House v The King

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

1. On 24 December 2024 a judge of the Federal Circuit and Family Court of Australia (Division 2) made an order in the following terms:
   1. Despite any previous orders, as and from the date of this Order, the mother [Ms Burns] is permitted to take or send the children [B] (born...2009) and [C] (born...2010) to a place outside of Australia.

1. Standard orders were made removing the children from the Airport Watchlist.
2. The purpose of the order was to allow the eldest child to travel overseas as part of a school exchange program.
3. The father has appealed against the making of Order 1.
4. Previously, on 24 May 2019, final orders were made for the children to live with the mother, who was to have sole parental responsibility for them. The orders provided for the children to spend substantial time with the father.
5. Order 17 of those orders provided for the children to travel overseas on the condition the travelling parent gave "not less than 28 days written notice to the other parent of the intended travel with the children (or child), including details of the intended itinerary, departure and return details, and any emergency contact details".
6. It is clear that in 2024 there had been some correspondence between the parties as to a proposed school exchange involving the eldest child.
7. On 17 December 2024, the father filed an Initiating Application seeking to vary the May 2019 orders. One variation sought was that he have sole parental responsibility for the children. The filing of that application triggered the placement of the children on the Airport Watchlist.
8. The effect of that was Order 17 effectively became otiose whilst the children remained on the watchlist.
9. On 18 December 2024, the mother filed an Application in a Proceeding seeking an order that the eldest child be permitted to travel overseas in early 2025 for the purpose of a school exchange program.
10. The matter came before the Court urgently and the orders identified earlier were made.

1. The appeal is from a discretionary order and falls to be determined according to the following principles set out by the High Court in House v The King (1936) 55 CLR 499 ("House v The King") (at 504-505):

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

1. The headings used by the father in his Summary of Argument largely did not match his grounds of appeal. I have therefore followed those in the Summary of Argument. However, the main complaint is that, notwithstanding orders permitting the children to travel overseas, Order 17 should have been retained so as to require the mother to provide to the father notice of intention to travel including the intended itinerary, departure and return dates, and emergency contact details.
2. He raised this point in his written submissions given to the primary judge and in his affidavit filed 20 December 2024 which expanded on those points. The primary judge dealt explicitly with that argument:

19 The information that the father is conditioning his consent on includes:

(a) Intended Itinerary (including departure and return dates as well as arrival and departure details of the overseas exchange student in Australia)

(b) Who will be accompanying [the eldest child] during any planned flights & other travel?

(c) Who would be supervising [the eldest child] whilst overseas and who would she be living with and their contact details?

(d) Do they have Working with Children Checks in place (or equivalent applicable in that country)?

(e) What school is [the eldest child] supposed to be attending and their contact details?

(f) What are the intended arrangements for [the youngest child] during [the eldest child's] overseas trip?

(g) What plans are in place for [the eldest child] to communicate with her family (including me) in Australia whilst she is overseas?

1. There is nothing in the above that jeopardizes the safety or welfare of [the eldest child] if it was not provided to the father. There is overwhelming contemporaneous and independent evidence that the father does not have a relationship with [the eldest child] or the mother where this kind of information being provided to the father is necessary or helpful for [the eldest child]. There are extant orders providing for the mother to have sole parental responsibility for [the eldest child].
2. I find that the father's conduct and the intensity with which he seeks to prosecute orders that would on any objective perspective psychologically harm [the eldest child], cause major mental distress to [the eldest child] and financially harm to the mother is of grave concern.

1. It is interesting to note that the information sought by the father went beyond that provided for by Order 17. I invited the father to identify the error contained in [20] and [21] and his answer was essentially to raise points that he already raised generally in his Notice of Appeal and Summary of Argument. The main complaints are that the primary judge did not have regard to the parental alienation undertaken by the mother; that Ms H, the therapeutic counsellor and on whom the primary judge relied in part, was unqualified and biased; and that the primary judge did not have regard to a vast range of historical material.
2. Much of that, particularly the alienation, is simply the father's say so. He was not able to direct me to any evidence that was before the primary judge that demonstrated this to exist. However, the critical finding at [20] is that the father does not have a relationship with the eldest child or the mother such that the kind of information sought is not helpful for the eldest child. Even if the cause of that is alienation, the task of primary judge is to make orders in best interest of the child as she presently is. The submissions of the father were essentially that another order could or should have been made. As House v The King explains, that is insufficient to establish error.

1. The father submitted that he was denied natural justice by the speed in which the matter came before the Court.
2. He tells me that he sought an adjournment administratively by an email to the primary judge's chambers the evening before the hearing, which was refused. None of that is in the appeal book but assuming it to be so, it is not to the point. Litigation is not conducted by email with court staff and the father did not raise the point with the primary judge at the hearing. He did not complain about not being ready and, in fact, had filed detailed written submissions and presented evidence and oral submissions.
3. There was no denial of procedural fairness.

Did the primary judge act on an erroneous principle?

1. The first submission made by the father was that the primary judge's reasons imply that the 24 May 2019 orders required the children to have counselling with Ms H. They did not - all his Honour said was that orders were made referring to Ms H and therapeutic counselling, which is correct.
2. Further, any error of this tiny magnitude, even if established, could not possibly have affected the outcome.
3. The father submitted that a letter from Ms H relied upon by the primary judge was inadmissible under s 10D and s 10E of the Family Law Act 1975 (Cth) ("the Act") as well as on the basis already mentioned of the lack of impartiality and qualifications.
4. These "objections" were taken in his affidavit but were not pursued at the hearing. It is not surprising then that the primary judge did not deal with them. He would be entitled to presume they had been abandoned. However, as I have said, in any event, there is no evidence of a lack of impartiality. Again, it is simply the father's say so.
5. Ms H is a qualified social worker. How far that expertise extends is not something that needs to be explored for the present purposes because the essential part of the evidence relied on by his Honour consists of a direct observation made by Ms H, rather than expert opinion. It is only the latter that requires expertise. This is established by the following from his Honour's reasons which contains the only reference to Ms H's evidence:
   1. There is a letter from the therapist [Ms H] dated 15 November 2024 which is very cogent and contemporaneous evidence as to what the mother understates in her affidavit that the girls do not feel safe in the father's presence even with the therapist present. For the purposes of this application, with respect to the [late] 2024 session:

He presented as very emotionally heightened at the beginning of the session and despite several attempts to redirect [the father] to ask questions rather than ranting at his daughters, [the father] was not able to contain his emotions enough to focus on their needs. "Why don't you ask [the eldest child] about her upcoming camp?" When [the eldest child] started to answer, [the father] interrupted her by returning to repeat his rant about how it was unfair that he has not seen them and that he is being denied important information. His agenda dominated, as [the father] became more enraged, he threatened [the eldest child] that if she did not agree to see him at contact then he would stop her attending her international school trip. Both girls become distressed by [the father's] behaviour.

1. As far as the sections of the Act go, the evidence does not establish Ms H was a family counsellor within the definition provided by s 10C of the Act, so the sections do not apply.
2. The next complaint is that the orders made were wider than those sought by the mother. That is so.
3. At [23] his Honour said:

I see no reason why the orders ought to be limited to only [the eldest child] and only to her impending travel. The mother has sole parental responsibility and has demonstrated appropriate exercise of judgment with respect to overseas travel in the circumstances of this application and need not be forced into further proceedings in the future by the father.

1. The transcript makes it clear that before the order was made, it was specifically raised with the father who was asked to make submissions. The father then proceeded to do so and suggested a time limit on the length of time the children should be overseas. The primary judge acknowledged the submissions but made the order in the form he had foreshadowed.
2. There was no procedural unfairness. A judge is entitled to formulate and make parenting orders beyond those proposed by the parties provided they are given the opportunity to address them (U v U [2002] HCA 36; (2002) 211 CLR 238).
3. The next submission is that the order is not "in alignment with [s 60CC]" of the Act as the order is effectively a relocation order and would adversely affect the maintenance of a relationship between the children and the father.
4. The primary judge said this was not a relocation order (Transcript 24 December 2024, p.8 lines 6-7). Whilst the order as it stands could permit a permanent move overseas, there was no evidence before the primary judge, or indeed before me, that such a relocation was likely or even in contemplation. There was no suggestion the mother has links to any other country. However, the test remains the same whatever the nature of a parenting case - namely, what orders are in the children's best interests.
5. The primary judge found that the eldest child would likely suffer "serious psychological harm" if she was not allowed to participate in the exchange program (at [16]). There was no suggestion any other s 60CC was relevant apart from that already raised which is the relationship with the father. However, it appears from what I was told by the father this morning that he has not seen the children since late 2023. It is not necessary for there to be a formulaic recital of each s 60CC factor. It is only necessary to deal with those relevant to the issues (SCVG & KLD [2014] FamCAFC 42; (2014) FLC 93-582; Willmore & Menendez [2022] FedCFamC1A 73 at [93]; Quintana & Konigsmann [2025] FedCFamC1A 30 at [46]).
6. Likewise, the primary judge's consideration of the father's submissions concerning alienation were also an application of s 60CC. His Honour was not obliged to accept them and the mere failure to do so is not an error.

Did the primary judge allow extraneous or irrelevant material?

1. The submissions under Ground 3 are a litany of complaints against Ms H. The primary judge, as I have explained, relied on just one paragraph of a letter from her which was primarily descriptive of the behaviour of the father and the children before her.
2. The primary judge contrasted that with the father's evidence and concluded:
   1. What is deposed at paragraph 9 is in stark contrast to what the therapist said in her letter dated 15 November 2024 and is evidence of precisely what the therapist is observing about the father's inability to recognise the children's needs let alone provide for them or prioritise them over his own.
3. Again, the father's submissions to his Honour were simply to the effect that Ms H was not impartial and is an agent of the mother. There is no evidence as to either. Mere assertion is not sufficient, and it is not surprising that this argument was not accepted.

Did the primary judge fail to consider material considerations?

1. The submissions under Ground 4 were wide ranging indeed, referring to reports and evidence going back as far as 2015. Much of this material was not before the primary judge and indeed his Honour declined to accept much of it, correctly saying the content of it appeared to have little or no relevance to the issue before him. I am not satisfied it is of any relevance to the disposition of this appeal.

1. Ground 5 is an allegation that the primary judge was biased because of comments made during the hearing (which were not specified in the Summary of Argument), his failure to accept the father's submissions, his failure to consider material (much of which was not before his Honour) and the making of an erroneous decision.
2. These matters simply indicate a judge doing his or her job, which is to decide between competing positions. Merely because one side's contentions are not accepted does not demonstrate bias.
3. The test for actual bias requires the appellant to show that the judge's mind is "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented" (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]). Such a finding should not be made lightly (Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[74]).
4. The material goes nowhere in seeking to establish actual bias.

1. There is no merit in any of the grounds of appeal or the initial matter raised today, and the appeal is dismissed.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge.