FAMILY LAW - APPEAL - PARENTING - Appeal against supervised time orders at a contact centre - Where the appellant asserts incompetence of counsel resulting in the absence of a fair trial - Where the appellant asserts forensic error and incompetence of counsel by a failure to read and rely on affidavits of familial witnesses not required for cross-examination - Consideration of the principles identified in OP v TP & The Child Representative

(a) An email from the father to "inquires@fcfcoa.gov.au" dated 28 November 2024;

(b) Email correspondence between the father and Dr L dated 5 October 2024; and

(c) Email correspondence between the father and his solicitor dated 1 October 2024 to 8 October 2024.

1. The ICL opposed the granting of leave to the father to make the oral application. Leave was granted to make that oral application during the hearing of the appeal. The mother and the ICL opposed the oral application.
2. Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the FCFCOA Act") gives an unfettered discretion to admit further evidence on appeal. The discretion exists to serve the demands of justice "to ensure that the proceedings do not miscarry" and is informed by a consideration of a number of factors (CDJ v VAJ; Hsiao v Fazarri [2020] HCA 35; (2020) 270 CLR 588 at [43]). The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures.
3. The father submitted that the further additional documents sought to be adduced would buttress that as asserted by Ground 1 and its sub-grounds. That submission directs consideration as to the construction of Ground 1, being that the father was denied a fair trial, such that it miscarried, by reason of the incompetence of counsel.

The email from the father to "inquires@fcfcoa.gov.au" dated 28 November 2024

1. It was not asserted by the father that the fact and the content of an email sent by him during the trial to a generic court inquiry email address was known to his solicitor, his counsel, or the primary judge. The father did not explain how the document was relevant to Ground 1.

The emails between the father and Dr L dated 5 October 2024 and the father and his solicitor dated 1 October 2024 to 8 October 2024

(a) That Dr L was unable to incorporate his report dated 30 September 2024 into an affidavit and was unavailable for cross-examination at trial; and

(b) Queries from the father to his solicitor as to the trial process and procedures, including the length of his affidavit and which of his witnesses can give evidence in court.

1. These emails were sent almost two months before the trial commenced. No evidence was identified as to any responses to them. The father did not explain how the content of the documents was known to counsel at trial, and hence was relevant to a ground of appeal.
2. The father has not established how any of the evidence by way of the three documents for the purposes of the oral application are relevant to any ground of appeal, or how they would likely produce a different result as to the terms of time spent. The oral application will be dismissed.

The second oral application of the father made during the hearing of the appeal

1. The father made a further oral application in the appeal to dispense with r 13.23(4) of the Rules to:

(a) Make submissions as to Ground 3 in the Notice of Appeal filed on 31 July 2025; and

(b) Make submissions as to issues not identified in the father's Summary of Argument, being:

(i) The content of supervised spend time with reports; and

(ii) The attendance of Dr L to give evidence at trial and produce a report.

1. The oral application was opposed by the mother and the ICL. At the hearing of the appeal the following orders were made:

...

1. The [father] have leave to make an oral application in an appeal to dispense with r 13.23(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") to:

   1. Make submissions as to Ground 3 in the Notice of Appeal filed on 31 July 2025 notwithstanding the [father]'s Summary of Argument filed on 26 September 2025 recorded that he did not pursue this ground and hence the Summary of Argument failed to comply with the matters identified in r 13.23(2)(a) of the Rules as to that ground; and
   2. Make submissions as to issues not identified in the [father]'s Summary of Argument, being:
      1. The content of supervised spend time with reports; and
      2. The attendance of Dr [L] to give evidence at trial and produce a report.

2. The [father]'s oral application identified in Order 4 is dismissed with reasons reserved to the substantive appeal reasons.

...

...

(2) For the purposes of subrule (1), a summary of argument must:

(a) set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on (together with references to the relevant pages of the appeal book and transcript); and...

(4) Issues not identified in the summary of argument may not be advanced at the hearing of the appeal except with leave of the appeal court.

1. The father identified at the hearing of the appeal that:

(a) The new identified issues not raised in his Summary of Argument were relevant to Ground 1. He did not elucidate how or why counsel was incompetent or made forensically wrong decisions as to the additional issues. The father submitted that the new issues had relevance "by way of [additional] examples" relevant to Ground 1 through a "holistic consideration" of matters that support the ground; and

(b) Counsel for the father had advised counsel for the respondent and counsel for the ICL of these new issues and of the father's intention to prosecute Ground 3 on the evening prior to the hearing of the appeal. He was unable to explain why Ground 3 was abandoned in his Summary of Argument, or why, in the shadow of the hearing of the appeal, it was sought to be resurrected.

1. Both the mother and the ICL contended that the father had provided insufficient notice to permit them to "turn their minds" to these matters, such that they would be prejudiced in the conduct of the appeal.
2. I was not referred to any relevant authorities applicable to the exercise of discretion to allow late amendment to a Notice of Appeal. The Full Court in Madden & Madden [2006] FamCA 1391 ("Madden") directed consideration be given to the principles espoused by the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146. These include considerations which may be brought against a late application to amend including "the failure of a party to offer anything by way of explanation... the blamelessness of the resisting party and the extent to which the applicant is at fault in its breach of clear directions". The Full Court said in Madden:

97. An application for permission (as it is described in the Rules) to amend grounds of appeal after the commencement of the appeal hearing must be regarded as an extraordinary circumstance, and discretion would be exercised in favour of an applicant only in the most limited circumstances where failure to do so would be contrary to the interests of justice.

1. The Appeal Book is 1,433 pages and the transcript is 304 pages. Each comprises a substantial volume of material. The father's Summary of Argument is 23 pages, being more than the 15-page limit prescribed by r 13.23(2)(c). At the commencement of the hearing of the appeal the father obtained the indulgence of leave to rely on his 23-page Summary of Argument.
2. An obligation rests with an appellant to succinctly identify in clear terms the errors alleged to be made in the judgment under challenge (Shinohara at [20]). The father did not attempt to reduce to writing any supplementary Summary of Argument directed to the new issues, or to Ground 3. The points of law or fact, together with any references to relevant pages of the Appeal Book or transcript, implicitly would be identified 'on the run' during the appeal with submissions being made in support of them.
3. No application for adjournment of the appeal, on condition or otherwise, to ensure affording fairness to the mother or the ICL, was made by the father. No serious injustice was submitted to be occasioned to the father if leave was refused. The prejudice asserted by the mother and the ICL, should the oral application be granted during the hearing of the appeal, was self-evident. The challenges presented to them and to the Court in considering this late amendment to the appeal is contrary to the fair and orderly conduct of appellate processes embodied in the Rules and the FCFCOA Act. I was not persuaded that the father should be granted leave as sought and therefore dismissed the oral application at the hearing of the appeal.

Ground 1: "That the trial miscarried by reason of the incompetence of the [father]'s trial counsel, such that the [father] was denied a fair trial..."

1. An assertion as to the incompetence of counsel is not, of itself, an independent ground of appeal. An appeal may be allowed if it can be demonstrated that the incompetence of counsel was such that the appellant was not afforded a fair trial, or it produced a miscarriage of justice (TKWJ v R [2002] HCA 46; (2002) 212 CLR 124).
2. The principles relevant to the question of when an appellate court will allow an appeal on the basis of incompetence of a legal practitioner are set out in OP v TP & The Child Representative (Conduct of Counsel) [2002] FamCA 1155; (2002) 30 Fam LR 281 ("OP") as follows:

123. We think that it clearly emerges from the cases that we have cited that in criminal and child protection cases the incompetence of counsel can operate to constitute a miscarriage of justice in a number of ways. If the incompetence is of such a nature as to so affect the conduct of the trial that it ceases to be a fair trial then that, of itself, can require the ordering of a re-trial, regardless of whether the result is apparently fair.

124. On the other hand, from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made.

1. The Full Court in Maddax & Danner [2016] FamCAFC 176 confirmed that in a parenting case the effect of OP is that an appellant would need to establish that:

(a) Counsel was incompetent or the forensic decisions were wrong;

(b) Those decisions affected the judgment; and

(c) But for those matters, a different result would have been reached.

Ground 1 (a): "Trial counsel, without proper forensic justification and without instructions to that effect, disavowed reliance upon the affidavits of [the father's sister] and [the father's mother], thereby depriving the Court of relevant and probative evidence in support of the [father]'s case"

1. The context of this sub-ground is recorded in the father's Summary of Argument:
   1. The [father's] filed Outline of Case noted 8 affidavits would be relied upon in the [father's] case. At trial, [father's] trial counsel only read and relied on 4 of those affidavits, being those of the applicant, [Ms B], [Mr C] and Dr [G]. The remaining 4 affidavits of [Ms D], [Ms H], [Mr J] and [Ms K] were not read and relied on.
   2. At the beginning of day 1 of the trial, counsel for the father said:

"There is a number of affidavits that I will not read in my material. Those witnesses have been presented to the court, and my learned friends have declined to cross-examine them. So on that basis, after I finish reading my material, those witnesses would be free to come into - those potential witnesses would be free to come into the court and sit in the back area."

and

"Conferring with my learned friends, they do not require those people for cross examination. I have carefully gone through their affidavits, and it contains material that is not relevant to assisting the court with the determination of the issues that remain in dispute, hence that they - those affidavits haven t been read as part of the applicants case."

1. Counsel for the father's references to affidavits not being read was directed to the evidence of Ms H, Mr J, the father's mother and the father's sister. Ms B and Mr C gave unchallenged evidence as to their observations as supervisors of time spent by the father with the child. Dr G, the father's treating clinical psychologist, was cross-examined at trial. His evidence, and the untested evidence of Dr L, are the subject of Ground 2.
2. The affidavit of the father's sister, tendered in the appeal, gave evidence as to her role and engagement in the father's mental health admission in 2020, her observations when supervising time between the child and the father, her current opinion as to his mental health, and her assessment as to the father not posing a risk to the child's safety.
3. The affidavit of the father's mother, also tendered in the appeal, gave evidence as to her observations of the father's mental health in 2020 and 2021, and of the father's relationship with the child.
4. The sub-ground then diverges into two limbs.
5. The first limb of the sub-ground is that the decision made by the father's trial counsel not to read the affidavits of his mother and sister were "directly contrary to [the father's] instructions". This contention is controversial on appeal.
6. The father in support of his contention relies on the contents of the body of his affidavit filed on 28 October 2025 filed in support of the procedural relief by way of the Application in an Appeal filed on 28 October 2025, determined consensually. He did not seek leave to adduce the body of this affidavit itself as further evidence in the hearing of the appeal. Notwithstanding, it bears upon the question of why the affidavit evidence of the father's sister and the father's mother was not relied upon before the primary judge, augmenting the father's ground that the incompetence of his counsel resulted in a miscarriage of justice. Consequently, in so far as is necessary, I will have regard to that additional evidence in determining the appeal.
7. The import of the evidence in the father's affidavit is that his counsel at trial was dismissive in discussions with him at court such that the father "felt like [counsel] was not listening to [his] instructions". The father said that he "tried to speak to [counsel]... throughout the proceedings [but counsel] consistently ignored [him]", and that he gave his trial counsel and his solicitor specific instructions as to ensuring the affidavits of his mother and his sister were read and that they were cross-examined at trial (father's affidavit filed on 28 October 2025 at [17]-[21] and [29]).
8. The mother and the ICL submit that significant caution be applied to the acceptance of the "untested evidence" of the father of serious "bare assertions", being unsupported allegations on appeal. They cite that no affidavit evidence is tendered on appeal of the father's prior solicitor, who attended at trial, including as to instructions provided by the father; as to advice provided by counsel; or of any discussions as to any tactical considerations of trial counsel. They implicitly infer that the failure of the father to disclose his solicitor's file notes at trial, anticipated to record instructions provided and advice as to forensic decisions made at trial, would not assist the factual findings sought on this subject matter on appeal.
9. The credibility of the further evidence of the father cannot be tested on appeal. As will be seen, the determination of this factual dispute is not necessary to conclude the evaluation of the sub-ground.
10. The second limb of the sub-ground is that the decision not to read the affidavits of the father's mother and the father's sister was without proper forensic foundation and wrong.
11. The submission concludes that the primary judge was deprived of "relevant and probative evidence". The father in his Summary of Argument identifies commentary of the primary judge recorded in the transcript on Day 2 and Day 3 of the trial as to the absence of evidence from the father's family. The father in his Summary of Argument submits those transcript exchanges direct:

27. .....

1. First, that the primary judge considered potential evidence from the [father's] family was important to the issues to be decided in the trial, in relation to their understanding of the [father's] mental health and the supervision [the father's sister] had been undertaking;

2. That despite such evidence being important, it was not proffered to the Court;

3. The evidence was not proffered to the Court because it was the [father's] trial counsel decision not to read and rely on that material despite the [father's] express instructions to the contrary.

4. That the [father's] trial counsels' decision not to read and rely on that material because no other party wished to cross-examine those witnesses was wrong, because that evidence should still have been proffered to the Court because it was relevant to the issue in dispute, notwithstanding he expected it to be unchallenged;

5. That the [father's] trial counsels' decision not to read and rely on the affidavit of [the father's sister] because it "did not go into any detail in regards to the extent of what she was doing as a supervisor" was incorrect, as outlined in paragraph 17 above;

6. That [father's] trial counsel had failed to identify that there was relevant material in the Further Evidence he had excluded from the evidence available to the Court;

7. That the Court, having been asked to consider a variation to the interim spend time arrangements, was left without important evidence from [the father's sister] about her supervision, being a decision made by [the father]'s trial counsel against his instructions;

8. That the Court, having been tasked with making final parenting orders, was left without important evidence contained in the Further Evidence, being a decision made by [father's] trial counsel against his instructions.

9. That the [father's] trial counsel could not remedy his decision not to read and rely on [the father's sister's] evidence by his proposition to the Court that [the father's sister] give oral evidence after each of the party's evidence had been given and closing submissions made.

10. It is submitted that because of these matters, the decision of [father's] trial counsel to not read and rely on the affidavits of [the father's mother] and [the father's sister], was incompetent.

(Emphasis in original) (Footnotes omitted)

1. The father contends that the "lack of [this] important evidence from [the father's sister], excluded by [the father's] trial counsel":

(a) Did not permit the court to make "fully informed findings" as to the risk posed by the father to the child;

(b) Was prejudicial to his case, resulting in final orders excluding the possibility of his sister or any family member being able to supervise time spent; and

(c) Led the primary judge to the conclusions as to risk being "materially wrong" such that the "ultimate result" as to the "terms of the time spent order" was infected by incompetence.

Hence, the father submits that if evidence was adduced by way of the affidavits of his mother and sister, the findings as to him posing an unacceptable risk would "not have been made". He further submits that, in the alternative, if the finding as to unacceptable risk was made, the finding as to his sister and family members not being suitable supervisors of his time spent, in the event of the affidavits being in evidence, would "not have been made".

1. The contentions of the father contain conflicting elements, making them challenging to reconcile. They:

(a) Are constructed not only from the content of the affidavits of his sister and his mother that were not read, but on the basis that each of his sister and his mother would adduce further evidence in chief or be cross-examined in the father's case. This did not form part of his complaint expressed to his legal representatives at trial nor was it an ingredient of his ground of appeal; and

(b) Ignore, and hence fail to engage with, other central findings as to the risk posed by the father not challenged on appeal, dispersed throughout the reasons, other than those risks posed by way of his mental health; such that

the content of the affidavits subject to complaint were not determinative or critical to the outcome.

1. As recorded earlier in these reasons, the primary judge's concluding finding as to the father presenting an unacceptable risk of harm to the child in his care was derived from seven definitive intermediate findings as to that risk (at [375]). The intermediate findings as to:

(a) The father's substance abuse disorder for which he has failed to engage in rehabilitation;

(b) The father's failure to follow medical advice, recommendations and treatment unless they accord with his narrative;

(c) The father perpetrating family violence against the mother and breaching protection orders protecting her;

(d) The father taking no responsibility for his criminal and other behaviour and not engaging in meaningful behavioural change; and

(e) The father's erratic driving while the mother and the child were in the car,

are not challenged on appeal.

1. During the hearing of the appeal the father was directed to the following legislative mandates:

(a) The Court must consider the arrangements that promote the safety of the children and other persons (s 60CC(2)(a)).

(b) The Court must consider whether any family violence order applies and any history of family violence, abuse or neglect involving the children or a person caring for them (s 60CC(2A)).

(c) A parenting order must not expose a person to an unacceptable risk of family violence (s 60CG).

1. The father does not, by way of example, challenge the finding as to risk as to family violence (at [341]), or as to drug use (at [372]), leading to the previously recorded unchallenged findings as to an unacceptable risk to the safety of the child in his unsupervised care (at [375]). These unchallenged findings, in and of themselves without more, present an insurmountable difficulty for the father to establish that the failure to rely on the affidavit evidence of his sister or his mother would direct other than the supervision of his time with the child. The father implicitly conceded this rationale to be incontestable during the hearing of the appeal.
2. The extent of the evidence of the father's mother in her affidavit as to the father's mental health was as to her observations of the father prior to and during his involuntary mental health admissions in mid-2020 and early 2021. The evidence of the father's sister in her affidavit also was as to her engagements with the father in or around the admissions and extended to her current view as to his mental health.
3. A plethora of contemporaneous documents sourced on subpoena were tendered in evidence as to historic circumstances and events as to the father's mental health, including hospital notes and records recording the observations and opinions of then general practitioners, Medicare records, drug testing records, mental health assessment orders, applications to mental health tribunals, referrals to physicians on the father's discharge, a second psychiatric opinion from Dr N, documents produced by Child Protection Services Victoria, a report from a clinical psychologist treating the father in 2022, medical centre documents, notes of other medical practitioners (including treating psychiatrists), documents from prior treating clinicians (including psychologists), and police records. Dr E evaluated these documents in his report, using them to base in part his conclusions as to the father's mental health.
4. The evidence of the father's mother and of his sister in their affidavits as to the circumstances at the time of the father's 2020 and 2021 involuntary mental health admissions are not established to be critical or determinative to the finding as to the father's mental health posing an unacceptable risk to the child in his care.
5. The father's sister's affidavit filed on 28 October 2024 also gave evidence as to her observations as a supervisor of the time spent by the father with the child. She also said in her affidavit:
   1. In my capacity as a Mental Health [public servant], I have observed no concerns around [the father]'s mental state. His mental state has remained stable. He presents euthymic, engaging, no formal thought disorder, no perceptual disturbances.
   2. In my capacity as a Mental Health [public servant] I have observed no concerns around risk including no aggressive risk.
6. The father valiantly submitted at the hearing of the appeal that this affidavit evidence of his sister had relevance to the findings as to his longstanding mental illness, his failure to acknowledge the severity of his mental health and failure to consistently engage with mental health providers (at [375(a)]), and tangentially as to his lack of insight into his mental health and his violent and anti-social behaviour (at [375(g)]). The father encountered challenges in identifying the materiality of that evidence in his sister's affidavit to the challenged findings.
7. Given the provisions of Pt 7 of the Rules, if the evidence of the father's sister was expert opinion evidence as to the father's mental health, as his sister was not a single expert and the father sought to rely on her evidence, he would need to seek and be granted leave to tender such evidence. Single expert evidence was given as to that subject matter through Dr E's report. Evidence was also tendered on that subject matter from Dr L's report. No submission was made on appeal that the father could achieve, if his sister gave expert evidence, permission to tender evidence of that character from his sister pursuant to Pt 7 of the Rules.
8. Further, even if such evidence was supposedly tendered by the father as expert opinion evidence, the relevant opinion expressed by his sister could hardly be compelling, as the father now asserts it to be, because it was entirely bereft of underlying facts and assumptions, which factual foundation is critical to the probative value of it as expert evidence (Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588). In any event, no judge is bound to accept expert opinion evidence (Albert & Plowman [2020] FamCAFC 23 at [19]-[22]).
9. The evidence of the father's sister as to her opinion as to the father's mental health is not established to be critical or determinative to the finding as to the father's mental health posing an unacceptable risk to the child in his care.
10. Further, in so far as the ground purports to assert a factual error, the father has not established that the findings as to his mental health and failure to consistently engage with mental health providers ([375(a)]); and his lack of insight into his mental health and his violent and anti-social behaviour ([375(g)]), would not have been reasonably open on the evidence (Edwards v Noble (1971) 125 CLR 296), even if his mother's and his sister's affidavits were considered. Nor that each contended impugned finding of fact was either demonstrably wrong by incontrovertible facts or uncontested testimony, glaringly improbable, or contrary to compelling inferences (Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550).
11. Hence, for the purposes of Ground 1(a), the father has failed to establish that the forensic decision, howsoever made, not to rely on the affidavits of his sister and his mother, affected the decision in the judgment that time spent should be supervised and hence has not established but for that decision, a different result would have been reached.
12. As to the affection of the decision not to rely on the father's sister's or mother's affidavit for the purpose of prospective potential supervisors of time spent in Melbourne on the outcome, the conclusions (at [381]-[393]) were unassailable such that the evidence subject to complaint would not have produced a different result.
13. The findings as to the possible role of the father's family (at [387], [388] and [393]) are peripheral to the crux of the reasons for supervision at a contact centre. No evidence was contained in the affidavits of the father's sister and his mother as to how they could influence or mitigate the father's behaviour in circumstances where they had not been able to do so in the past, or why their presence would cause the father to do other than what he wanted to do. The affidavits did not give evidence as to any process whereby they each could be capable of influencing the father to change his course once decided.
14. To the contrary, paragraphs 41 and 42 of the father's sister's affidavit filed on 28 October 2024, as recorded earlier, expressed the unchallenged concluded disposition of the potential witness as to the father not posing any risk to the child. The basis of the opinion is not exposed in the affidavit. That evidence exposes both a familial reinforcement of the father's own views as to his mental health narrative, and the insight into it of his sister. The affidavit evidence reinforces the opinion of Ms F as to the inability of the paternal family to recognise the risks posed by the father's untreated mental health and his potential relapse into substance misuse, and as to them minimising the father's mental health (at [251] and [252]). On one view the evidence compounds the unacceptable risk as found if the prospective course of familial supervision was adopted, rather than mitigating it.
15. No consideration was given by the father on appeal as to the objectively destructive impact of these assertions as to the suitability of his sister prospectively supervising time spent. The attempted shift of the father's position to a contention that these paragraphs of the father's sister's affidavit could not have been read respectfully misses the point, delving into an effort to re-engineer the foundations for complaint on appeal.
16. Further, the father's case did not at any time contemplate, or propose, any family member, including his sister or mother, supervising his time spent with the child in Melbourne. They live in Queensland. No evidence as to a capacity of any family member to do so was contained in the affidavits subject to complaint on appeal.
17. The father has not established that the forensic decision not to rely on the affidavit evidence of his sister for the purposes of supervising time spent was incompetent or wrong. He has not established that the affidavits, if read, would produce a different result.
18. For the purposes of Ground 1(a), the father has failed to establish that the forensic decision, howsoever made, not to rely on the affidavits of his sister and his mother, affected the decision in the judgment as to time being supervised at a contact centre in Melbourne, rather than in Melbourne by his family members.
19. Ground 1(a) is not made out.

Ground 1(b): "Trial counsel failed to object to the admissibility of, or to seek the exclusion of, the evidence of [Dr E]"

1. To give this sub-ground context, on 13 November 2024, the solicitor for the father appeared when the following order was made for the purposes of the trial:
   1. Pursuant to section 63 of the Evidence Act 1995 (Cth), the report of Dr [E] be accepted into evidence, given that Dr [E] is not available for cross-examination.
2. The primary judge further said in the reasons:
   1. Dr [E], who was appointed the Single Expert in this matter, was not available for cross-examination as he has retired from practice. Despite his inability to appear for cross-examination, I decided that his Affidavit was admissible because:

(1) Dr [E] had been properly appointed as a Single Expert in this matter in accordance with Chapter 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021;

(2) The material Dr [E] had regard to in the preparation of his assessment of the Father is set out clearly in the body of his report;

(3) Pursuant to s63 of the Evidence Act 1995 (Cth), the fact that Dr [E] is not available for cross-examination does not exclude his evidence; and

(4) These are Division 12A proceedings, and I must have regard to all relevant evidence in respect of an issue in dispute.

(a) Abandoned his contention that Dr E's report was inadmissible; and

(b) Could not identify, in the context of Dr E's report, being that of a ch 7 single expert and the provisions of Pt XI Div 4 of the Act having application, a foundation at trial to apply to exclude the report.

1. The complaint by way of the ground devolved into a contention as to the incompetence of counsel in not relying on annexure ER-8 to the father's trial affidavit filed on 31 October 2024. This is the letter, consensually tendered into evidence at the hearing of the appeal, from the father's solicitor to Dr E dated 16 November 2023.
2. The father said that this was contrary to his direct instructions. There is no evidence in support of that bare assertion. It is not established for the purposes of the appeal.
3. The father's Summary of Argument contends that the letter was the "only way on the available evidence for the Court to have regard to the matters raised by the [father] about Dr [E]'s evidence" (the father's Summary of Argument at [60]). That submission is vacuous because:

(a) The father's asserted description of the letter to Dr E dated 16 November 2023 as a "statement of facts" that were "wrong" (the father's Summary of Argument at [53(c)]) is not accurate. The content of the letter directs the expert to selective portions of some of the material provided in the instructions to Dr E recorded in the report linking it to the father's interpretation of that material, being commentary. It was not identified on appeal if the expert replied to the letter.

(b) The father was cross-examined as to whether he accepted Dr E's evidence (he did not) and as to the reasons why he said there was "completely unfactual information" contained in his report (Transcript 28 November 2024, p.77 lines 1-10). He was cross-examined as to Dr E stating that he had epilepsy. He said he did not (Transcript 28 November 2024, p.20 line 43 to p.21 line 13). The primary judge expressly considered this:

1. The Father said in cross-examination multiple times that he does not accept Dr [E]'s recommendations because he said the Father had epilepsy.
2. The Father's evidence is he does not have epilepsy. I note that in Dr [E]'s Report in two places that he refers to the Father and epilepsy. In that part of the report, Dr [E] is discussing the negative impacts of medicinal cannabis, and epilepsy is noted as one of the conditions that is exacerbated by the use of medicinal cannabis.
3. Whilst I accept that there is no medical diagnosis of epilepsy in the Father's records, I also accept that Dr [E] is not diagnosing the Father with epilepsy. The diagnosis and functioning part of Dr [E]'s report does not refer to epilepsy.
4. Dr [E]'s opinions and recommendations in respect of the Father are not couched upon, nor dependent upon, the Father having a diagnosis of epilepsy. Therefore even though there is seemingly an erroneous reference to epilepsy, I am not satisfied that that is a reason to disregard Dr [E]'s assessment.

(c) The father's written submissions prepared by his counsel identified contended factual errors upon which Dr E's untested opinion was based. The submissions directed contentions as to the impact of the factual errors on the reliability of Dr E's opinions, and why greater weight ought to be afforded to the opinions of the father's treating clinicians (at AB p.500 to p.503). The primary judge did not accept the submissions.

1. The father has not established that the decision not to rely on the letter dated 16 November 2023 directed to Dr E was wrong or that counsel was incompetent in making that decision. The fact and content of the letter had no material affectation on the weight given by the primary judge to Dr E's opinion. Ground 1(b) is absent merit and fails.
2. The father also submitted that if the letter to Dr E was tendered into evidence, the "weight attributed to Dr E's evidence "may not have been so great". In so far as the sub-ground shifts to a discretionary error, such complaint is determined by way of Ground 2.
3. Ground 1 is not established. It fails.

Ground 2 - "That the trial judge erred in the exercise of discretion by giving insufficient or improper weight to the [father's] treating medical practitioners namely [Dr G] and [Dr L] as to his mental stability"

1. It is not at all clear which category of error identified in House this ground is said to fall. The construction of the ground directs a weight complaint, while the Summary of Argument makes passing references to an unjust determination. At the hearing of the appeal the father confirmed that the ground is by way of discretionary error as to insufficient weight being given to the evidence of Dr G and Dr L, and no other appellate challenge.
2. This ground complains that the primary judge did not place enough weight on a piece of evidence which the father perceived was favourable to his case. So analysed, it is not a competent ground of appeal which lies from a discretionary judgment (House), as this judgment was. Complaints in an appeal about too much or too little weight being attributed to some portion or portions of the evidence are meaningless unless it is contended the overall result was manifestly unreasonable or unjust (Hedlund & Hedlund [2021] FedCFamC1A 84; (2021) FLC 94-065 at [12], [36] and [37]). No ground of appeal asserts the primary judge's decision fell into that category. Ground 2 fails at this point.
3. For the sake of completeness, so as to engage with the father's submissions on appeal in support of this ground, as a starting point, an appellant faces a high hurdle in order to sustain a complaint about the attribution of weight to a piece of evidence (Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 at 519 and 533; Gronow v Gronow (1979) 144 CLR 513 at 519-520).
4. The evidence of Dr G, the father's psychologist, was "there was no definitive diagnosis" that the father suffers a bipolar disorder (at [171]). The primary judge found that Dr G was not qualified to opine a diagnosis as to the father's mental illness (at [172]). Dr G, notwithstanding his extensive treatment of the father, was not aware that the father had been diagnosed with significant mental health challenges on his two involuntary psychiatric admissions. The only sources of Dr G's information were the father himself and the paternal grandmother.
5. The report from Dr L recorded that although he did not have "a full record of the father's previous manic episode" the descriptions the father provided were "indicative of Bipolar Affective Disorder with previous severe manic episodes with psychotic symptoms" (at [220]). The primary judge found (at [226]) that it was not established that Dr L had considered a significant quantity of contemporaneous documents tendered as to the father's mental health challenges and that the psychiatrist "relies heavily on the father's self-report" (at [230]). The primary judge found that the father was selective about the information provided to Dr L and consequently did not accept Dr L's opinion as to the diagnosis and prognosis of his mental health (at [220]-[232]).
6. The primary judge clearly expounds the critical and determinative reasons weighing the evidence of Dr G (at [172]-[179]), Dr L (at [220]-[232]), Dr E (at [182]-[196], [350]-[353], [361]-[364] and [367]) and in so far as it was relevant, of Ms F (at [197]-[216]), in making findings as to the father's mental health (DL v The Queen [2018] HCA 26; (2018) 266 CLR 1).

1. No ground has enjoyed any merit. The appeal will be dismissed.

1. No costs schedule was filed by the mother in accordance with r 13.53 of the Rules. Hence, she did not make an application for costs. She is in receipt of a grant of legal aid. The ICL made no application for costs. It follows that there will be no order as to costs.

I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton.