[G] v [W]

4 For the following reasons the appeal and the applications in an appeal should be dismissed.

5 The trial judge made the following findings of primary fact.

6 The father and mother were both 40 years old, and the child was 9 years old, at the date of trial. The mother was born and raised in Switzerland, while the father was born and raised in Perth. The mother and father met while the father was working in Switzerland and they started living together in 2001. They came to Australia in 2006 - 2007. The child was born in December 2010.

7 The relationship between the father and mother broke down in 2013. In 2016, the mother married a Swiss man, P, who had spent some time with the child. In 2017, the mother and P had a daughter, the child's half‑sister.

8 The child's paternal grandfather and grandmother, who lived on the same semi-rural property as the father, provided regular assistance in caring for the child while he was in the care of the father.

9 The mother and the child travelled to Switzerland in March 2013. The mother's plan was to remain in Switzerland permanently. In September 2013, following the father instituting proceedings under the Hague Convention seeking the return of the child to Australia, and the death of the child's maternal grandmother, the father collected the child and returned to Australia with him.[3]

10 The parties made various arrangements in relation to the child's care in 2014, but were not frank with each other as to their true intentions. From the time the child returned to Australia in September 2013 until January 2015, he was primarily cared for by the father with significant assistance from the paternal grandmother. The mother travelled to Perth with P in October 2014. On 22 January 2015, interim orders were made for the child to live with the parties on a week-about basis while the mother was in Perth. In early 2015, the child commenced kindergarten at a private school (School) in Perth.[4]

11 After a trial in March 2015, Walters J pronounced final orders in May 2015. The orders provided for the parties to have equal shared parental responsibility for the child, and for the child to live with the parties on a week-about basis during school terms. The orders also provided for the child to attend the School up to grade 6, subject to the paternal grandparents paying the tuition fees. The orders also provided for the parties to share information about the child's medical needs and schooling, for the child to spend some school holiday periods with the mother in Switzerland and for the mother to enrol the child in German language classes.[5]

12 The trial judge found that the father did not comply with the order made by Walters J providing for the child's enrolment in German language classes. The judge found he understood the order but was not prepared to comply with it because it did not suit him. The child had not undertaken any formal German language classes at the date of trial.[6]

13 In July 2015, the mother sent an email to the father, including forwarding him a copy of a letter she had sent to the School requesting an extended leave of absence for the child in September. The father responded by email, including saying:[7]

I ask you not to write letters to the [School] or to anyone on the basis you are writing with my authority UNLESS you talk to me first on a consultative basis (which you should do regarding, in particular, [the child's] schooling) and you and I each sign such a letter. That should have happened on this occasion.

14 The mother commenced treatment with a clinical psychologist, Ms Cherubino, in February 2016 after being referred by her general practitioner in respect of symptoms of anxiety.[8]

15 In October 2016, a report of a psychologist at the School (school psychologist) identified that the child was having problems with literacy and focus in pre-primary.[9]

16 The child travelled to Switzerland with the mother in September/October 2015, December 2015/January 2016, and June/July 2016 (during which the mother and P married) without incident.[10]

17 On 24 February 2017, the mother told the father that she was pregnant. She said that she wanted to have her baby in Zurich, wanted the child to be there for the birth and wanted to live in Switzerland permanently with the child. The father refused to consent to the child relocating to Switzerland, and the mother started preparing an application to the Family Court which would allow that to occur.[11]

18 In March and April 2017, the school psychologist raised the issue of the child potentially having dyslexia and recommended that he be tested. The father refused to consent to testing, or to the child being placed on a database which would have enabled the School to seek additional funding to support the child's learning.[12]

19 On 19 April 2017, the Family Court, on the father's urgent ex parte application, restrained the mother from removing the child from Australia. The father did not, at this time, genuinely hold concerns about the mother unilaterally relocating with the child, and the mother had no intention of doing so. On 23 May 2017, the mother filed a response seeking orders permitting her to relocate to Switzerland with the child.[13]

20 At the end of June 2017, the mother returned to Switzerland to prepare for her daughter's birth. On 27 July 2017, the father sent an email to the School which wrongly conveyed that the mother had permanently relocated to Switzerland. In addition, the father told the child that 'Mum's not around anymore'. In August 2017, the child travelled to Switzerland for the birth of his half-sister, returning later that month.[14]

21 The child's behaviour at school had become sufficiently problematic that a meeting was convened on 11 September 2017. The father and the paternal grandparents attended the meeting. The mother was neither invited to, nor informed of, the meeting. The mother was not told about the meeting after it occurred. The fact of the meeting only emerged when the School produced minutes of the meeting in response to a subpoena issued by the mother. At the meeting, the School recommended that outside therapy be obtained for the child but the paternal family were reluctant to adopt this course because they were concerned about the mother finding out and potentially using the matter against them in litigation.[15]

22 On 22 September 2017, the School emailed the father about an incident when the child had struck another child on a school bus. Following a defensive email in response from the father, the School wrote to both the mother and father referring to behavioural concerns with the child and recommending therapy. The paternal grandfather responded with an email that in part said that the School's letter had created more problems for the paternal family than it had solved. This was because the paternal grandfather, along with the other paternal family members, wanted to keep the mother in the dark about the child's ongoing issues at school and was dismayed that she was included in the correspondence.[16]

23 The father and paternal grandparents attended a further meeting at the School on 11 October 2017. The mother was not informed of this meeting before or after it occurred, and only became aware of it when the School included minutes of the meeting in its response to her subpoena. The mother felt completely excluded from the child's life in Perth while she was in Switzerland, and these concerns were properly based. The practical effect of the mother's exclusion from important correspondence and meetings, and the father's admonishment of the mother for seeking a direct dialogue with the School, was to effectively try to keep the mother in the dark.[17]

24 The mother returned to Perth from Switzerland with her daughter at the end of October 2017. An appointment was made for the parties to meet with the school psychologist on 30 November 2017, in part to have discussions about having the child tested for dyslexia. The day prior, the father emailed the School cancelling the meeting, advising the School that the mother was leaving to live permanently in Switzerland on 7 December 2017, and threatened to have his solicitors attend any future meeting. The father was not being truthful when he advised the School that the mother was moving permanently to Switzerland. He cancelled the meeting and threatened to have his lawyers attend future meetings in a deliberate attempt to limit the mother's ability to obtain information and advice about the child's educational progress and general wellbeing (including because he feared that she may somehow gain an advantage in litigation).[18]

25 In December 2017, the mother travelled to Switzerland with the child and her daughter. Although the mother was planning to return to Perth prior to the start of the 2018 school year, she ultimately stayed in Zurich, returning to Perth in early April 2018.[19]

26 The child returned to Perth in January 2018.[20]

27 In January 2018 the paternal family obtained a referral from a general practitioner, Dr Glover, for the child to see a clinical psychologist, Ms Gallagher. The child and the paternal grandparents attended an appointment with Ms Gallagher on 15 February 2018. At that meeting, the paternal grandmother provided Ms Gallagher with a one-sided account of the litigation and wrongly advised her that the mother had refused to consent to the child seeing a psychologist.[21]

28 At this time, the paternal family found themselves locked in a self‑created catch-22. They knew that the child needed help, but there was no way to obtain it without alerting the mother to the full extent of the problem - which they were loath to do because of the litigation.[22]

29 The child continued to struggle at school.[23]

30 The mother remained unaware of the appointments with Dr Glover and Ms Gallagher until June 2018, when she reviewed the child's My Health account. The father instructed his solicitors to write a response to the mother's inquiry about the appointment which was cynical and misleading, and which contained an unfair and unwarranted attack on the mother.[24]

31 In June - August 2018, the parties' solicitors corresponded about the child being assessed for dyslexia and seeing a psychologist. On 20 September 2018, the father filed an application seeking orders for both dyslexia testing and psychological counselling.[25]

32 During the period May to October 2018, the child's bad behaviour at school continued, including multiple incidents of hitting, pushing, kicking and fighting with other children, being disruptive in class and lacking focus.[26] The parties met with School staff on 19 October 2019 to discuss the child's inappropriate behaviour and how he was progressing academically.[27]

33 The father's application seeking orders for both dyslexia testing and counselling was listed for hearing on 12 November 2018. The hearing was adjourned to 3 December 2018 to permit the mother time to file a response. On 3 December 2018, an order was made for the child to undergo dyslexia testing with the school psychologist. Orders were also made to facilitate the child's travel to Switzerland with the mother from 29 December 2018 to 28 January 2019. The issue about whether the child should attend counselling remained unresolved.[28]

34 The parties attended a further meeting with School staff on 28 March 2019. Issues about the child's impulsivity, lack of attention and focus and hitting other children were raised at that meeting. The prospect of the child's possible expulsion from the School absent an immediate change was raised. The school psychologist asked whether the child would benefit from ADHD medication and recommended that he be assessed by a paediatrician as soon as possible.[29]

35 On 28 March 2019, the school psychologist conducted a re‑assessment of the child and produced a School Psychology Report dated 30 May 2019. She reported that the child's reading, spelling and arithmetic skills were still at an early year 1 stage overall, and that, while he had good comprehension when reading connected text, he was limited by his word‑reading ability. She opined that, having regard to DSM-V, the child's reading and spelling skills would meet criteria for dyslexia. However, given the child's distractibility and difficulty with focus, and his very low cognitive scores, a clear diagnosis at this stage was not possible. The child's numeracy skills were also still at an early year 1 level. The school psychologist recommended that the child be referred to a paediatrician to consider whether medication may improve focus and reduce impulsivity, which was distracting the child from the difficult task of learning.[30]

36 The child saw a paediatrician in May 2019, was diagnosed with ADHD, and prescribed Ritalin. Since commencing on Ritalin, the child made significant progress in terms of his focus and behaviour.[31]

37 Consent orders were made for the child to see a psychologist, Mr Cairns, on 18 April 2019. The child commenced therapy sessions on 21 May 2019.[32]

38 The trial judge began her reasons by noting the following matters that complicated the parenting proceedings:[33]

(1) The child's history of learning and behavioural difficulties.

(2) The lack of trust between the mother and the paternal family.

the mother's primary position was that she wished to relocate with [the child] to live in Switzerland - her home country. However, in the event the court found that [the child] should remain in Australia, the mother conceded that she too would stay and 'get by'. The father's position was that - despite holding dual Australian and Swiss citizenship - he would remain in Australia if the court decided that [the child] should relocate to Switzerland. Walters J ultimately determined that [the child] should remain in Australia and commended the mother for possessing 'considerable energy, imagination and resourcefulness' - qualities that his Honour considered were not shared by the father.

(4) The change in the mother's circumstances since the 2015 trial, including her marriage to P and the birth of her daughter, and that:

In 2016, [P] moved to Perth to live with the mother and the child but was unable to obtain employment, and he returned to Switzerland in May 2017. Understandably, the mother is no longer prepared to split her life across two hemispheres, and wishes to return to Switzerland. The mother has also experienced a decline in her mental health as a result of being isolated from her family, friends and culture whilst living in Australia, and suffers from anxiety and depression. The mother's position now is that she intends to relocate to Switzerland regardless of whether the court permits [the child] to go.

(5) The paternal family conducted themselves in a manner that had one, if not both, eyes on the litigation - to the detriment of proper decision‑making for the child.

39 The trial judge identified two competing available options, in circumstances where the mother was not willing to remain in Perth and the father was unwilling to move to Switzerland. The first option was for the child to remain living in Perth with the father and spend defined school holiday periods with the parties. The second option was for the child to live with the mother in Switzerland and spend defined school holiday periods with the parties.[34]

40 The trial judge then proceeded to make findings as to the primary facts, which were influenced by the judge's views of the credibility of lay witnesses. The judge found the mother to be a persuasive and credible witness, while the father and paternal grandfather were unimpressive witnesses. While the paternal grandmother, in the most part, responded to questions in a genuine manner, there were some aspects of her evidence that were unsatisfactory and not credible.[35]

41 The trial judge identified the following core principles established by case law in relocation cases:[36]

1. the child's best interests remain the paramount consideration, but they are not the sole consideration;
2. a parent wishing to relocate does not need to demonstrate 'compelling' reasons;

1. the court is not bound by the competing proposals of the parties and may be required to formulate alternative proposals in the child's best interests, but any such alternative proposal must not be put in place without giving the parties reasonable notice of the proposal and an opportunity to be heard;

1. the child's best interests must be weighed and balanced with the proposed relocating parent's legitimate interest and desires and right to freedom of movement, but this right can be outweighed if there is a need to put in place an arrangement that is inconsistent with that right, but is nevertheless in the best interests of the child; and
2. in an appropriate case, the court should inquire as to whether the party who opposes the proposed relocation could not, himself or herself, move to a place close to where the child will be living if the relocation is allowed.

42 The trial judge made the following findings in relation to the statutory mandatory relevant considerations.

43 There was a real benefit to the child having, and maintaining, a meaningful relationship with both his parents. However:[37]

based on the father's actions and his attitude towards the mother, I am satisfied that if [the child] remains living in Perth with the father, then there is a significant risk that the mother will increasingly be cut out of [the child's] life, inevitably damaging the meaningful relationship between them. On the other hand, I am not persuaded that the reverse is likely to occur if [the child] lives with his mother in Zurich.

44 The child was quite ambivalent about where he lived and, in any event, at 9 years of age did not have the maturity to make a thoughtful, considered decision as to his future living arrangements.[38]

Family relationships and likely effect of changes

45 The child had close and loving relationships with his parents, paternal grandparents and P, and good relationships with extended maternal and paternal families.[39] The child also had a very close and loving relationship with his half-sister. The judge found that:[40]

(1) If the child lived with the mother in Zurich, then he and his half‑sister would have the opportunity to maintain and build upon their close sibling bond, which bond has the potential to sustain them both for decades into the future.

(2) If the child and his half-sister lived apart (and in separate countries), the likelihood of them developing a close sibling relationship would greatly diminish.

(3) If the child lived with his mother in Zurich, then he would be afforded regular opportunities to maintain his relationships with his father, his paternal grandparents and other extended paternal family members, via audio/visual communications and travel during school holidays. The judge was also satisfied that the mother would keep the father informed about the child's progress and his life in Switzerland generally.

(4) If the child lived with the father in Perth, there was a significant risk that the mother, half-sister and P would be increasingly cut out of the child's life.

46 Both parties have taken every opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with him. However, during the current litigation, the father, and the paternal grandparents to some extent, have actively sought to exclude the mother from decision‑making about the child's education and medical/psychological needs.[41]

47 No matter whether the child lived in Perth or in Zurich, there would be significant practical difficulties and expense in the child being able to spend time with, and communicate with, his parents. However, both the mother and the father had dual Swiss and Australian citizenship, which would make the facilitation of travel between the two countries somewhat easier for both.[42]

48 If the child lived with the father in Perth, then the father would be able to meet the child's needs, particularly whilst he had the ongoing support of his parents, subject to the following qualifications:[43]

(1) The father and paternal grandparents remain wedded to the idea of the child receiving an education at the School notwithstanding that the paternal family have struggled over the years to pay the school fees. The judge did not regard the child's attendance at the School as the panacea for his very significant educational challenges. She found that, over an extended period, the School failed to make the necessary changes to the child's curriculum to address his educational deficits. Even though the child may well have benefited from repeating one or more years at school, the father would never adopt such a course out of concern that the child would be subjected to bullying. While the child would need ongoing remedial tutoring, the judge had little confidence that the father would arrange and facilitate tutoring for the child.

(2) The judge had significant concerns about the father's capacity to meet the child's emotional and intellectual needs on an ongoing basis because:

(a) during the litigation, the father failed to properly address the child's behavioural and learning issues, for fear that the mother would somehow gain an advantage in the litigation; and

(b) the father behaved in a manner that was undermining of the mother's parenting role, including failing to keep the mother advised of the child's ongoing issues, providing misleading information about the mother to the School, and limiting the mother's access to information from the School.

49 If the child lived with the mother in Zurich, then the mother would be able to, and would, make all necessary and appropriate arrangements for the child's education at a Swiss public school in Zurich. The mother set out detailed proposals for the child's education, including that the child (who spoke Swiss-German fluently but could not yet read or write in German) would firstly undertake intensive German language classes, before eventually transitioning into normal classes.[44]

Parties' attitudes to parental responsibilities

50 The mother demonstrated a positive attitude to the child and a very positive, child-focussed approach to her responsibilities as a parent.[45]

51 Whilst the father loved the child very much, he had failed to demonstrate the same positive qualities as the mother for the following reasons:[46]

(1) Since the commencement of the proceedings the father, and the paternal grandparents, had conducted themselves in a manner that was focussed on the litigation - to the detriment of proper decision‑making for the child. Their failure to follow the recommendations of the School to seek outside professional assistance for the child and properly involve the mother in the original referral to Ms Gallagher were prime examples of this.

(2) Throughout the litigation, the father has exhibited a narrow minded and contemptuous disrespect for the mother's parenting role.

Rebuttal of presumption of equal shared parental responsibility

52 The trial judge found that the evidence rebutted the presumption that it was in the child's best interests for his parents to have equal shared parental responsibility for him.[47] The judge found the presumption to be rebutted because:[48]

(1) Equal shared parental responsibility requires parties to consult with each other and jointly make decisions about long-term issues concerning the child. In this case that was not possible, given the father's narrow minded and contemptuous disrespect for the mother's parenting role and his history of excluding the mother from decision‑making about the child's education and medical/psychological needs.

(2) The judge was satisfied that the mother should be granted permission to move with the child to live in Switzerland. As the parties would be living on opposite sides of the world, there may be logistical difficulties in the mother consulting with the father and/or obtaining his views, particularly in cases of emergency.

(3) The mother would make considered and appropriate decisions for the child as and when matters arose. The mother was born in Switzerland and lived there for a significant proportion of her life. She is familiar with the local conditions, including the Swiss education system. As the mother would be the parent with the day‑to‑day care of the child in Switzerland, she should have sole parental responsibility for the child, subject to her consulting with the father when practicable.

53 The trial judge was satisfied that it was in the child's best interests for him to live with the mother. Her Honour summarised her reasons for that decision in the following terms:[49]

1. I am satisfied that [the child] has very close and loving relationships with the mother, [P] and [the child's half-sister]. By living with the mother, [the child] will be not only able to maintain these loving relationships, but also have the opportunity to further build upon his close sibling relationship with [his half‑sister]. However, if [the child] lives with the father, then any opportunity for [the child] to maintain a close sibling bond with [his half-sister] will greatly diminish. In addition, there is a significant risk that the mother, [P] and [the child's half-sister] will increasingly be cut out of [the child's] life by the father, and the quality of [the child's] relationships with them all will diminish considerably over time.
2. I am satisfied that [the child] also has very close and loving relationships with the father and the paternal grandparents. I accept that inevitably there will be some diminution in the nature of [the child's] relationships with his father and the paternal grandparents, particularly as [the child] would not be taking part in the 'every day' activities he would normally enjoy as a member of the father's household. However, I am not satisfied that [the child] would be unable to maintain his close and loving relationships with the father and the paternal grandparents. Rather, I am satisfied that: (1) the mother would facilitate [the child] having regular audio/visual communications with the father and his parents, as well as face to face time during school holidays; and (2) importantly, the mother would keep the father properly advised about [the child's] progress and life in Switzerland, and would not seek to effectively cut the father out of [the child's] life.

1. The mother has demonstrated her capacity to provide for [the child's] needs, including his emotional needs. The father conceded the mother is able to, and would, make all necessary and appropriate arrangements for [the child] in Switzerland, including in relation to his education. On the other hand, there are a number of question marks regarding the father's capacity to fully meet [the child's] needs. In addition to the father's very blinkered views about the benefits to [the child] of [an education at the School], the father also failed to properly address [the child's] behavioural and learning issues, for fear that the mother would somehow gain an advantage in the litigation.

54 After dealing with ancillary matters about which the parties could not agree,[50] the judge indicated the proposed orders which are the subject of the appeal.

55 The father appeals against the primary orders on what are, in effect, 28 grounds of appeal running over seven pages. While the self‑represented father has no doubt done his best to formulate the grounds of appeal, the result has been grounds which are prolix, overlapping and often difficult to follow. The grounds of appeal raise the following substantive contentions:

(1) The primary orders are infected by bias or a reasonable apprehension of bias on the part of the trial judge.[51]

(2) The trial judge erred in preferring the evidence of the child's treating psychologist, Mr Cairns, over the evidence in a report of the school psychologist.[52]

(3) The trial judge erred by rejecting aspects of the evidence of the single expert witness, Mr De Rooster.[53]

(4) The trial judge erred by accepting evidence from the mother's treating psychologist, Ms Cherubino, as to the seriousness of the mother's mental health issues.[54]

(5) The trial judge erred in having regard to negative findings which Walters J had made about the father in his 2015 decision.[55]

(6) The trial judge erred in finding that it was in the child's best interests to live with the mother in Switzerland.[56]

(7) The trial judge erred in making findings in relation to breaches of court orders by the father.[57]

56 At the hearing of the appeal, the father confirmed that the above issues were the issues which he sought to raise by his grounds of appeal.

58 This court recently summarised the general principles governing allegations of bias and reasonable apprehension of bias in Ogbonna v CTI Logistics Ltd.[58] That summary is repeated below for ease of reference.

59 It is generally appropriate for an appellate court to deal with allegations of bias by a primary judge before dealing with other substantive issues in the appeal. This is because actual or apprehended bias strikes at the validity of the hearing and its outcome.[59] We will therefore deal with the allegation of bias before turning to deal with the other grounds.

60 A judge will be disqualified from hearing a matter on the basis of bias by prejudgment if it is established that the judge was 'so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented'.[60] However, it is unnecessary for the father to satisfy the heavy burden of proving actual bias on the part of the judge. It will suffice if there was a reasonable apprehension of bias, which 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.[61] 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.[62]

61 An inquiry about actual bias in the form of prejudgment requires assessment of the state of mind of the judge in question, ordinarily on the basis of what the judge has said and done.[63] As French J noted in Jia v Minister for Immigration and Multicultural Affairs:[64]

The onus of demonstrating actual bias lies upon an applicant for judicial review and it is a heavy onus. The fact that an applicant may have demonstrated that on the decision-maker's provisional views he has an uphill job to persuade him away from those views is not enough to demonstrate actual bias.

That is, as Kirby J noted in Minister for Immigration and Multicultural Affairs v Jia Legeng,[65] an allegation of actual bias is subject to a 'stringent standard of proof' and will only be upheld 'where the accusations are distinctly made and clearly proved' and, as in the case of allegations of reasonable apprehension of bias,[66] where it is 'firmly established'.

62 As this court recently noted in KWLD v The State of Western Australia,[67] the question of whether there has been a failure to comply with the rules of natural justice is not answered by reference to the outcome of the exercise of the relevant power. The principles of natural justice are not concerned with the merits of a particular exercise of power, but with the procedure that must be observed in its exercise. The focus of attention must therefore be on the position as it stood before the impugned decision was taken. Where apprehended bias is alleged, the reasons ultimately given for the impugned decision are not relevant to the objective assessment of whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues.[68]

63 There will be cases where comments made by a judge in the course of his or her reasons for decision give rise to a reasonable apprehension of partiality in the process which led to the decision. The decision of the Queensland Court of Appeal in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd provides an example of such a case.[69] However, there is a difference between apprehending bias in the decision‑making process from statements in a court's reasons which might suggest partiality, on the one hand, and apprehending bias merely from the outcome of the decision-making process. The mere fact that a reviewing court does not agree with the reasoning of the decision-maker, or regards such reasoning as illogical, irrational or even perverse, is not, in itself, sufficient to establish actual or apprehended bias.[70]

64 In the present case, as in Ogbonna, the father's submissions as to bias essentially turn on his strong disagreement with the outcome of the trial. The father does not advance any proper basis for this court to conclude that the judge was biased, or that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question she was required to decide.

65 The trial judge found that the school psychologist gave her evidence in a professional and helpful manner. However, the trial judge found that the school psychologist was not always balanced in giving her evidence and had a very blinkered and uncritically positive attitude about the benefits for the child of an education at the School.[71]

66 By contrast, the trial judge found that Mr Cairns gave his evidence in a professional and helpful manner and the judge had no hesitation in accepting his evidence.[72]

67 The evidence of Mr Cairns relating to the School was summarised by the trial judge in the following terms:[73]

Although Mr Cairns was careful not to be critical of [the School], he indicated that the [School] should have simplified [the child's] curriculum much earlier than it did. Indeed, the [School] did not take any steps to simplify [the child's] curriculum until Mr Cairns suggested it do so.

68 The trial judge also summarised the following evidence of Mr Cairns:[74]

Mr Cairns disagreed with the father's assertion that the mother was unfairly critical of [the School]. Rather, Mr Cairns considered that the mother simply questioned whether the [School] could have taken action earlier. Certainly, Mr Cairns' view was that the [School] could have and should have taken action much earlier than it did to simplify [the child's] curriculum and to better address the significant deficits in his foundational learning areas and skills.

69 The father submits that the school psychologist's two reports refer to significant steps which the School took to provide learning and behavioural support and individual education plans for the child. He submits that there was no criticism of the school psychologist made by either party at trial.[75]

70 In our view, no error has been demonstrated in the trial judge's approach. It was well open to the judge to accept the views expressed by Mr Cairns, who was the child's treating psychologist, as to the shortcomings in the School's approach to the child's special educational needs. The judge's conclusion that the school psychologist, who had worked at the School for a long time and was one of the persons charged with addressing those needs, had a blinkered view of the School is hardly contrary to compelling inferences. There was no error in the trial judge's approach.

Rejection of aspects of single expert's evidence

71 By consent orders made on 21 January 2018, the court appointed Mr De Rooster, a clinical psychologist, to be the single expert witness in the case in relation to the child and to report on matters specified in the consent orders. Mr De Rooster filed two reports, dated June 2018 and December 2019.[76]

Trial judge's assessment of single expert's evidence

72 The trial judge found that Mr De Rooster gave his evidence in a helpful and considered manner. However, the judge found it necessary to adopt a cautious approach to key aspects of Mr De Rooster's evidence because:[77]

(1) It became apparent during Mr De Rooster's cross‑examination that he had not been provided with the parties' respective affidavit material filed in preparation for the trial. Accordingly, neither parties' detailed proposal for the child's future care arrangements was before Mr De Rooster, including the information the mother had collated in respect of the support and services available to the child in the Swiss public education system, should the court permit relocation.

(2) Mr De Rooster specifically confirmed that he was not an expert in Swiss educational systems, and had not seen the detailed information published in respect of the support available for children in the child's circumstances should he attend a Swiss public school. Further, the judge considered that there were some question marks around Mr De Rooster's expertise in the educational field overall.

(3) Mr De Rooster did not attach importance to the sibling relationship, and made some comments that raised concerns that he harboured a bias against relocation.

73 The trial judge said that she was reinforced in her approach towards Mr De Rooster's evidence by the following comments of the Full Court of the Family Court of Australia in Albert & Plowman:[78]

Single experts, either by court appointment or consensual engagement by the parties, are called as witnesses because their qualifications and experience equip them to provide opinion evidence to the court which is relevant to the determination of the issues in dispute. But they are just witnesses. Their expert opinion evidence is not necessarily decisive of the dispute. Judicial power to decide the legal dispute rests in the hands of the trial judge, not the expert witness.

Additionally, expert witnesses are not witnesses of fact, except as to matters that they directly saw or heard, including for example, that which occurs during interviews they conduct. They express opinions by applying their qualifications and experience to certain factual assumptions. Their opinions can only ever be as reliable as the facts upon which they are premised. If, at trial, the facts assumed by the expert to be true are either not proven or are proven to be incorrect, then the opinion evidence will necessarily be compromised. Moreover, expert witnesses usually breach their remit if they are drawn into and express an opinion about the underlying factual conflict.

As was observed in this jurisdiction long ago (see Hall and Hall [1979] FamCA 73; (1979) FLC 90-713 at 78,819):

... There is no magic in a [single expert report]. A Judge is not bound to accept it and there should never be any suggestion that the [expert] is usurping the role of the court or that the Judge is abdicating his responsibilities...

While the [single expert's] views will normally have weight with the court because of his expertise and experience, the [expert] does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the [single expert]... (References omitted)

Those observations have been successively endorsed by the Full Court (see Carpenter & Lunn [2008] FamCAFC 128; (2008) FLC 93-377 at [226]- [227]; Friscioni & Friscioni [2010] FamCAFC 108 at [96]- [97]; Bostoi & Bostoi [2011] FamCAFC 132 at [40]- [44]; Whipp & Richards [2012] FamCAFC 11; (2012) 257 FLR 395 at [101]), but more importantly by the High Court of Australia, which confirmed a court hearing a dispute under Part VII of the Act is not bound to accept or reject the whole or any part of the evidence given by an expert witness (U v U [2002] HCA 36; (2002) 211 CLR 238 at 261).

Disagreement with opinions in Mr De Rooster's first report

74 The trial judge identified three aspects of Mr De Rooster's July 2018 report with which she did not agree.

75 First, the trial judge noted Mr De Rooster formed the view that, at that stage, the dispute between the parties did not appear to have had a significantly detrimental impact upon the child, as he presented with no significant developmental delays or behavioural concerns. Further, Mr De Rooster said that it appeared the parents were not placing the child in a position where he felt conflicted in his loyalty. The trial judge found these observations to be puzzling, given the clear evidence that the child had been displaying considerable behavioural issues in 2017 and 2018. The judge found that this view resulted from the father continually downplaying the extent of the child's behavioural problems and giving Mr De Rooster incorrect information about the child's education and behaviour.[79]

76 Secondly, the trial judge noted Mr De Rooster's opinion that both parties were able to recognize and adequately provide for the child's physical, social and psychological and emotional needs; and that both parents would facilitate the other's relationship with the child, and act protectively for him. Her Honour agreed with Mr De Rooster's conclusion in relation to the mother. In relation to the father, the trial judge observed:[80]

However, having had the benefit of observing the father during the trial, I do not agree with Mr De Rooster's opinion that the father is able to provide for [the child's] psychological and emotional needs, or that the father will facilitate the mother's relationship with [the child]. Rather, I am satisfied that: (1) the father failed to properly address [the child's] behavioural and learning issues, for fear that the mother would somehow gain an advantage in the litigation; and (2) the father behaved in a manner that was undermining of the mother's parenting role, including failing to keep the mother advised of [the child's] ongoing issues, providing misleading information about the mother to [the child's] school, and limiting her access to information[.]

77 Thirdly, the trial judge noted Mr De Rooster's opinion that there 'seems to be more risk than protective factors' in the proposed relocation of the child to Switzerland. Her Honour said that, having regard to her findings, she did not agree with Mr De Rooster's opinion in this regard.[81]

Disagreement with opinions in Mr De Rooster's supplementary report

78 The trial judge noted that, in his updated December 2019 report, Mr De Rooster had revised his views in relation to the child's behavioural and learning difficulties, and the impact of the parent's dispute upon the child.[82] Her Honour also noted:[83]

Mr De Rooster reported that he attempted to interview [the child] on two occasions, the first when accompanied by the mother, and the second when accompanied by the father. On both occasions [the child] did not want to be interviewed. Mr De Rooster instead had [the child] complete an 'incomplete sentences' task. Although Mr De Rooster considered that the completion of the two tasks indicated that [the child] had a preference for remaining in Australia, I am not so persuaded and consider that the tasks had little forensic value. (emphasis added)

79 The trial judge also noted that, while Mr De Rooster described both paternal grandparents as primary caregivers for the child from an early age, she was not satisfied that the paternal grandfather could be so described on the available evidence.[84]

80 The trial judge also did not accept the following aspect of Mr De Rooster's supplementary report:[85]

Mr De Rooster opined that it is helpful to [the child] (in light of his learning difficulties) to have three adults converse with him in English - being the medium of instruction, and noted that the paternal grandmother in particular had been closely involved in [the child's] education. However, given my concerns regarding Mr De Rooster's expertise in relation to educational issues generally, I preferred the (contrary) evidence of Mr Cairns regarding the issues that such an arrangement may cause [the child].

81 Mr Cairns' evidence had been summarised by the trial judge in the following terms:[86]

In terms of properly supporting [the child's] education (in light of his learning difficulties), the mother's counsel asked Mr Cairns about the impact on [the child] on having essentially three primary caregivers (the mother, the father and the paternal grandmother). Mr Cairns responded:

Well, look, the - the more - the more caregivers there are, the more information points there are, the more inconsistencies there has to be. ... And that - that just makes it tricky. And, like I said, he's got some catching up to do. He's got some remedial work to do.

82 The trial judge again expressed her disagreement with Mr De Rooster's assessment of the risks of relocating the child to Switzerland, in the following terms:[87]

Overall, Mr De Rooster again considered that there were more risks associated with the relocation to Switzerland, than there were protective factors. Again, having regard to my findings in these [reasons], I do not agree with Mr De Rooster's opinion in this regard.

83 The father essentially submits that the trial judge erred in rejecting Mr De Rooster's very strong opinion that the child should not relocate from Perth to Switzerland, and did not have a proper basis on the evidence for doing so.[88] He also contends that the trial judge erred in her Honour's understanding of the material provided to Mr De Rooster, and that all of the trial documents were provided by the father's solicitors to Mr De Rooster on a USB drive.[89]

84 There is no merit in the ground which contends that the trial judge erred in her understanding of the material provided to Mr De Rooster. The finding, noted above, was that Mr De Rooster did not have the parties' trial affidavits. Mr De Rooster confirmed that to be the case in his evidence, and also indicated that he had not received a USB from the father's solicitors.[90]

85 The trial judge was not bound to accept Mr De Rooster's opinion as to whether relocation was in the child's best interests. Her Honour explained her reasons for adopting a different position which were rationally based in the evidence, and it was for her Honour to form her own view as to what was in the child's best interests based on all of the evidence, including the expert evidence. That approach was consistent with the approach described by the Full Family Court in the passage from Albert & Plowman quoted at [73] above. We are unable to perceive any appellable error in the trial judge's approach.

86 In oral submissions, the father contended that the question of the sibling relationship and the Swiss education system stood outside the scope of the report sought from Mr De Rooster by the consent orders. He contended that, in these circumstances, it was an error for the trial judge to have discounted Mr De Rooster's opinion by reason of his failure to address these matters. The father contends that reference to sibling relationships was specifically deleted from the consent orders.

87 The deletion to which the father refers was in a consent order that Mr De Rooster report on the likely impact of the child relocating to Zurich or remaining in Perth 'on the child, and the child's relationship with each parent and any other significant people including but not limited to siblings'. This deletion, however, did not exclude Mr De Rooster from reporting on the child's relationship with his half‑sister who was clearly an 'other significant' person in the child's life. In any event, the trial judge was entitled to take account of the omission of certain information from Mr De Rooster's report even if that omission resulted from the scope of the reporting required by the consent orders. Even if Mr De Rooster is not to be criticised for the omission, the omission may still legitimately affect the court's assessment of the weight to be given to his opinions.

Accepting psychologist's evidence as to the mother's mental health issues

88 The trial judge accepted the evidence contained in a report and oral evidence of Ms Cherubino, a clinical, counselling and forensic psychologist, with whom the mother had consulted. Ms Cherubino's evidence indicated that the mother described symptoms consistent with anxiety and depression, but rebutted the suggestion by the father's counsel that the mother was seriously mentally unwell from time to time.[91]

89 The father's submissions fail to point to any valid reason why it was not open to the trial judge to accept Ms Cherubino's evidence. The closest he comes is to contend that Ms Cherubino was not a court‑appointed expert but simply a witness called by the mother at trial. However, Ms Cherubino was a qualified psychologist who had been treating the mother since February 2016 and whose evidence was uncontradicted. It was well open to the trial judge to accept Ms Cherubino's evidence as to the nature and significance of the mother's mental health issues.

90 Section 202L(3)(b) of the Family Court Act 1997 (WA) (Act) provides that a court may, in child-related proceedings, adopt any finding of the court made in other proceedings. The trial judge exercised this power in a limited way, making findings as to historical matters for contextual purposes. We are not persuaded that the trial judge erred in doing so.

Child's best interests were to live with the mother in Switzerland

91 We turn to consider whether the trial judge erred in the exercise of her Honour's discretion to make parenting orders as to where and with whom the child should live.

92 Section 66 of the Act identifies the objects of Part 5 of the Act and the principles underlying it.

93 Section 66A of the Act provides that, in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration (see also s 86A of the Act).

94 Section 66C of the Act provides for the matters which a court must consider in determining what is in a child's best interests. A relevant primary consideration, under s 66C(2)(a), is the benefit to a child of having a meaningful relationship with both of the child's parents. Section 66C(3) identifies a number of additional considerations to which the court must have regard.

95 Section 68 defines 'parental responsibility', in relation to a child, to mean all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Section 69(1) provides that each of the parents of a child who is under 18 years of age has parental responsibility for the child. Under s 70 of the Act:

(1) A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.

(2) A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any) -

(a) expressly provided for in the order; or

(b) necessary to give effect to the order.

96 Section 70A(1) of the Act provides that, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. Section 70A(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

97 Section 84 of the Act relevantly defines a 'parenting order' to include an order dealing with the person or persons with whom a child is to live, the time a child is to spend with another person or other persons and the allocation of parental responsibility for a child.

98 Section 89(1) of the Act provides that, in proceedings for a parenting order, a court may, subject to certain matters, make such parenting order as it thinks proper.

99 It is well recognised that parenting orders made under the Act involve the exercise of a judicial discretion, to be exercised by reference to the paramount consideration of the best interests of the child, which in turn involves an overall assessment of a number of other considerations which are either statutorily prescribed or considered by the court to be relevant. Such orders can be set aside only on a strictly limited basis in accordance with House v The King:[92]

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 [or she] allows extraneous or irrelevant matters to guide or affect him [or her], if he [or she] mistakes the facts, if he [or she] does not take into account some material consideration, then his [or her] determination should be reviewed and the appellate court may exercise its own discretion in substitution for his [or hers] if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his [or her] 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.

100 The father's numerous grounds and submissions challenging the exercise of the trial judge's discretion to make the parenting orders in this case do not engage with these limits of appellate review. The father does not appear to challenge the conclusion that the presumption of equal parenting responsibility was rebutted, and that the available choices for the trial judge were to order the child to either live with his mother in Zurich or his father in Perth. The complaint rather concerns the judge's conclusion that it was in the best interests of the child to live in Zurich rather than Perth.

101 Ultimately, it seems to us that the effect of the father's grounds and submissions is merely to express strong disagreement with the trial judge's decision and to emphasise certain aspects of the case which, at best, might tend to favour an order for the child to reside in Perth. Even if we would have been inclined to make a different order had we been the primary court, that would not be sufficient grounds to interfere with the exercise of the discretion invested in the trial judge. The father's grounds and submissions do not establish any arguable error of legal principle committed by the trial judge. The judge's careful and thorough reasons provide a cogent explanation of why she concluded that it was in the best interests of the child to relocate to Switzerland. The trial judge's decision cannot, even arguably, be characterised as unreasonable or plainly unjust so as to give rise to an inference of error.

Findings as to father's breaches of court orders

102 The trial judge found that the father breached the order made in 2015 providing for the child to be enrolled in a regular German language programme to facilitate his use of that language, with the intention that the mother undertake the enrolment and with the costs to be met equally by the parties. The judge concluded, having observed the father under cross-examination, that he well understood the terms of the 2015 final orders, but he was simply not prepared to comply as it did not suit him.[93]

103 The father challenges this finding, contending that the trial judge erred in failing to find that the parties negotiated a variation to the order. The father contends that the finding was prejudicial to him, and involved a denial of procedural fairness. The father refers to material which he says formed part of the mother's disclosure documents, but which was not adduced as evidence.

104 The father has not demonstrated that the trial judge's finding was in error on the evidence before the primary court. The conclusion was reached by reference to contemporaneous communications between the parties and the terms of the orders, as well as the trial judge's observations of the father giving evidence.

105 The father also faces the hurdle that the finding he seeks to impugn is a credibility-based finding of primary fact. In the case of a finding that is based, at least to any substantial degree, on an assessment of the credibility of one or more witnesses, an appellate court will not interfere with the finding unless it is demonstrated to be wrong by reference to incontrovertible facts or uncontested testimony, or because the finding is glaringly improbable or contrary to compelling inferences, or because the trial judge failed to use, or has palpably misused, their advantage as trial judge.[94] That has not been established in the present case.

106 The father does not advance any cogent reason why the finding was made in breach of the requirements of procedural fairness.

107 The father also challenges what he contends is a finding that he was required to return the child to the mother in September 2013. He contends that this finding was not supported by the evidence or the findings made by Walters J in his 2015 reasons.

108 In our view, the trial judge did not make the finding contended for by the father. Her Honour's relevant observations in relation to what occurred in September 2013 were in the following terms:[95]

[Walters J] was also critical of the father's actions in retaining [the child] in Australia in September 2013, and considered the father gave little thought, or little weight, to the fact that such course of action would effectively deprive [the child] of his primary carer.[96]

...

The father collected [the child] and they travelled to Perth on 26 September 2013.

Notwithstanding the mother's attempts to have [the child] returned to Switzerland, he continued to live in Perth.[97] Walters J found that, until December 2013, the mother understood that the father would be travelling to Europe with [the child] in or about March 2014, and thereafter [the child] would remain in her care.[98] His Honour also found that the father had no intention of travelling with [the child] to Europe in March 2014.[99]

109 The first sentence quoted above, considered in isolation, arguably is in terms which do not properly reflect Walters J's finding, which was critical of the father's intention to permanently retain the child in Australia after they returned in September 2013. The parties had agreed that the child would stay in Australia for a period beginning from September 2013. However, that fact is apparent from the remainder of the reasons of the trial judge quoted above. When the reasons are read as a whole, it cannot be concluded that the trial judge erred in understanding the findings made by Walters J.

110 In any event, on no reasonable construction of the trial judge's reasons did her Honour find that the father retained the child in Australia after September 2013 in contravention of court orders.

111 The parties have made the following applications in the appeal, which have been referred to the hearing of the appeal.

112 By application in an appeal filed on 19 November 2020, supported by the father's affidavit sworn 16 November 2020, the father in effect seeks leave to adduce additional evidence in the appeal relating to:

(1) the mother's application for costs in the primary proceedings, which was made after the primary orders and which was ultimately dismissed;[100] and

(2) the mother's application in the primary proceedings varying the primary orders in response to the COVID-19 pandemic (variation application), which was ultimately granted on 13 July 2020 to the extent that the order for the child to spend the 2020 Swiss summer holiday period in Perth was suspended.[101]

113 By application in an appeal filed on 11 January 2021, supported by an affidavit of Mr Clarke sworn 23 December 2020, the mother applies to adduce further additional evidence in the appeal in the event the father is permitted to adduce the evidence referred to at [112](2) above. In that event, the mother seeks to adduce her affidavit sworn in the primary proceedings on 7 July 2020, in support of the variation application in the primary proceedings.

114 By a second application in an appeal filed on 19 November 2020, supported by a second affidavit sworn by the father on 16 November 2020, the father in effect seeks to adduce the following additional evidence in the appeal:

(1) a bundle of documents disclosed by the mother but not tendered at trial relating to communications between the mother and the child's school in 2017, 2018 and 2019; and

(2) a bundle of documents disclosed by the mother but not tendered at trial relating to electronic communications between the father and mother from 2016 to 2019.

115 By an affidavit of the mother's solicitor, Mr Clarke, sworn on 30 November 2020, the mother seeks to adduce evidence as to the manner in which the documents referred to at [114] above were disclosed prior to trial.

116 Unless error is demonstrated, there is no basis to admit the additional evidence about the events following the primary orders, which could only be relevant if this court was required to re-exercise the discretion taking account of current circumstances. As we have concluded that no error has been established in the trial judge's exercise of discretion based on the evidence before the trial court, the applications in an appeal should be dismissed to the extent that they seek to adduce evidence of events occurring after the primary orders were made.

117 Further, the father has not advanced any proper basis for this court to admit additional evidence which was available to the father prior to the trial but which was not tendered in evidence at the trial. We would receive the affidavit of Mr Clarke sworn 30 November 2020 which deposes that the documents referred to at [114] above were disclosed prior to trial. However, the applications in an appeal should be dismissed to the extent that they seek to adduce evidence of documents which were the subject of pre-trial disclosure by the mother to the father but which the father's counsel did not seek to tender at trial.

118 For the reasons explained above, there is no merit in any of the father's grounds of appeal. The appeal should be dismissed.

119 We would make the following orders in the appeal:

(1) The appellant's applications in an appeal filed on 19 November 2020 are dismissed.

(2) The respondent's application in an appeal filed on 11 January 2021 is dismissed.

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

[1] [G] v [W] [2020] FCWA 66 (Primary decision).

[2] See Primary decision [32] - [47].

[18] Primary decision [98] - [102].

[21] Primary decision [107] - [113].

[24] Primary decision [127] - [128].

[25] Primary decision [129] - [134].

[28] Primary decision [134], [141].

[29] Primary decision [143] - [144].

[30] Primary decision [145] - [146].

[31] Primary decision [147] - [149].

[32] Primary decision [151] - [152].

[38] Primary decision [167] - [168].

[40] Primary decision [170] - [171], [175] - [178].

[41] Primary decision [172] - [173].

[42] Primary decision [179] - [181].

[43] Primary decision [182] - [185].

[44] Primary decision [186] - [188].

[50] Primary decision [197] - [203].

[51] Grounds A(2), D(1), D(3), D(4), E(2), M(2).

[56] Grounds D(5), D(6), E(3), E(4), E(5), F, G, I, J, K, L, M(1), M(3), and M(4).

[58] Ogbonna v CTI Logistics Ltd [2021] WASCA 25 [22] - [27].

[59] See Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 [2] - [3], [117], recently applied in Jorgensen v Fair Work Commission [2019] FCAFC 113; (2019) 271 FCR 461 [93] and Charisteas v Charisteas [2020] FamCAFC 162; (2020) 354 FLR 167 [4], [123].

[60] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [72] (Gleeson CJ and Gummow J).

[61] 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] ‑ [60].

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

[63] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [33].

[64] Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87, 106, a judgment approved by members of the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng [72], [82].

[65] Minister for Immigration and Multicultural Affairs v Jia Legeng [127].

[66] See R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546, 553 - 554.

[67] KWLD v The State of Western Australia [2020] WASCA 94 [104].

[68] Michael Wilson & Partners [33], [67] - [68].

[69] Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2019] QCA 184; [2019] 2 Qd R 271 [77] - [102]. While this decision was overturned on appeal, the High Court did not doubt the Queensland Court of Appeal's reasoning as to apprehended bias: see Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2. It is unnecessary to address the question of whether Sofronoff P was correct, at [103], to regard the fact that the member determined some issues in favour of a party as relevant in that case.

[70] Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 [99] (per Kirby J). While Kirby J's observations were made in relation to the review of administrative decisions, they apply equally to allegations of actual bias by a judge.

[75] Appellant's submissions, par 1 - 5.

[78] Albert & Plowman [2020] FamCAFC 23 [19] - [22], quoted in Primary decision [29].

[79] Primary decision [119] - [120].

[82] Primary decision [153] - [155].

[92] House v The King (1936) 55 CLR 499, 504 - 505, applied in Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662 [31] - [33].

[93] Primary decision [19](c), [48](i) - [52].

[94] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [28] ‑ [29]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43].

[95] Primary decision [15](d), [47](j) - (k).

[96] [G] v [W] [2015] FCWA 34, [137] (2015 decision).

[100] See [G] v [W] [2020] FCWA 186 (Costs decision).

[101] See [G] v [W] [2020] FCWA 131 (Variation decision).