G -v- B [2024] WASCA 158 (13 December 2024)

Trial judge's approach Sexual abuse allegations

1. The trial judge gave a detailed account of the sexual abuse allegations which had been made by both parties from 2019 to 2022.[22] The trial judge noted that, on 6 February 2023, the Department completed their investigation and concluded there was insufficient evidence that the child had experienced emotional and psychological harm or sexual harm. The Department assessed both parents to be capable of acting protectively for the child, but they 'may need structured supports and positive parenting programs to assist them in doing so'.[23]

1. The trial judge observed that the father can readily communicate despite English not being his first language. Her Honour observed the father's communication style is best described as lengthy, rambling and voluminous. The mother in contrast had generally provided short, direct communications to the father. As a consequence of the father's volume of correspondence with the mother, which was highly critical, denigrating and accusatorial, the mother reduced the information she provided to the father, in an unsuccessful effort to curtail the correspondence.[24]
2. The trial judge noted that it was conceded that the parents are unable to effectively communicate. Their relationship is best described as highly acrimonious, and each parent holds a negative and poor view of the other parent.[25] The trial judge set out examples of the parties' communications.[26] The trial judge observed:[27]

[The mother] has clearly struggled to communicate with the father, in circumstances where his correspondence has been aggressive, abusive and unrelenting. The mother is not willing to engage in correspondence with the father, given her experiences. The mother's trepidation about communicating with the father, were reasonably held, given the history.

The mother's evidence, both in affidavit and in person, was more balanced with respect to the father. She too has a negative view of the father, which in my view, has increased in intensity over time, as a consequence of her exhaustion and exasperation with the father's allegations and communications.

1. The trial judge also found the evidence to demonstrate that, when the father disagrees with others, he can become fixated, rigid, and communicate in an aggressive, combative, and hostile manner.[28]

1. The trial judge said that she was readily satisfied there has been family violence between the parents. Specifically, her Honour was satisfied that the father had perpetrated acts of family violence against the mother which included:[29]

(a) Acting in a controlling and coercive manner during the relationship, including criticising and undermining [the mother's] parenting, attempting to control her movements, removing her mobile telephone and access to transport at times, isolating her from friends and supports.

(b) Making repeated, relentless criticisms and allegations about the mother and her parenting, both to the mother, and to various third parties, in circumstances where many of those criticisms were not justified.

(c) Communicating in a derogatory, degrading and abusive manner towards the mother, including consistently denigrating the mother and undermining her parenting of [the child].

(d) Threats of self-harm and to harm the mother and [the child], when he threatened to drive the family into a tree.

1. The trial judge was also satisfied that the mother had perpetrated acts of violence against the father, including:[30]
   1. verbal abuse including shouting, swearing and arguing with the father in the presence of the child;
   2. physical abuse including, pouring a drink on the father, pulling his hair, and hitting him; and
   3. communicating in an abusive, derogatory and aggressive manner towards the father.

1. The trial judge gave a detailed account of medical reports relating to the child, who struggled to regulate his emotions and displayed aggressive behaviour.[31] The trial judge noted that, in December 2023, the child was diagnosed as meeting the 'DSM-5' criteria for autism spectrum disorder, requiring substantial support for deficits in social communication, and requiring very substantial support for restricted, repetitive behaviours, following a comprehensive assessment. This assessment involved input from a speech pathologist, psychologist, and developmental paediatrician. The psychologist considered that the child's experience of early developmental trauma, through exposure to family violence, likely contributed to his presentation.[32]
2. The child commenced kindergarten in 2021 and pre-primary in 2022. Concerns were raised over his poor behaviour and attendance, and he was suspended in term two of 2022 after hitting a teacher with a hockey stick.[33] The mother then withdrew the child from school and commenced homeschooling, which continued to the end of 2023.[34] The child was enrolled in primary school in 2024. The child entered year one, with transitional arrangements to facilitate the child's reintegration into mainstream schooling. The mother and school have reported the child has made positive progress so far.[35]

1. The trial judge accepted that the mother's desire to live in New Zealand, was bona fide. The mother wanted to return to New Zealand, where she could have the support of her family. During the relationship, the parties had discussed and, at one time, had a plan to live in New Zealand.[36]
2. The trial judge found that the mother was struggling in Western Australia, as a single parent in strained financial circumstances with two children, both of whom are neurodiverse, and who require significant support. She had no secure accommodation. She had experienced significant instability in her living arrangements since separation, which were unassisted by the lack of child support from the father.[37] While the mother perceived distance from the father to be a benefit of living in New Zealand, this was not her primary motivation.[38]
3. The trial judge also accepted that the father's desire to live in Western Australia was genuine. He did not want to live in New Zealand. His life, his home and his support network are in Western Australia. He described in glowing terms the lifestyle which he enjoys in Western Australia. His daughter lives in Western Australia and the father deposed he hoped to re-establish spending time with her, after the conclusion of the current proceedings. The father has never been to New Zealand, and he has no family, or any connections in New Zealand.[39]

1. The trial judge summarised the relevant legal principles in orthodox terms, which it is unnecessary to summarise at this stage.[40]

1. The trial judge found the child to have a meaningful relationship with each of his parents and that it is in his best interests to maintain those relationships. The mother has been the child's primary carer and they have a close, loving relationship. Notwithstanding the limited time which the child has spent with the father, her Honour was satisfied their relationship is meaningful.[41]
2. The trial judge found that there had been family violence, as conceded by each parent. Her Honour said that, having carefully considered the evidence, she was not satisfied that the child was at an unacceptable risk of harm in the care of either parent.[42] The judge's finding that the child was not at risk in the father's care was subject to the following qualifications:[43]

If: (1) [the child] were to learn and/or be exposed to the father's belief that [the child] has experienced sexual harm in the mother's care; (2) [the child] were exposed to the father behaving in a controlling and coercive manner towards the mother; and (3) [the child] were exposed to the father's critical and disrespectful communications with the mother, then there is a risk to [the child's] emotional and psychological well-being.

1. The trial judge found that the greatest concern for the child in each parent's care was their attitude towards the other parent, and their capacity to support the child's relationship with the other parent.[44]

1. The trial judge found that the child had a close relationship with his maternal siblings but had not had the same opportunity to form a relationship with his paternal sibling. The extended maternal and paternal families live abroad. The child had been able to enjoy time with his extended maternal family, both when he travelled to New Zealand and when they came to Australia to visit. The child had not spent any time with his extended paternal family.[45]
2. The trial judge noted some matters which reflected poorly on the mother, including her action in unilaterally relocating from Perth to the south-west of Western Australia and her failure to comply with court orders to facilitate the child's time with the father.[46]
3. The trial judge was not satisfied the parents have the capacity to communicate and to confer, in an effort to reach agreement about major long-term decisions for the child.[47]
4. The trial judge found that both parents have displayed a lack of flexibility with respect to arrangements for the child and that there was an absence of any ability to cooperate and co-parent.[48]
5. The trial judge found that the mother had borne the bulk of the costs to care for the child, without financial support from the father. The father had contributed towards the costs for the child when in his care, and his share of the supervised handovers. The mother was responsible for the overwhelming majority of the child's costs, which have included medical, educational and other costs.[49]
6. The trial judge observed:[50]

Each parent love [the child] and have his best interests at heart. I consider they have attempted to display an appropriate attitude towards the responsibilities of parenthood. They have a highly negative view of the other parent, to which [the child] is aware. Unfortunately, at times, each of parent has failed in their responsibilities, when their own feelings towards the other parent, have interfered with their judgement about what may be best for their son.

1. The trial judge was satisfied that each parent was capable of meeting the child's physical, practical, and intellectual needs.[51]
2. The trial judge had doubts about each parent's capacity to meet the child's emotional needs. Her Honour was not satisfied either of them sufficiently recognised or respected the importance of the child's relationship with the other parent. The trial judge held concerns for the child being exposed to each parent's negative view of the other parent, their highly conflictual relationship, and the impact upon the child given their inability to effectively communicate and co-parent.[52]
3. The trial judge concluded that, while each parent clearly had deficits with respect to their capacity to meet the child's emotional and psychological needs, as between the parents, the mother was better equipped than the father.[53]

1. The trial judge found that the mother had made most of the decisions about long-term issues for the child. To her credit, the mother had been proactive and endeavoured to access medical and educational interventions to support the child, in difficult circumstances. She had also made a number of unilateral decisions about major long-term issues, which the trial judge found demonstrated a disregard of the father's role as a parent.[54]

1. The trial judge noted that the mother was unable to specify what she would do if she was unsuccessful in her application for the child to relocate with her to New Zealand. The father said he would continue to live in Western Australia, irrespective of where the child lives. On either parent's application, the child's circumstances would fundamentally change, and there would be significant practical difficulties and expenses associated with the child spending time and communicating with the parent with whom he does not live.[55]
2. The trial judge said that the practical difficulties associated with the child spending time with each parent are impacted by geography, and each parent's strained financial circumstances (each being dependent on government benefits). The distance and costs of travel between Western Australia and New Zealand would impact upon the child's capacity to maintain a relationship with each parent, as would each parent's ability to comply with court orders.[56]

1. The trial judge found that there was no sensible prospect that the mother and father can confer, communicate, and reach agreement about major long-term decisions for the child, so that shared parental responsibility was not appropriate. The trial judge said that she would make an order for the mother to have sole parental responsibility, on the basis that the child would live with the mother. The trial judge was confident that the mother can be trusted to make child-focused and appropriate decisions for the child.[57]
2. The trial judge said that she was not satisfied that it was in the child's best interests to live with the father in circumstances where:[58]

(1) the father has never been [the child's] primary care-giver; (2) [the child] has spent only limited time with his father, since separation; (3) to remove [the child] from the mother, who is his primary attachment risks causing [the child] harm; (4) to live with the father, would also entail [the child] being separated from [D], with whom he shares a close relationship; and (5) there are multiple concerns about the father's capacity to meet [the child's] emotional and psychological needs.

1. The trial judge was satisfied that the child's best interests were served by living with the mother in New Zealand, and him spending time and communicating with the father, in terms proposed by the Independent Children's Lawyer. The trial judge reasoned:[59]

To require the mother to remain in Australia, against her wishes, will negatively impact upon her, and compromise her capacity to meet [the child's] needs. That would be detrimental to [the child], who relies upon his mother to address his needs.

The child is primarily attached to the mother. He is settled, secure and safe in her care, and she is attuned to and has the capacity to meet [the child's] diverse needs, as demonstrated by her conduct to date, including her efforts to support his education, and medical needs. That is significant, in circumstances where [the child's] [autism spectrum disorder] diagnosis, will require therapies into the future.

To remain in the mother's care, will provide [the child] with the ability to maintain the significant and important relationship he has with his siblings. Those relationships are important to [the child], I am confident that [the child] will benefit from continuing to live in the same home as his sister [D], whom has been part of his household since birth. I expect that the mother will ensure [the child's] relationship with [A] is sustained, through electronic communications, and the opportunity to spend time together, either when the mother returns to Western Australia, or [A] may visit her in New Zealand.

I am satisfied that the mother's desire to relocate to New Zealand is bona fide. She grew up in New Zealand and wants to return, to have the support of her extended maternal family. She has accommodation available, potential employment through which she will be better able to meet the costs of [the child's] care, coupled with the practical support which her extended family can provide.

I accept that the mother will be better able to parent in New Zealand, with the support of her extended family. She is struggling to manage in Western Australia, having no fixed abode, no financial assistance from the father, and in strained financial circumstances, seeking to manage the care of two neurodiverse children. I am satisfied that the mother's parenting is also impacted by the father's ongoing criticisms and complaints, the majority of which I have found were unwarranted.

1. It is important to recognise the limitations in this court's role in an appeal against parenting orders.
2. First, the decision as to which parenting orders to make is an evaluative decision which the trial judge is in a much better position than this court to make.
3. In X v Y,[60] this court observed:

It is unnecessary for present purposes to go so far as to determine that the decision under appeal is, or is sufficiently analogous to, a 'discretionary' decision so as to attract the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499; H v P [[2011] WASCA 78] [48]; compare Chapa v Chapa (2013) FLC 93 538 [42]. Nevertheless, the question of what is in the best interests of the children in a case such as this involves, at least, an evaluative judgment. It involves 'elements of fact, degree and value judgment' and draws upon the judge's experience and familiarity with the nature of the subject matter ... Also, as French J (as his Honour then was) observed in Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546, matters of evaluative judgment may be attended 'by a degree of uncertainty. Indeed, it may be that different decision makers on the same facts could quite reasonably come up with different answers' (556).

In CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172, Kirby J referred to the 'difficult and evaluative decisions' which a court exercising family law jurisdiction has to make. His Honour observed:

'The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.

Inescapably ... intuition plays a part in the ultimate decision. It will sometimes be hard to explain. An appellate court will recognise the fact that it is dealing with the orders and reasons of a specialist judge [2], [186]. (footnotes omitted)'

Those observations have equal application to decisions involving the children of de facto partners under the [Family Court Act 1997 (WA)].

1. Further, in the present case the trial judge's findings of primary fact were largely based on her assessment of the credibility and reliability of the witnesses, about which her Honour made detailed findings.[61] As this court noted in M v W:[62]

An appellate court is, in some respects, at a disadvantage as compared to a trial judge who sees and hears the witnesses giving their evidence. Generally, the trial judge's credibility based findings of primary fact will not be reversed on appeal unless it is demonstrated that (1) those findings are flawed by reference to incontrovertible facts or uncontested testimony; or (2) the findings are glaringly improbable or contrary to compelling inferences; or (3) the trial judge has failed to use, or has palpably misused, their advantage as trial judge.[63] The principles were relatively recently stated by the High Court in Lee v Lee:[64]

'A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'. (footnotes omitted)'

1. It is also necessary to bear in mind that any legal errors which the trial judge might have made must be material in order to justify this court interfering with the primary orders. In the context of judicial review for jurisdictional error, including a failure to accord procedural fairness, it is recognised that generally error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred.[65] Materiality in this sense must also generally be demonstrated before an error of law will justify this court on appeal disturbing the orders made by a primary court.
2. The above principles present a substantial impediment to the prosecution of an appeal in the present case. The trial judge made credibility-based findings that she was not satisfied that the child had been sexually abused in the mother's care and that the child was not at an unacceptable risk of harm in the care of either parent. Those findings are not glaringly improbable or contrary to compelling inferences and will be difficult to upset on appeal. Once that point is reached, the trial judge's careful analysis as to why it was in the best interests of the child to live with the mother in New Zealand appears compelling. The clear inability of the parties to communicate or co‑parent with each other means that the only practical solution is for one or the other to have sole parental responsibility. Plainly, the person with whom the child is to live must have that responsibility. Given the mother has been the child's primary carer for the whole of his life with little support from the father, the case for ordering the child to live with the mother seems very strong. The difficulties which the mother has experienced in Western Australia, in part due to the father's conduct, and the additional family support she will have in New Zealand, provides a cogent reason for permitting the mother to relocate with the child to New Zealand.

1. The appellant's case contains eight grounds of appeal, many of which comprise numerous sub-grounds. The sub-grounds are not confined to a single issue and, contrary to the requirements of the Rules, do not state the grounds and concise particulars of them succinctly (r 32(4)(b)) or identify the paragraph number of the primary decision or the pages of the transcript in which errors are said to have been made (r 32(4)(d)). The grounds are not framed in a way that recognises the limitations in the role of an appellate court noted above. The grounds have evidently been prepared by the father, for whom English is a second language, himself. While the incoherence in the grounds of appeal is understandable given these matters, the current form of the grounds impedes the capacity of this court to identify, and the Independent Children's Lawyer to respond, to the allegations of error contained in the grounds.
2. The deficiencies in the way the grounds of appeal are expressed justify an order striking out the grounds on the basis that they do not comply with r 32 of the Rules and compromise the fair hearing of the appeal. Further, for the following reasons, none of the father's grounds of appeal in the appellant's case have any reasonable prospect of succeeding.
3. Given the difficulties with the expression of the grounds, it is preferable to consider the issues raised by the grounds thematically rather than in order of each numbered ground.

1. The father's grounds identify a number of procedural errors which the father contends were made during the trial. These include the acceptance and marking of a joint tender bundle (grounds 1.1 and 1.2), permitting the late filing of affidavits (ground 2.2), refusing the father's request for written reasons of a decision (ground 5), a failure to precisely describe exhibits (ground 6.2), a failure to include some of the mother's affidavits in the evidence (ground 6.3), and allowing the tender of an additional bundle of documents after the time provided for in procedural orders (ground 6.4). However, even if the judge had made procedural errors of this kind there is nothing in the material before this court to suggest that any such error might have affected the parenting orders which the trial judge ultimately made. The errors alleged by these grounds, even if they were to be established, have not been shown to be material in the sense described at [64] above.
2. The father also complains, in ground 2.1, that the trial judge failed to consider objections made in a form 2A and supporting affidavit filed by the father on 5 March 2024. This was a response to the mother's application filed on 1 March 2024 seeking to rely on her further affidavit and the affidavits of two additional witnesses. The father opposed the mother relying on the affidavits, on the basis that they went beyond the 'strictly updating' affidavits which an earlier procedural direction permitted the parties to file at that time.
3. At the first day of trial on 5 March 2024, the trial judge ruled that the mother would be permitted to rely on her own affidavit but with aspects that were not updating and did not relate to the child's education and health struck out. While the material relating to the child's education and health was not updating, it was admitted on the basis that it was very relevant to the factual issues the court was required to determine.[66] As to the affidavits of the other two witnesses, the trial judge ruled:[67]

What I am minded to do is to grant leave to the mother to rely on those two affidavits but on some conditions. The first is that what I'm going to do is to hear from [the father's counsel], by the time we get to those witnesses, whether she is ready and in a position to cross-examine them, because I accept they have been filed exceptionally late, with almost no time for her to properly prepare. And so I will hear from her whether she needs further time to prepare before we get to those witnesses, accepting that those witnesses are in the mother's case, and they will be coming later next week.

The second is that both of those witnesses need to be available for cross-examination.

1. There was no arguable error in the trial judge's discretionary judgment as to these procedural matters, and no merit in the father's allegation that the trial judge failed to deal with his objections in the form 2A and supporting affidavit filed by the father on 5 March 2024.

1. Other grounds of appeal seek to impugn the trial judge's assessment of the credibility of various witnesses called at trial or other aspects of the evidence. The father says that the trial judge neglected to make a critical examination of the psychological and paediatric reports which diagnosed the child as suffering from autism spectrum disorder (ground 3.1), and erred by 'unfairly giving credence to the [mother's] witnesses' prejudiced testimonies' (ground 4.1). Having regard to the principles noted at [62] and [63] above, these attacks on the trial judge's assessment of the credibility of witnesses and the weight her Honour gave to aspects of the evidence have no reasonable prospect of succeeding.
2. The same defect is suffered by ground 7, in which the father complains that the trial judge failed to 'sequester witnesses', erred in relying on 'unsequestered testimonies' and disregarded 'the potential influence of shared accommodation on the integrity of witnesses' testimonies'. In addition, the idea that the trial judge could and should have adopted the highly unorthodox approach of sequestering witnesses is misconceived.

1. The father contends, in grounds 6.1 and 6.5, that the trial judge erred 'by not adhering to the principles of House v The King'.[68] This submission is misconceived. House v The King identifies a standard of appellate review of discretionary decisions. The trial judge, who was exercising original jurisdiction, was not required to apply those principles in determining the appropriate parenting orders in this case. To the extent that the father contends that this court should set aside the parenting orders on the basis that this court should infer error from the outcome of the exercise of a discretionary decision, the contention is untenable. No error of legal principle is evident in the trial judge's reasons for decision and, on the factual findings made by the trial judge, the parenting orders cannot be described as unreasonable or plainly unjust.
2. The father also contends in these grounds that the trial judge erred by 'violating' or 'undermining' s 95 and s 102 of the Family Court Act and s 69 of the Family Law Act 1975 (Cth). Section 95 of the Family Court Act empowers a court making a parenting order to make provision for a family consultant to supervise compliance with, or assist in carrying out, a parenting order. Section 102 of the Family Court Act makes provision for a court before whom an arrested person is brought to proceed to hear and determine an application for the person to be dealt with for contravention of an order without delay. There is no s 69 of the Family Law Act currently in force. There is no reasonable basis for contending that the trial judge contravened any of these provisions.

1. The father complains that the trial judge erred by excluding or failing to have regard to an affidavit the father made on 5 August 2022, which he describes as 'exhibit 5', which he says 'contains incidents of domestic violence enacted by' the mother against him (ground 1.3, ground 1.3.1, and ground 8).
2. Exhibit 5 in the trial was an email from the father to the single expert witness dated 19 August 2021.[69] The father's affidavit made on 5 August 2022 was tendered as part of exhibit 7, in the following manner.
3. When the father was called as a witness, he adopted affidavits filed on 26 April 2023 and 28 February 2024 as his evidence-in-chief.[70] His cross-examination by the mother's counsel then commenced.
4. Counsel for the mother cross-examined the father on the affidavit he swore on 5 August 2022.[71] As the court adjourned for the day, the Independent Children's Lawyer indicated that he had struggled to find the affidavit and had determined that the affidavit had been 'rejected and uplifted from the file'.[72]
5. The following day, counsel for the mother returned to cross‑examine the father on the affidavit, identified as being lodged but rejected for filing.[73] The father was reluctant to agree that the document presented to him was the affidavit he had made.[74] The father was extensively cross-examined on the affidavit and its annexures. When the father's counsel objected to only part of an annexed letter being referred to, the trial judge indicated that she considered the whole affidavit should be tendered. Her Honour indicated that she would receive the whole affidavit as an exhibit after giving the father the opportunity over the lunch break to check that his version of the affidavit was the same one that he had been presented with in court.[75] When counsel for the mother sought to tender the affidavit, the trial judge indicated that it would be dealt with after the lunch break.[76] The affidavit and a covering email was later received as exhibit 7.[77]
6. The trial judge referred to exhibit 7 in finding that the mother communicated in an aggressive and inappropriate manner with the father.[78] As noted at [35] above, the trial judge found that the mother had engaged in various acts of domestic violence against the father. Those findings were consistent with the account given in par 36 of the father's affidavit of 5 August 2022, so far as it concerned the conduct of the mother towards the father.
7. Therefore, the father's affidavit affirmed on 5 August 2022 was neither excluded from evidence nor ignored by the trial judge. The grounds relating to this affidavit have no reasonable prospect of succeeding.

1. By ground 8, the father in effect contends that a reasonable apprehension of bias arose from the way in which the trial judge asked questions of Mr Burke, the psychologist called as a single expert witness, about family violence.
2. After the parties had asked questions of Mr Burke, the trial judge addressed a number of questions to him. The questions were balanced and were not directed to advancing one party's case at the expense of the other. The judge's approach is illustrated by the following series of questions:[79]

[S]o based upon your assessment, is it clear to say that from your observations, [the child] loves both of his parents?---Yes.

And you would also say that from your observations, both parents love [the child]?---Yes.

And is it your assessment that each parent offers positive qualities to [the child] that might be different in terms of their parenting styles, but there's positive aspects to each of them that [the child] benefits from?---I would agree with that, your Honour, yes.

And you would accept that [the child] has a close and loving relationship with his mother?---Yes.

And from your assessment, [the child] is not at risk of harm, neglect or abuse or violence in her care?---That's correct, yes.

And it's your assessment that [the child] has a close and loving relationship with his father?---Yes.

And that your assessment, that based on the time that has been spent, that [the child] isn't at risk of abuse, neglect, family violence or sexual abuse in his father's care?---That's correct, your Honour, yes.

1. The trial judge's questions to Mr Burke about family violence were in the following terms:[80]

You were asked a lot of questions about the nature of the communication between the parties, and I think, as I understand your evidence, is that you accept that the father's communications with the mother have largely been a bombarding of criticisms and accusations which has had an impact upon her that has led to her effectively shutting down sometimes and then stopping communicating with him because, for want of a better word, she can't tolerate any more or cope any more. And part of [the mother's] evidence was, 'Whenever I gave [the father] information, I would then be greeted with a lengthy email that criticised everything that I had provided; it just invited more information; it turned into a circular argument'; that [the mother] then got to the point where she just stopped communicating. And your answer to that was that you understood perhaps why that was. You understand that a definition of family violence includes repeated taunts, derogatory comments, constant criticisms and accusations. You would accept that part of the father's behaviour after separation would meet the definition of family violence?---Particularly if those allegations are unfounded or have no basis.

So, for example, the father's allegations that he considered that [the child] had potentially been sexually abused by a third party that he alleged that the mother had an affair with - that was a person who attended the home on two occasions to buy and pick up a set of drums - the mother denied those allegations. The father didn't accept her denials and insisted that he wanted [the child] to be medically assessed in order to disprove him. You accept that the evidence overwhelmingly is that there was no evidence to corroborate that [the child] has suffered sexual abuse or there was any concern that [the child] had been abused in [the mother's] care. So the allegations that the father raised and that [the mother's counsel] took you to that he repeated some time later, you would accept that allegations without substance and the impact that has on [the mother] meet the definition of family violence?---They certainly fall under the definition, your Honour, yes.

And from your assessments of the mother, would it be fair to say that the mother potentially may have some signs that she has experience [sic] trauma. Did you consider that as part of your assessment?---I think that's quite likely, yes, given her experiences over a sustained period of time. Yes.

1. It is well-established that reasonable apprehension of bias will be established if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. In applying this principle, it is necessary to identify what is said might lead a judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[81] The test is objective and the fair‑minded observer is someone who is aware that the person who is being observed is a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.[82]
2. Particularly when the questions quoted at [86] above are considered in light of the trial judge's questions of Mr Burke as a whole, they are incapable of giving rise to a reasonable apprehension of bias. The trial judge directed questions to an expert witness on matters relevant to the determination her Honour was required to make. Some of the questions adduced evidence which may be favourable to the father's position, while other questions adduced evidence which may be favourable to the mother's position. The questions about family violence sought the expert's views on the application of a statutory test to evidence which had been adduced in the proceedings. The series of questions did not involve the trial judge adopting a partisan position, and could not cause a reasonable person to doubt the judge's impartiality.
3. The father also relies on the trial judge's treatment of his affidavit of 5 August 2022 as supporting a reasonable apprehension of bias. For the reasons explained under the previous heading, there is no merit in the father's criticism of the way in which the trial judge dealt with that affidavit.

1. Ground 1.4 contends that the trial judge erred in not addressing the 'ineffective representation' of the father's trial counsel, which led to a miscarriage of justice.
2. The submissions in support of ground 1.4 contend that the father's trial counsel failed to have the father and witnesses called by the father properly adopt their trial affidavits and the court failed to intervene.
3. When the father was called as a witness, his counsel asked whether the father relied on his trial affidavits but did not clearly identify them or ask him to adopt those affidavits as true and correct. The trial judge raised this issue with counsel. The father was then asked to confirm the contents of the affidavits of 26 April 2023 and 28 February 2024.[83] Therefore, the trial judge did intervene and require the deficiency in the father's evidence-in-chief to be addressed. Contrary to the father's submissions, later witnesses called by trial counsel were properly asked to adopt their affidavits as their evidence.[84] Therefore, there is no merit to the contention that a miscarriage of justice arose by reason of the way in which the father's counsel asked witnesses to adopt their affidavits as their evidence-in-chief.

1. The father's grounds and supporting submissions raise various other matters, such as alleging misconduct by the Independent Children's Lawyer and failing to adequately address the statutory criteria (see, for example, grounds 1.5, 1.6 and 1.7). Nothing in those grounds or submissions provide any reason for doubting the correctness of the orders made by the trial judge.

1. For the above reasons, the grounds of appeal in the existing appellant's case do not comply with the Rules and none of the grounds of appeal have any reasonable prospects of succeeding. It is therefore appropriate to order that the whole of the appellant's case be struck out on those grounds.
2. At the conclusion of the hearing of the appeal we were satisfied that the father should be given a final opportunity to file a compliant appellant's case which complies with the Rules and raised a reasonably arguable ground of appeal, but that this opportunity should be subject to a springing order. It appeared that the father had been attempting to comply with the Rules and there was medical evidence that the appellant has suffered from depressive symptoms which may have impaired his capacity to prepare court documents in a timely manner. However, the appeal which concerns the resolution of parenting orders needs to be brought to a prompt conclusion. The father may need to take professional legal advice which identifies tenable grounds of appeal in order to be able to progress the appeal and should attend to this urgently if he is able to do so.
3. It was appropriate to otherwise dismiss the father's applications in an appeal which became redundant once the appellant's case was struck out.
4. For these reasons, at the hearing on 13 December 2024 we made the orders set out at [2] above.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] [G] and [B] [2024] FCWA 109 (primary decision) [34].

[26] Primary decision [102] - [120].

[27] Primary decision [121] - [122].

[28] Primary decision [123] - [124].

[31] Primary decision [132] - [147].

[32] Primary decision [148] - [150].

[33] Primary decision [152] - [153].

[34] Primary decision [154] - [156].

[39] Primary decision [204] - [205].

[40] Primary decision [206] - [216].

[42] Primary decision [218] - [222].

[45] Primary decision [224] - [226].

[47] Primary decision [232] - [234].

[51] Primary decision [235] - [237].

[52] Primary decision [238] - [242].

[56] Primary decision [247] - [256].

[57] Primary decision [264] - [266].

[59] Primary decision [268] - [272].

[60] X v Y [2015] WASCA 70 [62] ‑ [64].

[62] M v W [2022] WASCA 169 [19].

[63] Woodley v Woodley [2018] WASCA 149 [154]; see also Joyce v Anderson [2020] WASCA 48 [105] ‑ [106], [205] ‑ [209].

[64] Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 [55].

[65] LPDT v Minister for Immigration [2024] HCA 12; (2024) 98 ALJR 610 [7].

[68] House v The King (1936) 55 CLR 499.

[70] Trial ts 05/03/24, 27 - 28, 31 - 32.

[81] See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6], [8]; Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [53] ‑ [54], [56] - [57].

[82] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12].

[84] See trial ts 07/03/24, 3 - 4 (Ms Watters), 39 (Ms Ceretti); 08/03/24, 2 - 3 (Mr Cuzmar).