independent Children's Lawyer filed a Submitting Notice on 6 August 2025, which was preceded by a Summary of Argument filed on 1 August 2025, in which she substantially supports the appeal and, in particular, joins with the appellant insofar as the grounds asserting a denial of procedural fairness are concerned. Notwithstanding her Submitting Notice, the Independent Children's Lawyer was represented by counsel at the hearing of the appeal.
7. For the reasons which follow, the appeal will be allowed and the matter remitted for retrial by a judge of the of the Federal Circuit and Family Court of Australia (Division 2), other than the primary judge.

1. On 28 October 2024, being the first day on which the proceeding was listed for trial, the appellant was legally represented by solicitor and counsel, by reason of an order having previously been made pursuant to s 102NA of the Act. The matter was stood down for the day for negotiations. Although not readily apparent from the transcript, final property orders were, in fact, made by consent later that day.
2. On the morning of the second day, 29 October 2024, the appellant's legal representatives sought and were granted leave to withdraw, and he was self-represented that and the following day. After recording this fact at [13] of her reasons for judgment ("reasons"), the primary judge then said:
   1. In accordance with Johnson & Johnson [2000] HCA 48; (2000) 201 CLR 488 [sic] and Re F Litigants In Person Guidelines [2001] FamCA 348, the court process was thoroughly explained to the father and every attempt was made to ensure that fair process was afforded to the father.
3. By reason of the s 102NA order, the appellant was unable to cross-examine the respondent, who was the applicant at trial. She was the only witness in her case. She was cross-examined briefly by counsel for the Independent Children's Lawyer and, thereafter, the primary judge posed some questions to her that the appellant sought to be asked. See reasons at [15].
4. Cross-examination of the appellant by counsel for the respondent commenced that afternoon and continued and concluded in the course of the following morning, on 30 October 2024.
5. Thereafter, cross-examination of the appellant by counsel for the Independent Children's Lawyer commenced at 11.48am and concluded at 12.56pm.
6. Immediately after the conclusion of his cross-examination, the transcript records as follows, commencing with the primary judge addressing the appellant, prior to excluding him from the Court. Given what transpired over the course of the remainder of the day, it is necessary to cite from the transcript at greater length than would otherwise be desirable.

HER HONOUR: Take a seat. You are released from the witness box.

HER HONOUR: Practitioners, can I speak to you in the absence of the parties please?

[COUNSEL FOR THE WIFE]: Yes. Yes, your Honour. Yes.

HER HONOUR: I am going to ask - well, not only will I ask the parties to take a seat outside, but we - after I speak to the practitioners, we will - we will be breaking for an hour for lunch.

[COUNSEL FOR THE WIFE]: Okay.

HER HONOUR: So - - -

[COUNSEL FOR THE WIFE]: I will just have my solicitor take - - -

HER HONOUR: Yes. I have no difficulty with that.

[COUNSEL FOR THE WIFE]: - - - my client out

HER HONOUR: Sir, if you could take - you are now released. If you could come back at 2, please.

MR [RAMIRUS]: Can I just ask a question?

HER HONOUR: Yes.

MR [RAMIRUS]: Is there a chance to have a shorter lunch if they are worried about time?

HER HONOUR: Sir, I have been sitting since 9 o'clock. I have three staff who are working hard. They were entitled to an hour lunch - - -

MR [RAMIRUS]: Yes. I am sorry about that.

HER HONOUR: - - - and they will be getting an hour lunch.

MR [RAMIRUS]: Yes. Okay. No problems.

HER HONOUR: Go outside, please, sir. We will see you at 2.

MR [RAMIRUS]: Thank you, your Honour. Do I take all my stuff, or can I - - -

HER HONOUR: No, sir. The courtroom will be locked.

MR [RAMIRUS]: Locked?

HER HONOUR: Yes.

MR [RAMIRUS]: I will take it then.

HER HONOUR: Sorry? You are going to take it? Why? The courtroom is going to be locked.

MR [RAMIRUS]: Yes, but if I want to do some study outside or - - -

HER HONOUR: Well, there won't be - well, I see. If you wish to take some stuff to read over the lunch hour, you can do so.

MR [RAMIRUS]: Okay. Thank you, your Honour.

HER HONOUR: But otherwise, the courtroom will be locked in that hour. All right. A couple of things arise. Firstly, the matter is not going to be completed today, is it? Secondly, and I know neither of you are going to want to hear this, but I have got concerns that I do not have a psychiatric assessment.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Yes.

HER HONOUR: I am picking up clear signs of what I consider to be narcissistic issues, as well as personality disorders, and we have a psychologist where, upon reading both reports, really does not go into anything in respect to personality disorders, apart from, I think, conducting one test, and correct me if I am wrong, but I do not have - I do not have extensive testing of this man.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: And conversely, your questions of the mother about her anxiety, and fearfulness, and that sort of thing, that would be assistance too. It is something that the independent children's lawyer had approached the parties on more than one occasion. It has been raised, but there was no consent given by the parties.

[COUNSEL FOR THE WIFE]: The father wouldn't do it.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Well, I don't know who - I don't know who I am pointing the finger at, but it wasn't organised.

[COUNSEL FOR THE WIFE]: That is right.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: But I think we think it is - we think it is imperative.

HER HONOUR: But there are - there are some serious red flags that cause me concern - - -

[COUNSEL FOR THE WIFE]: I am - - -

HER HONOUR: - - - in regard to the father's behaviours. Yes. Sorry, [Counsel for the Wife].

[COUNSEL FOR THE WIFE]: Yes. I am instructed that it was requested of him, and he said he wouldn't do it, and [Independent Children's Lawyer] can correct that if I am wrong about that, that is what I am told by my instructor, and it hasn't been obviously recommended by either of the report writers.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: I am instructed this, that his lawyers - so it went through his lawyers, and the lawyers came back to my instructor and said, "It's not recommended, so he is not doing it".

[COUNSEL FOR THE WIFE]: And there is the issue of cost as well.

HER HONOUR: Well, that could be funded by Legal Aid.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Yes. We could have that notation.

HER HONOUR: But let us think this through in a logical sequence though, because if I ask the question to the father, and he refuses, we can't take it any further.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: And he might, given his presentation.

[COUNSEL FOR THE WIFE]: But if - your Honour, can I - - -

HER HONOUR: Yes, [Counsel for the Wife]. Please talk.

[COUNSEL FOR THE WIFE]: We - - -

HER HONOUR: I will just dwell in this space otherwise.

[COUNSEL FOR THE WIFE]: Sorry?

HER HONOUR: Please talk.

[COUNSEL FOR THE WIFE]: Where is it going to get us?

HER HONOUR: Well, that is what I'm saying.

[COUNSEL FOR THE WIFE]: Where is a psychiatric assessment going to affect, in my submission, the outcome of the case, where you have clearly seen evidence for two days, you are not a psychiatrist, I am not a psychiatrist, my client is not a psychiatrist, but I will - I will be saying whether it is because he has got a psychiatric issue, or because he is a bad person, it won't make any difference to the ultimate outcome because you have seen it yourself. I am sorry to say this in the absence of the parties, your Honour, but you have asked - but that is what I will ultimately say. It doesn't matter - - -

HER HONOUR: Okay.

[COUNSEL FOR THE WIFE]: - - - the psychiatric assessment.

HER HONOUR: Does this matter?

[COUNSEL FOR THE WIFE]: Okay.

HER HONOUR: Would it be of any assistance if a copy of the transcript was provided to both family report writers?

[COUNSEL FOR THE WIFE]: I think - - -

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Yes.

[COUNSEL FOR THE WIFE]: I think that might be.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: And I think the matter of this psych assessment, depending on what he wants to do, but it is dotting the I's and crossing the T's on a case where he is staring down a no time order, or the children are. I mean, it is - and he is self-acting. That is why I think it is imperative, and I think the mother should be assessed as well. But I definitely think the transcript is a good idea. Absolutely. That may - - -

[COUNSEL FOR THE WIFE]: Why would - sorry. Why would my client need to be assessed? I mean, you see - - -

HER HONOUR: Can I just make a comment about your client - - -

[COUNSEL FOR THE WIFE]: Yes.

HER HONOUR: - - - and whether this relates to an assessment or not?

[COUNSEL FOR THE WIFE]: Yes.

HER HONOUR: I am concerned that the mother may not realise the significant impact that this relationship has had on her and her ability to parent, because she was very stoic, and she should be given credit for her bravery in the witness box, where she said, "Well, no. It is not impacting my parenting", but all the non-verbals from her indicate that this is a woman who has been severely impacted upon by her circumstances in dealing with this man.

[COUNSEL FOR THE WIFE]: It is one of the reasons why she seeks an order for no time. Again, I don't - - -

HER HONOUR: Exactly.

[COUNSEL FOR THE WIFE]: Again, she is just - again, this will be my submission, she has just got on with it - - -

HER HONOUR: Yes.

[COUNSEL FOR THE WIFE]: - - - as best she can.

HER HONOUR: But I - but what I - I am not saying that I support the idea.

[COUNSEL FOR THE WIFE]: Yes.

HER HONOUR: But I can understand why. But I agree with you both. I agree with the situation, in that getting a psychiatric assessment of the father or psychological assessment of the mother is going to just drag this matter out further.

[COUNSEL FOR THE WIFE]: Yes.

HER HONOUR: And I have had many psychiatric assessments come in where they flag something, but then it is just something that is flagged, and then I have to work out where I am going to from there. I am concerned that the family report writers, whilst they have touched on the father's behaviour, may not be fully aware of the extent of the mindset that he has. There were comments made during his evidence which demonstrate a very fixed mindset about how the world operates, and how people interact, and how he is of the view that his interactions in certain ways is totally acceptable, and I do not know if that, with no criticism of the family report writers, has actually hit home with them.

Having said that though, and I just want to throw these things at you, so you can think about it over lunchtime, I have no difficulty in ordering the transcript. I have no difficulty in providing the transcript to the family report writers. I am also aware that [Family Report Writer] is incredibly expensive, and I do not know where that's going to blow those costs out. I am also aware that you are both very good at cross-examination of the family report writers, and perhaps if the concerns are articulated in such a way, then that might elicit some sort of response. I do not think that can be done in the absence of you having the full benefit of the transcript though - - -

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: I agree.

HER HONOUR: - - - because this is just so intense and complicated and diverse in the difficulties he has had with his interactions. So these are the three options that I want you to consider over lunch: is there any benefit to getting psychological or psychiatric assessment of the parties, and so that is the first thing, and I have concerns about the time delay; the second thing is, is there going to be a benefit to a transcript being provided to the family report writers, given the costs it is going to incur, and I take it - is it the mother that has been bearing the costs, or both parties?

[COUNSEL FOR THE WIFE]: I think they both - - -

HER HONOUR: Right.

[COUNSEL FOR THE WIFE]: I think they both have.

HER HONOUR: Yes. The cost to [Family Report Writer].

[COUNSEL FOR THE WIFE]: [Family Report Writer].

HER HONOUR: [Family Report Writer]. Sorry. [Family Report Writer]. That is the second option. The third option is this. I order the transcript, even though I am forbidden, I do not care, I will provide you copies of the transcripts, and we work out a time plan where you can make some inquiries as to when [Family Report Writer] - and you have got to consider whether or not that transcript should also be given to [Mr B], even though he is not an expert, and I will be guided by you. I have - I have got a big question mark over that. But the family report writers' availability, because what I will do, even though I said to my associate under no circumstances, I have got some days coming up in November that are free, and I will give you the range of those days, because if you could - because if you take option three, I can order a very quick turnaround on the transcript, give it to you, and that is going to give you time to prepare your questioning of the family report writers.

[COUNSEL FOR THE WIFE]: It will also give, just for the record - - -

HER HONOUR: Father time.

[COUNSEL FOR THE WIFE]: - - - the father the time.

HER HONOUR: Yes.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: I think that is important, too.

HER HONOUR: Yes, and I will tell the father he can - he can file. What will I do? Even though I have released him from the witness box, I will allow the time for the father to put together his own tender bundle of additional documents.

[COUNSEL FOR THE WIFE]: Sorry. So sorry to groan.

HER HONOUR: Yes. Can you groan about something else, please? So what do you think I should do with the father?

[COUNSEL FOR THE WIFE]: I don't know. I will have a - I will have a - - -

HER HONOUR: Have a think about that, as well.

[COUNSEL FOR THE WIFE]: I will have a think about that, your Honour, because - yes. Can I ask - - -

HER HONOUR: Yes.

[COUNSEL FOR THE WIFE]: - - - another question?

HER HONOUR: Yes.

[COUNSEL FOR THE WIFE]: Depending upon what date you give us - - -

HER HONOUR: Which I will no doubt give you shortly.

[COUNSEL FOR THE WIFE]: Okay.

HER HONOUR: And hold on, my associate is on it. I suspect option three is the most practical of the options.

[COUNSEL FOR THE WIFE]: Yes.

HER HONOUR: And it is the most time effective of the options. Just - but I - but I wanted to give you all a chance to think about the ups and downs of each. These are the dates, practitioners. So if you can put your head about when you are going to be available during these dates, so anywhere between 18 and 22 November and 25 and 26 November, and also turn your mind as to whether one day is going to be enough, given that we have got three witnesses, and I know we are doing written submissions, but we have got three witnesses, where I imagine there will be extensive cross-examination of the family report writers, or whether it needs two days, and turn your mind to what you think I need to do to provide more procedural fairness to the father. Having said that though, the father has incredible recall on things that he thinks are important. In fact, he was quoting, not only orders and notations, but at one point I think he was quoting parts of affidavits as well. So - - -

[COUNSEL FOR THE WIFE]: Can I ask you a question?

HER HONOUR: - - - I will leave that with you.

[COUNSEL FOR THE WIFE]: Can I ask you a question?

HER HONOUR: Yes.

[COUNSEL FOR THE WIFE]: Would you be prepared this afternoon to entertain an interim application to suspend the operation of the current orders pending the matter coming back?

HER HONOUR: Would that be supported by the ICL?

[COUNSEL FOR THE WIFE]: I suppose they would have to - - -

HER HONOUR: Yes.

[COUNSEL FOR THE WIFE]: - - - think about it, because I have only just raised it.

HER HONOUR: Yes. If - I will say it generally as this: if there is an application made by you, [Counsel for the Wife] - - -

[COUNSEL FOR THE WIFE]: Yes.

HER HONOUR: - - - from the mother, and if it is supported by the ICL, then I would have to give serious consideration to that application.

[COUNSEL FOR THE WIFE]: All right. Thank you. Your Honour, can we - do you mind if we have till 1.15?

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: 2.15.

HER HONOUR: I would love it if we had until 1.15.

[COUNSEL FOR THE WIFE]: 2.15. Sorry. 2.15.

HER HONOUR: 2.15.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Your Honour, I hardly ever do this. We are up to day 5 of a - trying to get a consent order in Beenleigh for a child protection matter. [Ms D] has briefed me, and she will be on the line. It is listed for 2. I was hoping just for maybe 20 minutes, if it hasn't finalised, I will disengage with Beenleigh - - -

HER HONOUR: Well, you know what? As we are not going to get much further today, I take it [Mr B] is not available?

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: No.

HER HONOUR: And [Mr B], I need to hear from him before we put anything to the family report writer.

[COUNSEL FOR THE WIFE]: Yes. I agree.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Absolutely.

HER HONOUR: So why don't we stand down until 2.30?

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Thank you, your Honour. I appreciate that.

HER HONOUR: And if any of you see the father in the precinct, could you please just inform him that we will be standing down to 2.30?

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Yes.

HER HONOUR: Now, at 2.30, I am going to get you all in, explain to the father that I have spoken to you procedurally about how we can move this matter along, and then I will hear from you as to the decision you have made as to a suggestion as to how we can move it along.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Thank you so much.

HER HONOUR: Okay.

[COUNSEL FOR THE WIFE]: Thank you, your Honour. Your Honour, I can discuss this with my client, can't I?

HER HONOUR: Your client is not in the witness box.

[COUNSEL FOR THE WIFE]: No.

HER HONOUR: Of course you can.

[COUNSEL FOR THE WIFE]: No. No. Yes. Just because the - - -

HER HONOUR: Yes. Yes.

[COUNSEL FOR THE WIFE]: - - - parties were out of the room.

HER HONOUR: Of course you can.

[COUNSEL FOR THE WIFE]: Yes.

HER HONOUR: And I will be open with the father, too.

[COUNSEL FOR THE WIFE]: Yes. Yes. Yes.

HER HONOUR: But I needed to have an open conversation - - -

[COUNSEL FOR THE WIFE]: With the practitioners. Yes. I understand.

HER HONOUR: - - - to practitioners. But, no. No. I will be explaining to the father why we had the adjournment - - -

[COUNSEL FOR THE WIFE]: Yes.

HER HONOUR: - - - and what the issues are, and about [Mr B], and the - and the evidence, and so forth.

[COUNSEL FOR THE WIFE]: All right. Thank you, your Honour.

HER HONOUR: The other - the other thing is, though, if I am releasing the transcript to both of you, I will have to release it to the father as well.

[COUNSEL FOR THE WIFE]: I agree with that.

HER HONOUR: Like, I have no choice in that matter, and all I can do is just remind him of the section 121 restrictions in regard to that. Okay.

[COUNSEL FOR THE WIFE]: Thank you, your Honour.

ADJOURNED [1.12 pm]

(Consolidated transcript, 30 October 2024, p.223 line 24-p.232 line 42)

1. When the hearing resumed at 2.54pm, the transcript records as follows:

RESUMED [2.54 pm]

HER HONOUR: Mr [Ramirus], I just want to explain why I asked to speak to the practitioners just before lunch. This matter is not going to be finished today. [Mr B] is not available, and there is no possible way that we could finish, even if he had been available after lunch, that we could have finished three expert witnesses in such a short period of time. So I wanted to give a couple of options available to the practitioners of where we go to from here, and I am going to ask for their input as to how we now proceed. So I will do that firstly, and then I will - any issues raised by them, I will then bring - come back to you and explain them, just in case you don't understand.

MR [RAMIRUS]: Thank you, your Honour.

HER HONOUR: All right. Where are we going to from here? Who would like to speak to me? [Counsel for the Wife].

[COUNSEL FOR THE WIFE]: We understand from your associate that there is only certain dates that are available.

HER HONOUR: Yes.

[COUNSEL FOR THE WIFE]: We elect the first available of those, being the 18th.

HER HONOUR: And that will be for two days?

[COUNSEL FOR THE WIFE]: I have spoken to my instructor about that. We think it could be one day. I must say, I am worried that it won't finish in a day.

HER HONOUR: Well, when we have - and I will be speaking to the father in a minute as to whether he can - whether he will continue to be self-represented or whether he intends to get legal representation, but there will be three lots of cross, I imagine, for - - -

[COUNSEL FOR THE WIFE]: Yes.

HER HONOUR: - - - each of the witnesses. So I just wonder whether or not that can be contained to one day.

[COUNSEL FOR THE WIFE]: Maybe we can - I can just come back to that point.

HER HONOUR: Yes.

[COUNSEL FOR THE WIFE]: That your Honour order transcript.

HER HONOUR: I will order the transcript. Yes.

[COUNSEL FOR THE WIFE]: That have been provided to all the parties, including to the father.

HER HONOUR: Yes. I will be putting a restriction, though, on how the father can access the transcript - - -

[COUNSEL FOR THE WIFE]: That he - - -

HER HONOUR: - - - and that can be done through the subpoena section, and I will explain that to the father in a minute.

[COUNSEL FOR THE WIFE]: All right, and that he can re-examine himself on the transcript - - -

HER HONOUR: Yes. Yes.

[COUNSEL FOR THE WIFE]: - - - because he was cross-examined for over two days, and once he actually has the transcript, he will remember those questions he was asked - - -

HER HONOUR: Yes.

[COUNSEL FOR THE WIFE]: - - - and then he will be able to, in effect, re-examine himself.

HER HONOUR: Yes.

[COUNSEL FOR THE WIFE]: I submit that the transcript should be provided to all three of the experts, but with a direction that they are at liberty to read the transcript should they so choose. But that is simply from the point of view of costings. If [Family Report Writer], [Mr B] and [Ms C] wish to read the transcript beforehand, so be it. If they don't, they are not required to, but they will then have it for the purposes of cross-examination.

HER HONOUR: And so the three experts you referred to were - - -

[COUNSEL FOR THE WIFE]: [Mr B].

HER HONOUR: Yes. So he is - so he is to be included?

[COUNSEL FOR THE WIFE]: Yes. I think he should be.

HER HONOUR: [Ms C] and - - -

[COUNSEL FOR THE WIFE]: [Family Report Writer].

HER HONOUR: [Family Report Writer]. Yes.

[COUNSEL FOR THE WIFE]: You raised the issue of the benefit of a psychiatric or psychological assessment.

HER HONOUR: Of the parties. Yes.

[COUNSEL FOR THE WIFE]: I submit that it is unnecessary. You also raised the issue of whether the father should be able to prepare a tender bundle.

HER HONOUR: Yes.

[COUNSEL FOR THE WIFE]: Again, I submit that he shouldn't. His evidence is essentially closed.

HER HONOUR: It is.

[COUNSEL FOR THE WIFE]: And - but he should be allowed to re-examine himself.

HER HONOUR: I agree.

[COUNSEL FOR THE WIFE]: I then have an application in relation to time, but I will perhaps just not say anything about that now.

HER HONOUR: At this point.

[COUNSEL FOR THE WIFE]: They are - they are the procedural points.

HER HONOUR: Yes. [COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER].

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Just taking up that list from [Counsel for the Wife], I wouldn't say a psychiatric assessment is unnecessary, but I understand the costs, the timing and the like. I certainly think it would be very helpful in these proceedings. I don't know what the father's position is at this point in time in relation to that. The next best option of course is for the transcript to go to those experts. I do not quibble at all with [Counsel for the Wife]'s submission that they shouldn't be forced to read it because of the cost. It is certainly something no doubt under cross-examination they will be taken to the relevant passages for the purposes of our - - -

HER HONOUR: Yes.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: So that would be fine with us to keep the cost down. Two days, yes, I think it will take two days.

HER HONOUR: Yes.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: I don't know - well, [Counsel for the Wife] has foreshadowed what his time application will be on an interim basis. To me - - -

HER HONOUR: Yes. Well, we will consider that after I've procedurally dealt with these issues.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: That's correct. So if we go down that track - and I will keep my powder dry in relation to that. If we do go down that track, I would like to be heard in relation to the oncoming dates on the 18th as well. So, I'm not available that week, and the last barrister - I know there's a million in town, and you can get rid of matters very easily. It's the Toowoomba trial week, and I think at last count I'm in four trials that week in a rolling list. But I obviously don't want to prejudice this matter, but - - -

HER HONOUR: But I think it's important, [Counsel for the Independent Children's Lawyer], with your knowledge that you need to continue.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: But that - in terms of our interim position, if we have one, I might make submissions that may affect the timing of that anyway. We haven't heard back from [Mr B], because he has got clients all afternoon and we don't know his availability. That's the other difficulty.

HER HONOUR: Okay. Can I ask this of you, practitioners? I mean, I'm incredibly busy in November, but are there dates where you both have capacity to be available?

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Monday, your Honour?

HER HONOUR: Sorry?

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Monday?

[COUNSEL FOR THE WIFE]: Monday.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Don't look shocked, your Honour. This Monday.

HER HONOUR: Well, that - well, that's impractical because it's not going to give time for you. I mean, I can order the transcript overnight, but I can't be guaranteed that I will get it tomorrow, it might be Friday. It means you will have no weekend, and it also means that - - -

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: .....

HER HONOUR: - - - the family report writers wouldn't have a weekend either.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: I understand [Family Report Writer] is available on Monday by telephone and so is [Ms C], but we haven't heard from [Mr B].

HER HONOUR: I've got a four day matter starting Monday.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: I thought it was optimistic, so to speak.

HER HONOUR: Are there any other two days that - - -

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: I will confer with [Counsel for the Wife] - in November?

HER HONOUR: Yes.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: I will confer with [Counsel for the Wife].

HER HONOUR: All right. Mr [Ramirus], I understand that previously there have been requests for you to undergo a psychiatric assessment, which has been refused by you. Is that correct?

MR [RAMIRUS]: Definitely not.

HER HONOUR: No?

MR [RAMIRUS]: I think the last time, correct me if I'm wrong, [Ms E], but I think [Ms E] mentioned in an email letter - and my response was I would be happy to go anywhere in Australia to see the top experts and put this to bed. And if I'm prepared to do that, I would like both of us to do it, ideally.

HER HONOUR: All right. So you would do it if it was conditional from the mother also doing it?

MR [RAMIRUS]: Look, I think it's beneficial for both - - -

HER HONOUR: No, no.

MR [RAMIRUS]: - - - not conditional.

HER HONOUR: Just answer my question, sir.

MR [RAMIRUS]: Well, I don't want to make conditional things. I just think, the way I read it, I think it can help. And I think - I would hope the mother can be proactive enough that she can say, "Okay, let's do this for the kids."

HER HONOUR: Okay. Are you prepared to pay for psychiatric assessment?

MR [RAMIRUS]: Both of ours, you mean?

HER HONOUR: Are you prepared to pay for your psychiatric assessment?

MR [RAMIRUS]: What are they worth, do you mind me asking?

HER HONOUR: I don't know.

MR [RAMIRUS]: Do you know what they're worth? What's a psych assessment worth?

HER HONOUR: Probably 10.

[COUNSEL FOR THE WIFE]: $6,000 or $7,000, $10,000.

HER HONOUR: $10,000.

MR [RAMIRUS]: Look, if it's in the best interest of the kids, I will do it.

HER HONOUR: All right.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Would you pay for the mother's?

MR [RAMIRUS]: I think the mother's going to be well looked after now, but I could. I'm happy to do what's in the best interests of the kids. I'm already struggling financially, but we will do it.

HER HONOUR: I don't think you're struggling financially, sir. I signed off on your property orders yesterday. There's a property pool that is very big, and you're part of the property pool. I can't see how you're going to - - -

MR [RAMIRUS]: It doesn't mean I'm cash rich.

HER HONOUR: - - - financially struggle.

MR [RAMIRUS]: I'm not cash rich, your Honour.

HER HONOUR: See, the difficulty I have with the psych assessment is that it will take time, even if it is privately funded, and it is going to delay this matter significantly. And I am concerned that it may not be of assistance to me, and that that delay is going to be detrimental to all concerned, especially the children. Do you have a comment about that?

MR [RAMIRUS]: I believe we can make it work. Like I think you mentioned before - and this is just an idea, you mentioned September. I said back at the compliance and readiness hearing that, in my view, for the kids to get the best interest, they need time, in my view, with both parents of some amount of time. What that is, is up to the court, obviously, but I just don't believe it can be a fair trial if the kids haven't had an opportunity to spend a reasonable amount of time with either parent, given - - -

HER HONOUR: Well, they have spent time with you, sir.

MR [RAMIRUS]: We haven't had any overnights, we don't have any dinners because we don't operate like a functional family. Most functional families have a breakfast, they wake up together, they have a dinner, they shower, they go to sleep. We haven't done any of that, your Honour, because nine till four, you know, unless I try and take them home for a shower at 10 o'clock in the morning, I just don't see the logic in that. But I don't believe I've been able to act as a proper father as a result of the times that are set at present, which is one of my concerns and why I keep raising this later time, so we can actually sit down and have Sunday dinner, which we do, get the kids showered and to bed and asleep, and then [Ms Hendrika] picks them up - - -

HER HONOUR: Who's "we?"

MR [RAMIRUS]: - - - fast asleep.

HER HONOUR: Who's "we?" Which "we do," you say?

MR [RAMIRUS]: The what, sorry?

HER HONOUR: You said, "We can have a Sunday dinner, which we do," are you talking about - who, you and the children?

MR [RAMIRUS]: Me and the kids.

HER HONOUR: All right.

MR [RAMIRUS]: And it has worked beautifully when it is working; putting the kids from bed into the mum's car, she goes home, they're not screaming and squabbling, she picks them up, puts them in the bed, and it's a very calm night, and we've done that many, many, many times.

HER HONOUR: Are you intending to be legally represented when this matter comes back to the court?

MR [RAMIRUS]: I will have to - at the moment, I don't - - -

HER HONOUR: Because I won't be making provision for you to be legally represented again; you will have to pay for your own representation.

MR [RAMIRUS]: Yes. Well, if I've got to pay for it, I'm confident that I don't have confidence in some of these legal firms out there, so I will probably do what I've done today, just - - -

HER HONOUR: All right.

MR [RAMIRUS]: - - - give it my best shot.

HER HONOUR: So you're going to continue to act on your own behalf?

MR [RAMIRUS]: I think that's the way I get my instructions across.

HER HONOUR: Okay. All right. I'm just going to stand now for two minutes, because I would like that discussion to occur as to - - -

[COUNSEL FOR THE WIFE]: We've had - we've had it.

HER HONOUR: You have? What are the days?

[COUNSEL FOR THE WIFE]: We've worked out - unfortunately, so my learned friend has the Toowoomba trial week; I have the Maroochydore trial week, which is next week, but I have nothing, it looks like, on that Friday the 29th. I don't think you could do that date. And the reason why I suggest later in the week is because these rolling lists, you get four trials, two fall over, one adjourns. Your Honour has, I'm sure, done rolling lists in other registries. So by Friday, usually everything is pretty - - -

HER HONOUR: Everything is gone.

[COUNSEL FOR THE WIFE]: Everything's gone by Friday, so which is why I thought the 29th might work, and it works for my learned friend; I don't know if it works for your Honour's diary. The other option was the 18th and 19th, but my learned friend has a ..... trial

HER HONOUR: So, when you say the 29th, that means that the following Monday would also be a day that's required?

[COUNSEL FOR THE WIFE]: Yes, look - - -

HER HONOUR: This is not going to be finished in one day.

[COUNSEL FOR THE WIFE]: Look, I've got a mediation on, but I can get rid of that.

HER HONOUR: I'm just going to stand down and speak to Madam Associate about what we can do for those two days, and then I'm going to come in and make some procedural directions.

[COUNSEL FOR THE WIFE]: Or if your Honour - I'm sorry to interrupt you - or if your Honour would prefer to do it on 23.

HER HONOUR: On?

[COUNSEL FOR THE WIFE]: 23.

HER HONOUR: 23. Are you available, [Counsel for the Independent Children's Lawyer]?

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: I'm trying not to be difficult today, but no, what I might do is confer with my learning friend whilst you're stood down. I'm not available on those days. I'm - - -

HER HONOUR: Are you available on 29 and 1?

[COUNSEL FOR THE WIFE]: Or 29 and 2.

HER HONOUR: Is it 29 and 2?

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: 2 is the start of a - - -

HER HONOUR: Yes.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: - - - independent children's lawyer -no, I'm not. And I - - -

HER HONOUR: Okay. Are you not available - okay.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: I'm sorry I'm being difficult - - -

HER HONOUR: No, no.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: I'm not trying to be.

HER HONOUR: I'm going to stand down. Could you please go outside and work out where you have two consecutive days?

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Okay. Thank you.

[COUNSEL FOR THE WIFE]: Yes.

HER HONOUR: That you are able to be available, or move your commitments to be available for those two days.

[COUNSEL FOR THE WIFE]: Yes.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Not Christmas Day and Boxing Day.

HER HONOUR: No. Okay. I will just wait outside.

ADJOURNED [3.08 pm]

RESUMED [3.26 pm]

[COUNSEL FOR THE WIFE]: Doing the best we can, 18 and 19 November - I will have to get rid of something on the 19th, but that's fine. And [Counsel for the Independent Children's Lawyer] has two independent children's lawyers trials in Toowoomba. We were wondering, with your listing of it for the 18th and 19th, if you could - or your associate - contact the chambers somehow of [Judge F] for her trials to be later in the week. It's just from a practicality point.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: [Ms G] is going to be with me tomorrow, and it's with [Ms G]. I understand from my discussions with the associate, they are going - [Judge F] is away.

HER HONOUR: Yes.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: They are hoping to give dates as opposed to it just being a rolling list.

HER HONOUR: Right.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: I also have intelligence that there is a lengthy trial that is likely to run, and it might get kiboshed, all of us, in terms of all the other - the trials. So there is uncertainty. I would typically get rid of the trials, but because it's a trial week, it's hard to get barristers to - - -

HER HONOUR: Of course. No, we will contact [Judge F's] chambers and ask that consideration be given to the listing of any matters involving yourself towards the end of the week, Wednesday, Thursday, Friday.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Yes, and the other complication is this, [Ms G] is in a child protection matter without counsel funding on the Thursday Friday, so I don't know if that will impact her. But she's here tomorrow, and I will be able to ask her. I've contacted her. But that would be the first step, and I will do anything I can to accommodate - - -

HER HONOUR: And look, it's not uncommon for judges, where ICLs are caught up, to still allow a trial to run, as long as the ICL is contactable.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Yes, well - yes. It changes, but yes.

HER HONOUR: I know it changes.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: It is [Judge F].

HER HONOUR: Fair enough.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: I meant that in a positive way.

HER HONOUR: Yes. Well, yes, I don't think you're going to have any difficulties. But yes, we will do that. All right, does anyone else want to say anything more about the procedural matters before I make a decision about how we proceed going forward?

[COUNSEL FOR THE WIFE]: Yes.

HER HONOUR: Yes.

[COUNSEL FOR THE WIFE]: The earliest opportunity that this matter can come back before the court, with no psychiatric or psychological report, is the best thing, in my submission, for my client, for the father and for the children. So that's why I'm pushing so hard to just get this matter on - and I know your Honour is as well - as quickly as we possibly can.

HER HONOUR: Can I ask whether there have been any inquiries as to whether the witnesses that are outstanding are going to be available on the 18th and 19th?

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: No, and [Mr H] is not available this afternoon. Uncontactable.

HER HONOUR: What about [Family Report Writer] and [Ms C]?

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: We will make inquiries right now.

HER HONOUR: Okay. I think before I do anything, before we commit to something and then be told they're not available, [Mr B], worse comes to worse, a subpoena can issue. He's not an expert witness. He has provided affidavits. If I need to put him forward in such a manner, I'm able to do so. But out of courtesy to the expert witnesses, we need to know about their availability.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Yes. [Ms C] is free.

HER HONOUR: Excellent.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: [Independent Children's Lawyer] is stepping out to call [Family Report Writer].

HER HONOUR: Okay. Why don't we just stand down for two minutes for that call to take place. I will just wait out the back.

ADJOURNED [3.30 pm]

RESUMED [3.34 pm]

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: [Ms C] and [Family Report Writer] are available. [Independent Children's Lawyer]'s office is ringing [Mr H], but we don't know. But I hear what your Honour said.

HER HONOUR: Yes. If he's not available, then, we might have to take that legal recourse - - -

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Sure.

HER HONOUR: - - - because this matter needs to go ahead.

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Sure.

HER HONOUR: All right.

JUDGMENT DELIVERED

HER HONOUR: Between now and 18 November is only a matter of a few weeks. When are you seeing the children next? When is it scheduled?

MR [RAMIRUS]: Not this weekend, the following weekend is my understanding.

HER HONOUR: And what date is that?

MR [RAMIRUS]: Which is the 10th. Well, we haven't actually got anything booked in at [Counselling Practice] because it's all pending this. They've got it tentatively booked, as far as I'm aware.

HER HONOUR: Thank you. On the court's own motion, I am going to direct that the father's time with the children for the weekend of the - is it the 10th and the 11th? Unfortunately, I don't know where my - - -

[COUNSEL FOR THE WIFE]: Your Honour, it is the - - -

HER HONOUR: I don't have a - - -

[COUNSEL FOR THE WIFE]: I've got it.

HER HONOUR: Good. Because I didn't have one before me.

[COUNSEL FOR THE WIFE]: It's a Sunday. So it's the 10th and the 17th.

HER HONOUR: All right.

JUDGMENT DELIVERED

[COUNSEL FOR THE WIFE]: Will your Honour also make an order that restrains the father from attending at soccer? You heard some evidence about - - -

HER HONOUR: Yes.

[COUNSEL FOR THE WIFE]: - - - the fact that he was 20 metres away from my client at soccer last night after the trial. There's no order for him to attend extracurricular activities. My client has asked through correspondence in the past, page 150 out of my bundle, for him not to attend. So would you please make an order on my client's behalf that he not attend extracurricular activities, school or kindergarten, pending further order, including soccer? And the second thing I just wish to ask is does your Honour intend to also suspend the FaceTime calls?

HER HONOUR: I don't intend - firstly, I will do the last thing first.

[COUNSEL FOR THE WIFE]: All right.

HER HONOUR: I don't intend to suspend the FaceTime, calls because I'm aware that the mother is in the background - - -

[COUNSEL FOR THE WIFE]: Yes.

HER HONOUR: - - - and that those calls can be terminated should the conversation sway anywhere into adult issues. As to the attendance at soccer games, that isn't the subject of an order. And again, the father just fails to understand the seriousness of the DVO order and the fact that every time he turns up to those games, it's technically a breach. And the mother has not, for whatever reason - and I give credit to her - not every time a breach has occurred, reported that breach. The father needs to understand that there are real reasons why orders are made and that there are consequences, even though he hasn't felt them as yet, when orders are not complied with.

JUDGMENT DELIVERED

HER HONOUR: Do you understand, sir, the orders I've made?

MR [RAMIRUS]: I understand.

HER HONOUR: And do you understand the reasons why I've made these orders?

MR [RAMIRUS]: I heard what you said.

HER HONOUR: I didn't ask whether you've heard. I've asked whether you've understood what I've said.

MR [RAMIRUS]: I understand.

HER HONOUR: Thank you.

[COUNSEL FOR THE WIFE]: Or school or kindergarten or extracurricular activities. Will you add that to the order?

HER HONOUR: Is there a history, though, of the father attending at school?

[COUNSEL FOR THE WIFE]: No, but in my submission - - -

HER HONOUR: I won't, because I would hope that common sense for the father will prevail. And if this is a testing period for the father to restrain himself, it would be a good idea to actually do so. Because if the matter was to come back before me in the court and I hear that the father has been driving past the mother's house, has turned up at the school, has turned up at the shopping centre, knowing that the kids are there, then, I'm going to have serious concerns about whether the father has understood what I've said today. And I will have serious concerns about whether the father is going to follow court orders moving into the future. Because that is a very serious concern I have in this matter. So I would have thought for the father it would be imperative that he would understand, firstly, the orders I've made today and the gist as to why I've made those orders, and not only comply with the orders of this court, but, as importantly, comply with the orders of the domestic violence orders that have been made. Is there anything further at this stage?

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: No. Thank you, your Honour.

HER HONOUR: [Counsel for the Independent Children's Lawyer]. Anything further from you, sir?

MR [RAMIRUS]: No, your Honour.

HER HONOUR: All right. Thank you, then. We will see you here at 9 am on 18 November. And, [Counsel for the Independent Children's Lawyer], my associate has already made some inquiries. And we will certainly communicate back with you or with [Independent Children's Lawyer] once we've heard from the chambers of Judge .....

[COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER]: Thank you. I really appreciate that.

HER HONOUR: Okay. Thank you, practitioners.

[COUNSEL FOR THE WIFE]: Thank you, your Honour.

MATTER ADJOURNED at 3.49 pm UNTIL MONDAY, 18 NOVEMBER 2024

(Consolidated transcript, 30 October 2024, p.232 line 45-p.246 line 36)

1. The part-heard trial resumed on 18 November 2024. The appellant was then represented by new counsel and solicitors. At the commencement of the day, counsel for the appellant inter alia made, and then withdrew, an oral application for recusal by the primary judge on several bases:

HER HONOUR: So I am not allowing an adjournment. Now, do you have re-examination of the father?

[COUNSEL FOR THE FATHER]: No, your Honour. However, given the inability to question - sorry - re-examine the mother and the denial of an adjournment, there is a further application, and I do this with the utmost respect to - - -

HER HONOUR: Is this going to be a recusal application?

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

HER HONOUR: Goodness me. No. On what basis? That because I have not given him an adjournment? Because I have not allowed him to - - -

[COUNSEL FOR THE FATHER]: No.

HER HONOUR: Well, tell me, then, what's the basis of the - and is this the first time you've heard of this?

[COUNSEL FOR THE WIFE]: It is from my learned friend, but [Independent Children's Lawyer] did tell me mid-morning about it - that it may be bought - but my learned friend hasn't told me. He told me there may be an application.

HER HONOUR: You see, I - - -

[COUNSEL FOR THE WIFE]: I am ready.

HER HONOUR: What? Ready to be heard on the recusal?

[COUNSEL FOR THE WIFE]: Let him make his application.

HER HONOUR: Can I just make the following comment to the court. It seems to be a common practice that's emerging, in my experience, that where people don't get what they want, they think that's a basis for recusal, and it's not. So I hope it's not going to be another one of those, because I've dealt with one of those recently where I've had to make some scathing remarks with the way the matter was conducted. Just because someone doesn't get what they want is not the basis for recusal. So why should I step away from this matter?

[COUNSEL FOR THE FATHER]: Ultimately, your Honour - I'm sure you're aware of the double-might test with regards to recusal - through reading the transcripts there are a few items which, when combined, we're of the view might reach the level that that test is activated; it's all of them in conjunction and not a singular item on its own. The first being that Mr [Ramirus], whose lawyers withdrew at the commencement of the trial, was then left in a situation where he wasn't adequately prepared to continue, but your Honour's direction for the matter to continue.

HER HONOUR: Right. So I did not allow him an adjournment.

[COUNSEL FOR THE FATHER]: Yes.

HER HONOUR: Right. Yes. Next one.

(Consolidated transcript, 18 November 2024, p.491 line 20-p.492 line 24)

1. Relevantly, the following exchange between the primary judge and counsel for appellant ensued shortly thereafter:

HER HONOUR: Next one.

[COUNSEL FOR THE FATHER]: The next one was when your Honour - your Honour, perhaps with this particular next one I might ask the parties to step outside, provided I've got no objections.

HER HONOUR: Why? They were there when I did it.

[COUNSEL FOR THE FATHER]: They weren't.

HER HONOUR: They weren't?

[COUNSEL FOR THE FATHER]: Yes.

HER HONOUR: Okay.

[COUNSEL FOR THE WIFE]: So?

HER HONOUR: Yes. So what? Go ahead. I mean, you're asking - you've received instructions that I should recuse myself. So - - -

[COUNSEL FOR THE FATHER]: So in page 217 of the transcript your Honour expressed concerns about the father having potential narcissistic tendencies, as well as personality disorders. I would submit that this is a view being formed, and your Honour did make note that this is something that has crossed your mind, even without the support of - - -

HER HONOUR: I used the word "potential", didn't I?

[COUNSEL FOR THE FATHER]: Yes.

HER HONOUR: Yes. Thank you.

[COUNSEL FOR THE FATHER]:

...having potential narcissistic tendencies -

yes.

HER HONOUR: And what was the other thing I said?

[COUNSEL FOR THE FATHER]:

...as well as personality disorders.

HER HONOUR: Yes.

[COUNSEL FOR THE FATHER]: But you recognised that no psych assessment focusing on these particular issues had been completed - - -

HER HONOUR: That's right.

[COUNSEL FOR THE FATHER]: - - - for either party. Now, the other concern is that at this point in time - this was where your Honour was talking to the legal practitioners in - my understanding from reading the transcript - I am happy to be corrected here - in procedural matters. As a self-representative, technically, my client probably should have been present while discussing procedural matters.

HER HONOUR: Next.

[COUNSEL FOR THE FATHER]: As part of these discussions [Counsel for the Wife] - and I am not suggesting he intended to mislead the court in any capacity here, but at page 217 of the transcript he states that he believed that the father had been asked to do a psych assessment to which the father had said no. Your Honour, later, rightfully so, asked the father whether or not he had and whether or would have been willing to attend a psych assessment; I believe this is at page 228 of the transcript. He expressed if it could help the children, he would absolutely agree, and he also indicated that he would have been willing to pay for it for both the mother and the father.

HER HONOUR: Yes.

[COUNSEL FOR THE FATHER]: Now, in page 219 of the transcript your Honour also expressed that a psychiatric assessment for both parties may flag issues that result in making your Honour's job more difficult and delaying proceedings.

HER HONOUR: Yes.

[COUNSEL FOR THE FATHER]: If your Honour is of the view that it may make your job more difficult or delay proceedings, it's our submission that there is a perception there that, perhaps, what would be contained within the reports is relevant to the point where it made a determination harder.

HER HONOUR: Well, did your client go off and get a psych assessment - - -

[COUNSEL FOR THE FATHER]: No. But he - - -

HER HONOUR: - - - and present it to me? So he wasn't proactive in getting one.

[COUNSEL FOR THE FATHER]: He was not proactive.

HER HONOUR: So his concerns couldn't be that high, could they, if he didn't go and get a psych assessment.

[COUNSEL FOR THE FATHER]: When - - -

HER HONOUR: You see - I will let you continue. I agree with what [Counsel for the Wife] has said. You now have the benefit, at the court's expense, of a full transcript that you can pick apart to find little bits and pieces, like a jigsaw, to try and make a whole picture.

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

HER HONOUR: But I don't see where the father has been proactive in doing things.

[COUNSEL FOR THE FATHER]: And I accept that he hasn't been proactive - - -

HER HONOUR: Excellent. All right. Next.

[COUNSEL FOR THE FATHER]: - - - in that capacity, at all. The one - actually, your Honour, the one piece I would add to that, however, is he actually did go and see [Mr J] - and this is contained within the tender bundle; I'm going off memory here, so I can't direct you to the exact page - where it's actually noted in [Mr J]'s records that the father had actually gone and asked him about a psych assessment, but there's no other comment other than that was an issue that the father had raised.

HER HONOUR: And how long ago was that?

[COUNSEL FOR THE FATHER]: If your Honour would give me a moment, I will try and find the exact - so I don't want to mislead the court in any way. I am trying to - I think it's page 259 of the tender bundle, your Honour.

HER HONOUR: Right. And when was that?

[COUNSEL FOR THE FATHER]: I'm sorry. No. That is the wrong one. Sorry.

HER HONOUR: I suppose what I'm asking was, did that occur prior to the trial?

[COUNSEL FOR THE FATHER]: I believe it occurred in February, your Honour.

HER HONOUR: Right. Prior to the trial. Right. Your next issue?

[COUNSEL FOR THE FATHER]: Sorry, your Honour. I've just got to find my place. The next issue is one that your Honour had already commented on, which is not seeking the adjournment application which was just made now.

(Consolidated transcript, 18 November 2024, p.492 line 42-p.495 line 37)

1. Although alluded to, neither this limb of the recusal application, nor any other, was directed squarely at the fact that the primary judge had engaged in ex parte exchanges on 30 October 2024, between 12.56-1.12 pm, with the legal representatives for the respondent and the Independent Children's Lawyer, from which appellant, who was self-represented at the time, was excluded by her Honour. It was one thing for her Honour also to exclude the respondent from the Court; she was represented by counsel, who remained in Court. However, in the circumstances, it was entirely a different thing to exclude the appellant.
2. Ultimately, there was the following exchange between the primary judge and counsel for the appellant:

HER HONOUR: It's the timing of the recusal application that makes me, first of all, question whether or not it is genuine in it being sought. Would you like me to stand down so that you can reaffirm your client's instructions as to whether he wishes to proceed with the recusal application, given the timing this application has been made?

[COUNSEL FOR THE FATHER]: I am happy to reaffirm those instructions, your Honour.

HER HONOUR: Thank you. Let's stand down for two minutes. And, then, if he continues, I will then hear from [Counsel for the Wife]'s side.

(Consolidated transcript, 18 November 2024, p.499 lines 6-15)

1. When the hearing resumed, some 15 minutes later, there was the following further exchange between the primary judge and counsel for the appellant:

HER HONOUR: Yes. Thank you.

[COUNSEL FOR THE FATHER]: Your Honour, after some in-depth discussions with my client I am instructed to withdraw the application seeking a recusal.

HER HONOUR: Thank you. All right.

(Consolidated transcript, 18 November 2024, p.499 lines 24-29)

1. In Genesalio & Genesalio (No 4) [2023] FedCFamC1A 216 at [38], the Full Court summarised the principles of procedural fairness as follows:

The concept of procedural fairness is concerned only with the fairness of the hearing; not the fairness of the outcome (SZBEL v Minister for Immigration & Multicultural Affairs (2006) 228 CLR 152 at [25]). The rules of natural justice, which do not have immutably fixed content, are applied practically to ensure fairness ( Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at 14; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 99-100; National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 at 312). ...

1. In Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322 at 337-338, Lord Denning, Lord Hodson and Lord Devlin said:

The rule against bias is one thing. The right to be heard is another. Those two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. The Romans put them in the two maxims: Nemo judex in causa sua: and Audi alteram partem. They have recently been put in the two words, Impartiality and Fairness. But they are separate concepts and are governed by separate considerations. ...

If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. This appears in all the cases from the celebrated judgment of Lord Loreburn L.C. in Board of Education v. Rice [1911] A.C. 179, 182] down to the decision of their Lordships' Board in Ceylon University v. Fernando [1960] UKPC 6; [1960] 1 W.L.R. 223]. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not inquire whether the evidence or representations did work to his prejudice, Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing.

(As per the original)

1. The audi alteram partem rule, namely, the right to be heard and, conversely, the right not to be not heard, is one of the principles of natural justice and is at the bedrock of our legal system. Indeed, it long precedes our legal system. It is said to be attributable to St Augustine (4th-5th centuries CE) in his De Duabus Animabus XIV.2: see Mirko Bagaric, Ross on Crime (Thomson Reuters, 9th edition, 2022), at paragraph 1.7000. However, in fact, it hearkens back to the Bible and thereafter Babylonian Talmud (circa 5th century). Referring to the biblical injunction to judges in Deuteronomy 1:16 to "hear the causes between your brethren, and judge", the Babylonian Talmud in Tractate Sanhedrin 7B explains: "This is a warning to a court that it may not hear the statement of one litigant before the other litigant comes, and it is a warning to a litigant that he may not explain his statement to the judge before the other litigant comes. Read into the phrase in the verse ... that it is also concerning the litigant. Although he is not the judge, he is also required to assure that the case is conducted in the presence of both parties" (Koren Publishers, Jerusalem). Further, the Babylonian Talmud in Tractate Shevuot 31A explains: "From where is it derived that a judge should not hear the statement of one litigant before the other litigant comes to court? It is derived as the verse [in Exodus 23:7] states: 'Distance yourself from a false matter'" (Koren Publishers, Jerusalem).
2. Notwithstanding the distinction drawn between the rule against bias and the right to be heard, they are both aspects of natural justice. In some cases, they may overlap; in other cases, they appear to be considered interchangeable. Nevertheless, the distinction may be important where, as in the present case, application for recusal on the grounds of apprehended bias was made and then withdrawn.
3. In Kioa v West (1985) 159 CLR 550 at 582, Mason J said:

It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: ...

1. In Perkins v County Court (Vic) [2000] VSCA 171; (2000) 2 VR 246 at [58], Buchanan JA said:

In one way or another the rules of natural justice are concerned with the requirement that decisions affecting the rights of citizens shall be reached only after a fair hearing. That will occur if the tribunal observes the rule audi alteram partem and its members are not interested in the subject matter of the hearing: nemo debet esse judex in propria sua causa.

(As per the original)

1. In Re JRL; Ex Parte CJL [1986] HCA 39; (1986) 161 CLR 342, in the course of parenting proceedings, a report was prepared by a court counsellor which strongly favoured the mother. The child then lived with the father. The report stated that, if the child remained living with him, her anxiety neurosis could be expected to deteriorate. An adjournment was discussed between counsel for the parties. The counsellor protested to the mother about the adjournment, discussed the matter with the Director of Court Counselling and then, during the luncheon adjournment, spoke in chambers to the judge hearing the proceeding. Thereafter, the judge called counsel for the parties into her chambers and a conversation, substantially between the judge and the counsellor, ensued. When the hearing resumed that afternoon, counsel for the father asked the judge to disqualify herself from hearing the matter further, but the judge refused to do so.
2. On the hearing of application to make absolute an order nisi for a writ prohibiting the judge from further proceeding in the matter, Gibbs CJ said at 919-920:

It is a fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other: see Kanda v. Government of Malaya. McInerney J. stated the practice as it is generally understood in the profession in Reg. v. Magistrates' Court at Lilydale; Ex parte Ciccone as follows:

''The sound instinct of the legal profession - judges and practitioners alike - has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined."

The principle, which forbids a judge to receive representations in private, is not confined to representations made by a party or the legal adviser or witness of a party. It is equally true that a judge should not, in the absence of the parties or their legal representatives, allow any person to communicate to him or her any views or opinions concerning a case which he or she is hearing, with a view to influencing the conduct of the case. Indeed, any interference with a judge, by private communication or otherwise, for the purpose of influencing his or her decision in a case is a serious contempt of court: see Halsbury's Laws of England, 4th ed., vol. 9, par. 28 and cases there cited.

(Footnotes omitted)

[O]nce the Family Court is called on to perform its judicial functions, it must perform them judicially. It is quite antipathetic to and subversive of the exercise of the judicial power that a judge should receive private communications from any official, however well informed and well intentioned, even if the official is an officer of the court.

In the present case it was wrong of the counsellor to attempt to influence the judge and ill-advised for the judge to speak to the counsellor in private. Counsel for the prosecutor referred us to authorities which establish that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question involved in it: see Livesey v. N.S. w: Bar Association. I rather think that the present case is governed by an analogous principle, that justice must not only be done but must manifestly be seen to be done; when a judge has received in private representations concerning a case, the court will not inquire whether the representations in fact worked to the prejudice of the party against whose interest they were made - it is enough that they might do so: see Kanda v. Government of Malaya. Examples of a strict application of the principle are provided by R. v. Justices of Bodmin; Ex parte McEwen and Garrihy v. Wyatt. In the present case, the counsellor had formed a view adverse to the husband. She had expressed that view, not only in her report, but also in the presence of counsel in the judge's chambers. She had gone to see the judge because she believed that it would be detrimental to the child to remain for long in the husband's custody. The husband was entitled, not unreasonably, to fear that the counsellor may have made remarks adverse to him when she was alone with the judge and that the judge might have been influenced by them. Justice would not be manifestly seen to be done if in those circumstances the judge decided the case. The judge should not continue to hear the case and the order nisi for prohibition should be made absolute.

(Footnotes omitted)

A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even-handed. It is for this reason that one of the cardinal principles of the law is that a judge tries the case before him on the evidence and arguments presented to him in open court by the parties or their legal representatives and by reference to those matters alone, unless Parliament otherwise provides. It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide. This principle immediately distinguishes the judicial branch from other branches of government, except in so far as they may be relevantly affected by the rules of natural justice. In conformity with the principle, every private communication to a judge made for the purpose of influencing his decision in a case is treated as a contempt of court because it may affect the course of justice: In re Dyce Sombre per Lord Cottenham L.C. Indeed, it is regarded as a serious contempt.

(Footnotes omitted)

1. Like Gibbs CJ, Mason J referred to the decision in Kanda v Government of Malaya and that of McInerney J in R v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VicRp 10; [1973] VR 122, and said at 351:

As McInerney J. pointed out, the receipt by a judge of a private communication seeking to influence the outcome of litigation before him places the integrity of the judicial process at risk. A failure to disclose that communication will seriously compromise the integrity of that process. On the other hand, although the terms of a subsequent disclosure by the judge of the communication and a statement of its effect in some, perhaps many, situations will be sufficient to dispel any reasonable apprehension that he might be influenced improperly in some way or other, subsequent disclosure will not always have this result. The circumstances of each case are all important. They will include the nature of the communication, the situation in which it took place, its relationship to the issues for determination and the nature of the disclosure made by the judge.

It follows that the approach made by Ms. Bernet, the court counsellor, to the judge in this case and the conversation which then took place between Ms. Bernet and the judge in private chambers with respect to the proposed adjournment, in the absence of the parties and their legal representatives, was not authorized by the Act or the Rules. It was a very serious departure from the cardinal principle which governs the hearing and determination of cases in courts of justice, though it is plain enough that the motive for the departure was concern on the part of Ms. Bernet for the future welfare of the child. The seriousness of that departure was certainly alleviated by the judge's prompt and proper disclosure to counsel for the parties of the approach made by Ms. Bernet and of the substance of the discussion which occurred in private chambers.

It is evident from what I have said that there is a firm basis for a reasonable apprehension that the judge will not bring to bear an impartial and unprejudiced mind on the resolution of the custody issue. It is not to the point to say that the prosecutor has failed to establish the existence of any bias on the part of the judge. The courts have always refused, for obvious reasons, to embark upon an inquiry whether a judge will determine the issues impartially and with an unprejudiced mind. It would be idle for this Court to say that it is confident that the judge will act impartially. We have to ask ourselves how the matter would appear, viewed reasonably, to the public and the parties. And when we ask this question the answer that immediately presents itself is that the judge, who in all probability would be called upon to evaluate the correctness of the opinion of the court counsellor and her credibility as a witness, had the unprecedented advantage of a private discussion with her on the very issue for decision in the case, the counsellor being a convinced, and perhaps convincing, advocate of the wife's cause in the case. The fact that the counsellor is an officer of the court is a matter which enhances, rather than diminishes, cause for concern. A fair-minded observer, as well as a concerned parent who is a party to the litigation would naturally and rationally conclude that the counsellor's standing as an officer of the court would ensure that her opinion would carry weight with the judge. The subsequent discussion between the judge and counsel in private chambers would have done nothing to dispel that cause for concern. The case is plainly one in which the principle that justice must manifestly be seen to be done requires that the matter be heard by another judge: see Goold v. Evans & Co.

(Footnotes omitted)

The counsellor, whose report was clearly of great importance and whose opinion strongly favoured the wife's case, approached the judge and spoke to her privately about the case. In In re Dyce Sombre Lord Cottenham L.C. said:

"Every private communication to a Judge, for the purpose of influencing his decision upon a matter publicly before him, always is, and ought to be, reprobated; it is a course calculated, if tolerated, to divert the course of justice, and is considered, and ought more frequently than it is, to be treated as, what it really is, a high contempt of Court."

No doubt both Ms. Bernet and Mr. Goodsell were motivated by professional concern for the welfare of the child, but that was the issue being litigated between husband and wife. It was the issue which the judge had to determine and, in the absence of any statutory provision authorizing the counsellor to approach the judge, it was improper for her to raise privately with the judge any aspect of that issue.

(Footnotes omitted)

If a counsellor were given access to a judge to discuss privately a case pending in the court, the parties could have no confidence that justice would be done according to the impartial view of the judge on the evidence adduced in the proceedings. The parties to litigation are entitled to be present during the hearing of their case not merely because they have an interest in the proceedings but because confidence in the court could not be maintained if the parties are left unaware or only partially aware of the matters which affect the Court's judgment. The Act has curtailed public scrutiny of the administration of justice in the Family Court, but it does not countenance the administration of justice in the absence of parties who may wish to be and are able to be present. It would require at least statutory authority to permit a judge to discuss with a counsellor out of court any question of substance relating to an issue in proceedings for custody pending before that judge. Nor does the Act authorize a judge before whom proceedings are pending for the custody of a child of a marriage to discuss an issue in the proceedings with a counsellor and the legal representatives of the parties meeting in private. The jurisdiction to determine such a matter is vested in the Family Court, and it cannot be exercised in the privacy of a judge's chambers. That is incompatible with the intention of the Parliament. To leave the parties - typically anxious parties - to learn by report what has happened in their absence is to foster any apprehension either party may have that the proceedings may not be judicially conducted.

1. In RPS v The Queen (2000) 199 CLR 620 at [95]-[97], Callinan J said:
   1. ... Litigants, whether the State, corporations, or natural persons are not the only ones who have an interest in an impartial, and an apparently impartial system of justice. Indeed it is also the interest of the public at large in such a system that dictates that a trial must not only be impartially conducted but also must be seen to be so. The whole rationale behind the apprehended bias rule is the need for public confidence in the judicial system: it is of "fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done". Or, as Deane J stated in Webb v The Queen: "it is of fundamental importance that the parties to litigation and the general public have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice."
   2. Let it be assumed that there has been, in a particular case, in absolute terms, a fair trial but during it there was conduct by the judge in relation even to legal matters only, and in the absence of the jury, strongly suggesting otherwise. If fair minded observers unconnected with the litigation, and even informed to the extent that the law presupposes, were nevertheless to be left with the impression that the trial judge was apparently biased a new trial still might have to be considered as a possibility. Justice must be seen to be done: otherwise justice will not in fact be done. As Lord Denning MR said:

"The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: 'The judge was biased.'"

97 Lord Devlin explained the principle in similar terms:

"This is why impartiality and the appearance of it are the supreme judicial virtues. It is the verdict that matters, and if it is incorrupt, it is acceptable. To be incorrupt it must bear the stamp of a fair trial. The judge who does not appear impartial is as useless to the process as an umpire who allows the trial by battle to be fouled or an augurer who tampers with the entrails."

1. In the present case, when the hearing resumed at 2.54pm on 30 October 2024, this time in the presence of the appellant, the primary judge told him that she wanted to explain why she had asked to speak to the legal practitioners for the other parties. Her Honour told him that the trial, which had been listed for three days, would not be concluded that day, being the third day, and that she had "wanted to give a couple of options available to the practitioners of where we go to from here" and that she was "going to ask for their input as to how we now proceed" (consolidated transcript 30 October 2024, p.233, lines 5-7).
2. However, it is manifest from the transcript of the preceding exchanges between the primary judge and the legal practitioners for the respondent and the Independent Children's Lawyer, in the absence of the self-represented appellant, that her Honour had done much more than that.
3. Her Honour had expressed "concerns" that she did not have a psychiatric assessment of the appellant. Her Honour had told the lawyers that she was "picking up clear signs" of what she somehow considered to be "narcissistic issues, as well as personality disorders", notwithstanding that, at that stage, only the respondent and the appellant had been cross-examined and that the family reports did "not go into anything in respect to personality disorders" (consolidated transcript 30 October 2024, p.225 lines 3-6). Her Honour had said that she considered there were "some serious red flags ... in regard to the [appellant's] behaviours" that caused her concern (consolidated transcript 30 October 2024, p.225 lines 23 and 28). Her Honour had invited counsel for the other parties to "think through this [with her] in a logical sequence ... because if I ask the question to the [appellant], and he refuses, we can't take it any further", the "question" being whether he would submit to a psychiatric assessment (consolidated transcript 30 October 2024, p.225 lines 46-47). When asked, in response, by counsel for the respondent, "[w]here is it going to get us?" her Honour had responded: "Well, that is what I'm saying" (consolidated transcript 30 October 2024, p.226 lines 16-18). Her Honour had expressed concern that the respondent "may not realise the significant impact that this relationship has had on her and her ability to parent, because she was very stoic, and she should be given credit for her bravery in the witness box, ... but all the non-verbals from her indicate that this is a woman who has been severely impacted upon by her circumstances in dealing with this man" (consolidated transcript 30 October 2024, p.227 lines 16-21). Her Honour had agreed with counsel for the other parties that "getting a psychiatric assessment of the [appellant] or psychological assessment of the [respondent] is going to just drag this matter out further" (consolidated transcript 30 October 2024, p.226 lines 40-41). Her Honour had expressed concern to counsel that "the family report writers, whilst they have touched on the [appellant's] behaviour, may not be fully aware of the extent of the mindset that he has" (consolidated transcript 30 October 2024, p.227 line 47-p.228 line 2). Her Honour had opined that "[t]here were comments made during [the appellant's] evidence which demonstrate[d] a very fixed mindset about how the world operates, and how people interact, and how he is of the view that his interactions in certain ways is totally acceptable", and said that she did not know if that had "actually hit home" with the family report writers (albeit in the absence of cross-examination at that point in time) (consolidated transcript 30 October 2024, p.228 lines 2-6). Her Honour had opined that it was "just so intense and complicated and diverse in the difficulties [the appellant] has had with his interactions" (sic) (consolidated transcript 30 October 2024, p.228 lines 19-20). Her Honour had canvassed with counsel the options she wished them to consider over the luncheon adjournment, including whether there was any benefit in obtaining psychological or psychiatric assessment of the parties, given her "concerns about the time delay" (consolidated transcript 30 October 2024, p.228 line 23). Her Honour had asked counsel: "What will I do?" (consolidated transcript 30 October 2024, p.229 line 14) and "So what do you think I should do with the [appellant]?" (consolidated transcript 30 October 2024, p.229 lines 20-21). Her Honour had told the legal representatives that she "wanted to give you all a chance to think about the ups and downs of each" of the options (consolidated transcript 30 October 2024, p.230 line 2), the reference to "you all" manifestly being to the exclusion of the appellant, who was then unaware of what had been discussed and who only became aware thereof at some stage after that day, when the transcript was subsequently made available to him and/or his new lawyers.
4. Further, during this exchange, still in the absence of the self-represented appellant, counsel for the respondent had asked her Honour whether she would be prepared to entertain an interim application that afternoon to suspend the operation of interim orders for time to be spent between the children and the appellant, pending the resumption of the trial in the latter half of the following month. Her Honour had responded that, if there were such an application and it were supported by the Independent Children's Lawyer, then she "would have to give serious consideration to that application".
5. Lastly, her Honour had said to counsel that, after the luncheon adjournment:

"I am going to get you all in, explain to the [appellant] that I have spoken to you procedurally about how we can move this matter along, and then I will hear from you as to the decision you have made as to a suggestion as to how we can move it along".

(Consolidated transcript 30 October 2024, p.231 lines 32-35)

(Emphasis added)

1. However, as is manifest, her Honour did much more than merely speak to counsel about how the matter could be progressed procedurally.
2. Further, insofar as the primary judge had said to counsel that, whilst she would be "open" with the appellant (Consolidated transcript 30 October 2024, p.232 line 13), and would explain to him why "we had the adjournment" (Consolidated transcript 30 October 2024, p.232 lines 21-22), but that she needed to have an "open conversation" with them (Consolidated transcript 30 October 2024, p.232 line 17), if that had indeed been the case, it is difficult to understand why her Honour could not have had that conversation in the presence of the appellant, all the more so in the critical circumstances where he did not have legal representation privy to those exchanges.
3. As is apparent from the transcript, that afternoon, the primary judge heard submissions in relation to the benefit or otherwise of a psychiatric or psychological assessment of the parties. Counsel for the respondent submitted that it was unnecessary. Counsel for the Independent Children's Lawyer submitted that, notwithstanding "the costs, the timing and the like ... it would be very helpful" (Consolidated transcript 30 October 2024, p.235 lines 25-26). The appellant said that, if it were considered to be in the best interests of the children, he would undergo a psychiatric assessment, irrespective of whether the respondent was required to do likewise, although he considered that he was "already struggling financially" (Consolidated transcript 30 October 2024, p.238 lines 13-14). Notwithstanding what she was told by counsel for the Independent Children's Lawyer and by the appellant, her Honour responded that she had "difficulty ... with the psych [sic] assessment" because it would take time, it would delay the matter significantly, it might not be of assistance to her and the delay would be detrimental to all concerned, especially the children (Consolidated transcript 30 October 2024, p.238 lines 25-29).
4. Later that afternoon, without the foreshadowed application for a suspension of the children's time with the appellant, pending the resumption of the part-heard trial, having actually been made, or having heard any substantive submissions in relation thereto, beyond what the primary judge earlier discussed with counsel for the respondent and the Independent Children's Lawyer, in the absence of the self-represented appellant, her Honour nevertheless ordered, of her own motion, that such time be suspended and that he be restrained from attending their soccer games until further order.
5. In her reasons for judgment delivered ex tempore that day, which are not the subject of appeal, her Honour said that she had considered whether psychiatric or psychological assessments would assist (at [3]). Her Honour said:
   1. In relation to the mother. There is no application before the Court that the children should be removed from the mother or that the mother's time be restricted in any way and the father in his own words has commented that the mother is a good mother and is doing a good job raising the children
   2. A psychiatric or psychological assessment of the mother where there is no other evidence before the Court that there are any mental health issues for the mother. I find would not be useful on any level given the issues that need to be considered by this Court.
   3. In respect to the father. We have albeit untested, two affidavits by his treating psychologist, and the treating psychologist will be available to give evidence and be able to be cross examined. The father has been under the care albeit it off and on again for some time before that treating psychologist.
   4. There has never been a recommendation made in either family report or by the treating psychologist that the father needs a psychiatrist and I, having thought about the matter in great detail, do not believe a psychiatric assessment of the father is going to assist this matter in the decision that has to be made.
   5. Even if a diagnosis was made. Even if elements of treatment were made. It still is up to the Court as to what is in the best interests of the children moving forward.

1. Subsequently, in her reasons the subject of this appeal, the primary judge observed at [64] that the Court did "not have the benefit of a psychiatric assessment" of the appellant and said at [65]:
   1. At first, the father refused to an assessment and although the father had an opportunity later to obtain and provide such an assessment, the father chose not to.
2. As will be apparent from the foregoing, that was not the case. I observe, parenthetically, that Ground 5 of the amended Notice of Appeal contends, it appears correctly, that the primary judge erred in fact in her finding at [65]; however, for the reasons herein, it is unnecessary to consider the grounds of appeal beyond Ground 1.
3. In relation to the children spending time with the father, her Honour, in her ex tempore reasons for judgment delivered on 30 October 2024 said:
   1. I'm going to suspend the father's time with the children on 10 and 17 of November 2024.
   2. The reasons for the suspension are this, and they are the only two days that I have at this point suspended. The father has blatantly disregarded the provisions of the domestic violence order in that the father has directly contacted the mother in respect to completing a personality test.
   3. More importantly, and more disturbingly he thought it was appropriate that within the precinct of the court, he talked to the mother directly at a time when everyone's emotions are high, where there are issues that need to be canvassed in the Court and where the father has held on to a notion totally misguided that somehow this Court has made an order that the domestic violence order need not be followed.
   4. That is not the case. Whatever has been done by Judicial Registrars or Registrars previously has never been in an order, it's been in a notation. And the context of that has been taken completely out of what it was designed. The father needs to understand that he has to take the domestic violence orders seriously.
   5. There is a history in this matter where the father has not complied with the orders or has misinterpreted what the orders have meant. That is my first concern as to why I am suspending time.
   6. The second reason why I am suspending time is because I have concerns that the father will raise with the children issues that have arisen in this part-heard trial. Whether that is directly or indirectly. Whether that is brought up by the father or in answer to any of the questions asked by the children. I cannot afford for the children to be brought any further into the adult issues during the course of this trial.
   7. The third reason why I am directing suspension of time, is the mother needs breathing space, the children need breathing space, and the father needs to read that transcript and think about the position that he holds in respect to his very fixed views about how to deal with conflict and how to deal with people and perhaps take the opportunity to speak to [Mr J] who will have a copy of the transcript, about the approach he might wish to take moving forward in how he has interactions with people.
   8. The father did demonstrate during the course of his cross-examination levels of aggravation and rudeness, if I could put it that way to the Court and appeared even having been asked several times to directly answer questions, having been asked several times not to do certain things, failed to take direction as to what is appropriate behaviour.
   9. I always have grave concerns that if people can't even behave in a court system and a court room where they are under very strict rules as to how to behave, then how their behaviour must be carried out in private, when it's being completely unfettered and unwatched.
   10. It is for those reasons that I am suspending time with the children.
   11. I do not want the father to think for a moment that I have pre-judged this matter. I have not. But what everyone needs to understand is that I am here to make decisions in the best interests of the children.
   12. I am of the view that it is in the best interests of the children between now and when the trial resumes in a couple of weeks' time that they not be confronted by any unnecessary conversations about adult issues and where there is calmness.
   13. I also need the father to take the time to consider his position that he is holding forward in respect to future time with the children and also to reflect on what has happened in the Court over the last couple of days.
   14. I am further going to make an order that the father is not to go to any soccer games between now and when the matter comes back before me on 18 November.
4. These were all matters that were canvassed earlier that day between the primary judge and counsel for the respondent and the Independent Children's Lawyer, in the absence of the self-represented appellant.
5. It is, at least, surprising that these ex parte exchanges were allowed to occur, both on the part of the primary judge, as well as on the part of counsel for each of the respondent and the Independent Children's Lawyer.
6. Rule 54 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 provides that:

1. A barrister must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent's absence with the court concerning any matter of substance in connection with current proceedings unless:

(a) the court has first communicated with the barrister in such a way as to require the barrister to respond to the court, or

(b) the opponent has consented beforehand to the barrister dealing with the court in a specific manner notified to the opponent by the barrister.

1. Whilst, arguably, the exception in paragraph (a) may have been engaged, in that the Court conceivably had first communicated with both counsel in such a way as to require them to respond to the Court, no concern was expressed by them as their exchanges with the primary judge unfolded, regarding the absence of the self-represented appellant.
2. Notwithstanding that the primary judge said at [13]-[14] of her reasons that, after the appellant's lawyers withdrew and he became self-represented, in accordance with Johnson & Johnson [2000] HCA 48; (2000) 201 CLR 488 (sic) and Re F: Litigants In Person Guidelines [2001] FamCA 348; (2001) FLC 93-072, "every attempt was made the ensure that fair process was afforded to the [appellant]", the transcript of the ex parte exchanges between her Honour and counsel for the other parties, in his absence, whilst unrepresented, manifestly reveals otherwise. It would also appear that her Honour's reference to the decision of the High Court Johnson & Johnson [2000] HCA 48; (2000) 201 CLR 488 was incorrect, not being on point, and that she intended, in fact, to refer to the decision of the Full Court in Johnson & Johnson [1997] FamCA 32; (1997) FLC 92-764.
3. One of the "obligations" of trial judges when hearing cases involving unrepresented litigants was specified by the Full Court in Johnson & Johnson (1997) at [121(7)] to be "[t]o ensure as far as possible that a level playing field is maintained at all times". In Re F at [250] this was reformulated, as the first (rather than seventh) guideline, as follows:

"A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;"

(As per the original)

1. That did not occur.
2. Remarkably, in the respondent's Summary of Argument, it is contended, albeit unsurprisingly unsupported by reference to any authority, that there was no prejudice to the appellant in the primary judge raising the matter of a psychiatric assessment in his absence (at paragraph 16) and that it was "entirely appropriate", before raising this issue with the appellant, that there be "some exploration as between the legal representatives and the Court such as how any such report would be paid for. Particularly, given that the Court was being assisted by an experienced ICL and counsel" (sic) (at paragraph 22).
3. However, those submissions blithely disregard the fact that the "exploration between the legal representatives and the Court", and the fact that the Court "was being assisted by an experienced ICL and counsel", did not include any legal representation on behalf of the appellant. Further, it is clear from the transcript that, in the absence of the self-represented appellant, he having been excluded by the primary judge, more transpired than merely "some exploration ... as how [sic] any such report would be paid for".
4. The respondent also submits, as if in mitigation of the denial of procedural fairness to the appellant, and any consequent miscarriage of justice by reason thereof, that "[t]hereafter the matter was raised with the [appellant] in open court and the matter considered" (at paragraph 17); the appellant was subsequently provided with a full transcript of the hearing "to that point", including the hearing from which he was excluded (at paragraph 18); and, when the part-heard trial subsequently resumed, nearly three weeks later, on 18-19 November 2024, the appellant was represented by new solicitors and counsel, who had the benefit of the transcript (at paragraphs 19-20). However, in the circumstances, that is no answer to the complaint in Ground 1 that, in conducting part of the proceedings in the absence of the appellant, whilst self-represented, he was denied procedural fairness and a miscarriage of justice occurred.
5. It is one thing for a judge to speak to all counsel, in the absence of the parties whom they represent; it is entirely a different, and unacceptable, thing for a judge to speak to counsel for some parties, in the absence of a self-represented party. Whilst the end to which the primary judge aspired may conceivably have been understandable, it in no way justified the means employed by her Honour to attain same. In circumstances where the appellant was self-represented, her Honour should not have excluded him from her discussions with counsel for the respondent and the Independent Children's Lawyer.
6. In the course of the hearing of the appeal, although not referred to in his list of authorities, counsel for the respondent referred to Minister for Immigration v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [2], where the plurality of the High Court said that breach of the obligation of procedural fairness constitutes jurisdictional error -

if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.

1. See also Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145-146.
2. However, in Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 109, albeit in the different context of administrative law, Gaudron and Gummow JJ referred to "trivial breaches" of procedural fairness and said at [62] that the requirement therefor may fluctuate. At [60], their Honours said:

... it is trite that, where the obligation to afford procedural fairness exists, its precise or practical content is controlled by any relevant statutory provisions and, within the relevant legislative framework, this will vary according to the circumstances of the particular case.

1. Similarly, in National Companies and Securities Commission v News Corporation Limited [1984] HCA 29; (1984) 156 CLR 296 at 311-312, Gibbs CJ said:

In Russell v. Duke of Norfolk, Tucker L.J. said: "The requirements of natural justice must depend of the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth." The passage has frequently been approved - for example, by this Court in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group. The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise. Moreover, as Stephen J. said in Salemi v. MacKellar [No.2], the rules of natural justice "may also vary from case to case although each be conducted before one and the same tribunal or person".

(Footnotes omitted)

1. It will also be recalled that, in Genesalio & Genesalio (No 4), referring inter alia to National Companies and Securities Commission v News Corporation Limited, the Full Court said at [38] that "[t]he rules of natural justice, which do not have immutably fixed content, are applied practically to ensure fairness".
2. In the present case, I consider the exclusion of the self-represented appellant from the Court by the primary judge, whilst she and counsel for the respondent and the Independent Children's Lawyer engaged in ex parte discussions regarding matters that were not, as her Honour told him, merely procedural in nature (if that even mattered), to be such an egregious denial of procedural fairness to him as to constitute manifestly a miscarriage of justice. As the authorities make clear, not only must justice be done, it must also be seen to be done. That is not to say that justice was even done. It is clear from the transcript that, in the absence of the appellant, the primary judge and counsel for the respondent agreed that a psychiatric assessment of him would be of no utility. After the luncheon adjournment, when the appellant was allowed by the primary judge to resume participation in the trial, he told her Honour that he would undertake such an assessment. Nevertheless, her Honour later ruled, as she had foreshadowed in his absence, against such an assessment.
3. Further, without the application for a suspension of time actually being made, which was foreshadowed by counsel for the respondent and discussed with the primary judge in the appellant's absence, and without the appellant subsequently being heard in relation thereto, her Honour proceeded to so order.
4. In the circumstances, Ground 1 succeeds; the appeal must, and will, be allowed. The matter will be remitted for retrial by a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge. However, the Orders the subject of the appeal will only be set aside on and as from the date upon which further parenting orders are made by the Federal Circuit and Family Court of Australia (Division 2).

1. At the conclusion of the hearing of the appeal, counsel for the appellant and the respondent sought that, if the appeal succeeds on a question of law, as is the case, that costs certificates be granted pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the appeal and in respect of the retrial. In the circumstances, it is appropriate that such certificates be granted.

I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum.